South Carolina-Columbia Lease - Frastacky (US) Properties LP and Select Comfort SC Corp.
LEASE
--------------------------------------------------------------------------------
FRASTACKY (US) PROPERTIES LIMITED PARTNERSHIP
AS LANDLORD
-AND-
SELECT COMFORT SC CORPORATION
AS TENANT
--------------------------------------------------------------------------------
PREMISES:
COLUMBIA, SOUTH CAROLINA
DATE: SEPTEMBER 19, 2002
<PAGE>
TABLE OF CONTENTS
1. Definitions ................................................................1
2. Demise .....................................................................3
3. Term .......................................................................4
4. Rent .......................................................................4
5. Payment of Impositions .....................................................6
6. Use and Operation of Property ..............................................7
7. Surrender of the Property; Holding Over ....................................8
8. Repairs and Maintenance ....................................................9
9. Compliance with Laws ......................................................10
10. Insurance .................................................................11
11. Damage or Destruction by Fire or Other Casualty ...........................13
12. Tenant Alterations ........................................................16
13. Discharge of Liens ........................................................17
14. Condition of and Title to Property ........................................18
15. Entry on Property by Landlord .............................................19
16. Condemnation ..............................................................19
17. Memorandum of Lease .......................................................22
18. Estoppel Certificates .....................................................23
19. Assignment and Subletting .................................................23
20. Indemnification; Subrogation ..............................................24
21. Default Provisions ........................................................25
22. Invalidity of Particular Provisions .......................................29
23. Notices ...................................................................29
24. Quiet Enjoyment ...........................................................29
25. Landlord's Right to Perform Tenant's Covenants ............................29
26. Landlord's Right to Mortgage, Sell or Assign Rents ........................30
27. Subordination and Non-Disturbance .........................................31
28. Provisions Deemed Conditions and Covenants ................................31
29. Reference to Termination ..................................................31
30. No Waste ..................................................................31
31. Captions and Construction .................................................31
32. No Partnership or Joint Venture ...........................................32
33. Oral Change or Termination ................................................32
34. Successors and Assigns ....................................................32
35. Governing Law .............................................................32
36. Limitation of Liability ...................................................32
37. Unavoidable Delays ........................................................33
38. Financial Statements ......................................................33
39. Security Deposit ..........................................................33
40. Release of Parcel B .......................................................34
SCHEDULE A - Legal Description of Demised Premises .................................36
<PAGE>
THIS LEASE ("Lease") is made as of the 19th day of September 2002, by and
between FRASTACKY (US) PROPERTIES LIMITED PARTNERSHIP, a Georgia limited
partnership, having an office at 130 Bloor Street West, Suite 1200, Toronto,
Ontario M5S 1N5 Canada ("Landlord"), and SELECT COMFORT SC CORPORATION, a
Minnesota corporation, having an office at 6105 Trenton Lane North, Minneapolis,
MN 55442 ("Tenant").
WITNESSETH:
1. DEFINITIONS. In addition to other terms which may be defined herein,
the following terms shall have the meanings set forth in this Article 1 unless
the context otherwise requires:
1.1 "Additional Rent" shall have the meaning set forth in
Section 4.5.
1.2 "Building" shall mean the warehouse / manufacturing
facility of approximately 105,000 total square feet located on the Land.
1.3 "Commencement Date" shall mean March 1, 2003.
1.4 "Demised Premises" shall mean the Land and the
Improvements.
1.5 "Event of Default" shall have the meaning set forth in
Article 21.
1.6 "Expiration" and "Expiration Date" shall mean the date
upon which this Lease actually expires or terminates, whether at the end of the
Term or upon any earlier termination hereof for any reason whatsoever.
1.7 "First Mortgage" shall mean any first mortgage lien which
now or hereafter encumbers Landlord's fee interest in the Property, together
with any increase, renewal, modification, consolidation, replacement or
extension thereof.
1.8 "Fixed Rent" shall have the meaning set forth in Section
4.1.
1.9 "Governmental Authorities" shall mean all federal, state,
county, municipal, town, village, and local governments, and all departments,
commissions, boards, bureaus, agencies, offices, and officers thereof, having or
claiming jurisdiction over all or any part of the Property or the use thereof.
1.10 "Impositions" shall mean all duties, taxes, water and
sewer rents, rates and charges, assessments (including all assessments for
public improvement or benefit), charges for public utilities, excises, levies,
license and permit fees, sales tax on rent, commercial rent tax, gross receipts
tax based on rent, fees and assessments imposed by any owners' association and
other charges, ordinary or extraordinary, foreseen or unforeseen, of any kind
and nature whatsoever, which prior to or during the Term have been or may be
laid, levied, assessed or imposed upon or become due and payable out of or in
respect of, or become a lien on, the Property, Tenant's Personal Property or any
other property or rights included in the Property, or
1
<PAGE>
any part thereof or appurtenances thereto, or which are levied or assessed
against the rent and income received by Tenant from the Property, by virtue of
any present or future law, order or ordinance of the United States of America,
the State or of any state, county, city or local government or of any
department, office or bureau thereof or any other Governmental Authority.
1.11 "Improvements" shall mean the building and improvements
located on, over or under the Land, including, without limitation, the Building
and all replacements thereof and additions thereto, all walkways, parking and
road improvements of whatever nature, utility and sewage lines (to the extent of
Landlord's interest therein) and all apparatus, machinery, devices, fixtures,
appurtenances and equipment necessary for the proper operation and maintenance
of the foregoing now owned by Landlord or hereafter acquired by Tenant pursuant
hereto and attached to and used in connection with the Building and the Land.
1.12 "Land" shall mean Parcel A containing 15.665 acres and,
until released as hereinafter provided, Parcel B containing 16.110 acres in
Richland County, South Carolina, containing a total of 31.775 acres and the
easements relating thereto, said parcels being collectively described in
SCHEDULE A annexed hereto and incorporated herein by reference.
1.13 "Law" or "Laws" shall have the meaning set forth in
Article 9.
1.14 "Lease Date" shall mean the date on which this Lease is
executed and delivered by Landlord and Tenant.
1.15 "Lease Interest Rate" shall mean the lesser of (a) the
highest lawful rate which at the time may be charged by Landlord to Tenant under
the Laws of the State or (b) 11% per annum.
1.16 "Lease Year" shall mean the twelve (12) calendar month
period commencing on the Commencement Date and thereafter on the anniversary
date of the Commencement Date.
1.17 "Permits" shall have the meaning set forth in Article 9.
1.18 "Permitted Encumbrances" shall mean those certain liens,
easements, rights of way and other encumbrances of record in the Office of the
Register of Deeds for Richland County, South Carolina.
1.19 "Person" shall mean and include any individual,
corporation, partnership, unincorporated association, trust, Governmental
Authority, or other entity.
1.20 "Primary Term" shall have the meaning set forth in
Article 3.
1.21 "Property" shall mean the Demised Premises.
1.22 "Provisions" shall have the meaning set forth in Article
28.
2
<PAGE>
1.23 "Renewal Term" shall mean the five (5) year period
commencing at the end of the Primary Term provided Tenant has duly exercised its
renewal option.
1.24 "Repairs" shall have the meaning set forth in Article 8.
1.25 "State" shall mean the State of South Carolina, the state
in which the Demised Premises are located.
1.26 "Tenant Alterations" shall mean each and every (a)
demolition of the whole or any part of any Improvement now or hereafter erected
upon the Land; (b) excavation at any time made or to be made in, on or about the
Demised Premises; (c) repair, addition, betterment, improvement rebuilding made
of, to, in, on or about the Property or any part thereof; and (d) construction
of any additional Improvements upon the Land.
1.27 "Tenant's Architect" and "Tenant's Engineer" shall mean,
respectively, a duly qualified architect and engineer, licensed in the State,
selected and paid by Tenant.
1.28 "Tenant's Personal Property" shall mean (a) all items
which would otherwise constitute part of the Improvements if the same are owned
by third parties and leased to Tenant, (b) Tenant's trade fixtures and (c) all
other items of personal property purchased or otherwise acquired by Tenant,
except in discharge of Tenant's obligations hereunder.
1.29 "Term" shall mean and include the Primary Term and, where
the context requires, the Renewal Term.
1.30 "Unavoidable Delays" shall mean causes or events which
are beyond a party's reasonable control which prevent such party's performance
under this Lease which events may include: acts of God, fire, earthquake, flood,
storm, explosion, war, invasion, insurrection, civil commotion, embargo, riots,
mob violence, vandalism, lockouts, strikes, sabotage, picketing, inability to
procure or general shortage of labor, equipment, facilities, supplies or
materials, failure of transportation, litigation, condemnation, requisition,
governmental restriction, including inability or delay in obtaining governmental
consents or approvals, weather delays, or any other cause, whether similar or
dissimilar to the foregoing, not within such party's control; provided
reasonably satisfactory evidence of the occurrence of each instance thereof
shall be furnished by the party claiming Unavoidable Delays to the other party.
2. DEMISE. Landlord, for and in consideration of the rents hereinafter
reserved by Landlord and the Provisions herein contained on the part of Tenant
to be paid, kept and performed, has leased, rented, let and demised, and by
these presents does hereby lease, rent, let and demise to Tenant, and Tenant
does hereby take and hire from Landlord, the Property, upon and subject to the
Provisions herein set forth.
TOGETHER with all right and interest, if any, of Landlord in and to the
land lying in the streets and roads in front of and adjoining the Demised
Premises and in and to any easement appurtenant to the Demised Premises.
SUBJECT, however, to the following:
3
<PAGE>
2.1 Any state of facts an accurate survey or inspection of the
Property may show.
2.2 Present and future building, environmental, zoning, use
and other laws of all Governmental Authorities.
2.3 All violations of Laws that might be disclosed by an
examination, inspection or search of the Property or any part thereof by
Governmental Authorities.
2.4 Covenants, restrictions, easements (including any
reciprocal parking easements and common area maintenance charges), agreements,
conditions and party wall agreements, if any, affecting the Demised Premises.
2.5 The condition and state of repair the Property or any part
thereof may be in at the Commencement Date, subject to the Landlord's
obligations to rebuild the roof.
2.6 Rights, if any, of others relating to water, gas, sewer,
electric, telephone and other utility lines, wires, poles, pipes, conduits and
other equipment of any kind whatsoever and the maintenance thereof.
2.7 Liens for Impositions not yet due and payable.
2.8 The Permitted Encumbrances.
3. TERM. TO HAVE AND TO HOLD the Property unto Tenant, its legal
representatives, successors and assigns, for a Primary Term commencing on the
Commencement Date and ending at 11:59 pm on the day preceding the fifth (5th)
anniversary thereof, unless sooner terminated as herein provided. Tenant may
renew the Term hereof one time for the Renewal Term provided that no Event of
Default exists. No renewal hereunder shall be effective unless Tenant gives
written notice to Landlord of its election to renew not later than one hundred
eighty (180) days prior to the expiration of the Primary Term. If Tenant fails
to timely give notice of renewal this Lease shall terminate on the last day of
the Primary Term.
4. RENT.
4.1 During the Primary Term and commencing on the Commencement
Date, Tenant covenants and agrees to pay to Landlord rent for the Property
("Fixed Rent") as follows: During the Primary Term at the annual rate of $3.50
per square foot for 105,000 square feet, which is Three Hundred Sixty-seven
Thousand Five Hundred Dollars ($367,500.00) per annum payable in equal monthly
installments of Thirty Thousand Six Hundred Twenty-five Dollars ($30,625.00)
each. During the Renewal Term at the rate of $3.75 per square foot for 105,000
square feet, which is Three Hundred Ninety-three Thousand Seven Hundred Fifty
Dollars ($393,750.00) per annum payable in equal monthly installments of
Thirty-two Thousand Eight Hundred Twelve and 50/100 Dollars ($32,812.50) each.
4
<PAGE>
4.2 Fixed Rent shall be accounted for and paid by Tenant to
Landlord in advance starting on the Commencement Date and thereafter on the
first day of each calendar month during the Term.
4.3 All Fixed Rent and all Additional Rent (as hereinafter
defined) payable to Landlord shall be paid by Tenant to Landlord at Landlord's
address specified in or pursuant to Article 23 hereof, or to such other Person
and/or at such other address as Landlord may direct by Notice to Tenant, by
check of Tenant (subject to collection, or, at the request of Landlord, by wire
transfer of immediately available funds to an account designated by Notice from
Landlord to Tenant.
4.4 If Tenant shall fail to make payment of any installment of
Fixed Rent or Additional Rent payable to Landlord hereunder within five (5)
business days from the date upon which the same shall first have been due
hereunder then and in each such event Tenant shall pay Landlord on demand, in
addition to the installment or other payment due, as Additional Rent hereunder,
a late payment fee to compensate Landlord for legal, accounting and other
expenses incurred by Landlord in administering the delinquent account by reason
of such late payment an additional sum of three percent (3%) of the amount due
as a late charge. For the purposes of this Section 4.4, payments shall be deemed
made upon the date of actual receipt by Landlord at the place specified in or
pursuant to Section 4.3 hereof. The late payment fee required to be paid by
Tenant pursuant to this Section 4.4 shall be in addition to all other rights and
remedies provided herein or by Law to Landlord for such nonpayment.
4.5 It is the purpose and intent of Landlord and Tenant that
the Fixed Rent shall be net to Landlord and that Tenant shall pay as additional
rent ("Additional Rent"), without notice or demand, and without abatement,
deduction or set-off, and save Landlord harmless from and against, all costs,
Impositions, insurance premiums to which the Demised Premises is subject and all
other expenses and obligations of every kind and nature whatsoever (including
reasonable attorneys' fees and disbursements incurred in connection with any
Event of Default hereunder, in the event that there is any Event of Default,
whether or not a suit or proceeding is brought to enforce any right or remedy of
Landlord) relating to the Property, or any part thereof, which may arise or
become due prior to or during the Term, other than interest and principal
payments under any mortgage of Landlord and obligations, if any, which are the
responsibility of Landlord under the terms of this Lease. In the event of any
nonpayment of any of the foregoing, Landlord shall have, in addition to all
other rights and remedies, all of the rights and remedies provided for herein or
by law in the case of nonpayment of Fixed Rent. Landlord agrees that it will
give Tenant prompt notice of any intent to pay any sum which would be deemed
Additional Rent and Landlord will make such payment only if it does not receive
assurance to its reasonable satisfaction that such payment has been or is being
timely made by or on behalf of Tenant within five (5) business days of Tenant's
receipt of Landlord's notice; provided however, nothing herein shall be deemed
to preclude Landlord from paying any amount which would otherwise be deemed to
be Additional Rent directly and immediately if, in Landlord's judgment, there is
an emergency or an extraordinary circumstance warranting such payment.
5
<PAGE>
5. PAYMENT OF IMPOSITIONS
5.1 Tenant shall pay all Impositions, or cause the same to be
paid, as and when due and payable, before any fine, penalty, interest or cost
may be added thereto for the nonpayment thereof; provided however, that:
a. Any Imposition (including assessments which have
been converted into installment payments by Tenant) relating to a fiscal period
of a taxing authority, a part of which is included within the Term and a part of
which is included in a period of time prior to the Lease Date or after the
Expiration Date shall (whether or not such Imposition shall be assessed, levied,
confirmed, imposed upon or in respect of or become a lien upon the Property, or
any part thereof, or shall become due and payable during the Term) be prorated
between Landlord and Tenant as of the Lease Date or the Expiration of this
Lease, as the case may be so long as, in the case of any proration in favor of
Tenant, no Event of Default shall then exist hereunder.
b. Landlord causes the notices of Impositions and/or
bills to be directed to Tenant in sufficient time for Tenant to pay same as and
when due and before any fine, penalty, interest or cost may be added thereto for
the nonpayment thereof.
In the event of any delay in payment due to Landlord's acts,
and such delay results in the imposition of any fine, penalty, interest or cost,
then Landlord shall be solely responsible for the payment of the applicable
fine, penalty, interest or cost.
Landlord shall provide a copy of the paid tax bill once
annually to Tenant upon Tenant's written request.
5.2 Except as provided in this Section 5.2, Tenant shall not
be required to pay income taxes assessed against Landlord, or any capital levy,
corporation franchise, or gross receipts tax based on Landlord's income, excess
profits, estate, succession, inheritance or transfer taxes of Landlord;
provided, however, that if at any time during the Term, the present method of
taxation shall be changed so that in lieu of or as a substitute for the whole or
any part of any Impositions on real estate and the improvements thereon there
shall be levied, assessed or imposed on Landlord a new capital levy or other tax
directly on the rents received therefrom and/or a franchise tax, assessment,
levy or charge measured by or based, in whole or in part, upon such rents or the
present or future Improvements, then all such taxes, assessments, levies or
charges, or the part thereof so measured or based, shall be deemed to be
included within the term "Impositions" for the purposes hereof, but only to the
extent that the same would be payable if the Property were the only property of
Landlord, and Tenant shall pay and discharge the same as herein provided in
respect of the payment of Impositions. In the event that the present method of
taxation is changed as aforesaid, Landlord and Tenant agree to meet to equitably
adjust the Impositions to be paid by Tenant.
5.3 Tenant shall obtain and after payment shall furnish to
Landlord official receipts of the appropriate taxing authority, or other
evidence reasonably satisfactory to Landlord, evidencing the payment of any
Impositions.
6
<PAGE>
6. USE AND OPERATION OF PROPERTY.
6.1 Tenant shall use and occupy the Property for the operation
of a warehouse, distribution, and manufacturing facility. Tenant agrees that it
will at all times maintain the Property (including the parking lots and other
exterior areas) in a neat, attractive, and presentable condition, and that in
the case of exterior areas, attractively landscaped and properly paved and
striped. Notwithstanding the foregoing, Tenant's obligation to maintain the
paved parking areas shall not be deemed to be an obligation to replace the
pavement.
6.2 Tenant shall not use, maintain or allow the use or
maintenance of the Demised Premised or any part thereof to treat, store, dispose
of, transfer, release, convey or recover any hazardous, toxic or infectious
waste nor shall Tenant otherwise, in any manner, possess or allow the possession
of any hazardous, toxic or infectious waste on or about the Demised Premises,
unless in compliance with all Laws. Hazardous, toxic or infectious waste shall
mean any solid, liquid or gaseous waste, substance or emission or any
combination thereof which may (x) cause or significantly contribute to an
increase in mortality or in serious illness, or (y) pose the risk of a
substantial present or potential hazard to human health, to the environment or
otherwise to animal or plant life, and shall include without limitation
hazardous substances and materials described in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended; the Resource
Conservation and Recovery Act, as amended; and any other applicable Laws. Tenant
shall immediately notify Landlord of the presence or suspected presence of any
hazardous, toxic or infectious waste on or about the Demised Premises and shall
deliver to Landlord any notice received by Tenant relating thereto.
6.3 Landlord and its agents shall have the right, but not the
duty, to inspect the Demised Premises and conduct tests thereon at any time to
determine whether or the extent to which there is hazardous, toxic or infectious
waste on the Demised Premises. Landlord shall have the right to immediately
enter upon the Demised Premises to remedy any contamination found thereon. In
exercising its rights herein, Landlord shall use reasonable efforts to minimize
interference with Tenant's business but such entry shall not constitute an
eviction of Tenant, in whole or in part, and Landlord shall not be liable for
any interference, loss, or damage to Tenant's property or business caused
thereby, unless such loss or damage results from Landlord's gross negligence or
willful misconduct. Notwithstanding the foregoing, in the event that Landlord,
in exercising its rights hereunder, shall materially interfere with Tenant's
business for a period in excess of sixty (60) days Tenant shall have the right
to terminate this Lease upon thirty (30) days written notice to Landlord with no
further liability to Landlord hereunder; provided, however, if the interference
with Tenant's business ends within said thirty (30) day period this Lease shall
not terminate. If any lender or governmental agency shall ever require testing
to ascertain whether there has been a release of hazardous materials, then, the
reasonable costs thereof shall be reimbursed by Tenant to Landlord upon demand
as Additional Rent. Tenant shall execute affidavits, representations and
estoppels from time to time, in form reasonably acceptable to Tenant, at
Landlord's request, concerning Tenant's knowledge and belief regarding the
presence of any hazardous, toxic or infectious waste on the Demised Premises or
Tenant's intent to store or use hazardous or toxic materials on the Demised
Premises. Tenant shall indemnify and hold harmless Landlord from any and all
claims, loss, liability, costs, expenses or damage, including reasonable
attorneys' fees and other costs of remediation, incurred by Landlord in
connection with any breach by Tenant of its obligations under this section. The
covenants and obligations of Tenant hereunder shall survive the expiration or
earlier termination of this Lease.
7
<PAGE>
6.3 Tenant shall not use or occupy or permit the Property or
any part thereof to be used or occupied, for any unlawful purpose or in
violation of any certificate of occupancy, certificate of compliance, Permit or
Law covering or affecting the use of the Property or any part thereof. Tenant
shall not suffer any act to be done or any condition to exist on the Demised
Premises or any part thereof which may, in Law, constitute a nuisance, public or
private, or which may make void or voidable any insurance with respect thereto.
6.5 Tenant shall not use, occupy or improve or permit the
Property or any part thereof to be used, occupied or improved, so as to violate
any of the terms, conditions or covenants of the Permitted Encumbrances or any
other easements, restrictions, covenants or agreements now or hereafter
affecting the Property.
6.6 Notwithstanding anything herein to the contrary, Tenant
shall have no responsibility or liability for any environmental condition
existing (whether known or unknown) prior to Tenant's initial occupancy of the
Building as a subtenant of Landlord's previous tenant including, without
limitation, possible release from underground storage tanks and Landlord shall
hold Tenant harmless and indemnify it from same.
7. SURRENDER OF THE PROPERTY; HOLDING OVER.
7.1 Tenant shall and will on the Expiration of this Lease, or
upon any re-entry by Landlord upon the Demised Premises pursuant to this Lease,
well and truly surrender and deliver up the Property into the possession and use
of Landlord, without delay and in good order, condition and repair, ordinary
wear excepted and casualty damage excepted (provided Tenant is in compliance
with Articles 10 and 11), free and clear of all lettings and occupancies, free
and clear of all liens, charges and encumbrances except (i) those to which
Landlord's title is subject on the Lease Date ("Permitted Encumbrances"), (ii)
the First Mortgage, if any, together with any other instruments securing the
indebtedness secured by the First Mortgage, and (iii) all those which Tenant
causes after the Lease Date or to which Tenant expressly consents in writing
(which, for the purposes hereof, shall be deemed to be additional Permitted
Encumbrances). On the Expiration of this Lease, title to and ownership of the
Improvements shall automatically vest in Landlord without the execution of any
further instrument and without any payment therefor by Landlord. Tenant shall
remove all its signs from the Property upon expiration of this Lease and shall
promptly repair any damage to the Improvements and the Land resulting from such
removal. Tenant shall remove Tenant's Personal Property upon Expiration of this
Lease and Tenant shall promptly repair any damage to the Improvements and the
Land resulting from such removal. Any of Tenant's signs or other Personal
Property remaining on the Demised Premises in excess of sixty (60) days
following the Expiration of this Lease shall, at the option of Landlord, be
deemed abandoned and become Landlord's property. Tenant shall, on demand,
execute, acknowledge and deliver to Landlord a written instrument, in recordable
form, confirming such Expiration, as well as any further assurances of title to
the Improvements as Landlord may reasonably request, together with instruments
in recordable form evidencing the Expiration of this Lease and the Memorandum of
this Lease of even date herewith.
7.2 In the event of any holding over by Tenant after
expiration or other termination of this Lease or in the event Tenant continues
to occupy the Property after the
8
<PAGE>
termination of Tenant's right of possession pursuant to this Lease, occupancy of
the Property subsequent to such termination or expiration shall be that of a
tenancy at sufferance and in no event for month-to-month or year-to-year, but
Tenant shall, throughout the entire holdover period, pay rent (on a per month
basis without reduction for any partial months during any such holdover) equal
to one hundred fifty percent (150%) of the Fixed Rent due for the period
immediately preceding such holding over and the actual Additional Rent accruing
on a prorata basis during the holdover period, provided that in no event shall
Fixed Rent and Additional Rent during the holdover period be less than the fair
market rental for the Property. No holding over by Tenant or payments of money
by Tenant to Landlord after the expiration of the Term of this Lease shall be
construed to extend the Term or prevent Landlord from recovery of immediate
possession of the Property by summary proceedings or otherwise. Tenant shall be
liable to Landlord for all actual damage which Landlord may suffer by reason of
any holding over by Tenant, and Tenant shall indemnify Landlord against any and
all proved claims made by any other tenant or prospective tenant against
Landlord for delay by Landlord in delivering possession of the Property to such
other tenant or prospective tenant.
7.3 The Provisions of this Article 7 shall survive the
Expiration of this Lease.
8. REPAIRS AND MAINTENANCE.
8.1 Throughout the Term, Tenant, at its sole cost and expense,
shall (a) maintain in good condition and repair the interior and exterior of the
Demised Premises, including but not limited to the electrical systems, heating
and air conditioning systems serving the Demised Premises, plate glass, windows
and doors; sprinkler, plumbing and sewage systems and facilities; fixtures;
interior walls; floors; ceilings; gutters, downspouts, sidewalks, parking lot
pavement (other than replacement of paving), parking areas, grounds and
landscaped areas of the Demised Premises; all electrical facilities and
equipment including without limitation interior and exterior lighting fixtures,
lamps, fans and any exhaust equipment and systems; electrical motors; and all
other appliances, fixtures and equipment of every kind and nature located in,
upon or about the Demised Premises; all glass, both interior and exterior; and
any broken glass shall be promptly replaced at Tenant's expense by glass of like
kind, size and quality. Tenant shall, at its expense, conduct seasonal
preventive maintenance on the heating, ventilating and air conditioning systems
serving the Demised Premises which shall be subject to the reasonable approval
of Landlord; (b) keep the Property in the same order, repair and condition as of
the Commencement Date, ordinary wear and tear excepted; and (c) make all
necessary or appropriate repairs, replacements and renewals, and, subject to the
provisions of Articles 11, 12 and 16 hereof, all necessary or appropriate
alterations and restorations thereto, interior and exterior, ordinary and
extraordinary, and foreseen and unforeseen (collectively, "Repairs").
8.2 The necessity for and adequacy of Repairs to the Property
made or required to be made pursuant to Section 8.1 shall be measured by
standards which are appropriate for commercial buildings of similar age and
containing similar facilities in the locality and which are necessary to
maintain the Property in a state of repair and maintenance as close as
reasonably possible to the state of repair and maintenance of the Property as at
the Commencement Date, ordinary wear and tear excepted. Tenant shall, within
thirty (30) days after demand by Landlord, begin to make such Repairs, or
perform such items of maintenance, to the Property as Landlord may reasonably
require in order to maintain the Property at the
9
<PAGE>
standards required by this Lease and thereafter Tenant shall diligently and
continuously pursue and promptly complete such Repairs. Within three (3) months
following the Commencement Date Landlord shall cause the roof of the Building to
be rebuilt.
8.3 Landlord shall be responsible for the roof and structural
components of the Building (except damage caused by Tenant), otherwise Landlord
shall not be required to furnish any services or facilities or to make any
Repairs in or about the Property or any part thereof, Tenant hereby assuming the
full and sole responsibility for all Repairs to, and for the condition,
operation, maintenance and management of, the Property as at the Commencement
Date and during the Term.
8.4 Tenant shall, at its sole cost and expense, keep the
sidewalks, curbs, entrances, passageways, roadways and parking spaces, planters
and shrubbery and public areas adjoining (excluding areas not the responsibility
of Landlord under applicable Law) or appurtenant to or constituting part of the
Property in a clean and orderly condition, free of ice, snow, rubbish and
obstructions.
8.5 Tenant shall be entitled to the benefit of any and all
warranties given or running in favor of Landlord with respect to the Property
which would in any way be useful to Tenant in fulfilling its obligations under
this Article 8; and Landlord shall either assign to the Tenant all contractor
and equipment warranties which Landlord has obtained in connection with the
Premises or shall have them issued directly to the Tenant by the issuers,
subject in each case to reconveyance to Landlord upon the Expiration or earlier
termination of this Lease. Further, Landlord agrees that it will cooperate with
Tenant in connection with claims against third parties regarding Tenant's repair
and maintenance obligations hereunder upon Tenant's request and provided Tenant
shall be responsible for the reasonable costs and expenses incurred by Landlord
as a result of such cooperation.
9. COMPLIANCE WITH LAWS.
9.1 Throughout the Term, Tenant, at its own sole cost and
expense, shall comply with all present and future laws, ordinances, statutes,
administrative and judicial orders, rules, regulations and requirements,
including, without limitation, the Americans with Disabilities Act
(collectively, "Laws") of all Governmental Authorities, and all orders, rules
and regulations of the National and Local Boards of Fire Underwriters or any
other body or bodies exercising similar functions ("Insurance Boards"), foreseen
and unforeseen, ordinary as well as extraordinary, applicable to the Property or
any part thereof, the appurtenances thereof and, to the extent required by any
Laws, the sidewalks, curbs, alleyways and passage-ways, adjoining the Demised
Premises, or to the use or manner of use of the Property or the owners, tenants
or occupants thereof whether or not any such Laws necessitate structural changes
or improvements or interfere with the use or enjoyment of the Property. Tenant
shall also procure, pay for and maintain all permits, licenses, approvals and
other authorizations (collectively, "Permits") necessary for the lawful
operation of its business at the Demised Premises and the lawful use and
occupancy of the Property in connection therewith.
10
<PAGE>
9.2 Tenant shall, at its own sole cost and expense, observe and comply
with the requirements of the policies of public liability, fire and all other
insurance at any time in force with respect to the Property.
10. INSURANCE.
10.1 Tenant, at its sole cost and expense, shall throughout
the Term procure and maintain:
a. Comprehensive (direct physical loss) extended
coverage multiperil casualty insurance on the Improvements and all parts or
portions thereof including coverage against loss or damage by fire, collapse,
lightning, electrical short circuit, water damage, windstorm, tornado, hail,
flood, vandalism, sprinkler leakage, subsidence, debris removal, demolition and
malicious mischief and against loss or damage by such other, further and
additional risks as now are or hereafter may be embraced by the standard
extended coverage forms of endorsements, in each case (i) in an amount equal to
not less than 100% of their "Full Insurable Value," which for purposes of this
Lease shall mean actual replacement value (exclusive in the case of the
Improvements of costs of excavations, foundations and footings and shall not
include the cost of the land); (ii) containing an agreed amount endorsement with
respect to the Improvements or any part or portion thereof waiving all
co-insurance provisions; and (iii) containing an endorsement that all covered
losses will be paid on a replacement cost basis; and (iv) providing for
reasonable deductibles per loss;
b. Comprehensive general liability insurance against
claims for personal injury, bodily injury, death or property damage occurring
upon, in or about the Demised Premises, such insurance to (i) be on the
so-called "occurrence" form; (ii) afford immediate protection at the Lease Date
to the limit of not less than $2,000,000.00 per occurrence (including umbrella
coverage), bodily injury and property damage; $5,000,000.00 general aggregate
(including umbrella coverage); (iii) continue at not less than the said limits
until required to be changed by Landlord in writing by reason of changed
economic conditions making such protection inadequate; and (iv) cover at least
the following hazards: (A) premises and operations; and (B) independent
contractors on an "if any" basis;
c. Boiler and pressure vessel and miscellaneous
equipment insurance, including steam pipes, air conditioning systems, electric
motors, air tanks, compressors and pumps, in such amounts as Landlord may
reasonably require;
d. Business interruption insurance which shall
include all of the risks set forth in this Section 10.1 and shall be in an
amount not less than the aggregate of Fixed Rent payable hereunder for the
twelve (12) months preceding the insured casualty;
e. Workers' compensation insurance in an amount not
less than the minimum amount required by applicable law and adequate employee's
liability insurance covering all persons employed by Tenant at the Demised
Premises;
f. At all times when Tenant Alterations are being
made, Tenant shall have insurance providing the following coverage for its
Tenant Alterations (i) owner's contingent
11
<PAGE>
or protective liability insurance covering claims not covered by or under the
terms or provisions of the above mentioned comprehensive general public
liability insurance policy; (ii) contractual liability insurance covering the
indemnity contained in Section 20 hereof; and (iii) builder's risk completed
value coverage (A) for 100% of the contract price, (B) on a nonreporting form,
(C) deleting all co-insurance provisions, (D) against all risks insured against
pursuant to Section 10.1(a) hereof, and (E) including permission to occupy the
Demised Premises; and
g. Such other insurance and in such amounts as may
from time to time be reasonably required by Landlord, or the holder of the First
Mortgage, if any, against other insurable hazards.
10.2 All insurance provided for in this Article 10 shall be
effected under valid and enforceable policies, in such forms and, from time to
time after the Lease Date, in such amounts as is required hereunder, issued by
financially sound and responsible insurance companies having a Best Policyholder
Rating of not less than "A-", a financial rating of not less than XII or such
higher rating as the holder of the First Mortgage may require, and authorized to
do business in the State. Simultaneously herewith and not less than 30 calendar
days prior to the expiration dates of the policies theretofore furnished
pursuant to this Article, Acord Form 27 certificates of insurance evidencing
such policies and payment therefor shall be delivered by Tenant to Landlord. In
addition, in the event that Landlord conveys its interest in the Property and
this Lease, Tenant shall provide an Acord Form 27 certificate of insurance
naming the grantee of such conveyance as an additional insured of the insurance
required pursuant to this Article 10; such insurance certificate shall be
delivered to Landlord within five (5) business days of its request therefor.
10.3 Intentionally Omitted
10.4 All policies of insurance provided for or contemplated by
this Article shall name Tenant as the insured and Landlord as an additional
insured, as their respective interests may appear. All policies of insurance
required under Section 10.1 shall provide for payment of the loss to the holder
of the First Mortgage and if there is no First Mortgage, as provided in Article
11.
10.5 All policies of insurance provided for in this Article
shall, to the extent obtainable, contain clauses or endorsements to the effect
that:
a. No act or negligence of Tenant, or anyone acting
for Tenant, which might otherwise result in a forfeiture of such insurance or
any part thereof shall in any way affect the validity or enforceability of such
insurance insofar as Landlord, or the holder of the First Mortgage are
concerned;
b. Such policies shall not be changed or canceled
without at least 30 days' Notice to Landlord and; if required under the First
Mortgage, to the holder thereof; and
c. Neither Landlord nor the holder of the First
Mortgage shall be liable for any premiums thereon or subject to any assessments
thereunder.
12
<PAGE>
10.6 Losses under each policy of insurance provided for or
contemplated by subsections 10.1(a) and 10.1(b) hereof shall be adjusted with
the insurers and/or underwriters selected by Tenant subject to the rights of the
holder of the First Mortgage. All costs and expenses of collecting or recovering
any insurance proceeds under such policies, including, without limitation, any
and all fees of attorneys, appraisers and adjusters, shall be paid by Tenant.
10.7 All insurance policies required hereunder shall provide
for waiver of subrogation as to both Landlord and Tenant.
11. DAMAGE OR DESTRUCTION BY FIRE OR OTHER CASUALTY.
11.1 In the event of any partial damage (defined to mean
damage or destruction, other than to Tenant owned Tenant Alterations, the repair
cost of which damage or destruction is less than fifty percent (50%) of the then
replacement value of the Demised Premises (not including the value of the Land)
just prior to said damage or destruction) or loss by fire or other casualty
whatsoever to the Improvements or any part or portion thereof during the Term,
Tenant shall give immediate Notice thereof to Landlord if the same equals or
exceeds $10,000.00, and shall, without regard to the availability and adequacy
of insurance proceeds for such purposes, with reasonable diligence (subject to
Unavoidable Delays) at Tenant's sole cost and expense, repair the Improvements
or the portion thereof so damaged as nearly as possible to the condition the
same were in immediately prior to such damage. Tenant covenants and agrees to
commence efforts to settle the insurance claim promptly after any event of loss
or casualty and to expeditiously, diligently and continuously prosecute such
efforts to settlement, or failing settlement, the commencement of litigation. In
the event that settlement or collection cannot be obtained within ninety (90)
days after such casualty or loss, and Tenant has failed to commence Repairs,
Landlord shall have the right, but not the obligation, to commence Repairs or to
declare an Event of Default. If any part or portion of the Improvements is
damaged or lost as a result of such fire or other casualty, Tenant shall
likewise, without regard to the availability and adequacy of insurance proceeds
for such purpose, repair the part or portion of the Improvements so damaged or
lost. Such Repairs shall be without cost, charge or expense of any kind to
Landlord. Notwithstanding any other provisions hereof, if the Improvements are
partially damaged during the last two (2) years of this Lease, if the cost of
repair exceeds twenty-five percent (25%) of the replacement value of all the
Improvements, Landlord or Tenant shall have the right to terminate this Lease by
written notice to the other not later than forty-five (45) days from the date of
damage and all insurance proceeds (except for insurance proceeds for Tenant's
Personal Property) resulting from such casualty shall be paid over to Landlord
and Landlord shall have the right to adjust, compromise and settle any and all
claims related thereto in its sole and absolute discretion without any liability
to Tenant whatsoever, and Tenant shall have no further obligations under the
Lease.
11.2 In the event that, during the Term, any of the
Improvements shall be totally destroyed (defined to mean damage or destruction,
other than to Tenant owned Tenant Alterations, the repair cost of which damage
or destruction is fifty percent (50%) or more of the then replacement value of
the Demised Premised (not including the value of the Land) just prior to said
damage or destruction) or so substantially damaged by fire or other casualty
whatsoever that the Repair thereof would be impracticable or the use of the
Property would not be
13
<PAGE>
economically feasible after the Repair, as determined by Tenant in its
reasonable discretion, Tenant shall give prompt Notice thereof to Landlord, and
shall either (a) without regard to the availability and adequacy of insurance
proceeds, proceed with reasonable diligence (subject to Unavoidable Delays) to
demolish and remove the ruins and complete the construction of replacement
Improvements on the Demised Premises, or (b) within thirty (30) days of the date
of the aforesaid Notice, give Landlord a further Notice electing to cancel this
Lease with a termination date thirty (30) days after said further Notice. In the
event that Tenant elects to cancel the Lease, all insurance proceeds (except for
insurance proceeds for Tenant's Personal Property) resulting from such casualty
shall be paid over to Landlord or the holder of the First Mortgage, if required
to do so, and Landlord or the holder of the First Mortgage shall have the right
to adjust, compromise and settle any and all claims related thereto in its sole
and absolute discretion without any liability to Tenant whatsoever, and Tenant
shall have no further obligations under the Lease. In any event, demolition,
removal and construction (in the event that Tenant does not elect to cancel this
Lease) shall be without cost, charge or expense of any kind to Landlord. The
replacement Improvements so to be constructed shall be as nearly as possible of
a size, type and character equal to the damaged or destroyed Improvements, shall
have a net rentable area which is not less than the net rentable area of such
Improvements, shall be of a quality of not less than the quality of such
Improvements, as the same existed immediately prior to such damage or
destruction, shall include all articles necessary for the operation of such
replacement Improvements, and shall be of a quality not less than the quality of
the items of the Improvements which were damaged or destroyed by such fire or
other casualty. Before commencing the construction of any replacement
Improvements, Tenant shall submit copies of the plans and specifications
therefor to Landlord for Landlord's approval, which approval shall not be
unreasonably withheld or delayed.
11.3 If any damage or destruction mentioned in Sections 11.1
or 11.2 hereof does not result in the termination of this Lease and the
insurance proceeds are in an amount of $10,000.00 or less and are paid under any
insurance policy, such insurance proceeds shall be paid over to Tenant, and
Tenant shall hold the same to be used first for the payment of the entire cost
of repairing the Improvements and any part or portion thereof before using the
same for any other purpose.
11.4 In the event that the damage or destruction does not
result in the termination of the Lease and if the aggregate insurance proceeds
received by reason of any single instance of damage or destruction to the
Improvements shall be greater than $10,000.00, such insurance proceeds shall be
paid over to Landlord, and holder of the First Mortgage, as their respective
interests may appear. All insurance proceeds so paid over to Landlord shall be
held and disposed of as provided in Section 11.5.
11.5 The Landlord shall hold all insurance proceeds deposited
with it pursuant to Section 11.4 hereof until receipt by the Landlord of:
a. A certificate of Tenant ("Repair Certificate") dated not
more than 10 days prior to the date of such receipt (i) requesting the payment
of a specified amount of insurance proceeds; (ii) describing in reasonable
detail the work and materials applied to the Repair of the Improvements since
the date of the last Repair Certificate; (iii) stating that such specified
amount does not exceed the cost of such work and materials; and (iv) stating
that such
14
<PAGE>
work and materials have not previously been made the basis of any request for or
any withdrawal of money; and
b. A certificate of Tenant's Architect or Tenant's
Engineer stating (i) that the work and materials described in the accompanying
Repair Certificate were satisfactorily performed and furnished and were
necessary, appropriate or desirable to the Repair of the Improvements, in
accordance with the plans and specifications therefor; (ii) that the amount
specified in such Repair Certificates is not in excess of the cost of such work
and materials; and (iii) the additional amount, if any, required to complete the
Repair of the Improvements; and
c. The certification or insurance of a title company
reasonably satisfactory to Landlord, dated not earlier that the Repair
Certificate, that as of the date thereof: (i) there exists no filed or recorded
lien, encumbrance or charge against the estate, rights and interests of Landlord
(except for the First Mortgage and the Permitted Encumbrances); and (ii) the
Property is not subject to any filed or recorded mechanic's, laborer's,
materialmen's or other similar lien, encumbrance or charge which have not been
bonded; and
d. Waivers of lien from all contractors and
subcontractors for work performed and materials supplied, if requested by
Landlord. The parties acknowledge that such waivers may be conditioned on
receipt by the contractor or subcontractor of payment for the work performed and
materials supplied.
11.6 Upon receipt by Landlord of all of the deliveries
pursuant to Section 11.5 hereof, Landlord shall pay to Tenant the amount of the
insurance proceeds specified in the Repair Certificate; provided however, that
the balance of insurance proceeds shall not be reduced below the amount
specified in the certificate of Tenant's Architect or Tenant's Engineer as the
amount required to complete the Repair of the Improvements. Each such payment
shall be held by Tenant in trust and shall be used solely by Tenant for the
payment of the cost of the work and materials described in the Repair
Certificate, or if such cost or any part thereof has theretofore been paid by
Tenant out of its own funds, then for the reimbursement to Tenant of any such
cost or part thereof so paid by it. If there shall remain on deposit with
Landlord any balance of insurance proceeds after (a) the Improvements shall have
been completely Repaired, as evidenced by a certificate of such Tenant's
Architect or Tenant's Engineer delivered to Landlord, and (b) all work,
materials and professional services supplied in connection therewith shall have
been paid for in full, as evidenced by a certificate from Tenant, such balance
of insurance proceeds shall be paid to Landlord (unless the holder of the First
Mortgage shall require payment to it in reduction of the indebtedness secured by
the First Mortgage, in which case such balance shall be paid to the holder of
the First Mortgage in reduction of such indebtedness, and the remainder thereof,
if any, shall be paid to Landlord). Notwithstanding anything to the contrary set
forth in this Section 11.6, Landlord shall have no obligation to make further
payment of insurance proceeds to Tenant following an Event of Default.
11.7 Upon the Expiration of this Lease however caused, any
insurance proceeds then held by Landlord shall be retained by Landlord or if
held by Tenant, shall be paid to Landlord; provided however, that if such
Expiration occurs pursuant to Article 16 hereof, such insurance proceeds shall
be deemed to be part of the condemnation award and shall be disposed of as
provided in Article 16.
15
<PAGE>
11.8 Subject to Tenant's right of termination under Sections
11.1 and 11.2, no destruction of or damage to the Improvements or any part or
item thereof, by fire or other casualty whatsoever, whether such damage or
destruction be partial or total or otherwise, shall entitle or permit Tenant to
surrender or terminate this Lease or shall relieve Tenant from its liability to
pay in full the Fixed Rent and Additional Rent hereunder, or from any of its
other obligations under this Lease
12. TENANT ALTERATIONS.
12.1 a. Subject to the Provisions of this Article and to all
other applicable Provisions of this Lease, Tenant shall have the right at any
time and from time to time during the Term to make, at its sole cost and
expense, Tenant Alterations, only with Landlord's prior consent.
b. No Tenant Alteration shall be made if the proposed
Tenant Alteration would adversely affect the roof, floors or structural members
of the Building, change the type or character of the Improvements or reduce the
size of the Improvements or diminish the net area thereof or impair the
structural integrity of the Improvements.
12.2 Tenant covenants and agrees that no Tenant Alterations
will be made except in compliance with, and Tenant hereby covenants that it will
comply with, each of the following Provisions:
a. All Tenant Alterations shall be made with
reasonable diligence and dispatch in a first class manner and with materials and
workmanship comparable to the quality of the original Improvements;
b. Before any Tenant Alterations are begun, Tenant
shall procure, at its own sole cost and expense, all necessary Permits from all
Governmental Authorities and shall deliver photocopies thereof to Landlord. Upon
Tenant's request, Landlord shall join in the application for such Permits
whenever such action is necessary, and Tenant covenants that Landlord will not
suffer, sustain or incur any costs, expense or liability by reason thereof;
c. All Tenant Alterations shall be made in compliance
and conformity with all applicable (a) Laws of all Governmental Authorities
(including all building and zoning Laws); (b) Permits; and (c) rules,
regulations, orders and requirements of Insurance Boards;
d. In making any Tenant Alterations, Tenant shall not
violate the terms or conditions of any insurance policy obtained or required
pursuant to the Provisions hereof affecting or relating to the Property or any
part thereof, or the terms of any covenants, restrictions or easements affecting
the Demised Premises;
e. Promptly after the completion of any Tenant
Alterations, Tenant shall procure, at Tenant's sole cost and expense, all
Permits of Governmental Authorities, if any, for the complete Tenant Alterations
as may be required by any applicable Laws of Governmental
16
<PAGE>
Authorities, and all Insurance Boards' approvals, if any, as may be required or
customary in connection therewith, and on demand, shall promptly deliver
photocopies thereof to Landlord;
f. Tenant shall pay all costs, expenses and
liabilities arising out of, in connection with, or by reason of any Tenant
Alterations, and shall keep the Property free and clear of all liens, claims and
encumbrances in any way arising out of, in connection with, or by reason of, any
Tenant Alterations, subject to the Provisions of Article 13 hereof;
g. No Tenant Alterations shall create any
encroachment upon any easement, street or adjacent premises;
h. No Tenant Alterations shall be made which would
render title to the Demised Premises or any part thereof unmarketable;
i. No Tenant Alterations shall be made which would
tie in or connect any Improvement with any other building or structure located
outside the boundary lines of the Demised Premises;
j. Unless Tenant Alterations (i) are performed
entirely within the enclosure walls of any Improvement then existing on the
Demised Premises, or (ii) would not be reflected on a survey of the Demised
Premises, Tenant shall, upon completion thereof, promptly deliver to Landlord a
copy of an ALTA "as built" survey of the Demised Premises showing such Tenant
Alterations; and
k. No Tenant Alterations shall be made which would
render title to the Demised Premises or any part thereof unmarketable, or which
would reduce the value of the Property for the uses permitted herein below the
value thereof immediately prior to the making of such Tenant Alterations.
12.3 Landlord shall not be required to make any contribution
to the cost of any Tenant Alterations or any part thereof, and Tenant covenants
that Landlord shall not be required to pay any cost, expense or liability
arising out of or in connection with or by reason of any Tenant Alterations.
12.4 Tenant may install signage on the roof of the Building
after the roof has been rebuilt by Landlord subject to Landlord's approval which
shall not be unreasonably withheld or delayed. Notwithstanding the foregoing,
Tenant shall not install signage in violation of applicable laws or regulations
nor shall it install signage in any manner which would cause damage to the roof
and/or Building or which would impair or be prohibited or excluded by Landlord's
roof bond or warranty.
13. DISCHARGE OF LIENS.
13.1 Tenant shall not create or permit to be created or to
remain, and shall discharge, any lien, encumbrance or charge levied on account
of any Imposition or any mechanic's, laborer's, or materialman's lien, or, other
than the First Mortgage, any mortgage, deed of trust or otherwise which might or
does constitute a lien, encumbrance or charge upon the
17
<PAGE>
Property or any part thereof, or the income therefrom, unless the same arises
from any act of Landlord, and Tenant will not suffer any other matter or thing
whereby the estate, rights and interests of Landlord in the Property or any part
thereof might be impaired; provided that any Imposition may, after the same
becomes a lien on the Property, be paid or contested in accordance with Article
5 hereof, and any mechanic's, laborer's, or materialman's lien may be discharged
in accordance with Section 13.2 hereof.
13.2 If any such mechanic's, laborer's or materialman's lien
shall at any time be filed against the Property or any part thereof, Tenant,
within thirty (30) days after filing thereof, shall cause the same to be
discharged of record by payment, deposit, bond, order of a court of competent
jurisdiction or otherwise. If Tenant shall fail to cause such lien to be
discharged within such period then, in addition to any other right or remedy,
Landlord may (after so notifying Tenant), but shall not be obligated to,
discharge the same either by paying the amount claimed to be due or by procuring
the discharge of such lien by deposit or by bonding proceedings, and in any such
event Landlord shall be entitled, if Landlord so elects, to compel the
prosecution of an action for the foreclosure of such lien by the lienor and to
pay the amount of the judgment in favor of the lienor, with interest, costs and
allowances. In any event, if any suit, action or proceedings shall be brought to
foreclose or enforce any such lien (whether or not the prosecution thereof was
so compelled by Landlord), Tenant shall, at its own sole cost and expense,
promptly pay, satisfy and discharge any final judgment entered therein, in
default of which Landlord, at its option, may so. Any and all amounts so paid by
Landlord as in this Section provided, and all costs and expenses paid or
incurred by Landlord in connection with any or all of the foregoing matters,
including reasonable attorney's fees, together with interest thereon at the
Lease Interest Rate from the respective dates of Landlord's making of such
payments, shall be paid by Tenant to Landlord on demand as Additional Rent
hereunder.
13.3 Nothing in this Lease contained shall be deemed or
construed in any way as constituting the consent or request of Landlord, express
or implied by inference or otherwise, to any contractor, subcontractor, laborer,
materialman, architect or engineer for the performance of any labor or the
furnishing of any materials or services for or in connection with the Property
or any part thereof. Notice is hereby given that Landlord shall not be liable
for any labor or materials or services furnished or to be furnished to Tenant
upon credit, and that no mechanic's or other lien for any such labor, materials
or services shall attach to or affect the fee or reversionary or other estate or
interest of Landlord in the Property or in this Lease.
14. CONDITION OF AND TITLE TO PROPERTY. On the Commencement Date,
Tenant shall execute and deliver to Landlord an estoppel certificate in the form
requested by Landlord pursuant to Section 18.1. Tenant acknowledges and agrees
that except as otherwise expressly set forth in this Lease, no representations,
statements, or warranties, express or implied, as to merchantability, fitness
for a particular purpose or use, or otherwise, have been made by or on behalf of
Landlord in respect of the Demised Premises, the status of title, physical
condition, income, profit potential or expenses of operation thereof, the zoning
or other laws, regulations, rules and orders applicable thereto, Impositions, or
of any other matter or thing affecting or relating to the Property, and that
Tenant has relied on no such representations, statements or warranties. Tenant
is currently in possession of the Demised Premises as a subtenant of BellSouth
(Landlord's current tenant) and Tenant is familiar with the condition of the
Demised
18
<PAGE>
Premises. Subject to Landlord's obligation to rebuild the roof and Section 6.6
herein, Tenant agrees to accept the Demised Premises in its "AS IS" condition.
15. ENTRY ON PROPERTY BY LANDLORD.
15.1 Tenant shall permit Landlord and its authorized
representatives and designees to enter the Property at all reasonable times for
the purpose of (a) inspecting the same and (b) making any Repairs thereto and
performing any work therein that may be necessary by reason of Tenant's failure
to make any such Repairs or perform any such work or to commence the same for
ten (10) days after Notice from Landlord (or without Notice in case of
emergency). Nothing herein contained shall be construed as imposing any duty
upon Landlord to do any work not otherwise required by the terms of this Lease.
The performance thereof by Landlord shall not constitute a waiver of Tenant's
default in failing to perform the same, and Landlord shall have the right to
receive reimbursement in respect thereof as provided in Article 25.
15.2 Landlord may, during the progress of any work at the
Demised Premises performed or caused to be performed by it in accordance with
this Article, keep and store thereon all necessary materials, tools, supplies
and equipment. Landlord shall not be liable for reasonable inconvenience,
annoyance, disturbance, loss of business or other damage to Tenant by reason of
the making of such Repairs or the performance of any such work, or on account of
bringing materials, tools, supplies and equipment into or through the Demised
Premises during the course thereof, except due to its gross negligence or
willful misconduct, and the obligations of Tenant under this Lease shall not be
affected thereby. In making any such Repairs or doing any such work, Landlord
shall proceed with such work so as to avoid to the extent possible unreasonable
inconvenience to Tenant.
15.3 Landlord and its designees shall have the right to enter
the Demised Premises at all reasonable times during usual business hours for the
purpose of showing the Property to prospective purchasers, tenants and
mortgagees.
16. CONDEMNATION.
16.1 If at any time during the Term hereof all or a material
portion (as defined in Section 16.7 hereof) of the Demised Premises shall be
taken for any public or quasipublic purpose by any lawful power or authority by
the exercise of the right of condemnation or eminent domain or by agreement in
lieu of condemnation among Landlord, Tenant and those authorized to exercise
such right (a) the obligations of Tenant to comply with the Provisions of this
Lease, affected by such taking shall continue unimpaired until the date of the
taking; (b) this Lease and the Term shall Expire on the date of such taking; (c)
the Fixed Rent and all Additional Rent hereunder shall be apportioned and paid
to the date of such taking; and (d) the entire award received (exclusive of any
portion of the award that Tenant is entitled to by virtue of the taking) shall
be paid to the Landlord for distribution in the following order after deduction
therefrom of all reasonable fees and expenses of collection, including
reasonable attorneys' and experts' fees:
a. If and to the extent that the holder of the First
Mortgage has a claim thereon, such holder or Mortgagee shall receive an amount
equal to such claim; and
19
<PAGE>
b. Landlord shall receive the entire balance
remaining of such award.
16.2 If at any time during the Term (a) less than all or a
material portion of the Demised Premises shall be taken, or (b) if any
appurtenances to the Demised Premises or any areas outside the boundaries of the
Demised Premises or rights in, under or above the streets adjoining the Demised
Premises, or the rights and benefits of light, air or access from or to such
streets, shall be so taken, or the grade of any such streets shall be changed,
("Partial Taking"), except as provided in Section 16.3 below, this Lease and the
Term shall continue in full force and effect without reduction, abatement or
effect of any nature whatsoever upon the Term or the liability of Tenant to pay
in full the Fixed Rent or any Additional Rent hereunder. Tenant shall give
prompt Notice of any Partial Taking to Landlord and shall proceed, with
reasonable diligence, and to the full extent of the award for such Partial
Taking, to perform any necessary Repairs and (subject to the Provisions of
Article 12) any necessary or desirable Tenant's Alterations, at Tenant's sole
cost and expense; provided however, that so long as Tenant expeditiously,
diligently and continuously prosecutes settlement or collection of the award,
Tenant shall not be required to commence Repair until it has received the award,
but Tenant shall prior to the receipt of the award and at its own expense take
any remedial steps required by applicable Law. In the event that settlement or
collection cannot be obtained within ninety (90) days, and Tenant has failed to
commence Repairs, Landlord shall have the right, but not the obligation, to
commence Repairs. All awards payable as a result of any such Partial Taking
shall be paid to Landlord for distribution as follows and in the following
order, after deduction therefrom of all reasonable fees and expenses of
collection, including reasonable attorneys' and experts' fees:
a. Tenant shall receive an amount equal to the cost
of any Repairs and Tenant Alterations made by Tenant pursuant to this Section
16.2 upon receipt by Landlord of evidence satisfactory to it of the amount of
such cost and the payment thereof in full; and
b. Landlord shall receive the balance of the award.
16.3 In the case of any Partial Taking, the Fixed Rent payable
by Tenant hereunder shall be equitably reduced by an amount which takes into
account the actual amount of the Improvements taken, the amount of parking area
taken or any other right, privilege or easement appurtenant to the Demised
Premises which materially and adversely interferes with Tenant's permitted uses
of the Demised Premises.
16.4 If the temporary use of the whole or any part of the
Demised Premises shall be taken at any time during the Term for any public or
quasi-public purpose by any lawful power or authority or by the exercise of the
right of condemnation or eminent domain or by agreement in lieu of condemnation
between Tenant and those authorized to exercise such right, the Term shall not
be affected in any way, and Tenant shall continue to pay in full Fixed Rent and
Additional Rent hereunder and, subject to the other Provisions of this Section,
and except as hereinafter provided, Tenant shall be entitled to receive any
award or payment for such use. If such award or payment made for such use is
paid in a lump sum, such award shall be paid to Landlord, and after deducting an
amount equal to present value (computed on the basis of a discount equal to the
current yield of United States Government securities having a term as near as
possible to the period of such temporary taking) of Fixed Rent and Additional
Rent due or
20
<PAGE>
which will become due during the period covered by such lump-sum award, Landlord
shall remit the balance to Tenant except to the extent allocable to a period
subsequent to the Expiration of this Lease. In the event that such taking,
condemnation or use is for the balance of the Term of this Lease and is for the
entire Demised Premises, the provisions of Section 16.1 shall apply. If and to
the extent that the amount of any Additional Rent for such period is not
ascertained or ascertainable as at the date of the payment of such lump-sum
award, Landlord shall estimate the amount thereof, subject to adjustment at such
time as the amount thereof is ascertained. For the purposes of this Section, the
Fixed Rent during the Primary Term shall be deemed to be as set forth in Section
4.1. If such taking results in changes or alterations in the Demised Premises
which would necessitate an expenditure, after repossession, to repair the
Demised Premises to their former condition, and such award or payment includes
an amount to compensate for such expenditure and is made prior to the Expiration
of this Lease, then the amount of such award or payment specified as
compensation for the expenses of such Repair shall be paid to Landlord, and if
possession of the Demised Premises shall revert to Tenant prior to the
Expiration of this Lease, Tenant shall, at its sole cost and expense, repair the
Demised Premises so that the Demised Premises in every material respect shall,
upon completion of such restoration, be the same as though no such taking had
occurred, and when Landlord shall have received evidence satisfactory to it that
such Repair has been completed and paid for, the portion of such award or
payment deposited with and held by Landlord for such purpose shall be paid over
to Tenant. The foregoing Provisions relating to the repair of the Demised
Premises shall apply with like effect to any item constituting part of the
Improvements. If Tenant shall not so Repair the Demised Premises or any item
constituting a part of the Improvements upon the Expiration of this Lease the
sum so deposited with Landlord for such purpose shall be retained by Landlord to
be applied by Landlord toward Landlord's damages occasioned by such default, or
shall be paid over to Landlord absolutely and without apportionment, as the case
may be.
16.5 If, for the purposes of Section 16.1 and 16.2 hereof
Landlord and Tenant cannot agree on whether there has been a taking of all or a
material portion of the Property, either party may submit the matter to binding
appraisal by Notice to that effect to the other party and shall in such Notice
appoint an MAI Appraiser who has been a member of The American Institute of Real
Estate Appraisers for not less than ten (10) years and has performed appraisals
of net leased commercial properties in the State throughout that period (an
"Appraiser") who shall have had experience in appraising commercial properties
for financial institutions, as appraiser on its behalf. Within twenty (20) days
thereafter, the other party shall by Notice to the first party appoint a second
disinterested Appraiser on its behalf. If the two appraisers thus appointed
cannot reach agreement on the question presented on the basis aforesaid within
forty-five (45) days after the appointment of the second appraiser, then the
appraisers thus appointed shall appoint a third disinterested Appraiser
possessing all of the other aforesaid qualifications, and such third appraiser
shall alone as promptly as possible determine the question presented, provided
that:
a. If the second appraiser shall not have been
appointed as aforesaid, the first appraiser shall alone proceed to determine
such matter; and
b. If the two appraisers appointed by the parties
shall be unable to agree, within forty-five (45) days after the appointment of
the second appraiser, either on the question presented or on the appointment of
a third appraiser, they or either of them shall give
21
<PAGE>
Notice of such failure to agree to the parties, and, if the parties fail to
agree upon the selection of such third appraiser within fifteen (15) days after
the appraisers appointed by the parties have given such Notice, then within
thirty (30) days thereafter either of the parties, upon Notice to the other
party, may request such appointment by the American Arbitration Association (or
any successor thereto) in the State or on its failure, refusal or inability to
act, may apply for such appointment to a court of competent jurisdiction.
c. The determination made as above provided shall be
conclusive upon the parties and judgment upon the same may be entered in any
court having jurisdiction thereof. The appraisers chosen by the parties, the
sole appraiser, if the second party does not choose an appraiser, or the third
appraiser appointed as above provided, as the case may be, shall give Notice to
the parties stating their or his determination, and shall furnish to each party
a signed copy of such determination.
d. Each party shall pay the fees and expenses of the
Appraiser appointed by such party and one-half of the other expenses of the
appraisal properly incurred hereunder.
16.6 Tenant shall have the right to seek an award from the
condemning authority arising out of the complete or partial termination of this
Lease or taking of all or any portion of the Property as a result of any taking
of all or any portion of Tenants interest in the Property, as well as Tenant's
interest in Tenant's Personal Property, if taken, and including, but not limited
to, the right to an award based upon the value of the unexpired Term of this
Lease, moving expenses or consequential damages to Tenant's interest in the
Property not taken.
16.7 As used in this Article 16, a taking of all or a material
portion of the Demised Premises (the consequences of which are set forth in
Section 16.1 hereof) shall mean a taking at the option of either party, of: (a)
twenty-five percent (25%) or more of the net area of the Improvements on the
Demised Premises; or (b) which materially adversely affects access to the
Demised Premises, and access reasonably equivalent to that in existence prior to
such taking cannot be restored; or (c) which otherwise renders the continued
permitted uses of the Property not economically feasible as determined by Tenant
in its reasonable discretion; provided, however, that an election to treat a
taking as a taking of all or a material portion of the Demised Premises, as
hereinabove provided, shall be made by Notice to the other party given within
forty-five (45) days after the taking; and provided further, however, that in
the event of any Partial Taking of the Demised Premises, if the holder of the
First Mortgage takes the award therefor or any portion thereof, then Tenant's
obligation for repair under Section 16.2 shall be conditioned upon Landlord
distributing pursuant to Section 16.2 an amount equal to that part of the award
taken by the holder of the First Mortgage. Any dispute as to whether there has
been a Partial Taking or a taking of all or a material portion of the Demised
Premises shall be submitted to arbitration and appraisal in accordance with
Section 16.5 hereof.
17. MEMORANDUM OF LEASE. This Lease shall not be recorded, however,
upon Tenant's request, Landlord and Tenant will execute and acknowledge a
Memorandum of Lease which may be recorded by either party.
22
<PAGE>
18. ESTOPPEL CERTIFICATES.
18.1 Tenant agrees at any time and from time to time, upon not
less than fifteen (15) days' Notice by Landlord, to execute, acknowledge and
deliver, without charge, to Landlord or to any Person designated by Landlord, a
statement in writing certifying that: (a) Tenant has, on or before the
Acceptance Date, examined the Demised Premises, is satisfied with the physical
condition and state of repair thereof, and has accepted the same in an "as is"
condition (or if there are exceptions to Tenant's acceptance, noting the
specific exceptions); (b) this Lease is unmodified (or if there have been
modifications, identifying the same by the date thereof and specifying the
nature thereof), (c) Tenant has not received any Notice of default or Notice of
termination of this Lease (or if Tenant has received such a Notice, that it has
been revoked, if such be the case), (d) that no Event of Default exists
hereunder (or if any such Event of Default does exist, specifying the same and
stating that the same has been cured, if such be the case), (e) that Tenant has
no claims or offsets against Landlord hereunder (or if Tenant has any such
claims or offsets, specifying the same), (f) the dates to which Fixed Rent and
Additional Rent payable by Tenant hereunder have been paid and (g) such other
information as may be requested by Landlord and can be supplied by Tenant
without unreasonable expense. Failure to timely deliver the foregoing estoppel
certificate shall constitute a material default under this Lease.
18.2 Landlord agrees at any time and from time to time, upon
not less than fifteen (15) days' Notice by Tenant, to execute, acknowledge and
deliver, without charge, to Tenant, or to any Person designated by Tenant, a
statement in writing certifying that; (a) this Lease is unmodified (or if there
be modifications, identifying the same by the date thereof and specifying the
nature thereof) (b) that no Notice of default or Notice of termination of this
Lease has been served on Tenant (or if Landlord has served such Notice, that the
same has been revoked, if such be the case) (c) that to Landlord's knowledge, no
Event of Default exists under this Lease (or if any such Event of Default does
exist, specifying the same) and (d) the dates to which Fixed Rent and Additional
Rent have been paid by Tenant.
19. ASSIGNMENT AND SUBLETTING.
19.1 Tenant shall not assign, sublease or transfer this Lease
or any interest therein or grant any license, concession or other right of
occupancy of the Property or any portion thereof or otherwise permit the use of
the Property or any portion thereof by any party other than Tenant (any of which
events is hereinafter called a "Transfer") without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed with respect to any proposed assignment or subletting. Any attempted
Transfer in violation of the terms of this Article shall, at Landlord's option,
be void. Consent by Landlord to one or more Transfers shall not operate as a
waiver of Landlord's rights as to any subsequent Transfers.
19.2 In the event Landlord consents to any such Transfer, the
Transfer shall be in a form approved by Landlord, including but not limited to,
a written agreement satisfactory to Landlord wherein the Transferee assumes and
agrees to be bound by all of the terms and conditions of this Lease, and Tenant
shall bear all third party out-of-pocket costs and expenses incurred and paid by
Landlord in connection with the review and approval of such documentation
including reasonable attorneys' fees and expenses.
23
<PAGE>
19.3 Any Transfer hereunder (regardless of whether the consent
of Landlord is required) shall be only for the permitted use pursuant to Section
6.1 and for no other purpose, and in no event shall any Transfer release or
relieve Tenant from any obligations under this Lease.
20. INDEMNIFICATION; SUBROGATION .
20.1 Tenant shall indemnify and save Landlord harmless from
and against, and shall reimburse Landlord for, all liabilities, obligations,
damages, fines, penalties, claims, demands, costs, charges, judgments and
expenses, whether founded in tort, in contract or otherwise, including
reasonable architects' and attorneys' fees and costs, which may be imposed upon
or incurred or paid by or asserted against Landlord or Landlord's interest in
the Property by reason of or in connection with any of the following occurring
during the Term of this Lease:
a. The completion of any Tenant Alterations and
anything done in, on or about the Property or any part thereof in connection
therewith, other than Tenant Alterations performed by Landlord;
b. The use, non-use, possession, occupation,
condition, operation, maintenance or management of the Property, or any part
thereof, or to the extent that Tenant is legally responsible therefore, any
street, alley, sidewalk, curb, passageway or space adjacent thereto;
c. Any negligent or tortious act on the part of
Tenant or any of its agents, contractors, servants, employees, licensees or
invitees;
d. Any accident, injury, death or damage to any
Person or property occurring in, or about the Property or to the extent that
Tenant is legally responsible therefor, any part thereof of any street, alley,
sidewalk, curb, passageway or space adjacent thereto;
e. Any failure on the part of Tenant to perform or
comply with any of the Provisions contained in this Lease on its part to be
performed or complied with; and
f. Any violation of the Permitted Encumbrances or any
other covenants, restrictions, easements, agreements or conditions affecting the
Demised Premises.
20.2 Nothing contained in Section 20.1 shall be deemed to
require Tenant to indemnify Landlord with respect to the negligence or willful
misconduct of Landlord, its agents, contractors, servants, employees, licensees
or invitees or breach of this Lease by Landlord.
20.3 In case any action or proceeding is brought against
Landlord by reason of any claim referred to in this Article 20, Tenant, upon
Notice from Landlord, shall, at Tenant's expense, resist or defend such action
or proceeding, in Landlord's name, if necessary, by counsel for the insurance
company, if such claim is covered by insurance, otherwise by counsel approved by
Landlord, which approval shall not be unreasonably withheld or delayed. Landlord
agrees to give Tenant prompt notice of any such claim or proceeding.
24
<PAGE>
20.4 The Provisions of this Article 20 shall not in any way be
affected by the absence in any case of any covering insurance or by the failure
or refusal of any insurance company to perform any obligation on its part.
20.5 If any provision of this Lease requires that either
Landlord or Tenant provide indemnification to the other with respect to any
claim or liability identified therein, the indemnified party shall promptly give
notice of any such claim or liability to the indemnifying party and said
indemnifying party shall have the right to participate in the prosecution and/or
settlement of any such claim or liability.
20.6 Landlord and Tenant hereby release the other from any and
all liability or responsibility to the other or anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
covered by any insurance then in force, even if such loss or damage shall have
been caused by the fault or negligence of the other party, or anyone from whom
such party may be responsible; provided, however, that this release shall be
applicable and in force and effect only with respect to any loss or damage
occurring during such time as the policy or policies of insurance covering said
loss shall contain a clause or endorsement to the effect that this release shall
not adversely affect or impair said insurance or prejudice the right of the
insured to recover thereunder.
21. DEFAULT PROVISIONS.
21.1 The following shall constitute events of default ("Events
of Default") hereunder:
a. If default shall be made in the due and punctual
payment to Landlord of any installment of Fixed Rent payable under this Lease or
any part thereof when and as the same shall have become due and payable, and
such default shall continue for a period of 10 days after notice from Landlord;
or
b. If default shall be made in the due and punctual
payment of any Additional Rent payable by Tenant under this Lease or any part
thereof when and as the same shall become due and payable, and such default
shall continue for a period of ten (10) business days after Notice from
Landlord; or
c. If the Demised Premises shall be abandoned by
Tenant or if default shall be made by Tenant in the performance of or compliance
with any of the Provisions contained in this Lease (other than those referred to
in the foregoing subsections 21.1(a) or 21.1(b)) and either such default shall
continue for a period of thirty (30) days after Notice thereof from Landlord to
Tenant, or, in the case of a default or a contingency which is susceptible of
being cured but which cannot with due diligence be cured within such period of
thirty (30) days, Tenant fails to commence with all due diligence within such
period of thirty (30) days to cure the same and thereafter to continuously
prosecute the curing of such default with all due diligence (it being intended
that in connection with a default susceptible of being cured but which cannot
with due diligence be cured within such period of thirty (30) days that the time
of Tenant within which to cure the same shall be extended for such period as may
be necessary to complete the
25
<PAGE>
curing thereof continuously and with all due diligence but in no event to exceed
one hundred twenty (120) days in the aggregate unless Tenant demonstrates that
the default is not susceptible of a cure within one hundred twenty (120) days
despite the due diligence of Tenant by reason of matters outside of Tenant's
control (it being agreed that insufficient funds shall not excuse Tenant's
performance), in which case the period allowed to cure such default shall be
extended for a commercially reasonable time); or
d. Subject to the Provisions of Section 21.3 hereof,
if Tenant shall file a voluntary petition in bankruptcy or shall be adjudicated
a bankrupt or insolvent or shall file any petition or answer seeking any
reorganization, arrangement, recapitalization, readjustment, liquidation,
dissolution or similar relief under any present or future Federal Bankruptcy
Code or any other present or future applicable Law ("Bankruptcy Law") that is
not discontinued or otherwise vacated within ninety (90) days, or shall seek or
consent to or acquiesce in the appointment of any trustee, receiver or
liquidator of Tenant or of all or any substantial part of its properties or of
the Property, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as the same become due
(collectively, "Acts of Bankruptcy"); or
e. Subject to the Provisions of Section 21.3 hereof,
if within ninety (90) days after the commencement of any proceedings against
Tenant seeking any reorganization, arrangement, recapitalization, readjustment,
liquidation, dissolution or similar relief under any Bankruptcy Law, such
proceedings shall not have been dismissed, or if, within ninety (90) days after
the appointment, without the consent or acquiescence of Tenant or any trustee,
receiver or liquidator of Tenant or of all or any substantial part of its
properties or the Property (other than a result of Landlord's acts unrelated to
the enforcement of Landlord's rights under this Lease), such appointment shall
not have been vacated or stayed on appeal or otherwise, or within ninety (90)
days after the expiration of any such stay such appointment shall not have been
vacated, or if within sixty (60) days, an execution, warrant, attachment,
garnishment levied or fixed against the Property, or any part thereof, or
against Tenant (other than as a result of Landlord's acts unrelated to the
enforcement of Landlord's rights under this Lease) shall not be bonded, vacated
or discharged.
21.2 Upon the occurrence of any Event of Default (it being
understood that for purposes hereof an "Event of Default" does not occur until
notice periods provided for above have run), Landlord at any time thereafter
(but prior to the curing of such Event of Default) may give Notice to Tenant
stating that this Lease and the Term shall Expire on the date specified in such
Notice, which shall be at least five (5) days after the giving of such Notice,
and on the date specified in such Notice this Lease and the Term shall Expire
with the same force and effect as though the date so specified were the date
herein originally fixed as the Expiration Date of the Term, but Tenant shall
remain liable as hereinafter provided.
21.3 No Act of Bankruptcy of Tenant under any Bankruptcy Law
set forth in subsection 21.1(d), and no proceeding or action of the nature
described in subsection 21.1(e) occurring or taken by or against Tenant shall be
grounds for the Expiration of this Lease pursuant to this Article unless the
same shall be taken or brought by or against the Person which then is the owner
of this Lease or an interest herein.
26
<PAGE>
21.4 Upon any Expiration of this Lease pursuant to Section
21.2 hereof, or by or resulting from summary proceedings, re-entry or otherwise,
Tenant shall quit and peaceably surrender the Property. Landlord, in addition to
all other remedies herein reserved to it, upon or at any time after such
Expiration, may, without further Notice, enter upon and re-enter the Demised
Premises and possess and repossess itself thereof by summary proceedings,
ejectment or otherwise, and may dispossess and remove Tenant and all other
Persons and property from the Property, and may have, hold and enjoy the
Property and the right to receive all income of and from the same.
21.5 At any time or from time to time after any such
Expiration pursuant to Section 21.2 hereof, or by or resulting from summary
proceedings or otherwise, Landlord may relet the Property or any part thereof,
in the name of Landlord or otherwise, for such term or terms (which may be
greater or less than the period which would otherwise have constituted the
balance of the Term) and on such conditions (which may include concessions, free
rent and alterations) as Landlord, in its reasonable discretion, may determine,
and may collect and receive the rent therefor. Tenant agrees to pay Landlord on
demand the amount of all loss and damage which Landlord may suffer by reason of
such termination of the Lease, whether through inability to relet the Property
on satisfactory terms or otherwise, including all costs of such reletting and
any deficiency that may arise by reason of any reletting or failure to relet.
21.6 No Expiration of this Lease pursuant to Section 21.2
hereof, or by or resulting from summary proceedings or otherwise, shall relieve
Tenant of its liability under this Lease, and such liability shall survive any
such Expiration. In the event of any such Expiration, whether or not the
Property or any part thereof shall have been relet, Tenant shall pay Landlord
the Fixed Rent to be paid by Tenant up to the time of such Expiration of this
Lease, and thereafter Tenant, until the end of what would have been the Term in
the absence of such Expiration, shall be liable to Landlord for, and shall pay
Landlord, as and for liquidated and agreed current damages for Tenant's default,
(a) the equivalent of the amount of Fixed Rent which would be payable under this
Lease by Tenant if this Lease were still in effect, less the proceeds, if any,
of any reletting effected pursuant to the Provisions of Section 21.5 hereof, and
(b) an amount equal to all of Landlord's actual expenses in connection with such
reletting, including, but not limited to, brokerage commissions, attorneys'
fees, the cost of cleaning, renovation, repair and alteration of the Demised
Premises, advertisements, marketing, the cost of caring for the Property while
vacant, free rent and other concessions to a new tenant. Tenant shall pay the
damages provided for in subdivision (a) above ("Deficiency") to Landlord monthly
on the days on which Fixed Rent would have been payable under this Lease if this
Lease were still in effect, and Landlord shall be entitled to recover from
Tenant each monthly Deficiency as the same shall arise or shall have the right
to accumulate monthly Deficiencies and sue to recover the same from time to time
as Landlord may determine. Tenant shall pay to Landlord the damages provided for
in subdivision (b) above on demand. At any time after such Expiration, whether
or not Landlord shall have collected any monthly Deficiency as aforesaid,
Landlord shall be entitled to recover from Tenant, and Tenant shall pay to
Landlord on demand, as and for liquidated and agreed final damages for Tenant's
default, an amount equal to the then present worth of the excess of the Fixed
Rent reserved under this Lease from the date of such Expiration over the fair
and reasonable rental value of the Property for what would be the then unexpired
portion of the Term if the same had remained in effect, said present worth to be
computed on the basis of a discount equal to the current yield of United States
Government securities having a
27
<PAGE>
term as near as possible to the amount of time remaining on the Term of this
Lease and on a net lease basis. For the purposes of this Section 21.6, the Fixed
Rent shall be deemed to be the average annual Fixed Rent due from Tenant to
Landlord during the three most recently ended Lease Years or, if fewer than
three Lease Years shall have elapsed since the Lease Date, then during all prior
Lease Years, or portions thereof, which have so elapsed.
21.7 Landlord agrees that it will refrain from exercising any
legal or equitable remedy available to it until the expiration of the applicable
cure periods provided in Section 21.1.
21.8 No failure by either party to insist upon the strict
performance of any Provision of this Lease or to exercise any right or remedy
consequent upon a breach thereof, and no acceptance of full or partial rent
during the continuance of any breach, shall constitute a waiver of any such
breach or such Provision. No Provision of this Lease to be performed or complied
with by either party, and no breach thereof, shall be waived, altered or
modified except by a written instrument executed by the other party. No waiver
of any breach shall affect or alter this Lease, but each and every Provision of
this Lease shall continue in full force and effect with respect to any other
then existing or subsequent breach thereof.
21.9 Except as may be otherwise provided in this Lease, in the
event of any breach or if Landlord has knowledge of a threatened breach of any
of the Provisions of this Lease, Landlord shall be entitled to enjoin such
breach or threatened breach and shall have the right to invoke any right and
remedy allowed by Law, in equity or otherwise, as though re-entry, summary
proceedings and other remedies were not provided for in this Lease.
21.10 Each right and remedy of Landlord provided for in this
Lease shall be cumulative and shall be in addition to every other right or
remedy provided for in this Lease or now or hereafter existing by Law, in equity
or otherwise, and, subject to the provisions of Section 21.7, the exercise or
beginning of the exercise by Landlord of any one or more of the rights or
remedies provided for in this Lease or now or hereafter existing by Law, in
equity or otherwise shall not preclude the simultaneous or later exercise by
Landlord of any or all other rights or remedies provided for in this Lease or
now or hereafter existing by Law, in equity or otherwise.
21.11 Landlord shall not be deemed to be in default under this
Lease unless (a) Tenant has given Notice to Landlord specifying the default
claimed, and (b) Landlord has failed for thirty (30) days (or for such longer
period as may be required with the exercise of due diligence) to cure such
default, if curable, or to institute and diligently pursue reasonable corrective
or ameliorative efforts towards a noncurable default.
21.12 In the event that Landlord or Tenant commences a suit
for the collection of any amounts for which another party hereto may be in
default or for the performance of any other covenant or agreement hereunder, the
prevailing party, as determined by the court having jurisdiction over the suit,
shall be entitled to recover its reasonable costs and expenses, including, but
not limited to, all attorneys' fees and expenses incurred in enforcing such
obligations and/or collecting such amounts, as determined by the Court.
28
<PAGE>
22. INVALIDITY OF PARTICULAR PROVISIONS. If any Provision of this Lease
or the application thereof to any Person or circumstance shall, to any extent,
be invalid or unenforceable, the remainder of this Lease, or the application of
such Provision to Persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby, and each Provision
of this Lease shall be valid and be enforced to the fullest extent permitted by
Law.
23. NOTICES.
23.1 All notices, requests, demands, consents, approvals and
other communications which may or are required to be served or given hereunder
("Notices") shall be in writing and shall be personally delivered with a receipt
signed by the recipient or sent by a nationally recognized courier service
providing evidence of delivery addressed as follows:
a. If to Landlord, at the address first above set
forth, with copies to:
Joel E. Gottlieb, Esquire
Gottlieb & Smith, P.A.
1901 Main Street, Suite 600
Columbia, SC 29201
b. If to Tenant, at the address first above set
forth, with copies to:
Mark A. Kimball
Sr. VP & General Counsel
Select Comfort SC Corporation
6105 Trenton Lane North
Minneapolis, MN 55442
23.2 Either party may, by Notice, change its address for all
subsequent Notices, except that neither party may require Notices to it to be
sent to more than four addresses. Notice given by counsel for a party shall be
deemed Notice by such party.
23.3 Except where otherwise expressly provided to the contrary
in this Lease, Notices shall be deemed given when received or, when delivery is
refused.
24. QUIET ENJOYMENT. Landlord covenants that Tenant, upon paying when
due Fixed Rent and Additional Rent herein provided for and observing and keeping
all Provisions of this Lease on its part to be observed and kept, shall quietly
have and enjoy the Property during the Term of this Lease, without hindrance or
molestation by anyone claiming by, through or under Landlord, subject, however,
to the exceptions, reservations, and Provisions of this Lease.
25. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS.
25.1 If Tenant shall at any time fail to pay any Imposition in
accordance with the Provisions of Article 5 hereof, or to take out, pay for,
maintain or deliver any of the insurance policies provided for in Article 10
hereof, or shall fail to make any other payment on its part to
29
<PAGE>
be made, then Landlord, after five (5) business days' Notice to Tenant, except
when other Notice is expressly provided for in this Lease (or without Notice in
case of emergency) and without waiving or releasing Tenant from any obligation
of Tenant contained in this Lease, may (but shall be under no obligation to):
a. Pay any Imposition payable by Tenant pursuant to
the Provisions of Article 5 hereof; or
b. Take out, pay for and maintain any of the
insurance policies provided for in Article 10 hereof; or
c. Make any other payments on Tenant's part to be
made as provided in this Lease;
and may enter upon the Property for any such purpose and take all reasonable
action thereon as may be necessary therefor.
25.2 All sums so paid by Landlord and all reasonable costs and
expenses incurred by Landlord in connection with the performance of any such
act, together with interest thereon at the Lease Interest Rate from the
respective dates of Landlord's making of each such payment or incurring of each
such cost and expense, shall be paid by Tenant to Landlord on demand as
Additional Rent hereunder, and Landlord shall not be limited in the proof of any
damages which Landlord may claim against Tenant arising out of or by reason of
Tenant's failure to provide and keep in force insurance as aforesaid to the
amount of the insurance premium or premiums not paid or incurred by Tenant and
which would have been payable upon such insurance, but Landlord shall also be
entitled to recover as damages for such breach the uninsured amount of any loss,
to the extent of any deficiency in the minimum amount of insurance required by
the Provisions of this Lease, and damages, costs and expenses of suit suffered
or incurred by reason of damage to, or destruction of, the Improvements
occurring during any period when Tenant shall have failed or neglected to
provide such insurance.
26. LANDLORD'S RIGHT TO MORTGAGE, SELL OR ASSIGN RENTS.
26.1 Landlord shall have the right at any time and from time
to time to place a First Mortgage on all or any part of the Property. In no
event shall Tenant be required to pay any installment of principal or interest
or other sums at any time due under any Landlord's Mortgage. In no event shall
the amount of such First Mortgage exceed the Purchase Price as defined in
Section 43.1.
26.2 Nothing contained in this Lease shall be deemed in any
way to limit, restrict or otherwise affect Landlord's absolute right at any time
or times to convey its interest in the Property, subject to this Lease, or to
assign its interest in this Lease, or to assign from time to time the whole or
any portion of Fixed Rent or Additional Rent at any time paid or payable
hereunder by Tenant to Landlord, to a transferee designated by Landlord in a
Notice to Tenant, and in any such case Tenant shall pay Fixed Rent and
Additional Rent payable by Tenant to Landlord, or the portion thereof so
assigned, subject to the Provisions of this Lease, to Landlord's designee at the
address mentioned in any such Notice.
30
<PAGE>
27. SUBORDINATION AND NON-DISTURBANCE.
27.1 Tenant accepts this Lease subject and subordinate to any
First Mortgage, but Tenant agrees that any such mortgagee shall have the right
at any time to subordinate such First Mortgage to this Lease on such terms and
subject to such conditions as such mortgagee may deem appropriate in its
discretion (it being understood that any document that Tenant is asked to
execute shall be in a commercially reasonable form). This clause shall be
self-operative and no further instrument of subordination shall be required. In
the event Tenant fails to execute a subordination document consistent with this
Article 27 within ten (10) business days of receipt of a request by Landlord and
Tenant provides no reasonable objection to Landlord's request, Landlord is
hereby irrevocably vested with full power and authority to subordinate this
Lease to any First Mortgage, and Tenant agrees upon demand to execute such
further instruments subordinating this Lease, acknowledging the subordination of
this Lease or attorning to the holder of any such First Mortgage as Landlord may
request. If any person shall succeed to all or part of Landlord's interests in
the Property whether by purchase, foreclosure, deed in lieu of foreclosure,
power of sale, termination of lease or otherwise, and if and as so requested or
required by such successor-in-interest, Tenant shall, without charge, attorn to
such successor-in-interest, provided said successor-in-interest shall agree that
so long as no Default exists under the Lease, Tenant's right to quiet possession
shall not be disturbed and the terms of the Lease shall remain unchanged.
27.2 It shall be a condition of the subordination of this
Lease to any First Mortgage that the holder thereof shall enter into a mutually
agreeable subordination, non-disturbance and attornment agreement (which, if
such holder is a recognized lending institution, shall be in such holder's usual
form; and otherwise shall be in a form reasonably satisfactory to Tenant) with
Tenant which shall provide that Tenant's rights under this Lease shall not be
disturbed in the event of foreclosure, sale or otherwise, so long as Tenant
attorns to such mortgagee or transferee and there is not otherwise an Event of
Default under this Lease; and Tenant shall promptly execute, acknowledge and
deliver such agreement.
28. PROVISIONS DEEMED CONDITIONS AND COVENANTS. All of the terms,
covenants, agreements, limitations, conditions and provisions of this Lease
(collectively, "Provisions") shall be deemed and construed to be "conditions"
and "covenants" as though the words specifically expressing or importing
covenants and conditions were used in each separate Provision hereof.
29. REFERENCE TO TERMINATION.Any reference herein to the termination of
this Lease shall be deemed to include any termination hereof by Expiration, or
pursuant to Article 11, 16, or 21 hereof, or otherwise.
30. NO WASTE. Tenant shall not do or suffer any waste to the Property
or any part thereof.
31. CAPTIONS AND CONSTRUCTION.
31.1 The captions and table of contents in this Lease are
inserted only as a matter of convenience and for reference and in no way define,
limit, enlarge or describe the
31
<PAGE>
scope or intent of this Lease nor in any way shall affect this Lease or the
construction of any Provision hereof.
31.2 The terms "include," "including" or words of like import
shall be construed as meaning "including, without being limited to".
31.3 Wherever the context so requires in this Lease, the
neuter gender includes the masculine and/or feminine gender, and the singular
number includes the plural.
31.4 The phrase "provided no default shall exist hereunder...
"shall be construed in this Lease as meaning "provided no uncured default
exists as to the payment of a liquidated sum of money, and no other uncured
default exists as to which Landlord has given Notice; however, if any such
default exists and is later cured within the applicable time period set forth in
this Lease, but in any event before the Expiration of this Lease, all remaining
rights hereunder shall be restored, including but not limited to the right to
receive funds or proceeds but for such default".
32. NO PARTNERSHIP OR JOINT VENTURE. Nothing contained in this Lease
shall be deemed or construed as creating a partnership or joint venture between
Landlord and Tenant or between Landlord and any other Person, or cause Landlord
to be responsible in any way for the debts or obligations of Tenant or any other
Person.
33. ORAL CHANGE OR TERMINATION. This Lease and the documents referred
to herein contain the entire agreement between the parties pertaining to the
subject matter hereof, and any executory agreement hereafter made shall be
ineffective to change, modify or discharge it in whole or in part unless such
executory agreement is in writing and signed by the party against whom
enforcement of the change, modification or discharge is sought. This Lease
cannot be changed or terminated orally.
34. SUCCESSORS AND ASSIGNS. The Provisions in this Lease shall bind and
inure to the benefit of Landlord and Tenant and, except as otherwise provided in
this Lease, their respective legal representatives, executors, successors and
assigns.
35. GOVERNING LAW. This Lease shall be governed by, and interpreted
under, the laws of the State applying to contracts made and to be performed
fully therein.
36. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR
LANDLORD) HEREUNDER SHALL BE LIMITED TO THE INTEREST OF LANDLORD IN THE
PROPERTY, AND TENANT AGREES TO LOOK SOLELY TO LANDLORD'S INTEREST IN THE
PROPERTY FOR THE RECOVERY OF ANY JUDGMENT OR AWARD AGAINST THE LANDLORD, IT
BEING INTENDED THAT LANDLORD SHALL NOT BE PERSONALLY LIABLE FOR ANY JUDGMENT OR
DEFICIENCY. TENANT HEREBY COVENANTS THAT, PRIOR TO THE FILING OF ANY SUIT FOR AN
ALLEGED DEFAULT BY LANDLORD HEREUNDER, IT SHALL GIVE LANDLORD AND ALL MORTGAGEES
WHOM TENANT HAS BEEN NOTIFIED
32
<PAGE>
HOLD MORTGAGES ON THE PROPERTY, NOTICE AND REASONABLE TIME TO CURE SUCH ALLEGED
DEFAULT BY LANDLORD.
37. UNAVOIDABLE DELAYS. Except for the obligation to pay Fixed Rent and
other charges payable hereunder which shall continue, whenever a party is
required to perform an act under this Lease by a certain time, said time shall
be deemed extended so as to take into account events of Unavoidable Delays.
38. FINANCIAL STATEMENTS. Tenant and its guarantor shall keep adequate
records and books of account with respect to its business activities in which
proper entries are made in accordance with generally accepted accounting
principles ("GAAP") reflecting all its financial transactions, and cause to be
prepared and furnished to Landlord the following (all to be prepared in
accordance with GAAP applied on a consistent basis, unless the Tenant's
certified public accountants concur in any change therein and such change is
disclosed to Landlord and is consistent with GAAP):
a. not later than one hundred twenty (120) days after the
close of each fiscal year Tenant's audited financial statements as of the end of
such year, certified by a firm of independent certified public accountants of
recognized standing selected by Tenant;
b. such other financial statements reasonably requested by
Landlord in connection with a sale or financing of the Property.
Landlord shall execute such reasonable confidentiality agreements as may be
requested by Tenant relative to such financial statements and documentation.
39. SECURITY DEPOSIT.
39.1 Upon execution of this Lease, Tenant is depositing with
Landlord the sum of One Hundred Thousand Dollars ($100,000.00) as security for
the full performance by Tenant of all the Provisions to be performed by Tenant
(the "Security Deposit"). In the event of a default by Tenant in any Provision
of this Lease, Landlord may disburse funds from the Security Deposit to or for
the account of Landlord.
39.2 Landlord shall maintain the Security Deposit in an
interest-bearing, federally insured deposit account reasonably agreeable to
Tenant in accordance with Section 39.4, but Landlord shall have no liability for
the amount of interest earned. At Tenant's request, all accrued interest shall
be paid to Tenant on each anniversary date of this Lease; provided, however, no
such interest payment shall be paid after a disbursement has been made pursuant
to Section 39.1 or if there is an outstanding Event of Default by Tenant.
39.3 In lieu of maintaining a Security Deposit in the form of
a cash deposit, Tenant may deliver an irrevocable letter of credit, in a form
approved by Landlord, in the amount of One Hundred Thousand Dollars
($100,000.00) (the "Letter of Credit") to Landlord. The Letter of Credit shall
be in favor of Landlord and shall be available for immediate drawdown by drafts
on site and without condition except Landlord must deliver to the issuing bank a
written certificate, certifying that the conditions for disbursement under this
Lease have been satisfied.
33
<PAGE>
Drafts drawn under and in compliance with the terms of the Letter of Credit
shall be duly honored on due presentation to the issuing bank. The Letter of
Credit shall have a term of at least one year. In the event that Tenant fails to
deliver an amendment to the Letter of Credit or a replacement Letter of Credit
by a date which is at least forty-five (45) days from its scheduled expiration,
which amendment or replacement extends the term of the Letter of Credit for at
least one year, Landlord shall cause the Letter of Credit to be drawn and the
proceeds shall be held as the Security Deposit in accordance with this Section
39. Tenant may substitute the Letter of Credit for a cash deposit or a cash
deposit for the Letter of Credit from time to time and at any time during the
term of this Lease. The use of the term Security Deposit in this Lease shall
refer to either the cash deposit or the Letter of Credit, as the case may be,
which is then being held by Landlord.
39.4 Landlord and Tenant shall agree on the bank, branch, and
type of account into which the Security Deposit is made prior to opening the
account. To the extent that the Security Deposit is a cash deposit, Tenant shall
have the right to reasonably direct the form of investment that will be made
with the cash deposit while in escrow. All interest earned on the cash deposit
while held in escrow shall be for the benefit and account of Tenant, subject to
Section 39.2. Tenant shall provide such information and execute such forms as
may be necessary to properly report such interest income. If Landlord proposes
to disburse any amount from the Security Deposit in accordance with Section
39.1, Landlord shall give at least ten (10) days' written notice to the Tenant
of its intention to disburse all or a portion of the Security Deposit on a
stated date. Tenant covenants and agrees that no objection shall be made to any
such disbursement unless there exists a reasonable basis for such objection and
it is made in good faith.
39.5 In the event of a sale or other conveyance of the
Property by Landlord, Landlord shall assign all its rights in the Security
Deposit to the successor owner and Landlord shall have no further liability
relating to the Security Deposit. If the Security Deposit is in the form of a
Letter of Credit, Landlord and Tenant shall take such action as is reasonably
necessary to cause the successor owner to be substituted for Landlord as
beneficiary of the Letter of Credit and if such substitution is not made, Tenant
shall substitute a cash deposit or cause a substitute Letter of Credit to be
issued showing the successor owner as the beneficiary.
40. RELEASE OF PARCEL B. Landlord may at any time during the Term
hereof release Parcel B (as shown on the plat described in SCHEDULE A) from this
Lease whereupon the Land and Demised Premises shall no longer include Parcel B.
The release may be accomplished by instrument signed only by Landlord provided
Landlord has obtained subdivision plat approval from Richland County or other
governmental agency having jurisdiction and Landlord has given notice of the
release to Tenant. Landlord hereby reserves and establishes easements on Parcel
A for the benefit of Parcel B for ingress, egress, storm drainage, and utility
installation, operation, and maintenance provided that such easements shall not
be located in such a way as to adversely impact Tenant's use of the Demised
Premises in any material respect.
34
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this instrument as of
the day and year first above written.
FRASTACKY (US) PROPERTIES LIMITED
PARTNERSHIP, a Georgia limited partnership
By: Fras-Am, Inc., a Delaware
corporation, general partner (SEAL)
By: /s/ Fedor Frastacky
----------------------------------
Print Name: Fedor Frastacky
------------------------
Title: President
------------------------------
SELECT COMFORT SC CORPORATION, a
Minnesota corporation (SEAL)
By: Mark A. Kimball
---------------------------------------
Print Name: Mark A. Kimball
------------------------------
Title: SVP and General Counsel
-----------------------------------
Attest: Mitch Johnson
----------------------------------
Assistant Secretary
For value received the undersigned, being the parent corporation of Select
Comfort SC Corporation ("Tenant"), does hereby unconditionally guarantee the
full payment and performance of all of Tenant's obligations hereunder. The
undersigned agrees that notice to Tenant shall be deemed notice to the
undersigned. In the event Landlord seeks the enforcement hereof the undersigned
shall pay Landlord reasonable attorneys' fees and costs in addition to any other
sums due hereunder or under the Lease.
SELECT COMFORT CORPORATION (SEAL)
By: Mark A. Kimball
---------------------------------------
Print Name: Mark A. Kimball
------------------------------
Title: SVP and General Counsel
-----------------------------------
Attest: Mitch Johnson
----------------------------------
Assistant Secretary
35
<PAGE>
SCHEDULE A
LEGAL DESCRIPTION OF DEMISED PREMISES,
INCLUDING ALL EASEMENTS
Those parcels of land, with improvements thereon, situate in Richland County,
South Carolina, containing 31.775 acres and being shown as Parcels A and B on
Site and Topographic Survey prepared for Frastacky Associates, Inc. by B.P.
Barber & Associates, Inc. dated November 15, 2001, last revised April 24, 2002,
said plat being incorporated herein by reference, said parcels being
collectively described as follows:
BEGINNING at a rebar at the southernmost corner of Parcel A whereat said
property corners with property of Broad River - Irmo Associates, Ltd. along the
eastern margin of the right-of-way of U.S. Interstate 26 and running along said
right-of-way as follows: N33(degree)49'34"W - 82.23 feet to a rebar;
S56(degree)10'26'W - 5.00 feet to a rebar; N33(degree)49'34"W - 241.18 feet to a
rebar; S56(degree)10'26"W - 18.23 feet to a rebar; N33(degree)31'32"W - 511.36
feet to a rebar; N33(degree)31'32"W - 33.44 feet to a concrete monument;
N10(degree)28'49"W - 33.94 feet to a rebar; thence turning and running along
properties of Bobby Joe & Joyce L. Monts and Roof E. Lowman Life Estate
N69(degree)32'06"E - 412.78 feet to a rebar; thence turning and running along
property of Roof E. Lowman N72(degree)51'20"E as follows: 548.54 feet to a
rebar; 562.29 feet to a pipe; thence turning and running along property of R.E.
& Eula M. Lowman N72(degree)51'20"E - 487.96 feet to a rock; thence turning and
running along property of Roof E. Lowman S44(degree)25'02"E - 499.56 feet to a
pipe; thence turning and running along property of Broad River - Irmo
Associates, Ltd. S60(degree)19'58"W from rebar to rebar as follows: 1,138.24
feet; 875.06 feet to the Point of Beginning, be all measurements a little more
or less.
36