Exhibit
10.14


 


 


STANDARD
FORM


INDUSTRIAL
BUILDING LEASE


(MULTI-TENANT)


 


1.                                     
BASIC TERMS.  This Section 1 contains the Basic Terms of this
Lease between Landlord and Tenant, named below.  Other Sections of the
Lease referred to in this Section 1 explain and define the Basic Terms and are to be read in
conjunction with the Basic Terms.


 


1.1.                           
Date
of Lease:  March 21, 2003


 


1.2.                           
Landlord: 
First Industrial LP


 


1.3.                           
Tenant: 
The Wornick Company


 


1.4.                           
Premises: 
“Phase I Premises” consisting of
approximately 25,336 square feet designated as the “Tenant 8” space on Exhibit
A-2 attached hereto, together with approximately 3,240 square feet designated
as the “Tenant 2” space on Exhibit A-2 to be used by Tenant for office and
employee welfare, containing a total of approximately 28,576 square feet; the “Phase II Premises” containing
approximately 31,740 square feet as shown on Exhibit A-2 attached hereto; and
the “Phase III
Premises” containing approximately 100,621 square feet as shown on Exhibit A-2
attached hereto, totaling 160,937 square feet, in the building commonly known
as the Creek Road Business Park, 4700-4750 Creek Road, Cincinnati, OH 45242
(the “Building”).  As used in
this Lease, the term “Premises,” when the context so requires, means whatever
portion of the Phase I Premises, Phase II Premises, and Phase III Premises is
being leased by Tenant hereunder from time to time.


 


Landlord shall complete the Phase I Improvements,
Phase II Improvements, and Phase III Improvements (as described on Exhibit B
attached hereto) prior to the Phase I Premises Commencement Date, Phase II
Premises Commencement Date and, Phase III Premises Commencement Date,
respectively.  Landlord shall also complete the Additional Improvements
(as described on Exhibit B) to the Phase I Premises, Phase II Premises, and
Phase III Premises prior to the Phase I Premises Commencement Date, Phase II
Premises Commencement Date, Phase III Premises Commencement Date, respectively.


 


Nitrogen Tanks:  Beginning on the Phase III
Premises Commencement Date and continuing thereafter during the Term of this
Lease, Tenant shall be permitted to install, store and use for its business
purposes two nitrogen tanks on the west end or in the rear of the Building in a
location mutually agreed upon by Landlord and Tenant but in any event
sufficiently close to the Premises that the same are practically and economically
useable in the business of Tenant being conducted on the Premises.


 


Parking Spaces:  During all periods in which
Tenant is leasing the Phase I Premises, Landlord shall provide Tenant with 60
allocated parking spaces at the Building.  During all periods in which
Tenant is leasing the Phase I Premises and Phase II Premises, Landlord shall
provide Tenant with 90 allocated parking spaces at the Building.  During
all periods in which Tenant is leasing the Phase I Premises, Phase II Premises
and Phase III Premises, Landlord shall provide Tenant with 275 allocated
parking spaces at the Building.  During all periods in which Tenant is
leasing only the Phase I Premises and Phase III Premises, Landlord shall
provide Tenant with 225 allocated parking spaces at the Building.  If
Tenant leases Adjacent Space pursuant to Rider No. 3 attached hereto, Landlord
shall provide Tenant with the allocated parking spaces associated with each of
the Adjacent Spaces leased, as outlined on the attached Exhibit A-2.


 





















 


Sears Termination Fee:  Landlord and Tenant
acknowledge that the Phase II Premises and Phase III Premises are presently
leased to Sears and that Landlord is in the process of negotiating an early
termination of Sears’ lease of such space, including a fee to be paid by Sears
in consideration for such early termination (the “Termination Fee”).  At such time as Landlord has received
payment from Sears of the full amount of the Termination Fee and Sears has
vacated such premises, net of any gross rents that Landlord was scheduled to
receive in 2003 from Sears for the Phase III Premises prior to the Commencement
Date for the lease of the Phase III Premises to Tenant as outlined in
Section 1.6, Landlord shall pay Tenant 100% of the amount of the
Termination Fee in excess of $100,000.00 and up to $200,000.00, for a total of
$100,000.00.  Landlord and Tenant shall each receive 50% of any
Termination Fee amount in excess of $200,000.00.


 


1.5.                           
Property: 
See Exhibit A-1, A-2.


 


1.6.                           
Lease
Term:  Approximately five (5) years four (4) months (“Term”), commencing, with respect to the Phase I
Premises, on March      , 2003 (the “Phase I Premises Commencement Date”), and commencing,
with respect to the Phase II Premises, on the later of March 1, 2004 or
completion of the Phase II Improvements (the “Phase II Premises Commencement Date”), and commencing,
with respect to the Phase III Premises, on the later of March 1, 2004 or
completion of the Phase III Improvements (the “Phase III Premises Commencement Date”) and ending on
July 31, 2008 (“Expiration
Date”). 
As used in this Lease, the “Term” means the initial Term, as the same may be
extended pursuant to Tenant’s exercise of the renewal option set forth on Rider
No. 4 attached hereto.


 


1.7.                           
Permitted
Uses:  (See Section 4.1) Food storage,
processing, assembly, packaging, warehousing, distribution, office and employee
facilities (including dining areas and break rooms), and related purposes.


 


1.8.                           
Tenant’s
Guarantor:  None


 


1.9.                           
Brokers: 
(See Section 23)


 


(A)                         
Tenant’s
Broker:  Colliers Turley Martin Tucker


 


(B)                           
Landlord’s
Broker:  None


 


1.10.                    
Security/Damage
Deposit:  Waived.


 


1.11.                    
Initial
Estimated Additional Rent Payable by Tenant:  $0.70 psf/year


 


1.12.                    
Tenant’s
Proportionate Share:  Subject to adjustment as hereafter set forth, the parties
hereto anticipate that the Tenant’s Proportionate Share shall be 10.78% from
and after the Phase I Premises Commencement Date, 22.76% from and after the
Phase II Premises Commencement Date, and 60.73% from and after the Phase III
Premises Commencement Date; provided that Tenant’s Proportionate Share shall be
calculated by taking the rentable area of the Premises and dividing it by the
total rentable area of the Building (the total rentable area of the Building
being 265,000 sq. ft.).


 


1.13.                    
Riders
to Lease:  The following riders are attached to and made a part of this
Lease.  (If none, so state): Rider No. 1 (Cancellation Option); Rider No.
2 (Termination Option); Rider No. 3 (Expansion Rights); Rider No. 4 (Renewal
Options).


 


2.                                     
LEASE OF PREMISES;
RENT.


 


2.1.                           
Lease of Premises for
Lease Term.  Landlord hereby leases the Premises to Tenant, and Tenant hereby
rents the Premises from Landlord, for the Term and subject to the conditions of
this Lease.


 


2





















 


2.2.                           
Types of Rental
Payments.  Tenant shall pay net base rent to Landlord in monthly
installments, in advance, on the first day of each and every calendar month
during the Term of this Lease (the “Base Rent”) in the amounts and for the
periods set forth below for each of the Premises described herein:


 


PHASE 1 PREMISES 


 


(28,576 sq. ft.)


 


	
  Lease
  Period

  	
   

  	
  Annual
  Base Rent

  	
   

  	
  Monthly
  Base Rent

  	
   

  	
  Annual
  Amt. PSF

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3/16/03-3/31/04

  	
   

  	
  $

  	
  65,724.80

  	
   

  	
  $

  	
  5,477.07

  	
   

  	
  $

  	
  2.30

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4/1/04-3/31/05

  	
   

  	
  $

  	
  71,440.00

  	
   

  	
  $

  	
  5,953.33

  	
   

  	
  $

  	
  2.50

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4/1/05-3/31/06

  	
   

  	
  $

  	
  77,155.20

  	
   

  	
  $

  	
  6,429.60

  	
   

  	
  $

  	
  2.70

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4/1/06-3/31/07

  	
   

  	
  $

  	
  82,870.40

  	
   

  	
  $

  	
  6,905.87

  	
   

  	
  $

  	
  2.90

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4/1/07-7/31/08

  	
   

  	
  $

  	
  88,585.60

  	
   

  	
  $

  	
  7,382.13

  	
   

  	
  $

  	
  3.10

  	
   

  



 


 


PHASE II PREMISES


 


(31,740 sq. ft.)


 


	
  Lease
  Period

  	
   

  	
  Annual
  Base Rent

  	
   

  	
  Monthly
  Base Rent

  	
   

  	
  Annual
  Amt. PSF

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Phase II
  Premises Commencement Date – 4/30/06

  	
   

  	
  $

  	
  88,872.00

  	
   

  	
  $

  	
  7,406.00

  	
   

  	
  $

  	
  2.80

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5/1/06 – 7/31/08

  	
   

  	
  $

  	
  95,220.00

  	
   

  	
  $

  	
  7,935.00

  	
   

  	
  $

  	
  3.00

  	
   

  



 


 


PHASE III PREMISES


 


(100,621 sq. ft.)


 


	
  Lease
  Period

  	
   

  	
  Annual
  Base Rent

  	
   

  	
  Monthly
  Base Rent

  	
   

  	
  Annual
  Amt. PSF

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Phase III Premises
  Commencement Date – 7/31/04

  	
   

  	
  $

  	
  276,707.76

  	
   

  	
  $

  	
  23,058.98

  	
   

  	
  $

  	
  2.75

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8/1/04-7/31/05

  	
   

  	
  $

  	
  281,738.76

  	
   

  	
  $

  	
  23,478.23

  	
   

  	
  $

  	
  2.80

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8/1/05-7/31/06

  	
   

  	
  $

  	
  286,769.88

  	
   

  	
  $

  	
  23,897.49

  	
   

  	
  $

  	
  2.85

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8/1/06-7/31/07

  	
   

  	
  $

  	
  291,800.88

  	
   

  	
  $

  	
  24,316.74

  	
   

  	
  $

  	
  2.90

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8/1/07-7/31/08

  	
   

  	
  $

  	
  296,832.00

  	
   

  	
  $

  	
  24,735.00

  	
   

  	
  $

  	
  2.95

  	
   

  



 


 


Tenant shall also pay Tenant’s Proportionate Share (as
set forth in Section 1.12) of
Operating Expenses (as hereinafter defined) and any other amounts owed by
Tenant hereunder [collectively, “Additional
Rent”].  In the


 


3





















 


event any monthly installment of Base Rent or
Additional Rent, or both, is not paid within five (5) business days after
Tenant’s receipt of notice from Landlord that such payment is past due,
Landlord may charge Tenant a late charge equal to 4% of the then delinquent
installment of Base Rent and/or Additional Rent [the “Late Charge”; the Late Charge, Default
Interest (as defined in Section 22.3
below), Base Rent and Additional Rent shall collectively be referred to as “Rent”) shall be paid by Tenant to Landlord
as Additional Rent.  Tenant shall pay Rent to Landlord at the following
address: c/o First Industrial, L.P., 75 Remittance Drive, Suite 1444, Chicago,
IL 60675-1444, or if sent by overnight courier, Northern Trust Receipt &
Dispatch, 350 N. Orleans Street, 8th Floor, Suite 1444, Chicago, IL 60654,
Attention:  First Industrial L.P., Lockbox #1444, (or such other entity
designated as Landlord’s management agent, if any, and if Landlord so appoints
such a management agent, the “Agent”),
or pursuant to such other directions as Landlord shall designate in this Lease
or otherwise in writing.  The foregoing notwithstanding, Tenant shall be
entitled to receive notices from Landlord under this paragraph on only the
first occasion of nonpayment of Rent in each calendar year and, on the second
and each succeeding occasion of nonpayment of Rent in such calendar year,
Tenant shall not be entitled to the above-described 5-business day written
notice and cure period and, thereafter during such calendar year, the Late
Charge shall be due in the event any monthly installment of Base Rent or
Additional Rent, or both, is not paid within 10 days of the date when due.


 


2.3.                           
Covenants Concerning
Rental Payments.  Tenant shall pay the Rent promptly when due, without
notice or demand, and without any abatement, deduction or setoff, except as may
otherwise be expressly and specifically provided in this Lease.  No payment
by Tenant, or receipt or acceptance by Agent or Landlord, of a lesser amount
than the correct Rent shall be deemed to be other than a payment on account,
nor shall any endorsement or statement on any check or letter accompanying any
payment be deemed an accord or satisfaction, and Agent or Landlord may accept
such payment without prejudice to its right to recover the balance due or to
pursue any other remedy available to Landlord.  If the Commencement Date
occurs on a day other than the first day of a calendar month, the Rent due for
the first calendar month of the Term shall be prorated on a per diem basis and
paid to Landlord on the Commencement Date.


 


3.                                     
OPERATING EXPENSES.


 


3.1.                           
Definitional Terms
Relating to Additional Rent.  For purposes of this Section and other
relevant provisions of the Lease:


 


3.1.1.                 
Operating Expenses.  The term “Operating Expenses” shall mean all costs
and expenses paid or incurred with respect to the ownership, repair,
replacement, restoration, maintenance and operation of the Property, including,
without limitation, the following: (i) services provided directly by employees
of Landlord or Agent in connection with the operation, maintenance or rendition
of other services to or for the Property; (ii) to the extent not separately
metered, billed, or furnished, all charges for utilities and services furnished
to either or both of the Property and the Premises (including, without
limitation, the Common Areas [as hereinafter defined]), together with any taxes
on such utilities; (iii) all premiums for casualty, workers’ compensation,
liability, boiler, flood and all other types of insurance provided by Landlord
and relating to the Property, all third party administrative costs incurred in
connection with the procurement and implementation of such insurance policies,
and all deductibles paid by Landlord pursuant to insurance policies required to
be maintained by Landlord under this Lease; (iv) the cost of all supplies,
tools, materials and equipment utilized in the ownership and operation of the
Property, and sales and other taxes thereon; (v) amounts charged (including,
without limitation, those costs and expenses set forth in Section 13.2(i) below) by any or all
of contractors, materialmen and suppliers for services, materials and supplies
furnished to Landlord in connection with any or all of the operation, repair
and maintenance of any part of the Property, including, without limitation, the
structural elements of the Property and the Common Areas; (vi) an annual
management fee equal to four percent (4%) of the annual Rent payable hereunder
to Landlord or Agent or other persons or management entities actually involved
in the management and operation of the Property; (vii) any capital improvements
made by, or on behalf of, Landlord to the Property that are either or both (a)
designed to reduce Operating Expenses and (b) required to keep the Property in
compliance with all governmental laws, rules and regulations applicable
thereto, from time to time, the cost of which capital improvements shall be
reasonably amortized by Landlord over the useful life of the improvement, in
accordance with generally accepted accounting principles; (viii) all
professional fees incurred in connection with the operation, management and
maintenance of the Property; and (ix) Taxes, as hereinafter defined in Section 3.1.2. 
Notwithstanding the definitions set forth in section 3.1.1 and
section 3.1.2, the definitions of Operating Expenses and Taxes shall
exclude the following: costs of services provided exclusively to other tenants
and not to Tenant; late


 


4





















 


fees
incurred by Landlord for late payments of bills not due to the acts or
omissions of Tenant, its employees, agents or representatives; any cost or
expense which Landlord incurs which is charged directly to the tenant on whose
behalf it is incurred (whether or not the same shall finally be paid) or for
which Landlord is otherwise reimbursed by insurance proceeds or condemnation
awards; income, profit, franchise, corporate, capital stock, estate,
inheritance and any other taxes imposed on, or measured by, the income of
Landlord from the operation of the Property; payments to subsidiaries or
affiliates of Landlord for services or materials to the extent such payments
would not have been made had the services or materials been provided by an
unaffiliated party on a competitive basis; legal fees, arbitration and
mediation expenses and other expenses incurred in connection with the
resolution of disputes between Landlord and tenants at the Property; costs
arising from the negligence or willful misconduct of Landlord or its agents,
employees, contractors or other tenants or occupants at the Property; costs
arising from a breach by any other tenant of its obligations under its lease;
costs incurred in Landlord’s leasing activities, including leasing fees,
commissions and other compensation paid to brokers or to Landlord’s employees
and agents, advertising costs, costs of renovations, tenant improvements, or
alterations made at the initiation or in connection with the renewal of tenant
leases, and legal fees incurred in negotiating and preparing lease documents;
salaries or other compensation paid to employees of Landlord above the grade of
building manager; costs of capital improvements (except to the extent expressly
permitted under this Section 3.1.1); cost of correcting defects in the original
construction of the improvements at the Property or related improvements; costs
of remediating or otherwise addressing environmental contamination at the
property; interest and principal payments on any mortgage, deed of trust or
indebtedness of Landlord; depreciation; payments made under any ground lease;
and construction and other costs related to any addition to or expansion of
improvements at the Property.


 


3.1.2.                 
Taxes.  The term “Taxes,” as referred to in Section 3.1.l(ix) above shall mean (i)
all governmental taxes, assessments, fees and charges of every kind or nature
(other than Landlord’s income taxes), whether general, special, ordinary or
extraordinary, due at any time or from time to time, during the Term and any
extensions thereof, in connection with the ownership, leasing, or operation of
the Property, or of the personal property and equipment located therein or used
in connection therewith; and (ii) any reasonable expenses incurred by Landlord
in contesting such taxes or assessments and/or the assessed value of the
Property.  For purposes hereof, Taxes for any year shall be Taxes that are
due for payment or paid in that year rather than Taxes that are assessed,
become a lien, or accrue during such year.


 


3.1.3.                 
Operating Year.  The term
“Operating Year” shall mean the calendar year commencing January 1st of
each year (including the calendar year within which the Commencement Date
occurs) during the Term.


 


3.2.                           
Payment of Operating
Expenses.  Tenant shall pay, as Additional Rent and in accordance with
the requirements of Section 3.3, Tenant’s
Proportionate Share of the Operating Expenses as set forth in Section 3.3.  Additional
Rent for the Phase I Premises, Phase II Premises, and Phase III Premises shall
commence to accrue upon the Phase I Premises Commencement Date, Phase II
Premises Commencement Date, and Phase III Premises Commencement Date,
respectively.  The Tenant’s Proportionate Share of Operating Expenses
payable hereunder for the Operating Years in which the Term begins and ends
shall be prorated to correspond to that portion of said Operating Years
occurring within the Term.  Tenant’s Proportionate Share of Operating
Expenses and any other sums due and payable under this Lease shall be adjusted
upon receipt of the actual bills therefor, and the obligations of this Section 3 shall survive the termination or
expiration of the Lease.


 


3.3.                           
Payment of Additional
Rent.  Landlord shall have the right to reasonably estimate the
Operating Expenses for each Operating Year.  Upon Landlord’s or Agent’s
notice to Tenant of such estimated amount, Tenant shall pay, on the first day
of each month during that Operating Year, an amount (the “Estimated Additional Rent”) equal to the estimate of the
Tenant’s Proportionate Share of Operating Expenses divided by 12 (or the
fractional portion of the Operating Year remaining at the time Landlord
delivers its notice of the estimated amounts due from Tenant for that Operating
Year).  If the aggregate amount of Estimated Additional Rent actually paid
by Tenant during any Operating Year is less than Tenant’s actual ultimate
liability for Operating Expenses for that particular Operating Year, Tenant
shall pay the deficiency within 30 days of Landlord’s written demand therefor.
 If the aggregate amount of Estimated Additional Rent actually paid by
Tenant during a given Operating Year exceeds Tenant’s actual liability for such
Operating Year, the excess shall be credited against the Estimated Additional
Rent next due from Tenant during the immediately subsequent Operating Year,
except that in the event that such excess is paid by Tenant during the final
Lease Year, then upon the expiration of the Term, Landlord or


 


5





















 


Agent
shall pay Tenant the then-applicable excess promptly after determination
thereof.  No interest shall be payable to Tenant on account of payments of
Estimated Additional Rent and such payments may be commingled.


 


Within one hundred twenty
(120) days after the end of each calendar year during the Lease Term, Landlord
shall furnish to Tenant (i) annual statements itemizing the Operating Expenses
for the year just ended, which statements shall be reasonably detailed,
prepared in the ordinary course of Landlord’s business and certified by
Landlord as being true and complete, and (ii) Landlord’s calculations showing
Tenant’s Proportionate Share of the Operating Expenses for such year. 
Upon thirty (30) days prior notice and not more than once per year during the
Lease Term, Tenant shall have the right to inspect Landlord’s books and records
for the sole purpose of verifying the Operating Expenses and the calculation of
the Tenant’s Proportionate Share thereof.  If any such inspection reveals
that Tenant was overcharged and not otherwise properly reconciled pursuant to
this Section 3.3, Landlord
shall credit any such amounts to the next payment(s) of Additional Rent
becoming due or, in the final year, refund any such excess amount charged to
Tenant.  Tenant agrees to maintain in strict confidence any information
Tenant obtains or reviews pursuant to its inspections rights granted under this
Section 3.3 except that
Tenant shall be permitted to disclose such information to its attorneys and
advisors, provided Tenant informs such parties of the confidential nature of
such information and uses good faith and diligent efforts to cause such parties
to maintain such information as confidential.


 


4.                                     
USE OF PREMISES AND
COMMON AREAS; SECURITY DEPOSIT.


 


4.1.                           
Use of Premises and
Property.  The Premises shall be used by the Tenant for the purpose(s)
set forth in Section 1.7 above and for no
other purpose whatsoever.  Tenant shall not, at any time, use or occupy,
or suffer or permit anyone to use or occupy, the Premises, or do or permit
anything to be done in the Premises or the Property, in any manner that may (a)
violate any Certificate of Occupancy for the Premises or the Property; (b)
cause, or be liable to cause, injury to, or in any way impair the value or
proper utilization of, all or any portion of the Property (including, but not
limited to, the structural elements of the Property) or any equipment,
facilities or systems therein; (c) constitute a violation of the laws and
requirements of any public authority or the requirements of insurance bodies or
the rules and regulations of the Property, including any covenant, condition or
restriction affecting the Property, (d) exceed the load bearing capacity of the
floor of the Premises; (e) impair or tend to impair the character, reputation
or appearance of the Property; or (e) unreasonably annoy, inconvenience or
disrupt the operations or tenancies of other tenants or users of the
Property.  On or prior to the date hereof, Tenant has completed and
delivered for the benefit of Landlord a “Tenant Operations Inquiry Form” in the
form attached hereto as Exhibit
D
describing the nature of Tenant’s proposed business operations at the Premises,
which form is intended to, and shall be, relied upon by Landlord.


 


4.2.                           
Use of Common
Areas.  As used herein, “Common Areas” shall mean all areas within the
Property that are available for the common use of tenants of the Property and
that are not leased or held for the exclusive use of Tenant or other tenants or
licensees, including, but not limited to, parking areas, driveways, sidewalks,
loading areas, access roads, corridors, landscaping and planted areas. 
Tenant shall have the nonexclusive right to use the Common Areas for the
purposes intended, subject to such reasonable rules and regulations as Landlord
may uniformly establish from time to time.  Tenant shall not interfere
with the rights of any or all of Landlord, other tenants or licensees, or any
other person entitled to use the Common Areas.  Without limitation of the
foregoing, Tenant shall not park or store any vehicles or trailers on, or
conduct truck loading and unloading activities in, the Common Areas in a manner
that unreasonably disturbs, disrupts or prevents the use of the Common Areas by
Landlord, other tenants or licensees or other persons entitled to use the
Common Areas.  Landlord, from time to time, may change any or all of the
size, location, nature and use of any of the Common Areas although such changes
may result in inconvenience to Tenant, so long as such changes do not materially
and adversely affect Tenant’s use of the Premises.  In addition to the
foregoing, Landlord may, at any time, close or suspend access to any Common
Areas to perform any acts in the Common Areas as, in Landlord’s reasonable
judgment, are desirable to improve or maintain either or both of the Premises
and the Property, or are required in order to satisfy Landlord’s obligations
under either or both of Sections
13.2
and 18; provided, however,
that Landlord shall use reasonable efforts to limit any disruption of Tenant’s
use and operation of the Premises in connection therewith.


 


4.3.                           
Signage.  Tenant shall not affix
any sign of any size or character to any portion of the Property, without prior
written approval of Landlord, which approval shall not be unreasonably withheld
or delayed.


 


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Tenant
shall remove all signs of Tenant upon the expiration or earlier termination of
this Lease and immediately repair any damage to either or both of the Property
and the Premises caused by, or resulting from, such removal.


 


4.4.                           
Intentionally
Omitted.


 


5.                                     
CONDITION AND
DELIVERY OF PREMISES.


 


5.1.                           
Conditions of
Premises.  Landlord presents and warrants to Tenant that, on the Phase I
Premises Commencement Date, Phase II Premises Commencement Date, and Phase III
Premises Commencement Date, respectively, and as applicable, all plumbing,
electrical, heating, ventilating, air-conditioning, ventilating and mechanical
systems, including the dock doors permitted to be used by Tenant hereunder,
located within the Premises, or located outside the Premises but which service
the Premises, shall be in good condition and repair and in proper working
order.  Tenant acknowledges that, except as set forth in this Lease,
neither Landlord or Agent, nor any representative of Landlord, has made any
representation as to the condition of the Premises or the suitability of the
Premises for Tenant’s intended use.  Neither Landlord nor Agent shall be
obligated to make any repairs, replacements or improvements (whether structural
or otherwise) of any kind or nature to the Premises in connection with, or in
consideration of, this Lease, except (a) as set forth in Sections 13.2 and 18 and (b) with respect to all (if any) repairs and
improvements expressly and specifically described in Exhibit B attached hereto (“Landlord Work Items”) and (c) as may be
required in order to deliver the Premises to Tenant in the condition required
under this paragraph.  Landlord shall enforce, or cause Agent to enforce,
upon Tenant’s request, all manufacturer’s or contractor’s warranties, if any,
issued in connection with any of the Landlord Work Items.  Landlord shall
perform, or caused to be performed, the Landlord Work Items in a good and
workmanlike manner.


 


5.2.                           
Delay in
Commencement.  Landlord shall not be liable to Tenant if Landlord does not
deliver possession of the Phase I Premises, Phase II Premises, or Phase III
Premises to Tenant on the Phase I Premises Commencement Date, Phase II Premises
Commencement Date, or Phase III Premises Commencement Date, respectively. 
The obligations of Tenant under the Lease shall not be affected thereby, except
that the applicable Commencement Date shall be delayed until Landlord delivers
possession of the Phase I Premises, Phase II Premises, or Phase III Premises
(as the case may be) to Tenant.  A delay in the Commencement Date shall
not change the Expiration Date.  Notwithstanding the foregoing provisions,
in the event any such premises are not delivered by Landlord as required herein
by September 1, 2003, Tenant may elect to terminate this Lease.


 


6.                                     
SUBORDINATION;
NOTICES TO SUPERIOR LESSORS AND MORTGAGEES; ATTORNMENT.


 


6.1.                           
Subordination.  Provided that Tenant
is provided with a reasonable and customary subordination, nondisturbance and
attornment agreement duly executed by the holder of any mortgage or deed of trust
or the landlord pursuant to any ground lease, this Lease shall be subject and
subordinate at all times to (a) all ground leases or underlying leases that may
now exist or hereafter be executed affecting either or both of the Premises and
the Property and (b) any mortgage or deed of trust that may now exist or
hereafter be placed upon, and encumber, any or all of (x) the Property; (y) any
ground leases or underlying leases for the benefit of the Property; and (z) all
or any portion of Landlord’s interest or estate in any of said items. 
Notwithstanding the foregoing, Landlord shall have the right to subordinate or
cause to be subordinated any such ground leases or underlying leases that
benefit the Property or any such mortgage or deed of trust liens to this
Lease.  Tenant shall execute and deliver, upon demand by Landlord any
additional documents evidencing the priority of subordination of this Lease
with respect to any such ground leases or underlying leases for the benefit of
the Property or any such mortgage or deed of trust provided such documents are
in a commercially reasonable form.


 


6.2.                           
Estoppel
Certificates.  Tenant agrees, from time to time and within 10 days after
request by Landlord, to deliver to Landlord, or Landlord’s designee, an
estoppel certificate stating such matters pertaining to this Lease as may be
reasonably requested by Landlord provided such certificate is in a commercially
reasonable form.  Failure by Tenant to timely execute and deliver such certificate
shall constitute an acceptance of the Premises and acknowledgment by Tenant
that the statements included therein are true and correct without
exception.  Landlord and Tenant intend that any statement delivered
pursuant to this section may be relied upon by any prospective purchaser
or mortgagee of the Property or of any interest therein or any other Landlord
designee.


 


7





















 


6.3.                           
Transfer for
Landlord.  In the event of a sale or conveyance by Landlord of the
Property, the same shall operate to release Landlord from any future liability
for any of the covenants or conditions, express or implied, herein contained in
favor of Tenant to the extent such covenants and conditions are assumed by
Landlord’s successor-in-interest, and in such event Tenant agrees to look
solely to Landlord’s successor in interest with respect thereto and agrees to
attorn to such successor.


 


7.                                     
QUIET
ENJOYMENT.  Subject to the provisions of this Lease, so long as Tenant
pays all of the Rent and performs all of its other obligations hereunder,
Tenant shall not be disturbed in its possession of the Premises by Landlord,
Agent or any other person lawfully claiming through or under Landlord;
provided, however, in addition to Landlord’s rights under Section 16 and elsewhere in this
Lease, Landlord and Landlord’s agents, employees, contractors and
representatives shall be provided reasonable access to the Premises such that
Landlord and Landlord’s agents, employees, contractors and representatives may
perform the General Maintenance Services (as hereinafter defined) without undue
interruption, delay or hindrance.  This covenant shall be construed as a
covenant running with the Property and is not a personal covenant of Landlord. 
Tenant shall not unreasonably interrupt, delay, prevent or hinder the
performance of the General Maintenance Services by or on behalf of
Landlord.  Notwithstanding the foregoing, however, Tenant acknowledges and
agrees that Landlord shall have the unfettered and unilateral right to use
portions of the Common Areas (inclusive of the roof of the Building) for such
purposes and uses as Landlord may desire; provided, however, that in all events
and under all circumstances, Landlord’s use of any portion of the Common Areas
shall not interfere, in any material respect, with any or all of (a) Tenant’s
rights to occupy and use the Common Areas (in the manner and for the purposes
contemplated hereunder); (b) Tenant’s right to utilize the vehicular parking
areas located on the Common Areas; and (c) Tenant’s right of access, ingress
and egress to and from the Common Areas.


 


8.                                     
ASSIGNMENT,
SUBLETTING AND MORTGAGING.


 


8.1.                           
Prohibition.  Tenant acknowledges
that this Lease and the Rent due under this Lease have been agreed to by
Landlord in reliance upon Tenant’s reputation and creditworthiness and upon the
continued operation of the Premises by Tenant for the particular use described
in Section 4.1 above; therefore,
Tenant shall not, whether voluntarily, or by operation of law, or otherwise:
(a) assign or otherwise transfer this Lease; (b) sublet the Premises or any
part thereof, or allow the same to be used or occupied by anyone other than
Tenant; or (c) mortgage, pledge, encumber, or otherwise hypothecate this Lease
or the Premises, or any part thereof, in any manner whatsoever, without in each
instance obtaining the prior written consent of Landlord, which consent may be
given or withheld in Landlord’s sole, but reasonable, discretion.  Except
as otherwise specified herein, any purported assignment, mortgage, transfer,
pledge or sublease made without the prior written consent of Landlord shall be
absolutely null and void.  No assignment of this Lease shall be effective
and valid unless and until the assignee executes and delivers to Landlord any
and all documentation reasonably required by Landlord in order to evidence
assignee’s assumption of all obligations of Tenant hereunder.  Any consent
by Landlord to a particular assignment, sublease or mortgage shall not
constitute consent or approval of any subsequent assignment, sublease or
mortgage, and Landlord’s written approval shall be required in all such
instances.  No consent by Landlord to any assignment or sublease shall be
deemed to release Tenant from its obligations hereunder and Tenant shall remain
fully liable for performance of all obligations under this Lease.


 


8.2.                           
Rights of
Landlord.  If this Lease is assigned, or if the Premises (or any part
thereof) are sublet or used or occupied by anyone other than Tenant, whether or
not in violation of this Lease, Landlord or Agent may (without prejudice to, or
waiver of its rights), collect Rent from the assignee, subtenant or occupant. 
Landlord or Agent may apply the net amount collected to the Rent herein
reserved, but no such assignment, subletting, occupancy or collection shall be
deemed a waiver of any of the provisions of this Section 8.  With respect to the
allocable portion of the Premises sublet by Tenant to any person or entity not
affiliated with Tenant, in the event that the total rent and any other
considerations received under any sublease by Tenant is greater than the total
Rent required to be paid, from time to time, under this Lease, Tenant shall pay
to Landlord fifty percent (50%) of such excess as received from any such
subtenant (after deducting any brokerage commissions, tenant improvement costs
and other costs incurred by Tenant in connection with such subletting), and
such amount shall be deemed a component of the Additional Rent.


 


8.3.                           
Permitted
Transfers.  The provisions of Section 8.1(a) shall not apply to a transfer of a
majority (i.e. greater than 50% interest) of the voting stock of Tenant or to
any other change in voting control of


 


8





















 


Tenant
(if Tenant is a corporation), or to a transfer of a majority of the general
partnership or membership interests in Tenant (if Tenant is a partnership or a
limited liability company) or to a change in the managerial control of Tenant,
or to transfer in connection with a merger, reorganization, or sale of all or
substantially all the assets of Tenant, and Tenant shall be permitted to assign
this Lease without Landlord’s consent in connection with any such transfer,
provided, in any of such events, the successor to Tenant (or any party
remaining liable for the obligations of Tenant hereunder) has a net worth equal
to or greater than $10,000,000.00.  Any such permitted transferee shall
execute and deliver to Landlord any and all documentation reasonably required
by Landlord in order to evidence assignee’s assumption of all obligations of
Tenant hereunder.


 


9.                                     
COMPLIANCE WITH LAWS.


 


9.1.                           
Compliance with
Laws.  Tenant shall, at its sole expense (regardless of the cost
thereof), comply with all local, state and federal laws, rules, regulations and
requirements now or hereafter in force and all judicial and administrative
decisions in connection with the enforcement thereof (collectively, “Laws”), pertaining to either or both of
the Premises and Tenant’s use and occupancy thereof.  If any license or
permit is required for the conduct of Tenant’s business in the Premises,
Tenant, at its expense, shall procure such license prior to the Commencement
Date, and shall maintain such license or permit in good standing throughout the
Term.  Tenant shall give prompt notice to Landlord of any written notice
it receives of the alleged violation of any Law or requirement of any
governmental or administrative authority with respect to either or both of the
Premises and the use or occupation thereof.  The judgment of any court of
competent jurisdiction, or the admission of Tenant in any action or proceeding
against Tenant, whether Landlord is a party thereto or not, that any such Law
pertaining to the Premises has been violated, shall be conclusive of that fact
as between Landlord and Tenant.  Landlord represents and warrants to
Tenant that, on the Phase I Premises Commencement Date, Phase II Premises
Commencement Date, and Phase III Premises Commencement Date, the Phase I
Premises, Phase II Premises, and Phase III Premises, respectively, shall, to
Landlord’s actual knowledge, be in compliance with all applicable Laws in all
material respects.  Landlord shall indemnify Tenant against all Tenant
Losses (as defined in Section 17.2.2 hereof) actually suffered by
Tenant as the direct result of the applicable portion of the Premises not being
in material compliance with Laws on the applicable Commencement Date.


 


9.2.                           
Hazardous
Materials.  If, at any time or from time to time during the Term (or
any extension thereof), any Hazardous Material (defined below) is generated,
transported, stored, used, treated or disposed of at, to, from, on or in either
or both of the Premises and the Property by, or as a result of any act or
omission of, any or all of Tenant and any or all of Tenant’s Parties (defined
below): (i) Tenant shall, at its own cost, at all times comply (and cause all
others to comply) with all laws (federal, state or local) relating to Hazardous
Materials, including, but not limited to, all Environmental Laws (defined
below), and Tenant shall further, at its own cost, obtain and maintain in full
force and effect at all times all permits and other approvals required in
connection therewith; (ii) Tenant shall promptly provide Landlord or Agent with
complete copies of all communications, permits or agreements with, from or issued
by any governmental authority or agency (federal, state or local) or any
private entity relating in any way to the presence, release, threat of release,
or placement of Hazardous Materials on or in the Premises or any portion of the
Property, or the generation, transportation, storage, use, treatment, or
disposal at, on, in or from the Premises, of any Hazardous Materials; (iii)
Landlord, Agent and their respective agents and employees shall have the right
to either or both (x) enter the Premises and (y) conduct appropriate tests for
the purposes of ascertaining Tenant’s compliance with all applicable laws
(including Environmental Laws), rules or permits relating in any way to the
generation, transport, storage, use, treatment, disposal or presence of Hazardous
Materials on, at, in or from all or any portion of either or both of the
Premises and the Property; and (iv) upon written request by Landlord or Agent
and only if Landlord has a reasonable basis for believing that Tenant’s
activities at the Premises are not in compliance with applicable Environmental
Laws, Tenant shall provide Landlord with the results of reasonably appropriate
tests of air, water or soil to demonstrate that Tenant complies with all
applicable laws, rules or permits relating in any way to the generation,
transport, storage, use, treatment, disposal or presence of Hazardous Materials
on, at, in or from all or any portion of either or both of the Premises and the
Property.  This Section 9.2 does not authorize
the generation, transportation, storage, use, treatment or disposal of any
Hazardous Materials at, to, from, on or in the Premises in contravention of
this Section 9.  Tenant
covenants to investigate, clean up and otherwise remediate, at Tenant’s sole
expense, any release of Hazardous Materials caused, contributed to, or created
by any or all of (A) Tenant and (B) any or all of Tenant’s officers, directors,
members, managers, partners, invitees, agents, employees, contractors or
representatives (“Tenant
Parties”) during the Term.  Such investigation and remediation shall be
performed only after Tenant has obtained Landlord’s prior written


 


9





















 


consent;
provided, however, that Tenant shall be entitled to respond immediately to an
emergency without first obtaining such consent.  All remediation shall be
performed in strict compliance with Environmental Laws and to the reasonable
satisfaction of Landlord.  Tenant shall be liable for any and all
conditions covered hereby, and for all costs relating thereto, that are caused
or created by any or all of Tenant and any or all of Tenant’s Parties. 
Tenant shall not enter into any settlement agreement, consent decree or other
compromise with respect to any claims relating to any Hazardous Materials in
any way connected to the Premises without first obtaining Landlord’s written
consent (which consent may be given or withheld in Landlord’s sole, but
reasonable, discretion) and affording Landlord the reasonable opportunity to
participate in any such proceedings.  As used herein, the term (x) “Environmental Laws” shall mean any and
all laws pertaining to Hazardous Materials or that otherwise deal with, or
relate to, air or water quality, air emissions, soil or ground conditions or
other environmental matters of any kind; and (y) “Hazardous Materials” shall mean any waste, material or
substance (whether in the form of liquids, solids or gases, and whether or not
airborne) that is or may be deemed to be or include a pesticide, petroleum,
asbestos, polychlorinated biphenyl, radioactive material, urea formaldehyde or
any other pollutant or contaminant that is or may be deemed to be hazardous,
toxic, ignitable, reactive, corrosive, dangerous, harmful or injurious, or that
presents a risk to public health or to the environment, and that is or becomes
regulated by any Environmental Law.  The undertakings, covenants and
obligations imposed on Tenant under this Section 9.2 shall survive the termination or
expiration of this Lease.  Notwithstanding anything in this Lease to the
contrary, Landlord hereby indemnifies, defends, and holds Tenant Indemnified
Parties (defined In Section 17.2.2 below) harmless from and against
any and all Tenant Losses (defined below) actually suffered or incurred by
Tenant or any Tenant Indemnified Parties as the direct result of the presence
of Hazardous Materials in existence as of, or prior to, the applicable
Commencement Date, or shown to have arisen subsequent to the applicable
Commencement Date as a result of the use of the Building by Landlord.


 


10.                              
INSURANCE.


 


10.1.                    
Insurance to be
Maintained by Landlord.  Landlord shall maintain (a)
“all-risk” property insurance policy covering the Property (at its full
replacement cost), but excluding Tenant’s Property (AS defined in Section 12.2 below), and (b) commercial general
public liability insurance covering Landlord for claims arising out of
liability for bodily injury, death, personal injury, advertising injury and
property damage occurring in and about the Property and otherwise resulting
from any acts and operations of Landlord, its agents and employees, and (c)
rent loss insurance, all of the above with limits that are required by any
lender(s) of Landlord, or as are otherwise reasonably determined by Landlord.


 


10.2.                    
Insurance to be
Maintained by Tenant.  Tenant shall purchase, at its own expense, and keep
in force at all times during this Lease the policies of insurance set forth
below in Sections
10.2.1 and 10.2.2 (collectively, “Tenant’s Policies”).  All Tenant’s
Policies shall (a) be issued by an insurance company with a Best rating of A-X
or better and otherwise reasonably acceptable to Landlord and shall be licensed
to do business in the state in which the Property is located; (b) provide that
said insurance shall not be canceled or materially modified unless 30 days’
prior written notice shall have been given to Landlord; and (c) otherwise be in
such form, and include such coverages, as Landlord may reasonably
require.  All Tenant’s Policies (or, at Landlord’s option, Certificates of
Insurance, in a form reasonably acceptable to Landlord, evidencing said
Tenant’s Policies), shall be delivered to Landlord by Tenant upon commencement
of the Lease and renewals thereof shall be delivered at least 30 days prior to
the expiration of each Tenant’s Policy.  Tenant shall give prompt notice
to Landlord and Agent of any bodily injury, death, personal injury, advertising
injury or property damage occurring in and about the Property.


 


10.2.1.          
General Liability and
Auto Insurance.  Tenant shall purchase and maintain, throughout the Term, a
Tenant’s Policy(ies) of (i) commercial general or excess liability insurance,
including personal injury and property damage, in the amount of not less than
$2,000,000.00 per occurrence, and $5,000,000.00 annual general aggregate, per
location; (ii) comprehensive automobile liability insurance covering Tenant
against any losses arising out of liability for personal injuries or deaths of
persons and property damage occurring in or about the Premises in the amount of
not less than $1,000,000, combined single limit.  The Tenant’s Policies
required by this Section 10.2.1 shall (a) name
Landlord, Agent, and any party holding an interest to which this Lease may be
subordinated whose name shall have been furnished in writing to Tenant, as
additional insureds; (b) provide coverage on an occurrence basis; (c) provide
coverage for the indemnity obligations of Tenant under this Lease; (d) contain
a severability of insured parties provision and/or a cross liability
endorsement; (e) be primary, not


 


10





















 


contributing
with, and not in excess of, coverage that Landlord may carry; and (f) provide
coverage with no exclusion for a pollution incident arising from a hostile
fire.


 


10.2.2.          
Property and Workers’
Compensation Insurance.  Tenant shall purchase and maintain,
throughout the Term, a Tenant’s Policy or Policies of (i) “all-risk” property
insurance covering Tenant’s Property and damage to other property resulting
from any acts or operations of Tenant, and (ii) workers’ compensation insurance
per the applicable state statutes covering all employees of Tenant.


 


10.3.                    
Waiver of
Subrogation.  Notwithstanding anything in this Lease to the contrary, and
to the extent permitted by law and without affecting the coverage provided by
insurance required to be maintained hereunder, Landlord and Tenant each waive
any right to recover against the other for (a) damages to property, (b) damages
to all or any portion of either or both of the Premises and the Property, (c)
claims arising by reason of the foregoing, to the extent such damages and
claims are insured against, or required to be insured against, by Landlord or
Tenant under this Lease, or (d) claims paid by Tenant’s workers’ compensation
carrier.  This provision is intended to waive, fully and for the benefit
of each party, any rights and/or claims which might give rise to a right of
subrogation by any insurance carrier.  The coverage obtained by each party
pursuant to this Lease shall include, without limitation, a waiver of
subrogation by the carrier which conforms to the provisions of this section.


 


11.                              
ALTERATIONS.


 


11.1.                    
Procedural
Requirements.  Tenant may, from time to time, at its expense, make
alterations or improvements in and to the Premises (hereinafter collectively
referred to as “Alterations”), provided that
Tenant first obtains the written consent of Landlord in each instance. 
Landlord’s consent to Alterations shall not be unreasonably withheld, provided
that: (a) the Alterations are non-structural and the structural integrity of
the Property shall not be affected; (b) the Alterations are to the interior of
the Premises; (c) the proper functioning of the mechanical, electrical,
heating, ventilating, air-conditioning (“HVAC”), sanitary and other service systems of the
Property shall not be affected and the usage of such systems by Tenant shall
not be increased; (d) the Alterations have no adverse effect on other leased
premises in the Property; (e) Tenant shall have appropriate insurance coverage,
reasonably satisfactory to Landlord, regarding the performance and installation
of the Alterations; (f) the Alterations shall conform with all other
requirements of this Lease; and (g) Tenant shall have provided Landlord with
reasonably detailed plans for such Alterations in advance of requesting
Landlord’s consent.  Additionally, before proceeding with any Alterations,
Tenant shall (i) at Tenant’s expense, obtain all necessary governmental permits
and certificates for the commencement and prosecution of Alterations; (ii)
submit to Agent, for Landlord’s written approval, working drawings, plans and
specifications and all permits for the work to be done and Tenant shall not
proceed with such Alterations until it has received said approval; and (iii)
cause those contractors, materialmen and suppliers engaged to perform the
Alterations to deliver to Landlord certificates of insurance (in a form
reasonably acceptable to Landlord) evidencing policies of commercial general
liability insurance (providing the same coverages as required in Section 10.2.1 above) and workers’
compensation insurance.  Such insurance policies shall satisfy the
obligations imposed under Section 10.2.1(a) through (d) and (f).  After obtaining Landlord’s approval to the
Alterations, Tenant shall give Landlord at least five days’ prior written
notice of the commencement of any Alterations at the Premises, and Landlord may
elect to record and post notices of non-responsibility at the Premises. 
Notwithstanding anything to the contrary contained in this Section 11.1, Landlord’s consent
shall not be required for Alterations satisfying clauses (a) through (f) above
and costing $25,000.00 or less in any one instance (up to an maximum aggregate
or $100,000 over the Term) provided that Tenant notifies Landlord of such
Alterations prior to commencing thereon and obtains all approvals and permits
from third parties necessary for the commencement and prosecution of such
Alterations.  Notwithstanding anything to the contrary contained in this Section 11.1, the dollar amounts
set forth above shall apply only to the cost of the alterations to or
improvements of the Premises and shall not apply to the value or cost of the
equipment Tenant elects to use or install at that Premises.


 


11.2.                    
Performance of
Alterations.  Tenant shall cause the Alterations to be performed in
compliance with all applicable permits, laws and requirements of public
authorities, and with Landlord’s reasonable rules and regulations or any other
restrictions that Landlord or Agent may impose on the Alterations.  Tenant
shall cause the Alterations to be diligently performed in a good and
workmanlike manner, using new materials and equipment at least equal in quality
and class to the standards for the Property established by Landlord or
Agent.  Tenant shall obtain all necessary permits and certificates for
final governmental approval of the Alterations and shall


 


11





















 


provide
Landlord with “as built” plans, copies of all construction contracts,
governmental permits and certificates and proof of payment for all labor and
materials, including, without limitation, copies of paid invoices and final
lien waivers.  Notwithstanding anything in this Lease to the contrary,
with Landlord’s prior consent, which consent shall not be unreasonably
withheld, conditioned or delayed, Tenant shall be permitted to install
telecommunications and other lines and wires at the Property as may be reasonably
necessary in order to facilitate communications between Tenant’s property to
the north (or any other property used or occupied by Tenant) and the Premises
leased by Tenant hereunder.


 


11.3.                    
Lien
Prohibition.  Tenant shall pay when due all claims for labor and material
furnished to the Premises in connection with the Alterations.  Tenant
shall not permit any mechanics’ or materialmen’s liens to attach to the
Premises or the Property.  Tenant, at its expense, shall procure the
satisfaction or discharge of record of all such liens and encumbrances within
30 days after the filing thereof; or, within such thirty (30) day period,
Tenant shall provide Landlord, at Tenant’s sole expense, with endorsements
(satisfactory, both in form and substance, to Landlord and the holder of any
mortgage or deed of trust) to the existing title insurance policies of Landlord
and the holder of any mortgage or deed of trust, insuring against the existence
of, and any attempted enforcement of, such lien or encumbrance.  In the
event Tenant has not so performed, Landlord may, at its option, pay and
discharge such liens and Tenant shall be responsible to reimburse Landlord, on
demand and as Additional Rent under this Lease, for all costs and expenses
incurred in connection therewith, together with interest thereon at the rate
set forth in Section 22.3, which expenses shall include reasonable fees of
attorneys of Landlord’s choosing, and any costs in posting bond to effect
discharge or release of the lien as an encumbrance against the Premises or the
Property.


 


12.                              
LANDLORD’S AND
TENANT’S PROPERTY.


 


12.1.                    
Landlord’s
Property.  All fixtures, machinery, equipment, improvements and
appurtenances attached to, or built into, the Premises at the commencement of,
or during the Term, excluding Tenant’s Property (as defined below), shall
become and remain a part of the Premises; shall be deemed the property of
Landlord (the “Landlord’s
Property”), without compensation or credit to Tenant; and shall not be removed
by Tenant at the Expiration Date.  Further, any personal property in the
Premises on the Commencement Date, movable or otherwise, unless installed and
paid for by Tenant, shall be and shall remain the property of Landlord and
shall not be removed by Tenant.  In no event shall Tenant remove any of
the following materials or equipment without Landlord’s prior written consent
(which consent may be given or withheld in Landlord’s sole discretion): any
power wiring or power panels, lighting or lighting fixtures, wall or window
coverings, carpets or other floor coverings, heaters, air conditioners or any
other HVAC equipment, fencing or security gates, or other similar building
operating equipment and decorations.


 


12.2.                    
Tenant’s
Property.  All partitions, business and trade fixtures, machinery and
equipment, communications equipment, motor control centers, refrigeration
equipment and office equipment, any HVAC equipment installed by Tenant and
specific to Tenant’s use and occupancy of the Premises (excluding the HVAC
equipment presently installed at the Premises and any repairs or replacements
respecting such equipment) and other non-structural items that are installed in
the Premises by, or for the account of, Tenant and without expense to Landlord
and that can be removed without structural damage to the Property, and all
furniture, furnishings and other personal property owned by Tenant and located
in the Premises (collectively, the “Tenant’s Property”) shall be and shall remain the
property of Tenant and may be removed by Tenant at any time during the Term and
at the Expiration Date, provided Tenant repairs or pays the cost of repairing
any damage to the Premises or to the Property resulting from the installation
and/or removal thereof.  At or before the Expiration Date, or the date of
any earlier termination, Tenant, at its expense, shall remove from the Premises
all of Tenant’s Property and any Alterations (except such items thereof as
constitute Landlord’s Property; or as Landlord shall have expressly permitted,
in writing, to remain, which property shall become the property of Landlord),
and Tenant shall repair (to Landlord’s reasonable satisfaction) any damage to
the Premises or the Property resulting from any installation and/or removal of
Tenant’s Property.  Any other items of Tenant’s Property that shall remain
in the Premises after the Expiration Date, or following an earlier termination
date, may, at the option of Landlord, be deemed to have been abandoned by
Tenant, and in such case, such items may be retained by Landlord as its
property or be disposed of by Landlord, in Landlord’s sole and absolute
discretion and without accountability, at Tenant’s expense.


 


12





















 


13.                              
REPAIRS AND
MAINTENANCE.


 


13.1.                    
Tenant Repairs and
Maintenance.  Tenant shall, at its expense, throughout the Term, (i)
maintain and preserve, in good condition and repair and in proper working order
(subject to normal and customary wear and tear), the Premises and the fixtures
and appurtenances therein which exclusively serve the Premises (including, but
not limited to, the Premises’ plumbing and HVAC systems, all doors, overhead or
otherwise, glass and levelers located in the Premises or otherwise available in
the Property for Tenant’s sole use; and excluding, however, those components of
the Premises for which Landlord is expressly responsible under Section 13.2); and (ii) except to
the extent Landlord elects to repair and maintain the HVAC systems as part of
General Maintenance Services (as hereinafter defined), maintain, in full force
and effect, a preventative maintenance and service contract with a reputable
service provider for maintenance of the HVAC systems of the Premises (a copy of
which service agreement shall be provided to Landlord within fifteen (15) days
after the Commencement Date).  Tenant shall also be responsible for all
costs and expenses incurred to perform any and all repairs and replacements
(whether structural or non-structural; interior or exterior; and ordinary or
extraordinary), in and to the Premises and the Property and the facilities and
systems thereof; if and to the extent that the need for such repairs or
replacements arises directly or indirectly from any or all of: (a) the
performance or existence of any Alterations, (b) the installation, use or
operation of Tenant’s Property in the Premises, (c) the moving of Tenant’s
Property in or out of the Property, and (d) any act, omission, misuse, or
neglect of Tenant, any of its subtenants, or others entering into the Premises
by act or omission of Tenant or any subtenant (except to the extent Landlord
has waived claims against Tenant therefor under Section 10.3
hereof).  Any repairs or replacements required to be made by Tenant to any
or all of the structural components of the Property and the mechanical,
electrical, sanitary, HVAC, or other systems of the Property or Premises shall
be performed by appropriately licensed contractors approved by Landlord, which
approval shall not be unreasonably withheld.  All such repairs or
replacements shall be subject to the supervision and control of Landlord, and
all repairs and replacements shall be made with materials of equal or better
quality than the items being repaired or replaced.  Notwithstanding any of
the foregoing, however, from time to time during the Term, Landlord may elect,
in its sole discretion and by delivery of written notice to Tenant and with
Tenant’s prior written consent, which shall not be unreasonably withheld, to
perform on behalf of Tenant, all or some portion of the repairs, maintenance,
restoration and replacement in and to the Premises required to be performed by
Tenant under this Lease (any such repairs, maintenance, restoration and/or
replacement activities that Landlord elects to perform on behalf of Tenant are
herein collectively referred to as “General Maintenance Services”).  Tenant shall
reimburse Landlord for the cost of all General Maintenance Services provided by
Landlord as Additional Rent simultaneously with the payment of Operating
Expenses as part of Estimated Additional Rent (on a monthly estimated basis
subject to annual reconciliation as described in Section 3.3 above).  Unless and until
Landlord affirmatively elects to provide General Maintenance Services, nothing
contained herein shall be construed to obligate Landlord to perform any General
Maintenance Services or, except as otherwise expressly provided in Section 13.2, to repair, maintain,
restore or replace any portion of the Premises.  Landlord may from time to
time, in its sole discretion, (x) reduce or expand the scope of the General
Maintenance Services that Landlord has elected to provide (provided Landlord
may not expand the scope thereof without Tenant’s prior written consent), or
(y) revoke its election to provide any or all of the General Maintenance
Services, in either event, upon delivery of not less than thirty (30) days’
prior written notice to Tenant.  If Landlord does not elect to repair,
maintain and/or replace the HVAC systems as part of General Maintenance
Services, or revokes such election at any time after having made such election,
Tenant shall enter into a preventative maintenance and service contract with a
reputable service provider for maintenance of the HVAC systems of the Premises,
a copy of which agreement shall be provided to Landlord.  Notwithstanding
the foregoing, Landlord shall be responsible for any cost or expense incurred
as a result of the Premises not being in the condition, repair and order specified
in Section 5 hereof as of the
Phase I Premises Commencement Date, Phase II Premises Commencement Date, and
Phase III Premises Commencement Date, respectively, as applicable.


 


13.2.                    
Landlord
Repairs.  Notwithstanding anything contrary herein, Landlord shall
maintain in good condition and repair and in working order, and shall repair,
replace and restore the foundation, exterior and interior load-bearing walls,
roof structure and roof covering and tuckpointing of the Property, the Common
Areas, and all base building fixtures, equipment, systems and facilities that
serve the Building and Property generally (as distinguished from those that
serve individual tenant spaces); provided, however, that (i) all costs and
expenses so incurred by Landlord to repair, replace and restore the above items
shall constitute Operating Expenses; provided, however, that with respect to
any costs incurred in the replacement context, those costs shall not constitute
an Operating Expense except to the extent that such costs so qualify under Section 3.1.1(vii); and (ii)
notwithstanding


 


13





















 


(i)
above, in the event that any such repair, replacement or restoration is
necessitated by any or all of the matters set forth in Sections 13.1(a) through (d) above (collectively, “Tenant Necessitated Repairs”), then Tenant shall
be required to reimburse Landlord for all costs and expenses that Landlord
incurs in order to perform such Tenant Necessitated Repairs (except to the
extent Landlord has waived claims against Tenant therefor under
Section 10.3 hereof), and such reimbursement shall be paid, in full,
within 10 days after Landlord’s delivery of demand therefor.  Landlord
agrees to commence the repairs, replacements or restoration described in this Section 13.2 within a reasonable
period of time after receiving from Tenant written notice of the need for such
repairs.


 


14.                              
UTILITIES.  Tenant shall purchase
all utility services and shall provide for scavenger, cleaning and extermination
services.  As provided in Section 3.1.1 above, utility charges that are
not separately metered to the Premises shall be included within Operating
Expenses; therefore, when and as Tenant pays estimated Operating Expenses,
those estimated monthly payments shall include monthly estimated installments
of non-separately metered utility charges.  With regard to utility
services that are separately metered to the Premises, Tenant may pay such
utility charges directly to the utility or municipality providing such service,
and in that event: (a) all charges shall be paid by Tenant before they become
delinquent; and (b) utility charges for the Premises shall not be included in
estimated Operating Expenses.  Tenant shall be solely responsible for the
repair and maintenance of any meters necessary in connection with such
services.  Tenant’s use of electrical energy in the Premises shall not, at
any time, exceed the capacity of either or both of (i) any of the electrical
conductors and equipment in or otherwise servicing the Premises; and (ii) the
HVAC systems of either or both of the Premises and the Property.


 


15.                              
INVOLUNTARY CESSATION
OF SERVICES.  Landlord reserves the right, without any liability to Tenant
and without affecting Tenant’s covenants and obligations hereunder, to stop
service of any or all of the HVAC, electric, sanitary, elevator (if any), and
other systems serving the Premises, or to stop any other services required by
Landlord under this Lease, whenever and for so long as may be necessary by
reason of (i) accidents, emergencies, strikes, or the making of repairs or
changes which Landlord or Agent, in good faith, deems necessary or (ii) any
other cause beyond Landlord’s reasonable control.  Further, it is also
understood and agreed that Landlord or Agent shall have no liability or
responsibility for a cessation of services to the Premises or to the Property
that occurs as a result of causes beyond Landlord’s or Agent’s reasonable
control.  No such interruption of service shall be deemed an eviction or
disturbance of Tenant’s use and possession of the Premises or any part thereof,
or render Landlord or Agent liable to Tenant for damages, or relieve Tenant
from performance of Tenant’s obligations under this Lease, including, but not
limited to, the obligation to pay Rent; provided, however, that if any
interruption of services persists for a period in excess of two (2) consecutive
business days Tenant shall, as Tenant’s sole remedy, be entitled to a
proportionate abatement of Rent to the extent, if any, of any actual loss of
use of the Premises by Tenant.


 


16.                              
LANDLORD’S
RIGHTS.  Landlord, Agent and their respective agents, employees and
representatives shall have the right to enter and/or pass through the Premises
at any time or times upon reasonable prior notice (except in the event of
emergency): (a) to examine and inspect the Premises and to show them to actual
and prospective lenders, prospective purchasers or mortgagees of the Property
or providers of capital to Landlord and its affiliates; and (b) to make such
repairs, alterations, additions and improvements in or to all or any portion of
either or both of the Premises and the Property, or the Property’s facilities
and equipment as Landlord is required or desires to make.  Landlord and
Agent shall be allowed to take all materials into and upon the Premises that
may be required in connection with any repairs, alterations, additions or
improvements, without any liability to Tenant and without any reduction or
modification of Tenant’s covenants and obligations hereunder; provided,
however, that Landlord shall use reasonable efforts to limit interference with
Tenant’s business operations and Tenant’s occupancy and use of the
Premises.  During the period of six months prior to the Expiration Date
(or at any time, if Tenant has vacated or abandoned the Premises or is
otherwise in default under this Lease), Landlord and its agents may exhibit the
Premises to prospective tenants.  Additionally, Landlord and Agent shall
have the following rights with respect to the Premises, exercisable without
notice to Tenant, without liability to Tenant, and without being deemed an
eviction or disturbance of Tenant’s use or possession of the Premises or giving
rise to any claim for setoff or abatement of Rent: (i) to designate and
approve, prior to installation, all types of signs; (ii) to have pass keys,
access cards, or both, to the Premises; and (iii) to decorate, remodel, repair,
alter or otherwise prepare the Premises for reoccupancy at any time after
Tenant vacates or abandons the Premises for more than 30 consecutive days or
without notice to Landlord of Tenant’s intention to reoccupy the Premises.


 


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17.                              
NON-LIABILITY AND
INDEMNIFICATION.


 


17.1.                    
Non-Liability.  Except as provided in
Section 17.2.2, none of Landlord,
Agent, any other managing agent, or their respective affiliates, owners,
partners, directors, officers, agents and employees shall be liable to Tenant
for any loss, injury, or damage, to Tenant or to any other person, or to its or
their property, irrespective of the cause of such injury, damage or loss. 
Further, except as provided in Section 17.2.2, none of Landlord, Agent, any
other managing agent, or their respective affiliates, owners, partners,
directors, officers, agents and employees shall be liable to Tenant (a) for any
damage caused by other tenants or persons in, upon or about the Property, or
caused by operations in construction of any public or quasi-public work; (b)
with respect to matters for which Landlord is liable, for consequential or
indirect damages purportedly arising out of any loss of use of the Premises or
any equipment or facilities therein by Tenant or any person claiming through or
under Tenant; (c) any defect in the Premises or the Property (unless such
defect arises from a breach by Landlord of its obligations under this Lease);
(d) injury or damage to person or property caused by fire, or theft, or
resulting from the operation of heating or air conditioning or lighting
apparatus, or from falling plaster, or from steam, gas, electricity, water,
rain, snow, ice, or dampness, that may leak or flow from any part of the
Property, or from the pipes, appliances or plumbing work of the same (unless
such injury or damage arises from a breach by Landlord of its obligations under
this Lease).


 


Except as provided in Section 17.2.1, neither Tenant nor its
affiliates, owners, partners, directors, officers, agents or employees shall be
liable to Landlord for any loss, injury, or damage, to Landlord or to any other
person, or to its or their property, irrespective of the cause of such injury,
damage or loss.  Further, except as provided in Section 17.2.1, neither Tenant nor its affiliates,
owners, partners, directors, officers, agents or employees shall be liable to
Landlord (a) for any damage caused by other tenants or persons in, upon or
about the Property, or caused by operations in construction of any public or
quasi-public work; (b) with respect to matters for which Tenant is liable, for
consequential or indirect damages suffered by Landlord; (c) any defect in the
Premises or the Property (unless such defect arises from a breach by Tenant
under this Lease); (d) injury or damage to person or property caused by fire,
or theft, or resulting from the operation of heating or air conditioning or
lighting apparatus, or from falling plaster, or from steam, gas, electricity,
water, rain, snow, ice, or dampness, that may leak or flow from any part of the
Property, or from the pipes, appliances or plumbing work of the same (unless
such injury or damage arises from a breach by Tenant under this Lease).


 


17.2.                    
Indemnification.


 


17.2.1.          
Tenant
Indemnification.  Tenant hereby indemnifies, defends, and holds Landlord,
Agent and their respective affiliates, owners, partners, directors, officers,
agents and employees (collectively, “Landlord Indemnified Parties”) harmless from and
against any and all Losses (defined below) actually suffered or incurred by
Landlord or any Landlord Indemnified Parties arising from or in connection with
any or all of: (a) any act, omission or negligence of any or all of Tenant and
Tenant Parties (as defined in Section 9.2); (b) any accident, injury or
damage whatsoever (unless caused by Landlord’s negligence) occurring on the
Property or within the Premises or Common Areas and caused by any or all of
Tenant and Tenant Parties; (c) any breach by Tenant of any of its warranties
and representations under this Lease; (d) any violation or alleged violation by
any or all of Tenant and Tenant Parties of any Law including, without
limitation, any Environmental Law; (e) any breach of the provisions of Section 9 by any or all of Tenant and
Tenant’s Parties; (f) claims for work or labor performed or materials supplies
furnished to or at the request of any or all of Tenant and Tenant Parties; (g)
any Hazardous Materials used, exposed, emitted, released, discharged,
generated, manufactured, sold, transported, handled, stored, treated, reused,
presented, disposed of or recycled in, at, near or under all or any portion of
the Premises as a result of the acts or omissions of any or all of Tenant and
Tenant Parties; and (h) the violation of any Environmental Law or any permit,
application or consent required in connection with any Environmental Law by any
or all of Tenant and Tenant Parties with respect to the Premises during the
Term, excluding, however, any violation of any Environmental Law resulting
directly from the acts or omissions of Landlord and Landlord Indemnified
Parties (collectively, “Tenant
Indemnified Matters”).  In case any action or proceeding is brought
against any or all of Landlord and the Landlord Indemnified Parties by reason
of any of Tenant Indemnified Matters, Tenant, upon notice from any or all of
Landlord, Agent or any Superior Party (defined below), shall resist and defend
such action or proceeding by counsel reasonably satisfactory to Landlord. 
The term “Losses” shall mean all
claims, demands, expenses, actions, judgments, damages (actual, but not
consequential), penalties, fines, liabilities, losses of every kind and nature
(including, without limitation, property damage, diminution in value of
Landlord’s


 


15





















 


interest
in the Premises or the Property, damages for the loss or restriction on use of
any space or amenity within the Premises or the Property, damages arising from
any adverse impact on marketing space in the Property, sums paid in settlement
of claims and any costs and expenses associated with injury, illness or death
to or of any person), suits, administrative proceedings, costs and fees,
including, without limitation, attorneys’ and consultants’ reasonable fees and
expenses, and the costs of cleanup, remediation, removal and restoration, that
are in any way related to any matter covered by the foregoing indemnity. 
The provision of this Section 17.2.1 shall survive the expiration or
termination of this Lease.


 


17.2.2.          
Landlord
Indemnification.  Landlord hereby indemnifies, defends, and holds Tenant and
Tenant Parties (herein collectively, “Tenant Indemnified Parties”) harmless from and against any
and all Tenant Losses (defined below) actually suffered or incurred by Tenant
or any Tenant Indemnified Parties arising from or in connection with any or all
of: (a) any act, omission or negligence of any or all of Landlord and
Landlord’s Indemnified Parties; (b) any accident, injury or damage whatsoever
(unless caused by Tenant negligence) occurring within the Building or Common
Areas and caused by any or all of Landlord and Landlord Indemnified Parties;
(c) any breach by Landlord of any of its warranties and representations under
this Lease; (d) any violation or alleged violation by any or all of Landlord
and Landlord Indemnified Parties of any Law including, without limitation, any
Environmental Law; (e) claims for work or labor performed or materials supplies
furnished to or at the request of any or all of Landlord and Landlord
Indemnified Parties; (f) any Hazardous Materials used, exposed, emitted,
released, discharged, generated, manufactured, sold, transported, handled,
stored, treated, reused, presented, disposed of or recycled in, at, near or
under all or any portion of the Property by any or all of Landlord and Landlord
Indemnified Parties; and (g) the violation of any Environmental Law or any
permit, application or consent required in connection with any Environmental
Law by any or all of Landlord and Landlord Indemnified Parties with respect to
the Property during the Term, excluding, however, any violation of any
Environmental Law resulting directly from the acts or omissions of Tenant and
Tenant Parties (collectively, “Landlord’s Indemnified Matters”).  In case any
action or proceeding is brought against any or all of Tenant and Tenant Parties
by reason of any of Landlord’s Indemnified Matters, Landlord, upon notice from
any or all of Tenant and Tenant Parties, shall resist and defend such action or
proceeding by counsel reasonably satisfactory to Tenant.  The term “Tenant Losses” shall mean all claims, demands,
expenses, actions, judgments, damages (actual, but not consequential),
penalties, fines, liabilities, losses of every kind and nature (including,
without limitation, property damage, diminution in value of Tenant interest in
the Premises, damages for the loss or restriction on use of any space or
amenity within the Premises or the Property, sums paid in settlement of claims
and any costs and expenses associated with injury, illness or death to or of
any person), suits, administrative proceedings, costs and fees, including,
without limitation, attorneys’ and consultants’ reasonable fees and expenses,
and the costs of cleanup, remediation, removal and restoration, that are in any
way related to any matter covered by the foregoing indemnity or Landlord’s
indemnity as outlined in Section 9.1 and 9.2, Notwithstanding anything to the contrary set forth in this Lease,
however, in all events and under all circumstances, the liability of Landlord
to Tenant 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 Landlord, it being intended that
Landlord shall not be personally liable for any judgment or deficiency. 
The provisions of this Section 17.2.2 shall survive the
expiration or termination of this Lease.


 


17.3.                    
Force Majeure.  The
obligations of Landlord and Tenant hereunder shall not be affected, impaired or
excused, and the non-performing party shall have no liability whatsoever to the
other party, with respect to any act, event or circumstance arising out of (a)
Landlord’s or Tenant’s failure (as the case may be) to fulfill, or delay in
fulfilling any of its respective obligations under this Lease by reason of
labor dispute, governmental preemption of property in connection with a public
emergency or shortages of fuel, supplies, or labor, or any other cause, whether
similar or dissimilar, beyond such party’s reasonable control; or (b) any
failure or defect in the supply, quantity or character of utilities furnished
to the Premises, or by reason of any requirement, act or omission of any public
utility or others serving the Property, beyond such party’s reasonable control.


 


18.                              
DAMAGE OR
DESTRUCTION.


 


18.1.                    
Notification and
Repair.  Tenant shall give prompt notice to Landlord and Agent of
(a) any fire or other casualty to the Premises or the Property, and (b) any
damage to, or defect in, any part or appurtenance of the Property’s sanitary,
electrical, HVAC, elevator or other systems located in or passing through the
Premises or any part thereof of which Tenant becomes aware.  Subject to
the provisions of Section 18.3 below, if either or
both of the Property and the Premises is damaged by fire or other insured
casualty, Landlord shall repair


 


16





















 


(or
cause Agent to repair) the damage and restore and rebuild the Property and/or
the Premises (except for Tenant’s Property) with reasonable dispatch after (x)
notice to it of the damage or destruction and (y) the adjustment of the
insurance proceeds attributable to such damage.  Subject to the provisions
of Section 18.3 below, Tenant shall
not be entitled to terminate this Lease and no damages, compensation or claim
shall be payable by Landlord for purported inconvenience, loss of business or
annoyance arising from any repair or restoration of any portion of the Premises
or of the Property pursuant to this Section.  Landlord (or Agent, as the
case may be) shall use its diligent, good faith efforts to make such repair or
restoration promptly and in such manner as not to unreasonably interfere with
Tenant’s use and occupancy of the Premises, but Landlord or Agent shall not be required
to do such repair or restoration work except during normal business hours of
business days.


 


18.2.                    
Rental Abatement.  Provided that
any damage to either or both of the Property and the Premises is not caused by,
or is not the result of acts or omissions by, any or all of Tenant and Tenant’s
Parties, if (a) the Property is damaged by fire or other casualty thereby
causing the Premises to be inaccessible or (b) the Premises are partially
damaged by fire or other casualty, the Rent shall be proportionally abated to
the extent of any actual loss of use of the Premises by Tenant.


 


18.3.                    
Total
Destruction.  If the Property or the Premises shall be totally destroyed
by fire or other casualty, or if the Property shall be so damaged by fire or
other casualty that (in the reasonable opinion of a reputable contractor or
architect designated by Landlord): (i) its repair or restoration requires more
than 180 days or (ii) such repair or restoration requires the expenditure of
more than 50% of the full insurable value of the Property immediately prior to
the casualty or (iii) the damage [x] is less than the amount stated in (ii)
above, but more than 25% of the full insurable value of the Property; and [y]
occurs during the last two years of Lease Term, then in any such event,
Landlord and Tenant shall each have the option to terminate this Lease (by so
advising the other, in writing) within 10 days after said contractor or
architect delivers written notice of its opinion to Landlord and Tenant, but in
all events prior to the commencement of any restoration of the Premises or the
Property by Landlord.  In such event, the termination shall be effective
as of the date upon which either Landlord or Tenant, as the case may be, receives
timely written notice from the other terminating this Lease pursuant to the
preceding sentence.  If neither Landlord nor Tenant timely delivers a
termination notice, this Lease shall remain in full force and effect. 
Notwithstanding the foregoing, if (A) any holder of a mortgage or deed of trust
encumbering the Property or landlord pursuant to a ground lease encumbering the
Property (collectively, “Superior Parties”) or other party entitled to the insurance proceeds fails
to make such proceeds available to Landlord in an amount sufficient for
restoration of the Premises or the Property, or (B) the issuer of any casualty
insurance policies on the Property fails to make available to Landlord
sufficient proceeds for restoration of the Premises or the Property, then
Landlord may, at Landlord’s sole option, terminate this Lease by giving Tenant
written notice to such effect within 30 days after Landlord receives notice
from the Superior Party or insurance company, as the case may be, that such
proceeds shall not be made available, in which event the termination of this
Lease shall be effective as of the date Tenant receives written notice from
Landlord of Landlord’s election to terminate this Lease.  If Landlord does
not exercise such right of termination, Landlord shall, subject to
Section 18.4, repair the Premises and Property (excluding Tenant’s
Property) to the condition existing immediately prior to such casualty. 
Landlord shall have no liability to Tenant, and Tenant shall not be entitled to
terminate this Lease by virtue of any delays in completion of repairs and
restoration.  For purposes of this Section 18.3 only, “full insurable value” shall mean replacement cost, less
the cost of footings, foundations and other structures below grade.


 


18.4.                    
Insurance
Proceeds.  Landlord shall not be obligated to expend in repairs and
restoration an amount in excess of the proceeds of insurance recovered with
respect to any casualty.  In the event such insurance proceeds are
insufficient to fully restore the Property and Premises and as a result
Landlord elects not to so fully restore the Property and Premises, Landlord
shall notify Tenant thereof in writing, and Tenant have the right to terminate
this Lease by giving written notice thereof to Landlord within thirty (30) days
after receiving such notice from Landlord.  Tenant acknowledges that
Landlord shall be entitled to the full proceeds of any insurance coverage,
whether carried by Landlord or Tenant, for damage to either or both of the Premises
and the Property (excluding any proceeds for damage to Tenant’s
Property).  In the event that either or both of the Premises and the
Property are not repaired or reconstructed, all proceeds of insurance
(excluding any proceeds covering Tenant’s Property), whether carried by
Landlord or Tenant, shall be payable to Landlord.  Landlord’s duty to
repair the Premises and the Property (excluding Tenant’s Property) is limited
to repairing the Premises to the condition existing immediately prior to such
fire or other casualty.


 


17





















 


19.                              
EMINENT DOMAIN. 
If
the whole, or any substantial (as reasonably determined by Landlord) portion,
of the Property is taken or condemned for any public use under any Law or by
right of eminent domain, or by private purchase in lieu thereof, and such
taking would prevent or materially interfere with the Permitted Use of the
Premises, this Lease shall terminate effective when the physical taking of said
Premises occurs.  If less than a substantial portion of the Property is so
taken or condemned, or if the taking or condemnation is temporary (regardless
of the portion of the Property affected), this Lease shall not terminate, but
the Rent payable hereunder shall be proportionally abated to the extent of any
actual loss of use of the Premises by Tenant.  Landlord shall be entitled
to any and all payment, income, rent or award, or any interest therein
whatsoever, which may be paid or made in connection with such a taking or
conveyance, and Tenant shall have no claim against Landlord for the value of
any unexpired portion of this Lease.  Notwithstanding the foregoing, any
compensation specifically and independently awarded to Tenant for loss of
business or goodwill, or for its personal property, or moving expenses, shall
be the property of Tenant.


 


20.                              
SURRENDER AND
HOLDOVER.  On the last day of the Term, or upon any earlier
termination of this Lease, or upon any re-entry by Landlord upon the Premises,
(a) Tenant shall quit and surrender the Premises to Landlord “broom-clean” and
in good order, condition and repair (as defined by Exhibit C, attached hereto and incorporated
herein by reference), except for ordinary wear and tear and such damage or
destruction as Landlord is required to repair or restore under this Lease, (b)
Tenant shall remove all of Tenant’s Property therefrom, except as otherwise
expressly provided in this Lease, and (c) Tenant shall surrender to Landlord
any and all keys, access cards, computer codes or any other items used to
access the Premises.  Landlord shall be permitted to inspect the Premises
in order to verify compliance with this Section 20 at any time prior to (x) the
Expiration Date, (y) the effective date of any earlier termination of this
Lease, or (z) the surrender date otherwise agreed to in writing by Landlord and
Tenant.  The obligations imposed under the first sentence of this Section 20 shall survive the
termination or expiration of this Lease.  If any repairs are required to
be performed in, to or at the Premises (pursuant to the first sentence of this Section 20 or any other
applicable provision of this Lease) upon the expiration or termination of the
Term, Tenant shall cause such repairs to be performed, to Landlord’s reasonable
satisfaction, within 10 business days after the date on which this Lease is
terminated or expired.  If Tenant fails to timely comply with the
preceding sentence, then Landlord shall have the right to cause the repairs to
be performed, at Tenant’s expense, and all such expenses so incurred by
Landlord shall bear interest (at the rate specified in the second sentence of Section 22.3) from the date the
expense is incurred until the date paid, in full, by Tenant (inclusive of
interest).  If Tenant remains in possession after the Expiration Date
hereof or after any earlier termination date of this Lease or of Tenant’s right
to possession: (i) Tenant shall be deemed a tenant-at-will; (ii) Tenant shall
pay 150% of the aggregate of the Base Rent then in effect under this Lease and 100%
of Additional Rent, and also shall pay all actual damages sustained by
Landlord, directly by reason of Tenant’s remaining in possession after the
expiration or termination of this Lease; (iii) there shall be no renewal or
extension of this Lease by operation of law; and (iv) the tenancy-at-will may
be terminated by either party hereto upon 30 days’ prior written notice given
by the terminating party to the non-terminating party.  The provisions of
this Section 20 shall not constitute
a waiver by Landlord of any re-entry rights of Landlord provided hereunder or
by law.


 


21.                              
EVENTS OF DEFAULT.


 


21.1.                    
Bankruptcy of
Tenant.  It shall be a default by Tenant under this Lease if Tenant
makes an assignment for the benefit of creditors, or files a voluntary petition
under any state or federal bankruptcy or insolvency law, or an involuntary
petition alleging an act of bankruptcy or insolvency is filed against Tenant
under any state or federal bankruptcy or insolvency law that is not dismissed
within 90 days, or whenever a petition is filed by or against (to the extent
not dismissed within 90 days) Tenant under the reorganization provisions of the
United States Bankruptcy Code or under the provisions of any state or federal
law of like import, or whenever a petition shall be filed by Tenant under the
arrangement provisions of the United States Bankruptcy Code or similar state or
federal law, or whenever a receiver of Tenant, or of, or for, the property of
Tenant shall be appointed, or Tenant admits it is insolvent or is not able to
pay its debts as they mature.


 


21.2.                    
Default
Provisions.  Each of the following shall constitute a default by Tenant
under this Lease: (a) if Tenant fails to pay Rent or any other payment when due
hereunder within five (5) business days after written notice from Landlord of
such failure to pay on the due date; or (b) if Tenant fails, whether by action
or inaction, to timely comply with, or satisfy, any or all of the obligations
imposed on Tenant under this Lease (other than the obligation to pay Rent) for
a period of 30 days after Landlord’s delivery to Tenant of written notice of
such


18





















 


default
under this Section 21.2(b); provided, however,
that if the default cannot, by its nature, be cured within such 30 day period,
but Tenant commences and diligently pursues a cure of such default promptly
within the initial 30 day cure period, then Landlord shall not exercise its
remedies under Section 22 unless such default
remains uncured for more than 60 days after the initial delivery of Landlord’s
original default notice.


 


22.                              
RIGHTS AND REMEDIES.


 


22.1.                    
Landlord’s Cure
Rights Upon Default of Tenant.  If Tenant defaults in the
performance of any of its obligations under this Lease, and fails to cure such
default on a timely basis (pursuant to Section 21.2), Landlord, without thereby
waiving such default, may (but shall not be obligated to) perform the same for
the account, and at the expense of, Tenant.


 


22.2.                    
Landlord’s Remedies.  In the event
of any default by Tenant under this Lease, Landlord, at its option, and after
any applicable notice and cure period (as required pursuant to Section 21.2), but without
additional notice or demand from Landlord, if any, as provided in Section 21.2 has expired, may, in
addition to all other rights and remedies provided in this Lease, or otherwise
at law or in equity: (a) terminate this Lease and Tenant’s right of possession
of the Premises; or (b) terminate Tenant’s right of possession of the Premises
without terminating this Lease; provided, however, that Landlord may, whether
Landlord elects to proceed under Subsections (a) or (b) above, relet the
Premises, or any part thereof for the account of Tenant, for such rent and term
and upon such terms and conditions as are acceptable to Landlord.  In
addition, for purposes of any reletting, Landlord is authorized to decorate,
repair, alter and improve the Premises to the extent deemed necessary by
Landlord, in its sole discretion.  In the event of the termination of this
Lease by Landlord pursuant to (a) above, Landlord shall be entitled to recover
from Tenant (i) all damages and other sums that Landlord is entitled to recover
under any provision of this Lease or at law or in equity, including, but not
limited to, all fixed dollar amounts of Base Rent and Additional Rent accrued
and unpaid for the period up to and including such termination date; (ii) all
other additional sums payable by Tenant, or for which Tenant is liable, or in
respect of which Tenant has agreed to indemnify Landlord, under any of the
provisions of this Lease, that may be then owing and unpaid; (iii) all costs
and expenses (including, without limitation, court costs and attorneys’
reasonable fees) incurred by Landlord in the enforcement of its rights and
remedies under this Lease; and (iv) any damages provable by Landlord as a
matter of law including, without limitation, an amount equal to the positive difference,
if any, between (x) the discounted present value (at 6% per annum) of the Base
Rent provided to be paid for the remainder of the Term (measured from the
effective termination date of this Lease) and (y) the fair market rental value
of the Leased Premises (determined at the date of termination of this Lease)
after deduction (from such fair market rental value) of the projected costs and
expenses of reletting the Premises (including the anticipated costs of repairs,
alterations, improvements, additions, legal fees and brokerage commissions) as
reasonably estimated by Landlord.  If Landlord elects to pursue its rights
and remedies under Subsection (b) above, and the Premises are relet and a
sufficient sum is not realized therefrom, then to satisfy the payment, when
due, of Base Rent and Additional Rent reserved under the Lease for any monthly
period (after payment of all Landlord’s reasonable expenses of reletting),
Tenant shall pay any such deficiency monthly.  If Landlord elects to
pursue its rights and remedies under Subsection (b) above, and Landlord
fails to relet the Premises, then Tenant shall pay to Landlord all costs of
Landlord’s expenses of reletting (including the anticipated costs of repairs,
alterations, improvements, additions, legal fees and brokerage commissions) as
reasonably estimated by Landlord.  Tenant agrees that Landlord may file
suit to recover any sums due to Landlord hereunder from time to time and that
such suit or recovery of any amount due Landlord hereunder shall not be any defense
to any subsequent action brought for any amount not theretofore reduced to
judgment in favor of Landlord.  If Landlord elects to pursue its rights
and remedies under Subsection (b), then Landlord shall at any time have
the further right and remedy to rescind such election and pursue its rights and
remedies under Subsection (a).  In the event Landlord elects,
pursuant to clause (b) of this Section 22.2, to terminate Tenant’s right of
possession only, without terminating this Lease, Landlord may, at Landlord’s
option, enter into the Premises, remove Tenant’s Property, Tenant’s signs and
other evidences of tenancy, and take and hold possession thereof, as provided
in Section 20 hereof; provided,
however, that such entry and possession shall not terminate this Lease or
release Tenant, in whole or in part, from Tenant’s obligation to pay the Base
Rent and Additional Rent reserved hereunder for the full Term, or from any
other obligation of Tenant under this Lease.  Any and all property that
may be removed from the Premises by Landlord pursuant to the authority of the
Lease or of law, to which Tenant is or may be entitled, may be handled, removed
or stored by Landlord at the sole risk, cost and expense of Tenant, and in no
event or circumstance shall Landlord be responsible for the value, preservation
or safekeeping thereof.  Tenant shall pay to Landlord, upon demand, any
and all expenses incurred in such removal and all storage charges against such


 


19





















 


property
so long as the same shall be in Landlord’s possession or under Landlord’s
control.  Any such property of Tenant not retaken from storage by Tenant
within 30 days after the end of the Term, however terminated, shall be
conclusively presumed to have been conveyed by Tenant to Landlord under this Lease
as in a bill of sale, without further payment or credit by Landlord to Tenant.


 


22.3.                    
Additional Rights of
Landlord and Tenant.  Any and all costs, expenses and disbursements, of
any kind or nature, incurred by Landlord or Agent in connection with the
enforcement of any and all of the terms and provisions of this Lease, including
attorneys’ reasonable fees (through all appellate proceedings), shall be due
and payable (as Additional Rent) Landlord’s submission of an invoice therefor. 
All sums advanced by Landlord or Agent on account of Tenant under this Section,
or pursuant to any other provision of this Lease, and all Base Rent and
Additional Rent, if delinquent or not paid by Tenant and received by Landlord
on or prior to the expiration of any applicable notice or cure period provided
for hereunder, shall bear interest at the rate of 4% per annum above the
“prime” or “reference” or “base” rate (on a per annum basis) of interest
publicly announced as such, from time to time, by the Bank One, or its
successor (“Default
Interest”), from the due date thereof until paid, and such interest shall be
and constitute Additional Rent and be due and payable upon Landlord’s or
Agent’s submission of an invoice therefor.  The various rights, remedies
and elections of Landlord reserved, expressed or contained herein are
cumulative and no one of them shall be deemed to be exclusive of the others or
of such other rights, remedies, options or elections as are now or may
hereafter be conferred upon Landlord by law.


 


22.4.                    
Event of Bankruptcy.  In addition
to, and in no way limiting the other remedies set forth herein, Landlord and
Tenant agree that if Tenant ever becomes the subject of a voluntary or
involuntary bankruptcy, reorganization, composition, or other similar type
proceeding under the federal bankruptcy laws, as now enacted or hereinafter
amended, then: (a) “adequate assurance of future performance” by Tenant
pursuant to Bankruptcy Code Section 365 will include (but not be limited
to) payment of an additional/new security deposit in the amount of three times
the then current Base Rent payable hereunder; (b) any person or entity to which
this Lease is assigned, pursuant to the provisions of the Bankruptcy Code,
shall be deemed, without further act or deed, to have assumed all of the
obligations of Tenant arising under this Lease on and after the effective date
of such assignment, and any such assignee shall, upon demand by Landlord,
execute and deliver to Landlord an instrument confirming such assumption of
liability; (c) notwithstanding anything in this Lease to the contrary, all
amounts payable by Tenant to or on behalf of Landlord under this Lease, whether
or not expressly denominated as “Rent”, shall constitute “rent” for the
purposes of Section 502(b)(6) of the Bankruptcy Code; and (d) if this
Lease is assigned to any person or entity pursuant to the provisions of the
Bankruptcy Code, any and all monies or other considerations payable or
otherwise to be delivered to Landlord or Agent (including Base Rent, Additional
Rent and other amounts hereunder), shall be and remain the exclusive property
of Landlord and shall not constitute property of Tenant or of the bankruptcy
estate of Tenant.  Any and all monies or other considerations constituting
Landlord’s property under the preceding sentence not paid or delivered to
Landlord or Agent shall be held in trust by Tenant or Tenant’s bankruptcy
estate for the benefit of Landlord and shall be promptly paid to or turned over
to Landlord.


 


23.                              
BROKER.  Tenant covenants,
warrants and represents that the broker set forth in Section 1.9(A) was the only broker
to represent Tenant in the negotiation of this Lease (“Tenant’s Broker”).  Landlord covenants, warrants and
represents that the broker set forth in Section 1.9(B) was the only broker to represent
Landlord in the negotiation of this Lease (“Landlord’s Broker”).  Landlord shall be solely
responsible for paying the commission of Landlord’s Broker and Tenant’s Broker. 
Each party agrees to and hereby does defend, indemnify and hold the other
harmless against and from any brokerage commissions or finder’s fees or claims
therefor by a party claiming to have dealt with the indemnifying party and all
costs, expenses and liabilities in connection therewith, including, without
limitation, reasonable attorneys’ fees and expenses, for any breach of the
foregoing.  The foregoing indemnification shall survive the termination or
expiration of this Lease.


 


24.                              
MISCELLANEOUS.


 


24.1.                    
Merger.  All prior
understandings and agreements between the parties are merged in this Lease,
which alone fully and completely expresses the agreement of the parties. 
No agreement shall be effective to modify this Lease, in whole or in part,
unless such agreement is in writing, and is signed by the party against whom
enforcement of said change or modification is sought.


 


20





















 


24.2.                    
Notices.  Any notice required to
be given by either party pursuant to this Lease, shall be in writing and shall
be deemed to have been properly given, rendered or made only if personally
delivered, or if sent by Federal Express or other comparable commercial
overnight delivery service, addressed to the other party at the addresses set
forth below (or to such other address as Landlord or Tenant may designate to
each other from time to time by written notice), and shall be deemed to have
been given, rendered or made on the day so delivered or on the first business
day after having been deposited with the courier service:


 


	
  If to Landlord: 

  	
  First Industrial LP

  
	
   

  	
  311 South Wacker Drive,
  Suite 4000

  
	
   

  	
  Chicago, Illinois 60606

  
	
   

  	
  Attn: Vice President -
  Operations Management

  
	
   

  	
   

  
	
  With a copy to:

  	
  First Industrial Realty
  Trust, Inc.

  
	
   

  	
  4742 Creek Road

  
	
   

  	
  Cincinnati, OH 45242

  
	
   

  	
  Attn: Senior Regional
  Director

  
	
   

  	
   

  
	
  With a copy to:

  	
  Barack Ferrazzano
  Kirschbaum Perlman & Nagelberg

  
	
   

  	
  333 West Wacker Drive

  
	
   

  	
  Suite 2700

  
	
   

  	
  Chicago, Illinois 60606

  
	
   

  	
  Attn: Jeremy T. Bunnow

  
	
   

  	
   

  
	
  If to Tenant:

  	
  The Wornick Company

  
	
   

  	
  10825 Kenwood Road

  
	
   

  	
  Cincinnati, OH 45242

  
	
   

  	
  Attn: Ron Davis

  



 


24.3.                    
Non-Waiver.  The failure of either
party to insist, in any one or more instances, upon the strict performance of
any one or more of the obligations of this Lease, or to exercise any election
herein contained, shall not be construed as a waiver or relinquishment for the
future of the performance of such one or more obligations of this Lease or of
the right to exercise such election, but the Lease shall continue and remain in
full force and effect with respect to any subsequent breach, act or
omission.  The receipt and acceptance by Landlord or Agent of Base Rent or
Additional Rent with knowledge of breach by Tenant of any obligation of this
Lease shall not be deemed a waiver of such breach.


 


24.4.                    
Legal Costs.  Any party in
breach or default under this Lease (the “Defaulting Party”) shall reimburse the other party
(the “Nondefaulting
Party”)
upon demand for any legal fees and court (or other administrative proceeding)
costs or expenses that the Nondefaulting Party incurs in connection with the
breach or default, regardless whether suit is commenced or judgment
entered.  Such costs shall include legal fees and costs incurred for the
negotiation of a settlement, enforcement of rights or otherwise. 
Furthermore, in the event of litigation, the court in such action shall award
to the party in whose favor a judgment is entered a reasonable sum as attorneys’
fees and costs, which sum shall be paid by the losing party.


 


24.5.                    
Parties Bound.  Except as otherwise
expressly provided for in this Lease, this Lease shall be binding upon, and
inure to the benefit of, the successors and assignees of the parties
hereto.  Tenant hereby releases Landlord named herein from any obligations
of Landlord for any period subsequent to the conveyance and transfer of
Landlord’s ownership interest in the Property.  In the event of such
conveyance and transfer, Landlord’s obligations shall thereafter be binding
upon each transferee (whether Successor Landlord or otherwise).  No
obligation of Landlord shall arise under this Lease until the instrument is
signed by, and delivered to, both Landlord and Tenant.


 


24.6.                    
Recordation of
Lease.  Tenant shall not record or file this Lease (or any
memorandum hereof) in the public records of any county or state.


 


21





















 


24.7.                    
Survival of
Obligations.  Upon the expiration or other termination of this Lease,
neither party shall have any further obligation nor liability to the other
except as otherwise expressly provided in this Lease and except for such
obligations as, by their nature or under the circumstances, can only be, or by
the provisions of this Lease, may be performed after such expiration or other
termination.


 


24.8.                    
Governing Law;
Construction.  This Lease shall be governed by and construed in accordance
with the laws of the state in which the Property is located.  If any
provision of this Lease shall be invalid or unenforceable, the remainder of
this Lease shall not be affected but shall be enforced to the extent permitted
by law.  The captions, headings and titles in this Lease are solely for
convenience of reference and shall not affect its interpretation.  This
Lease shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Lease to be
drafted.  Each covenant, agreement, obligation, or other provision of this
Lease to be performed by Tenant, shall be construed as a separate and
independent covenant of Tenant, not dependent on any other provision of this
Lease.  All terms and words used in this Lease, regardless of the number
or gender in which they are used, shall be deemed to include any other number
and any other gender as the context may require.  This Lease may be
executed in counterpart and, when all counterpart documents are executed, the
counterparts shall constitute a single binding instrument.


 


24.9.                    
Time.  Time is of the essence
for this Lease.  If the time for performance hereunder falls on a
Saturday, Sunday or a day that is recognized as a holiday in the state in which
the Property is located, then such time shall be deemed extended to the next
day that is not a Saturday, Sunday or holiday in said state.


 


24.10.             
Authority of
Tenant.  If Tenant is a corporation, partnership, limited liability
company, association or any other entity, it shall deliver to Landlord,
concurrently with the delivery to Landlord of an executed Lease, certified
resolutions of Tenant’s directors or other governing person or body (i)
authorizing execution and delivery of this Lease and the performance by Tenant
of its obligations hereunder and (ii) certifying the authority of the party
executing the Lease as having been duly authorized to do so.


 


24.11.             
WAIVER OF TRIAL BY
JURY.  THE LANDLORD AND THE TENANT, TO THE FULLEST EXTENT THAT
THEY MAY LAWFULLY DO SO, HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BROUGHT BY ANY PARTY TO THIS LEASE WITH RESPECT TO THIS LEASE, THE PREMISES, OR
ANY OTHER MATTER RELATED TO THIS LEASE OR THE PREMISES.


 


24.12.             
Relocation.  Intentionally omitted.


 


24.13.             
Financial
Information.  From time to time during the Term, Tenant shall deliver to
Landlord unaudited financial statements concerning Tenant’s financial condition
within ten (10) days following Landlord’s written request therefor and Landlord
agrees that the information contained in such statements shall be treated
confidentially.


 


24.14.             
Confidential
Information.  Tenant agrees to maintain in strict confidence the economic
terms of this Lease and any or all other materials, data and information
delivered to or received by the parties either prior to or during the Term in
connection with the negotiation and execution hereof.  The provisions of
this Section 24.14 shall survive the
termination of this Lease.


 


24.15.             
Submission of
Lease.  Submission of this Lease to Tenant for signature does not
constitute a reservation of space or an option to lease.  This Lease is
not effective until execution by and delivery to both Landlord and Tenant.


 


24.16.             
Joint and Several
Liability.  All parties signing this Lease as Tenant shall be jointly
and severally liable for all obligations of Tenant hereunder.


 


24.17.             
Riders.  All Riders and
Exhibits attached hereto and executed (or initialed) both by Landlord and
Tenant shall be deemed to be a part hereof and hereby incorporated herein.


 


[Signature Page to
Follow]


 


22





















 


IN
WITNESS WHEREOF,
Landlord and Tenant have duly executed this Lease as of the day and year first
above written.


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  First
  Industrial, L.P.,
  a Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:  First
  Industrial Realty Trust, Inc.

  
	
   

  	
  Its:  Sole general
  partner

  
	
   

  	
   

  



 


	
   

  	
   

  	
   

  	
   

  
	
  Witness: 

  	
  /s/ Sandra McIntosh

  	
   

  	
  Signed: 

  	
  /s/ Ross Kirk

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Printed Name: 

  	
  Sandra McIntosh

  	
  Printed Name: 
  Ross Kirk

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Witness: 

  	
  /s/ Vann S. McCollough

  	
   

  	
  Its:  Managing
  Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Printed Name: 

  	
  Vann S. McCollough

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  The
  Wornick Company,
  a Nevada corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


	
  Witness: 

  	
  /s/ J.F. McQuay

  	
   

  	
  Signed: 

  	
  /s/ Larry Rose

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Printed Name:  

  	
  J.F. McQuay

  	
  Printed Name: 
  Larry Rose

  
	
   

  	
   

  	
   

  	
   

  
	
  Witness: 

  	
  /s/ Teresa Williams

  	
   

  	
  Its:  President
  and CEO

  
	
   

  	
   

  	
   

  	
   

  
	
  Printed Name:

  	
  Teresa Williams

  	
   

  	
   

  



 


S-1





















 


STATE OF FLORIDA


 


COUNTY OF HILLSBOROUGH


 


Before me, the undersigned, a Notary Public for
Hillsborough County, personally appeared Ross Kirk, Managing Director, of First
Industrial, LP, the Landlord in the foregoing instrument who acknowledged the
signing of the foregoing instrument to be his free act and deed on behalf of
the Landlord for the uses and purpose set forth therein.


 


IN WITNESS WHEREOF, I have hereunto signed my name and
affixed my official seal on the 21st day of March, 2003.


 


	
   

  	
  /s/ Virginia Saclarides

  	
   

  
	
   

  	
  Notary Public

  
	
   

  	
   

  
	
   

  	
  Virginia Saclarides

  	
   

  
	
   

  	
  Type or Print Name

  



 


 


STATE OF TEXAS


 


COUNTY OF HIDALGO


 


Before me, the undersigned, a Notary Public for
Hidalgo County, personally appeared Larry Rose, President and CEO of The
Wornick Company, a Nevada corporation, the Tenant in the foregoing instrument
who acknowledged the signing of the foregoing instrument to be his free act and
deed on behalf of the Tenant for the uses and purposes set forth therein.


 


IN WITNESS WHEREOF, I have hereunto signed my name and
affixed my official seal on the 12th day of March, 2003.


 


	
   

  	
  /s/ Virginia Rocha

  	
   

  
	
   

  	
  Notary Public

  
	
   

  	
   

  
	
   

  	
  Virginia Rocha

  	
   

  
	
   

  	
  Type or Print Name

  



 


S-2





















 


RIDER
NO. 1


CANCELLATION
OPTION


 


(Phase
II Premises and Tenant 2 Space)


 


RIDER
No. 1 attached to and made a part of the Lease dated March 21, 2003,
between FIRST INDUSTRIAL, L.P., as Landlord, and THE WORNICK COMPANY, as
Tenant, for Premises located at 4732, 4744 and 4750 Creek Road, Cincinnati,
Ohio.


 


Provided Tenant is not then in default under the Lease
and no condition then exists which with the passage of time or giving of
notice, or both, would constitute a default, Tenant shall have a one-time right
to (i) cancel the portion of the Lease for the Phase II Premises (31,740 sf)
effective as of the 31st day of December 2003, by giving
written notice to Landlord of such termination election no later than the 30th
day of November 2003 and/or (ii) cancel the portion of the Lease for
the Tenant 2 space (3,240 sf) effective as of the Commencement Date of the
Phase III Premises.  Tenant shall also have right to cancel the existing
Lease between Landlord and Tenant pertaining to the Tenant’s lease of the
approximately 3,000 square feet of space on the second floor on the south side
of the building as of the Commencement Date of the Phase III Premises, and
Tenant shall vacate the approximate 3,000 square feet within 30 days of the
Phase III Commencement Date.  If an event has occurred that with the
passage of time or the giving of notice, or both, would constitute an uncured
default under this Lease and Tenant has exercised its cancellation right
described in either or both of clauses (i) and/or (ii) under the terms of this
Rider No. 1, Landlord, in its sole discretion, shall have the right to declare
such exercise(s) voidable if such event ripens into an uncured default. 
No such termination(s) by Tenant shall relieve Tenant from the performance of
any obligations that have accrued but have not been fully performed as of the
effective date of such termination(s).


 


1





















 


RIDER
NO. 2


TERMINATION
OPTION


 


RIDER
No. 2 attached to and made a part of the Lease dated March 21, 2003,
between FIRST INDUSTRIAL, L.P., as Landlord, and THE WORNICK COMPANY, as
Tenant, for Premises located at 4732, 4744 and 4750 Creek Road, Cincinnati,
Ohio.


 


Notwithstanding anything
to the contrary contained herein, Tenant shall have the option to terminate
this Lease (“Termination Option”)
in accordance with the following terms and conditions:


 


Tenant
Gives Notice. 
If Tenant desires to exercise the Termination Option, Tenant shall give
Landlord irrevocable written notice (“Termination
Notice”) of Tenant’s exercise of this Termination Option, which
shall be delivered by certified mail, which Termination Notice must be received
by Landlord no later than the date that is six full calendar months prior to
the Termination Date.  Time is of the essence with respect to Landlord’s
receipt of the Termination Notice and all other deadlines in this Clause.


 


Termination
Date.  If
Tenant gives the Termination Notice and complies with all the provisions in
this Clause, the Lease shall terminate at 11:59 p.m. on the last day of the thirty sixth (36th) full calendar
month after the Phase III Premises Commencement Date (the “Termination Date”).


 


Termination
Fee Must Accompany Notice.  In order for such Termination Notice to be effective, it must
be accompanied by the termination fee in the amount equal to six (6) monthly
installments of Annual Base Rent plus an amount equal to the unamortized cost
of the Phase I Improvements, Phase II Improvements and Phase III Improvements
(as defined on Exhibit B to this Lease) and unearned brokerage commissions,
which shall be payable only in cash or certified funds.  For purposes of
calculating the unamortized portion of the cost of such Improvements, the cost
of such Improvements shall be deemed amortized in equal monthly installments
without interest over a period of time beginning on the Phase I Premises
Commencement Date, Phase II Premises Commencement Date, and Phase III Premises
Commencement Date (as applicable) and ending on the scheduled Expiration Date.


 


Tenant’s
Obligation Survives Termination.  Tenant’s obligations to pay Rent, Additional Rent, and
any other costs or charges under this Lease, and to perform all other Lease
obligations for the period up to and including the Termination Date, shall
survive the termination of this Lease.


 


Landlord
May Cancel and Void Termination if Tenant in Default.  Notwithstanding the foregoing, if at any
time during the period on or after the date on which Tenant shall exercise its
Termination Option (in accordance with this Rider No. 2) up to and including
the Termination Date Tenant shall be in default under this Lease beyond any
applicable notice or cure period, then Landlord may elect, but is not
obligated, to cancel and declare null and void Tenant’s exercise of the
Termination Option by giving Tenant written notice thereof prior to the
Termination Date, whereupon this Lease shall continue in full force and effect
for the full Lease Term hereof unaffected by Tenant’s exercise of the
Termination Option.  If Landlord does not so cancel Tenant’s exercise of
the Termination Option, Tenant’s obligation to cure such default shall survive
the Termination Date.


 


Tenant
Shall Surrender Space by Termination Date.  In the event Tenant exercises the
Termination Option, Tenant covenants and agrees to surrender full and complete
possession of the Premises to Landlord on or before the Termination Date
vacant, broom-clean, in good order and condition, and, in accordance with the
provisions of this Lease, and thereafter the Premises shall be free and clear
of all leases, tenancies, and rights of occupancy of any entity claiming by or
through Tenant.


 


Failure
to Surrender Makes Tenant a Holdover.  If Tenant shall fail to deliver possession of the
Premises on or before the Termination Date in accordance with the terms hereof,
Tenant shall be deemed to be a holdover tenant from and after the Termination
Date, and in such event, Tenant shall be liable to Landlord for payments for
the use and occupancy of the Premises equal to the fair market value thereof,
and shall also be liable to Landlord for all costs and expenses incurred by
Landlord in securing possession of the Premises.  Landlord may accept any
such sums from Tenant without prejudice to Landlord’s right to evict Tenant
from the Premises by any lawful means.


 


Lease
Ceases After Termination.  If Tenant properly and timely exercises the
Termination Option and properly and timely satisfies all other monetary and
non-monetary obligations under this Lease, the Lease shall cease and expire on
the Termination Date with the same force and effect as if said Termination Date
were the date originally provided in this Lease as the expiration date of the
Term hereof.


 


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RIDER
NO. 3


 


EXPANSION
RIGHTS


 


RIDER
No. 3 attached to and made a part of the Lease dated March 21, 2003,
between FIRST INDUSTRIAL, L.P., as Landlord, and THE WORNICK COMPANY, as
Tenant, for Premises located at 4732, 4744 and 4750 Creek Road, Cincinnati,
Ohio.


 


During such time as this
Lease is in effect and provided that Tenant is not in default under this Lease
(and no event has occurred with the passage of time or the giving of notice, or
both, would constitute a default under this Lease), Tenant shall have the right
to lease the immediately adjacent approximately 12,696-25,392 square feet of
the Building, as labeled “Expansion Premises” on attached Exhibit A-2 (referred
to in this Rider as the “Adjacent Space”), on the terms set forth in this
Rider.  If an event has occurred that with the passage of time or the
giving of notice, or both, would constitute an uncured default under this Lease
and Tenant has exercised its expansion option under the terms of this Rider No.
3, Landlord, in its sole discretion, shall have the right to declare such
exercise voidable if such event ripens into an uncured default.  Tenant’s
rights under this Rider are subordinate to any leases of the Adjacent Space
(including any rights of first offer and other expansion rights) and options to
renew or extend the lease term or any purchase options or agreements concerning
the Building or Property that Landlord has entered into as of the Date of
Lease.  This limited right to expand space shall operate as follows: (i)
if and when Landlord receives a bona fide third-party written offer to lease
all or any part of the Adjacent Space on terms and conditions that Landlord has
determined it is prepared to accept, Landlord shall, prior to accepting such
offer, notify Tenant in writing of such offer, together with a statement of the
terms and conditions of such offer; (ii) Tenant shall have five (5) days from
receipt of Landlord’s notice in which to deliver to Landlord Tenant’s written,
unconditional election and agreement to lease the entire Adjacent Space (x) at
a base rental rate equal to the base rental rate set forth in the third-party
offer; (y) for a term equal to the longer of the then remaining term under this
Lease or the term set forth in the third party offer, and (z) otherwise on all
the same terms and conditions of this Lease; (iii) if Tenant duly delivers its
written, unconditional election and agreement to lease the Adjacent Space, then
effective on the first day of the first calendar month immediately following
delivery by Tenant of its agreement to lease: (a) the Adjacent Space will be
deemed to be added to and become a part of the Premises for all purposes under
this Lease (and the term “Premises” shall be redefined to include the Adjacent
Space); (b) Tenant’s Proportionate Share shall increase to reflect the addition
of the entire Adjacent Space to the Premises; (c) Base Rent for the Adjacent
Space (which shall be in addition to the Base Rent due under this Lease for the
then existing Premises) shall be due from Tenant at the rate established by
clause (ii)(x) above; and (d) Tenant will not be entitled to any allowance or
other incentive or abatement with regard to the Adjacent Space and will accept
the Adjacent Space in its as-is condition, without representation or warranty,
and without any improvements, installations or other work items to be performed
by Landlord except those that would have been available to the third-party who
made the bona fide third-party written offer, which the Tenant is matching. 
Tenant shall promptly upon request of Landlord execute and deliver to Landlord
an amendment to this Lease consistent with the foregoing and otherwise
containing such provisions as are, in Landlord’s reasonable judgment, necessary
to evidence this expansion of Tenant’s occupancy of the Building, with the
execution and delivery by Tenant of such Lease amendment constituting a
condition precedent to Tenant’s right to occupy the Adjacent Space as
contemplated by this Rider (but not as a condition precedent to commencement of
the lease term (and Tenant’s resulting Rent payment and other obligations) for
the Adjacent Space).


 


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RIDER
NO. 4


 


Renewal
Option


 


RIDER
No. 4 attached to and made a part of the Lease dated March 21, 2003,
between FIRST INDUSTRIAL, L.P., as Landlord, and THE WORNICK COMPANY, as
Tenant, for Premises located at 4732, 4744 and 4750 Creek Road, Cincinnati,
Ohio.


 


Provided that this Lease
is in full force and effect and Tenant is not in default of its obligations
hereunder (beyond any applicable notice or cure period) at the time the Renewal
Option (defined below) is exercised and at the commencement of the Renewal Term
(defined below), Landlord hereby grants to Tenant the option to extend the
initial Term of this Lease (“Renewal Option”)
for one (1) additional period of two (2) years (the “Renewal Term”), upon the same terms and conditions as are
contained in this Lease, except as provided below.  Landlord shall have no
obligation to make any improvements, decorations, repairs, alterations or
additions to the Premises as a condition to Tenant’s obligation to pay Rent for
the Renewal Term.  The Renewal Option granted herein shall be exercised,
if at all, by written notice (the “Renewal
Notice”) to Landlord given not later than 270 days prior to the
Expiration Date.  In the event that Tenant fails to deliver the Renewal
Notice on a timely basis, Tenant shall have no further right to extend the
Term.  Base Rent payable for the Premises during the Renewal Term shall be
in an amount equal to one hundred five percent (105%) of the amount of the Base
Rent payable for the Premises during the period immediately prior to the
commencement of the Renewal Term.


 


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EXHIBIT
A-1


 


CREEK
ROAD BUSINESS CENTER


 


Situate in Section 17, Town 4, Entire Range 1,
Sycamore Township, City of Blue Ash, Hamilton County,


 


Ohio and being more particularly described as follows:


 


Beginning at the intersection of the centerlines
of Creek Road and Kenwood Road, the centerline of Kenwood Road also being the
east line of Section 17;


 


Thence along said centerline of Creek Road, North
81°15’40” West, 1072.48 feet to a point;


 


Thence North 08°44’20” East, 30.00 feet to a point in
the northerly right-of-way line of Creek Road and the real point of beginning
for this description;


 


Thence from said REAL POINT OF BEGINNING, North
08°44’20” East, 667.28 feet to a point;


 


Thence South 81°15’40” East, 970.64 feet to a point in
the westerly right-of-way line of Kenwood Road;


 


Thence along said westerly line of Kenwood Road, South
03°4l’00” West, 653.50 feet to a point;


 


Thence along an arc deflecting to the right, having a
radius of 15.00 feet, a distance of 24.89 feet, the chord of said arc bears
South 51°12’40” West 22.13 feet to a point in the aforesaid northerly right-of-way
of Creek Road;


 


Thence along said northerly line of Creek Road, North
81°15’40” West, 1013.28 feet to the real point of beginning.


 


Containing 15.319 acres of land.


Subject to all legal highways, easements, and
restrictions of record.


 


A-1





















 


ASSIGNMENT
AND ASSUMPTION OF LEASE


 


ASSIGNMENT AND ASSUMPTION
OF LEASE (this “Agreement”), entered into as of June 30, 2004, by and
among The Wornick Company, a Nevada corporation (“Assignor”); and The Wornick
Company, a Delaware corporation (“Assignee”). Assignor and Assignee are
referred to collectively herein as the “Parties.”


 


W I  T  N  E  S
S  E  T  H:


 


WHEREAS, Assignor, as
“Tenant,” and First Industrial LP, a Delaware limited partnership, as
“Landlord,” are parties to the Standard Form Industrial Building Lease
(Multi-Tenant) dated March 21, 2003 (the “Lease”), presently covering
certain premises (the “Premises”) located at 4700-4750 Creek Road, Cincinnati,
Ohio, a copy of which Lease is attached hereto as Exhibit A; and


 


WHEREAS, Assignor, as
“Seller,” and Assignee, as “Buyer,” are parties to an Asset Purchase Agreement
dated December 3, 2003 (the “Purchase Agreement”), pursuant to which,
subject to the terms and conditions set forth therein, Assignee will purchase
substantially all of the assets (and assume certain of the liabilities) of
Assignor, including all of Seller’s right, title and interest in, under and to
the Lease; and


 


WHEREAS, simultaneously
with the closing of the transactions contemplated by the Purchase Agreement,
the Parties mutually desire (a) that Assignor assign all of its right, title
and interest in, under and to the Lease to Assignee, (b) that Assignee accept
such assignment from Assignor and assume all of Assignor’s obligations as
Tenant under the Lease, and (c) that Landlord consent to the assignment
contemplated hereby, all on the terms and conditions hereinafter set forth.


 


NOW, THEREFORE, in
consideration of the mutual covenants contained herein and other valuable
consideration, the receipt and adequacy of which are expressly acknowledged,
the Parties agree as follows:


 


1. 
Effective Date. For all purposes under this Agreement, the term
“Effective Date” shall mean that date, if any, on which the closing of the
transactions contemplated by the Purchase Agreement is consummated.


 


2. 
Assignment and Assumption.


 


(a)                                 
Effective
as of the Effective Date, Assignor hereby assigns, transfers and sets over unto
Assignee all of Assignor’s right, title and interest in, under and to (i) the
Lease and (ii) the aggregate security deposit heretofore made by Assignor
pursuant to the Lease. Assignor will deliver possession of the Premises to
Assignee on the Effective Date.


 


(b)                                
Assignee
hereby accepts the foregoing assignment and hereby agrees to perform all of the
terms and conditions of the Lease to be performed on the part of Assignor and
assumes all of the liabilities and obligations of Assignor under the Lease, as


 





















 


amended
hereby, arising or accruing on or after the Effective Date, including, without
limitation, liability for the payment of rent and for the due performance of
all the terms, covenants and conditions of the tenant pursuant to the Lease as
amended hereby.


 


3. 
Consent to Assignment. Effective as of the Effective Date, Landlord has
consented to the assignment effected hereby.


 


4. 
Representation of Assignor. The Assignor hereby represents to the
Assignee and agrees as follows:


 


(a)                                 
The
Lease attached hereto as Exhibit A is a true, correct and complete copy of the
Lease, the Lease has not been amended or modified except as set forth above and
the same is the only agreement between the Landlord and the Assignor with
respect to the subject matter thereof.


 


(b)                                
The
Lease is in full force and effect with no defaults (or events which, with the
passage of time, would become defaults) thereunder on the part of either party
in the performance of its obligations under such Lease.


 


(c)                                 
The
minimum or base rent and all other rentals and other payments due, owing and
accruing under the Lease have been paid through the due date thereof
immediately preceding the Effective Date.


 


(d)                                
The
current amount of tenant’s expense and tax contribution is $7,944.86 per month.


 


(e)                                 
Landlord
is currently holding a security deposit with respect to the Lease in the amount
of $5,912.


 


5. 
Miscellaneous.


 


(a)                                 
Headings. The
section headings used herein are inserted for convenience only and shall
not affect in any way the meaning or interpretation of this Agreement.


 


(b)                                
Governing
law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Ohio.


 


(c)                                 
Counterparts. This Agreement may
be executed in one or more counterparts, each of which shall be deemed an
original but all of which together will constitute one and the same instrument.


 


2





















 


IN WITNESS
WHEREOF, the parties have executed this Agreement as of the day and year first
above written.


 


 


	
  ASSIGNOR

  	
  ASSIGNEE

  
	
   

  	
   

  
	
  The Wornick Company, a
  Nevada

  	
  The Wornick Company, a
  Delaware

  
	
  corporation

  	
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: 

  	
  /s/ Larry L. Rose

  	
   

  	
  By: 

  	
  /s/ Robert B. McKeon

  	
   

  
	
  Larry L. Rose, President and

  	
  Robert B. McKeon, President

  
	
  Chief Executive Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


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