TRMK 8-K
Trustmark Corp (TRMK)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered Pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement.
On September 3, 2026, Trustmark Bank (the “Bank”), a wholly owned subsidiary of Trustmark Corporation (the “Company”), entered into, and simultaneously completed the transactions contemplated by, an agreement for the purchase and sale of real property (the “Sale Agreement”) with entities affiliated with Blue Owl Real Estate Capital LLC (collectively, “Blue Owl”). Pursuant to the Sale Agreement, the Bank sold to Blue Owl 34 bank branch properties owned and operated by the Bank (the “Branches”) for a purchase price of $91.7 million. The Branches are located in Mississippi, Florida, Tennessee, Alabama and Texas.
Concurrently with the sale of the Branches, the Bank entered into triple net lease agreements (the “Lease Agreements”) with Blue Owl under which Blue Owl will lease to the Bank each of the Branches for the Bank to operate as Bank branches (the sale of the Branches pursuant to the Sale Agreement, and the lease of the Branches pursuant to the Lease Agreements are collectively referred to as the “Sale-leaseback Transaction”). Each of the Lease Agreements has an initial term of 15 years and three consecutive renewal options of five years each. The initial aggregate annual rent payable by the Bank under the Lease Agreements is $6.4 million, and is subject to a 1.5% annual rent escalation during the initial term and the renewal terms, if exercised. The Bank will not close any branch or exit any markets as part of the Sale-leaseback Transaction. The Sale-leaseback Transaction resulted in a pre-tax gain of approximately $61.5 million, after transaction-related expenses.
The foregoing description of the Sale Agreement and the Lease Agreements is a summary and is qualified in its entirety by the agreements, which are filed as Exhibits 10.1 and 10.2, respectively, to this Current Report on Form 8-K and incorporated by reference herein.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The description in Item 1.01 above with respect to the Bank’s entry into the Lease Agreements is incorporated by reference under this Item 2.03.
Item 7.01. Regulation FD Disclosure.
Following the completion of the Sale-leaseback Transaction, the Company executed a restructuring of its investment securities portfolio by reclassifying its securities held to maturity to securities available for sale. The Company then sold approximately $629.9 million of lower-yielding investment securities with a weighted-average yield of approximately 1.4% and purchased approximately $628.0 million of investment securities with a weighted-average yield of approximately 5.0%, which resulted in a pre-tax loss of approximately $61.5 million. This pre-tax loss offsets the pre-tax gain of approximately $61.5 million generated by the Sale-leaseback Transaction.
Cautionary Statement Regarding Forward-Looking Statements
Certain statements contained in this report constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. You can identify forward-looking statements by words such as “may,” “hope,” “will,” “should,” “expect,” “plan,” “anticipate,” “intend,” “believe,” “estimate,” “predict,” “project,” “potential,” “seek,” “continue,” “could,” “would,” “future” or the negative of those terms or other words of similar meaning. Examples of forward-looking statements include those that discuss expectations regarding the financial impacts of the Sale-leaseback Transaction and the other transactions described in this report. Forward-looking statements are based on assumptions as of the time they are made and are subject to risks, uncertainties and other factors that are difficult to predict with regard to timing, extent, likelihood and degree of occurrence, which could cause actual results to differ materially from anticipated results expressed or implied by such forward-looking statements. Such risks, uncertainties and assumptions, include, among others, changes in management’s assumptions, and material changes in expected expenses associated with the transactions described in the report. Further information regarding risk factors that may affect the Company and its future results of operations and financial condition is contained in the Company’s filings with the Securities and Exchange Commission, including the Company’s annual report on Form 10-K for the year ended December 31, 2025.
Although we believe that the expectations reflected in such forward-looking statements are reasonable, we can give no assurance that such expectations will prove to be correct. Except as required by law, we undertake no obligation to update or revise any of this information, whether as the result of new information, future events or developments or otherwise.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
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Description of Exhibits |
10.1 |
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10.2 |
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104 |
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Cover Page Interactive Data File (embedded within the Inline XBRL document) |
* Schedules (or similar attachments) have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The registrant hereby undertakes to furnish supplemental copies of any of the omitted schedules (or similar attachments) upon request by the SEC.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
TRUSTMARK CORPORATION
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/s/ Joseph E. Bond |
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Joseph E. Bond |
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Treasurer and Principal Financial Officer |
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DATE: |
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September 10, 2026 |
Exhibit 10.1
EXECUTION VERSION
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS REAL ESTATE PURCHASE AND SALE AGREEMENT (this “Agreement”) is made and entered into this ____3rd___ day of September, 2026 (the “Effective Date”), by and between TRUSTMARK BANK, a Mississippi banking corporation (“Seller”), and the entities set forth in the column titled “Buyer” on Exhibit E attached hereto, each a Delaware limited liability company (individually and/or collectively, as the context may require, “Buyer”).
W I T N E S S E T H:
WHEREAS, Seller is the fee simple owner of and is willing to sell thirty-four (34) separate premises of real property located in the Cities and State(s) listed on Exhibit E hereto as more fully described in Exhibit A attached hereto and by reference incorporated herein, and Buyer is willing to purchase such real property from Seller, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
1. Definitions. In addition to other words and terms defined elsewhere in this Agreement, as used herein the following words and terms shall have the following meanings, respectively, unless the context hereof otherwise clearly requires:
(a) “Allocated Purchase Price” shall mean, with respect to each Premises, the portion of the Purchase Price allocated to such Premises as set forth on Exhibit E attached hereto. Seller and Buyer acknowledge that the Allocated Purchase Prices are not necessarily established for income tax, financial or accounting purposes.
(b) “Allocated Rent” shall mean, with respect to each Premises, the portion of the annual base rent under the applicable Lease allocated to such Premises as set forth on Exhibit E attached hereto.
(c) “Business Day” shall mean a Monday, Tuesday, Wednesday, Thursday or Friday that is not a U.S. federal holiday.
(d) “Closing” shall mean the consummation of the purchase and sale of all of the Premises (as defined below) in accordance with the terms of this Agreement.
(e) “Closing Date” shall mean the date on which the Closing actually occurs.
(f) “Escrow Agent” shall mean First American Title Insurance Company, by and through its National Division, whose address is set forth in Section 17 below.
(g) “Estoppel” shall mean an estoppel certificate in the form prepared by Buyer (and reasonably acceptable to Seller) from any parties to any declarations, reciprocal easement agreements, or operating easement agreements affecting a Premises.
(h) “Hazardous Materials” shall mean all toxic or hazardous materials, chemicals, wastes, pollutants or similar substances, including, without limitation, Petroleum (as hereinafter defined), asbestos insulation and/or urea formaldehyde insulation, which are regulated, governed, restricted or prohibited by any federal, state or local law, decision, statute, rule, regulation or ordinance currently in
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existence or hereafter enacted or rendered (hereinafter collectively referred to as the “Hazardous Materials Laws”), including, but not limited to, those materials or substances defined as “hazardous substances,” “hazardous materials,” “toxic substances” or “pollutants” in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., the Clean Air Act, 42 U.S.C. Section 7401 et seq., the Clean Water Act, 33 U.S.C. Section 1251 et seq., and any applicable statutes, ordinances or regulations under the laws of the State in which each of the Premises are located, and any rules and regulations promulgated thereunder, all as presently or hereafter amended. “Petroleum” for purposes of this Agreement shall include, without limitation, oil or petroleum of any kind and in any form including, but not limited to, oil, petroleum, fuel oil, oil sludge, oil refuse, oil mixed with other waste, crude oil, gasoline, diesel fuel and kerosene.
(i) “Improvements” shall mean all of the improvements on all of the Properties, including but not limited to the building(s), the site improvements, all pavement, accessways, curb cuts, parking, drainage systems and facilities, landscaping, canopies, and utility facilities and connections for sanitary sewer, potable water, irrigation, electricity, telephone and natural gas and all appurtenances thereto, excluding ATMS/night drop boxes, vaults, safes, safe deposit boxes, drive up kiosks, furniture, telephone and communication systems, security equipment, signage, Information Technology (IT) systems and other trade fixtures.
(j) “Lease” shall mean, with respect to each Premises, an individual Lease Agreement for such Premises to be entered into at Closing between Buyer (or the applicable affiliate of Buyer taking title to such Premises), as lessor, and Tenant, as lessee, in the form attached as Exhibit B (collectively, the “Leases”). The financial terms of each Lease are as follows: fifteen (15)-year base term, and annual base rent equal to the Allocated Rent for such Premises as set forth on Exhibit E, with base rent increasing every year by 1.50%.
(k) “Permits” shall mean all of the governmental permits, including licenses and authorizations, required for the construction, ownership and operation of the Improvements on each of the respective Premises, including, without limitation, certificates of occupancy, building permits, signage permits, site use approvals, zoning certificates, environmental and land use permits and any and all necessary approvals from state or local authorities.
(l) “Permitted Exceptions” shall mean all of the following: (i) the Lease; (ii) ad valorem real property taxes and assessments for the year of Closing that are not yet due or payable; (iii) assessments for municipal improvements, if any, for the current year and subsequent years that are not yet due or payable; (iv) applicable zoning ordinances, building codes and land use laws and regulations; and (v) all other matters set forth in the Title Commitments and Surveys described on Schedule 1.
(m) “Post-Closing Letter Agreement” shall mean, with respect to each Premises for which the same is required, a letter agreement to be entered into by and between Buyer (or the applicable affiliate of Buyer taking title to such Premises), as landlord, and Tenant on the Closing Date in the form attached hereto as Exhibit I.
(n) “Personalty” shall mean all items of tangible personal property owned by Seller which are located on and which are used or useful in connection with the maintenance and operation of each of the respective Premises; specifically excluding, however, any personal property owned by Tenant and any intangible or tangible personal property related to Tenant’s operation of its business from the Premises.
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(o) “Phase I Report” shall mean a Phase I Environmental Site Assessment: (i) certified to Buyer, (ii) prepared by Bureau Veritas that shall carry professional liability insurance in such amounts reasonably acceptable to Buyer, (iii) that is consistent with good commercial and customary practice by implementing the American Society for Testing and Materials (“ASTM”), Standard Practice for Environmental Site Assessments: Phase I ESA Process (the “Phase I Standard”), as updated and amended from time to time (currently, “ASTM E 1527-21”), and (iv) conducted no more than one hundred eighty (180) days prior to the Closing Date such that the assessment meets the requirements of the Phase I Standard. The Phase I Standard shall be met if the components of the inquiries made in the assessment were conducted or updated within one hundred eighty (180) days of and prior to the Closing Date in accordance with Section 4.6 of the ASTM E 1527-21 standard.
(p) “Phase I Reports” shall collectively mean the Phase I Reports for all of the Properties.
(q) “Plans” shall mean the final “as-built” plans and specifications for the Improvements.
(r) “Premises” shall mean a fee simple interest in each of the thirty-four (34) separate parcels of real property being more particularly described on Exhibit A attached hereto and as listed on Exhibit E attached hereto and by reference incorporated herein, together with all of the Improvements, tenements, hereditaments and appurtenances belonging or in any way appertaining to such real property, and all of Seller’s rights, title and interest in and to (i) any and all property lying in the bed of any street, road or avenue, open or proposed, in front of or adjoining such real property to the center line thereof, (ii) any strips and gores of land adjacent to, abutting or used in connection with such real property, and (iii) any mineral rights or interests, and (iv) any easements and rights, if any, inuring to the benefit of such real property or to Seller in connection therewith.
(s) “Properties” shall collectively mean a fee simple interest in all of the Premises to be sold pursuant to this Agreement, and shall not include any intangible property related to the name of Seller or items related to the operation of Seller’s business.
(t) “Purchase Price” shall mean the total purchase price of all of the Properties which is Ninety-One Million Seven Hundred Thousand and 00/100 Dollars ($91,700,000.00), which purchase price is comprised of the individual purchase prices for each of the Premises which is more particularly set forth on Exhibit E.
(u) “Right of Replacement Side Letter” shall mean that certain letter agreement to be entered into by and between Blue Owl Real Estate Capital LLC (or an affiliate of Buyer) and Seller on the Closing Date in the form attached hereto as Exhibit H.
(v) “Seller’s Actual Knowledge”, “Seller’s Knowledge”, or words of similar import shall mean the actual knowledge, without any duty of inquiry or investigation, of Mel Channel, the Director of Corporate Facilities and Security (“Seller Knowledge Individual”). No Seller Knowledge Individual shall have any personal liability hereunder on account of any of Seller’s representations or warranties or the breach thereof.
(w) “Tenant” shall mean Trustmark Bank, a Mississippi banking corporation.
(x) “Title Company” shall mean First American Title Insurance Company, by and through its National Division Office, which shall issue the owner’s policy of title insurance required hereunder.
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2. Purchase and Sale of Properties. Subject to the terms, provisions and conditions set forth herein, Seller hereby agrees to sell the Properties to Buyer, and Buyer hereby agrees to purchase the Properties from Seller.
3. Purchase Price for Properties. The Purchase Price, less any apportionments set forth in Section 11 hereof, shall be paid in full by Buyer at the Closing by wire transfer of immediately available federal funds, as Seller shall direct.
4. Closing Date. The Closing shall occur simultaneously with the execution and delivery of this Agreement on the Effective Date.
5. Seller Deliveries. On or before the Effective Date of this Agreement, Seller has delivered to Buyer any and all of the following regarding the Properties which Seller has in its actual possession or control: (i) surveys, (ii) Plans, (iii) Permits, (iv) environmental reports, studies or assessments, (v) warranties, and (vi) all financial data regarding Tenant and regarding Tenant’s financial performance on the Properties. Seller has also delivered (or made available) to Buyer the following third-party reports at Seller’s cost, subject to partial reimbursement by Buyer at Closing pursuant to Article 11 below: (i) a Phase I Report for each Premises, (ii) a Commitment from the Title Company for an owner’s extended title insurance policy (ALTA form) with respect to each of the Premises, naming Buyer as the Proposed Insured in the amount of the Purchase Price allocated to that Premises (the “Title Commitments”), together with copies of all title exceptions identified in the Title Commitments, (iii) an ALTA as-built survey of each Premises by NV5 (the “Surveys”), and (iv) a new zoning report for each Premises prepared by Bureau Veritas (the “Zoning Reports”).
6. As-Is; Buyer’s Inspections. BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY DOCUMENT DELIVERED TO BUYER AT CLOSING (INCLUDING, WITHOUT LIMITATION, THE DEEDS AND THE LEASES), BUYER IS PURCHASING THE PROPERTIES IN THEIR “AS IS,” “WHERE IS” AND “WITH ALL FAULTS” CONDITION AS OF THE CLOSING DATE, WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, BY SELLER OR ANY AGENT OF SELLER. BUYER ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO INSPECT THE PROPERTIES DURING THE INSPECTION PERIOD AND IS RELYING SOLELY UPON ITS OWN INSPECTIONS, INVESTIGATIONS AND ANALYSES IN PURCHASING THE PROPERTIES. THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE THE CLOSING.
7. Title to Premises; State of Title to be Conveyed. At the Closing, Seller shall convey good, marketable and insurable fee simple title to each of the Premises to Buyer (or to such entities as Buyer shall designate pursuant to Section 19(a) hereof) by the applicable Deed, free and clear of all liens, defects of title, encumbrances, restrictions, rights-of-way and other matters, excepting only the Permitted Exceptions.
8. Reserved.
9. Reserved.
10. Deliveries at Closing. On the Effective Date, simultaneously with the execution and delivery of this Agreement and the Closing, Buyer and Seller shall deliver to the Escrow Agent (to be held in escrow), the documents and items indicated below.
(a) Seller shall deliver to Buyer (via escrow with Escrow Agent) at the Closing:
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(i) A customary “Seller’s Affidavit” or other acceptable evidence attesting to the absence of liens, lien rights, rights of parties in possession (other than Tenant) and other encumbrances (other than the Permitted Exceptions) naming Title Company as the benefited party, so as to enable Title Company to delete the “standard” exceptions for such matters from Buyer’s owner’s policy of title insurance for each of the respective Premises and otherwise insure any “gap” period occurring between the Closing and the recordation of the Deed(s).
(ii) A duly executed Special Warranty Deed (or state equivalent) (the “Deeds”) with respect to each of the Premises, subject to all matters of record, in substantially the form attached as Exhibit D for each Premises’ specific state, and otherwise as approved by the Title Company and revised as needed to conform to the requirements of state law for the state in which each of the Premises are located.
(iii) A duly executed counterpart of each Lease in the form attached as Exhibit B duly executed by Tenant.
(iv) A duly executed counterpart of the Right of Replacement Side Letter.
(v) A duly executed counterpart of a Post-Closing Letter Agreement with respect to each Premises, as applicable.
(vi) A duly executed Assignment of Licenses, Permits, Plans, Contracts and Warranties with respect to each of the Premises in the form attached as Exhibit C, together with all of the documents assigned thereby.
(vii) A duly executed Quit Claim Bill of Sale with respect to the Personalty for each of the respective Premises in the form attached as Exhibit F.
(viii) An appropriate FIRPTA Affidavit or Certificate by Seller, evidencing that Seller is not a foreign person or entity under Section 1445(f)(3) of the Internal Revenue Code, as amended.
(ix) All certificates of insurance, insuring Buyer as the owner of each of the Premises, which are required to be furnished to landlord by the Tenant under the applicable Lease.
(x) A certification from Seller that all of the representations and warranties of Seller set forth herein are true and correct as of the Closing Date.
(xi) Duly executed counterparts of the closing statement.
(xii) To the extent received, the Estoppels.
(xiii) Such other closing documents as are reasonably necessary and proper in order to consummate the transaction contemplated by this Agreement.
(b) Buyer shall deliver to Seller (via escrow with the Escrow Agent) at the Closing:
(i) Duly executed counterparts of the closing statement.
(ii) A duly executed counterpart of each Lease duly executed by Buyer as landlord.
(iii) A duly executed counterpart of the Right of Replacement Side Letter.
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(iv) A duly executed counterpart of each Post-Closing Letter Agreement required to be delivered pursuant to Section 10(a) hereof.
(v) Such other closing documents as are reasonably necessary and proper in order to consummate the transaction contemplated by this Agreement.
(vi) The Purchase Price, less all the prorations and adjustments provided for herein.
11. Closing and Other Costs, Adjustments and Prorations. The Closing costs shall be allocated and other closing adjustments and prorations made between Seller and Buyer as follows:
(a) The payment of the following Closing costs shall be allocated between Buyer and Seller in accordance with local custom as set forth on Schedule 11 attached hereto: (i) real estate conveyance taxes and other transfer taxes, if any, for the Properties imposed by state or local authorities; (ii) the cost of the Title Commitments, including search and examination fees; (iii) premiums for standard owner’s policies of title insurance; and (iv) fees for recording the Deeds.
(b) The Seller shall be charged with the following Closing costs: (i) costs of removing any lien, assessment or encumbrance required to be discharged hereunder in order to convey title to each of the Premises as herein provided; (ii) legal fees and expenses of Seller; (iii) one-half of the cost of the Phase I Reports, the Zoning Reports, and the Surveys; and (iv) one-half of all costs and fees charged by the Escrow Agent. All of such Seller costs shall be credited against the Purchase Price payable to Seller at the Closing.
(c) The Buyer shall be charged with the following items in addition to the Purchase Price payable to Seller at Closing: (i) fees and expenses of Buyer’s counsel; (ii) any cost Buyer incurs in inspecting the Properties; (iii) the cost of the extended coverage for owner’s policy of title insurance and all title endorsements that Buyer shall choose to obtain; (iv) one-half of all costs and fees charged by the Escrow Agent; and (v) one-half of the cost of the Phase I Reports, the Zoning Reports, and the Surveys.
(d) Payment of Taxes. All real estate taxes and assessments that are due and payable on or prior to the Closing Date shall be paid by Seller on or prior to the Closing Date. Tenant shall be responsible for payment of real estate taxes and assessments that are due and payable after the Closing Date in accordance with the applicable Lease.
(e) Proration of Expenses. Seller and Buyer agree that in connection with Tenant entering into the Leases at Closing, there shall be no proration of utility charges or other expenses, whether accruing or payable prior to or after the Closing Date, and that all such utility charges and other expenses concerning the Properties shall be borne by the Tenant, as tenant under the Leases.
12. Reserved.
13. Seller’s Covenants, Representations and Warranties. In order to induce Buyer to enter into this Agreement and purchase the Properties, Seller makes the following covenants, representations and warranties:
(a) Seller is duly organized, validly existing and in good standing as a Mississippi banking corporation. Seller is authorized to consummate the transaction set forth herein and to fulfill all of its obligations hereunder and under all closing documents to be executed by Seller, and has all necessary power to execute and deliver this Agreement and all closing documents to be executed by Seller and to
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perform all of Seller’s obligations hereunder and thereunder. This Agreement and all closing documents to be executed by Seller have been duly authorized by all requisite corporate or other required action on the part of Seller and are the valid and legally binding obligations of Seller, enforceable in accordance with their respective terms. Seller has obtained all necessary authorizations, consents and permissions required to enable it to execute and deliver this Agreement and to consummate the transaction contemplated hereby. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder, will result in the violation of any law or any provision of the organizational documents of Seller, will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller or any Premises is bound, or will conflict with, result in a breach of, or constitute (with or without due notice or lapse of time or both) a default under any contract, agreement, instrument or document, oral or written, to which Seller is a party.
(b) Seller has no actual knowledge of any condition or state of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms of the applicable Lease at each Premises, to be conducted by Tenant.
(c) There are no employees of Seller at any of the Premises for whom Buyer would have liability following the Closing.
(d) To Seller’s actual knowledge, none of the Premises or the use thereof by Tenant or the condition thereof violate any applicable deed restrictions, zoning or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any building code or fire code applicable to any of the Premises.
(e) To Seller’s actual knowledge, there is no pending or threatened litigation or other proceeding affecting any Premises.
(f) To the best of Seller’s knowledge, there is no pending or threatened or contemplated taking or eminent domain action affecting any Premises.
(g) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller shall certify its taxpayer identification number at Closing.
(h) To Seller’s actual knowledge, Seller has not knowingly provided Buyer with any financial information regarding the Properties or Tenant that is materially false or misleading when provided.
(i) To Seller’s actual knowledge, except as disclosed in the Phase I Reports, no Hazardous Materials have been stored, treated, disposed of or incorporated into, on or around any of the Premises in violation of any applicable statutes, ordinances or regulations, and each of the Premises are in compliance with all applicable environmental, health and safety requirements.
(j) Except for: (i) the Leases with the Tenant which will be entered into on the date of Closing and (ii) the leases set forth on Exhibit G (the “Existing Occupancy Agreements”), there are no third party leases or other rights of possession affecting any of the Premises as of the date hereof. Following Closing, the Existing Occupancy Agreements shall constitute subleases, licenses, or other occupancy rights under the applicable Lease to the extent provided therein. Seller makes no representation regarding the future performance, renewal, extension, expiration, or enforceability of any Existing Occupancy Agreement after Closing, all of which shall be governed by the terms of the applicable Lease and applicable Existing Occupancy Agreement. Buyer acknowledges and agrees that Seller shall retain all economic benefits of
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the Existing Occupancy Agreements as tenant under the Leases and Buyer shall have no direct rights against any subtenant except through Seller under the applicable Lease. Buyer acknowledges that Seller makes no representation or warranty regarding the creditworthiness or future performance of any subtenant or occupant under the Existing Occupancy Agreements.
(k) Except as disclosed in the Title Commitments, Seller has not granted any rights of first refusal, rights of first offer, purchase options or similar purchase rights with respect to any of the Premises.
(l) Seller has not entered into any contracts, subcontracts or agreements, including, without limitation, any service contracts or brokerage agreements, with respect to the Premises other than contracts entered into in the ordinary course of business the obligations of which shall be Tenant’s (and not Buyer’s) from and after the Closing under the terms of the applicable Lease.
(m) To Seller’s actual knowledge, Seller has not received any written notice of any current or pending environmental investigation against any of the Premises, and Seller does not have any actual knowledge of any pending environmental investigation against any of the Premises. Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other Hazardous Materials discharge or seepage at any Premises.
(n) The due diligence materials delivered or made available to Buyer pursuant to Section 5 hereof consist of copies of the same documents that are used and relied upon by Seller in its ownership and operation of the Premises.
(o) To Seller’s actual knowledge, Seller currently possesses all requisite Permits necessary to own, maintain, operate and use the Premises, and has made available to Buyer true, correct and complete copies of the Permits. To Seller’s actual knowledge, Seller has not received any written notice from any governmental authority or other person or entity of (i) any violation, default, intended or threatened non-renewal, suspension or revocation of any Permit, or (ii) any failure by Seller to obtain any Permit required for the use, occupancy or operation of any of the Premises that has not been cured.
(p) Seller is not acting on behalf of (i) an “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)) that is subject to Title I of ERISA, (ii) a “plan” as defined in Section 4975(e) of the Internal Revenue Code of 1986 that is subject to Section 4975 thereof (each of the foregoing, a “Plan”), (iii) an entity or account the assets of which constitute “plan assets” of one or more such Plans within the meaning of Department of Labor Regulation 29 CFR Section 2510.3-101, as modified by Section 3(42) of ERISA, or (iv) a “governmental plan” within the meaning of Section 3(32) of ERISA.
(q) Seller has not (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by its creditors, (iii) suffered the appointment of a receiver to take possession of all, or substantially all, of its assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of its assets, (v) admitted in writing its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to its creditors generally.
All of the representations, warranties and agreements of Seller set forth in this Agreement shall be true upon the execution of this Agreement and shall be considered reaffirmed as of the Closing Date, and shall survive the Closing and delivery of the Deeds for a period of nine (9) months after the Closing (the “Survival Period”), after which time they shall terminate and be of no further force or effect. Any right of
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action for the breach of any representation, warranty or covenant contained herein shall not merge with the Deeds delivered at Closing but shall survive the Closing for the Survival Period. Any claim by Buyer for a breach of any representation, warranty or agreement of Seller must be made in writing and delivered to Seller prior to the expiration of the Survival Period, and any claim not so made shall be deemed waived. Following the Closing, Buyer may pursue direct and actual, but not special, indirect, consequential or punitive, damages resulting from any breach of its representations, warranties or covenants expressly set forth in this Agreement; provided, however, that (i) no claim may be made for any alleged breach unless the amount of such claim or claims, individually or in the aggregate, exceeds One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00) (the “Basket”), in which event the full amount of such valid claims shall be actionable up to, but not in excess of, the Liability Cap, and (ii) the aggregate liability of Seller for all such breaches shall not exceed one percent (1%) of the Purchase Price (the “Liability Cap”).
Notwithstanding the foregoing, and surviving the Closing for the Survival Period, Buyer shall not have any right to make a claim after the Closing on any of the representations or warranties made in this Agreement or in any closing document to the extent that such representations or warranties were, are or have become inaccurate or incorrect in any material respect and Buyer has, receives or obtains actual knowledge of such inaccuracy prior to the Closing; provided that the foregoing shall not in any way limit the obligations or liability of Tenant under any Lease or the rights and remedies of Buyer (in its capacity as landlord) under any Lease.
14. Reserved.
15. Reserved.
16. Reserved.
17. Notices. All notices, elections, requests and other communications hereunder shall be in writing and shall be deemed given (i) when personally delivered, or (ii) two (2) Business Days after being deposited in the United States mail, postage prepaid, certified or registered, or (iii) the next Business Day after being deposited with a recognized overnight mail or courier delivery service, or (iv) when sent via electronic mail; addressed as follows (or to such other person or at such other address, of which any party hereto shall have given written notice as provided herein):
If to Seller: Trustmark Bank
248 East Capitol Street, Suite 1006
Jackson, MS 39201
Attention: General Counsel
Phone: (601) 208.5088
Email: [email protected]
with a copy to: Greenberg Traurig, P.A.
450 S. Orange Avenue, Suite 650
Orlando, FL 32801
Attention: Jonathan M. Perry, Esq.
Phone: (407) 420-1000
Email: [email protected]
If to Buyer: c/o Blue Owl Real Estate Capital LLC
150 North Riverside Plaza, 37th Floor
Chicago, Illinois 60606
9
Attn: Asset Management
Email: [email protected]
with a copy to: Kirkland & Ellis LLP
333 West Wolf Point Plaza
Chicago, Illinois 60654
Attn.: David A. Rosenberg, P.C. & Michael C. Shultz
Email: [email protected] &
[email protected]
If to Escrow Agent: First American Title Insurance Company
200 W. Madison Street, Suite 800
Chicago, IL 60606
Attention: Zachary Allen
Phone: (857) 352-4824
Email: [email protected]
18. Brokerage Commissions. Seller warrants to Buyer that Seller’s Broker (as defined below) and all other finders or brokers which have been involved with the introduction of Seller and Tenant and/or the execution and delivery of the Leases and the leasing of the same pursuant thereto have been paid in full, and that no commissions or fees shall be due and payable to any finder, broker or leasing agent in the event of a renewal or expansion with respect to any Lease. Seller and Buyer each warrant to the other party that no finders or brokers have been involved with the introduction of Seller and Buyer and/or the purchase and sale of the Properties, except for Jones Lang LaSalle Americas, Inc. (“Seller’s Broker”). In the event of a breach of the foregoing warranties, the breaching party agrees to save, defend, indemnify and hold harmless the nonbreaching party from and against any claims, losses, damages, liabilities and expenses, including, but not limited to, attorneys’ fees. The obligations of this Section shall survive the Closing or earlier termination of this Agreement.
19. Miscellaneous Provisions.
(a) Assignment; Binding Effect. Buyer may assign all or any of its rights and obligations hereunder, without the consent of Seller, to any entity which controls, is controlled by, or is under common control with Buyer or any affiliate of Buyer; provided, however, that any assignee of Buyer shall assume all of the obligations of Buyer hereunder and no assignment shall relieve Buyer from any of its obligations under this Agreement. In addition, Buyer shall have the right to direct Seller, upon written notice to Seller given at least five (5) business days prior to Closing, to convey any individual Premises to one or more affiliates of Buyer in lieu of conveying all of the Premises to Buyer at Closing, and the final documents to be delivered at Closing, including, without limitation, the Deeds, the Assignments of Licenses, Permits, Plans, Contracts and Warranties, the Quit Claim Bills of Sale and the Leases, shall be conformed to reflect the appropriate transferee as communicated by Buyer in accordance herewith. Any other assignment by Buyer shall require Seller’s consent. Seller shall not assign its rights and obligations hereunder. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of Seller and Buyer and their respective successors and permitted assigns.
(b) Captions. The several headings and captions of the sections and subsections used herein are for convenience of reference only and shall in no way be deemed to limit, define or restrict the substantive provisions of this Agreement.
(c) Entire Agreement. This Agreement constitutes the entire agreement of Buyer and Seller with respect to the purchase and sale of the Properties, and supersedes any prior or contemporaneous
10
agreement with respect thereto. No amendment or modification of this Agreement shall be binding upon the parties unless made in writing and signed by both Seller and Buyer.
(d) Time of Essence. Time is of the essence with respect to the performance of all of the terms, conditions and covenants of this Agreement.
(e) Cooperation. Buyer and Seller shall cooperate fully with each other to carry out effectively the purchase and sale of the Properties, in accordance herewith and the satisfaction and compliance with all of the conditions and requirements set forth herein, and shall execute such instruments and perform such acts as may be reasonably requested by either party hereto.
(f) Governing Law and Venue. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any conflict of laws principles. Seller and Buyer agree that any dispute arising out of this Agreement, the subject matter of this Agreement, the Properties or the transaction between Seller and Buyer, whether brought in contract or tort or at common law, shall be subject to the jurisdiction and venue of the state and federal courts located in Wilmington, Delaware. Seller and Buyer further agree to accept service of process out of any of the aforesaid courts in any such dispute by registered or certified mail addressed to Seller or Buyer, as appropriate, and sent pursuant to the terms of Section 17 of this Agreement. This paragraph shall survive Closing or the early termination of this Agreement.
(g) Electronic Signatures and Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become a binding agreement when one or more counterparts have been signed by each of the parties and delivered to the other party. Each party agrees that this Agreement and any other documents to be delivered in connection herewith may be executed via an inked or “wet” signature or, subject to the limitations of this paragraph, an electronic signature valid under that state’s uniform electronic transactions act (“UETA”), or if no such act exists, under the Electronic Signatures in Global and National Commerce Act, 15 USC § 7001, et seq. (“e-sign”). Executed signature pages may be delivered using portable document format (e.g., pdf) or similar file type and transmitted via facsimile, electronic mail, cloud-based server, e-signature technology (e.g. DocuSign) or similar electronic means, and, upon receipt, will be deemed originals and binding upon the signatories hereto. Any manual signature upon this document that is faxed, scanned or photocopied, and any electronic signature shall for all purposes have the same validity, legal effect and admissibility in evidence as an original inked or “wet” signature, and the parties hereby waive any objection asserting the contrary. Notwithstanding the above, any deeds, leases, assignment of leases and/or lease amendments to be delivered under or pursuant to this Agreement must be executed, witnessed and acknowledged in original inked “wet” signatures and shall not be signed via electronic signature.
(h) Attorneys’ Fees. In the event any party to this Agreement should bring suit against the other party in respect to any matters provided for herein, the prevailing party shall be entitled to recover from the non-prevailing party its costs of court, legal expenses and reasonable attorneys’ fees whether incurred before, during or after trials or an appeal or in litigating entitlement to attorney’s fees and costs, as well as determining the amount of recoverable attorney’s fees and costs. As used herein, the “prevailing party” shall include, without limitation, any party who dismisses an action for recovery hereunder in exchange for payment of the sums allegedly due, performance of covenants allegedly breached or consideration substantially equal to the relief sought in the action. This paragraph shall survive Closing or the early termination of this Agreement.
(i) Certain References. As used in this Agreement, the words “hereof,” “herein,” “hereunder” and words of similar import shall mean and refer to this entire Agreement and not to any particular article, section or paragraph of this Agreement, unless the context clearly indicates otherwise.
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(j) Time Periods. Unless otherwise expressly provided herein, all periods for performance, approval, delivery or review and the like shall be determined on a “calendar” day basis. If any day for performance, approval, delivery or review shall fall on a Saturday, Sunday or U.S. federal holiday, the time therefor shall be extended to the next Business Day.
(k) Authority. Each person executing this Agreement, by his or her execution hereof, represents and warrants that they are fully authorized to do so, and that no further action or consent on the part of the party for whom they are acting is required to the effectiveness and enforceability of this Agreement against such party following such execution.
(l) Severability. If any provision of this Agreement should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement shall not be affected thereby.
(m) Waiver. One or more waivers of any covenant, term or condition of this Agreement by either party shall not be construed as a waiver of any subsequent breach of the same covenant, term or condition. The consent or approval by either party to or of any act by the other party requiring such consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act.
(n) Relationship of the Parties. Nothing herein contained shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the parties hereto, it being understood and agreed that no provision contained herein, nor any acts of the parties hereto shall be deemed to create the relationship between the parties hereto other than the relationship of seller and buyer.
(o) No Recordation. Neither this Agreement nor any notice or memorandum thereof shall be recorded in the public record of any jurisdiction.
(p) Tax Deferred Exchange. Seller and Buyer agree to cooperate with each other in effecting for the benefit of either party a delayed like-kind exchange of real property pursuant to Section 1031 of the United States Internal Revenue Code and similar provisions of applicable state law; provided that (i) neither party shall be obligated to delay the Closing hereunder and (ii) neither party shall be obligated to execute any note, contract, deed or other document not otherwise expressly provided for in this Agreement providing for any personal liability, nor shall either party be obligated to take title to any property other than the property as otherwise contemplated in this Agreement or incur additional expense for the benefit of the other party. Each party shall indemnify and hold the other harmless against any liability which arises or is claimed to have arisen on account of any exchange proceeding which is initiated on behalf of the indemnifying party.
(q) Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BUYER AND SELLER HEREBY VOLUNTARILY, KNOWINGLY, AND INTENTIONALLY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON, OR IN RESPECT OF, ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE RELATIONSHIP OF BUYER AND SELLER HEREUNDER, OR ARISING OUT OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT.
(r) Specially Designated Nationals and Blocked Persons. Seller represents and warrants to Buyer that (I) Seller and each Person owning an interest in Seller is (aa) not currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets
12
Control of the Department of the Treasury (“OFAC”) and/or on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation (collectively, the “List”), and (bb) not currently a Person with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States, (II) none of the funds or other assets of Seller constitute property of, or are beneficially owned, directly or indirectly, by, any Embargoed Person, (III) no Embargoed Person has any interest of any nature whatsoever in Seller (whether directly or indirectly), (IV) none of the funds of Seller have been derived from any unlawful activity with the result that the investment in Seller is prohibited by law or that this Agreement is in violation of law, and (V) Seller has implemented procedures, and will consistently apply those procedures, to ensure the foregoing representations and warranties remain true and correct at all times. The term “Embargoed Person” means any Person or government subject to trade restrictions under U.S. law, including without limitation, the International Emergency Economic Powers Act, 50 U.S.C. §1701 et seq., the Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder with the result that the investment in Seller is prohibited by law or Seller is in violation of law. The term “Person” means any natural person, corporation, company, partnership, trust or other business entity. Seller covenants and agrees (I) to comply with all requirements of law relating to money laundering, anti-terrorism, trade embargoes and economic sanctions, now or hereafter in effect, (II) to immediately notify Buyer in writing if any of the representations, warranties or covenants set forth in this Section are no longer true or have been breached or if Seller has a reasonable basis to believe that they may no longer be true or have been breached, (III) not to use funds from any “Prohibited Person” (as such term is defined in the September 24, 2001 Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism) to make any payment due to Buyer under this Agreement and (IV) at the request of Buyer, to provide such information as may be requested by Buyer to determine Seller’s compliance with the terms hereof.
(s) Confidentiality. Buyer and Seller shall maintain the existence of this transaction and the terms and provisions contained herein in the strictest confidence and shall not, without prior written consent of the other party (which consent may be withheld in either party’s sole and absolute discretion), disclose to any other person (other than the other party’s respective attorneys, accountants, consultants, investors, lenders, potential lenders, agents and/or advisors who are involved in the transaction and potential investors on the condition that all such persons shall be directed to comply with the confidentiality provisions hereof) or entity by any means whatsoever: (a) any information pertaining to any due diligence materials provided by Seller, (b) any information pertaining to the Agreement, or (c) any information or documentation (written or oral) provided by either party or their agents and representatives concerning either party or their businesses; provided, however, the foregoing provisions shall not prohibit the disclosure of information which: (i) is already known to the disclosing party from sources not known by the disclosing party to be subject to any confidentiality obligations to the other party (after due inquiry), (ii) is or becomes generally available to the public other than as a result of a disclosure by the disclosing party, (iii) is developed by the disclosing party without reference to any due diligence materials provided by Seller or any information obtained by inspection of the Property, or (iv) is required to be disclosed by applicable statute, law, regulation or governmental authority. Notwithstanding the foregoing, from and after the Closing, the confidentiality provisions contained in the Leases shall control.
(t) Securities Laws. Buyer hereby acknowledges that it is aware, and that it will advise any persons who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person who has received from Seller, non-public information concerning the matters which are the subject of this Agreement, from purchasing or selling securities of Seller, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
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(u) Exclusivity. Commencing on the Effective Date and continuing through the Closing or earlier termination of this Agreement, Seller will not solicit, accept, negotiate, provide information for, otherwise pursue or respond to (other than to reject) any offers, proposals, expressions of general interest or preliminary discussions for the sale of, or any equity or debt investment or financing or similar transaction with respect to, the Properties.
(v) Press Release. Neither Seller nor Buyer shall issue any press release or other public announcement with respect to this Agreement to the press or the public without the prior written consent of the other (not to be unreasonably withheld, conditioned or delayed). Following any press release, public disclosure or other public announcement made by or through Seller, Buyer may identify Seller, Tenant, or the particulars of the transactions contemplated by this Agreement in connection with any marketing or case study materials prepared by Buyer or its affiliates; provided that (i) such materials shall be limited to factual information that is publicly available and (ii) Seller shall have a one-time right to approve the initial case study materials, such approval not to be unreasonably withheld, conditioned or delayed; if Seller does not respond to Buyer’s written request for approval within three (3) calendar days after receipt, such materials shall be deemed approved. Any use of Seller's or Tenant's name, logo, trademarks, service marks, or other branding elements shall be subject to Seller's then-current brand usage guidelines, as provided to Buyer from time to time. Seller hereby grants Buyer a limited, non-exclusive, non-transferable, revocable license to use Seller's and Tenant's names and logos solely for the purposes expressly permitted under this Section. Except for such limited license, no right, title, interest, ownership right, or other license in or to Seller's or Tenant's names, logos, trademarks, service marks, or other intellectual property is granted or conveyed to Buyer, whether by implication, estoppel, or otherwise. All goodwill arising from such use shall inure solely to the benefit of Seller and/or Tenant, as applicable. Any reference to Seller, Tenant, or the transactions contemplated hereby shall be factual in nature only. Without Seller's or Tenant's, as applicable, prior consent, neither Buyer nor any of its affiliates shall state or imply that Seller, Tenant, or any of their affiliates endorses, sponsors, recommends, or is otherwise affiliated with Buyer, its affiliates, or any investment product, fund, or offering of Buyer. Notwithstanding the foregoing, either Seller or Buyer, or any direct parent entity of Seller or Buyer, may, without the prior consent of the other party, issue any press release or make any public disclosure or other public announcement relating to this Agreement and the transactions contemplated hereby as the disclosing party may determine is required under the Securities Act of 1933, the Securities Exchange Act of 1934, the rules and regulations of the U.S. Securities and Exchange Commission or any securities exchange, applicable banking laws or regulations, or other applicable laws, rules or regulations.
(w) Further Assurances. From time to time, as and when requested by any party hereto, the other party shall execute and deliver, or cause to be executed and delivered, all such documents and instruments and shall take, or cause to be taken, all further or other actions as such other party may reasonably deem necessary or desirable to consummate the transactions contemplated by this Agreement.
(x) Additional Land in Panama City Beach, FL. Seller has or intends to enter into a purchase and sale agreement with a third party (the “Third-Party PSA”) to purchase the vacant and unimproved land located at 7500 Front Beach Road, Panama City Beach, FL (“7500 Land”). The 7500 Land abuts the Premises located at 7522 Front Beach Road, Panama City Beach, FL (“7522 Premises”) and Seller believes the 7500 Land will complement and enhance the use, operation and value of the 7522 Premises. Buyer shall have five (5) Business Days following receipt of the Third-Party PSA, Title Commitment, Survey, Zoning Report, and Phase I Report for the 7500 Land, along with all reasonably requested due diligence materials relating to the 7500 Land, to evaluate and approve or reject the 7500 Land. If Buyer approves the 7500 Land, Buyer shall accept title from the current owner on the Closing Date, and Seller shall pay the purchase price and all associated closing expenses in connection with the acquisition of the 7500 Land, including, without limitation, the cost of the title policy and Buyer’s legal costs associated with the acquisition of the 7500 Land in an amount not to exceed $12,000.00. Seller shall
14
indemnify and hold harmless Buyer from and against any and all liabilities arising under or in connection with the Third-Party PSA for the 7500 Land. Notwithstanding the foregoing, if the Title Commitment, Survey, Zoning Report, Phase I Report, or any other diligence material for the 7500 Land discloses a material title, survey, zoning, or environmental defect, Buyer shall not be obligated to accept title to the 7500 Land. If Buyer accepts title to the 7500 Land pursuant to this Section 19(x), 7500 Land shall be included as part of the Lease for 7522 Premises. This Section 19(x) shall survive the Closing and shall not be subject to the limitations of liability set forth in Section 13 of this Agreement.
20. State-Specific Provisions.
(a) Florida. With respect to the Premises in the State of Florida, Buyer and Seller agree as follows:
(i) Radon Gas Disclosure. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county health department. This notice is given pursuant to 404.056(5) Florida Statutes.
(ii) Buyer is (i) not a Foreign Principal as defined in s. 692.201, F.S., and is in compliance with the requirements set out in ss. 692.202-205, F.S., or (ii) a Foreign Principal as defined in s. 692.201, F.S., and is in compliance with the requirements set out in ss. 692.202-205, F.S. If required by the Title Company, Buyer will deliver an affidavit confirming the foregoing at Closing.
(iii) Energy Efficiency Rating Disclosure. In accordance with §553.996, Florida Statutes, Seller hereby notifies Buyer of Buyer’s option to obtain an energy-efficiency rating on the buildings on the Property. Seller makes no representations or warranties as to any such energy-efficiency rating. Such information shall not constitute a basis for any claims against Seller with respect to the disclosures required under the Florida Building Energy-Efficiency Rating Act, nor shall Seller be liable or responsible to Buyer for its reliance on any energy-efficiency rating obtained by Buyer on its behalf.
(b) Texas. With respect to the Premises in the State of Texas, Buyer and Seller agree as follows:
(i) Uniform Vendor and Purchaser Risk Act Not Applicable. It is the express intent of the parties hereto that the Uniform Vendor and Purchaser Risk Act (Section 5.007 of the Texas Property Code) not apply to this Agreement.
(ii) Texas Senate Bill 17 Property Prohibition. Buyer is not a “foreign principal” or “covered entity” as defined in Texas Senate Bill 17, codified at Tex. Bus. & Com. Code § 2274.0101 et seq. (“SB 17”), including but not limited to any government, citizen, or business of the People’s Republic of China, the Islamic Republic of Iran, the Democratic People’s Republic of Korea (North Korea), or the Russian Federation, and any other country, entity, or organization hereafter designated as a restricted foreign principal pursuant to SB 17 or any successor statute, regulation, or gubernatorial designation (as amended, the “Property Prohibition Act”). Buyer is not owned, controlled, or majority-influenced, directly or indirectly, by any person or entity described in this paragraph. Buyer shall provide immediate written notice to Seller upon any change in circumstances that could render the foregoing representations untrue or inaccurate in any respect, including but not limited to changes in Buyer’s ownership or control, or changes that could cause Buyer to fall within a category subsequently designated as a “foreign principal” under SB 17. If the foregoing representation is untrue or if Buyer otherwise becomes
15
subject to the Property Prohibition Act at any time at or prior to Closing, a Buyer default will be deemed to have occurred, and Seller will have the option to terminate this Agreement.
(iii) If any Premises is situated in a utility or other statutorily created district providing water, sewer, drainage, or flood control facilities and services, Chapter 49, Texas Water Code, requires Seller to deliver and Buyer to sign the statutory notice relating to the tax rate, bonded indebtedness, or standby fees of the district before final execution of this Agreement. Buyer hereby agrees and acknowledges that if any Premises is located in any such district and that execution of this Agreement by the parties shall be deemed to constitute their execution of the required statutory notices and Buyer’s acknowledgement of receipt of such statutory notices prior to the execution of a binding contract for purchase of the Premises. The parties agree to execute any required statutory notices into escrow at Closing.
(iv) If any Premises is not located within a municipality’s limits or a municipal utility district (MUD) and is located in a certificated service area of a utility service provider (a utility, a water supply or sewer service corporation, or a special utility district organized and operating under Chapter 65, Water Code). §13.257, Water Code requires Seller to deliver a notice regarding the utility service provider to Buyer. Buyer hereby agrees and acknowledges that if any Premises is located in any such district and that execution of this Agreement by the parties shall be deemed to constitute their execution of the required statutory notices and Buyer’s acknowledgement of receipt of such statutory notices prior to the execution of a binding contract for purchase of the Premises. The parties agree to execute any required statutory notices into escrow at Closing.
(v) If any Premises adjoins or shares a common boundary with the tidally influenced submerged lands of the state, §33.135 of the Texas Natural Resources Code requires a notice regarding coastal area property to be included as part of this Agreement. Buyer hereby agrees and acknowledges that if any Premises is located in any such area and that execution of this Agreement by the parties shall be deemed to constitute their execution of the required statutory notices and Buyer’s acknowledgement of receipt of such statutory notices prior to the execution of a binding contract for purchase of the Premises. The parties agree to execute any required statutory notices into escrow at Closing.
(vi) If any Premises is located seaward of the Gulf Intracoastal Waterway, §61.025, Texas Natural Resources Code, requires a notice regarding the seaward location of such Premises to be included as part of this Agreement. Buyer hereby agrees and acknowledges that if any Premises is located in any such area and that execution of this Agreement by the parties shall be deemed to constitute their execution of the required statutory notices and Buyer’s acknowledgement of receipt of such statutory notices prior to the execution of a binding contract for purchase of the Premises. The parties agree to execute any required statutory notices into escrow at Closing.
(vii) If any portion of any Premises is located outside the limits of a municipality, Seller hereby notifies Buyer that such Premises may now or later be included in the extra-territorial jurisdiction (“ETJ”) of a municipality and may now or later be subject to annexation by the municipality. Each municipality maintains a map that depicts its boundaries and ETJ. To determine if any Premises is located within a municipality’s ETJ, Buyer should contact all municipalities located in the general proximity of such Premises for further information.
(viii) Any Premises may be located in a certificated water or sewer service area, which is authorized by law to provide water or sewer service to the properties in the certificated area. If any Premises is located in a certificated area, there may be special costs or charges that Buyer will be required to pay before Buyer can receive water or sewer service. There may be a period required to construct lines or other facilities necessary to provide water or sewer service to such Premises. Buyer is advised to determine if any Premises is in a certificated area and contact the utility service provider to
16
determine the cost that Buyer will be required to pay and the period, if any, that is required to provide water or sewer service to such Premises.
(ix) If any portion of any Premises is located in a public improvement district, Seller is required to notify Buyer as follows: As a purchaser of the Premises, you are obligated to pay an assessment to a municipality or county for an improvement project undertaken by a public improvement district under Chapter 372 of the Local Government Code. The assessment may be due annually or in periodic installments. More information concerning the amount of the assessment and the due dates of such assessment may be obtained from the municipality or county levying the assessment. The amount of the assessments is subject to change. Buyer acknowledges that its failure to pay the assessments could result in a lien on and foreclosure of the Premises.
(c) Alabama. With respect to the Premises in the State of Alabama, Buyer and Seller agree as follows:
(i) Condemnation/Eminent Domain. The Parties acknowledge that, in accordance with Ala. Code Ann. §§ 18-1A-32 and 18-1A-20, the term “condemnation” as used herein shall also mean “eminent domain”.
(ii) Claim Bar Date. The Parties acknowledge and agree that the ninety (90) day period establishing the claim bar date or other such date as provided herein above may be shorter than the time period set forth in Code of Ala. § 6-2-34. To the fullest extent permitted by law, each Party relinquishes its rights under § 6-2-34. In the event the time period establishing such claim bar date or other such date is held invalid or unenforceable by a court of competent jurisdiction, the Parties agree that: (x) the claim bar date or other such date shall instead be the date that is set forth in § 6-2-34; and (y) such holding shall not affect any other covenants, agreements, conditions, provisions or terms of this Agreement.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Real Estate Purchase and Sale Agreement on the Effective Date.
SELLER:
TRUSTMARK BANK,
a Mississippi banking corporation
By: /s/ Robert B. Harvey
Name: Robert B. Harvey
Title: Executive Vice President, Chief Credit and Operations Officer
BUYER:
ON BEHALF OF EACH ENTITY LISTED ON EXHIBIT E, each a Delaware limited liability company
By: /s/ Michael Reiter
Name: Michael Reiter
Title: Authorized Representative
Schedule 11-1
Exhibit 10.2
Execution Version
LEASE AGREEMENT
By and Between
[●], a Delaware limited liability company
(Landlord)
and
Trustmark Bank,
a Mississippi banking corporation
(Tenant)
Exh. A
TABLE OF CONTENTS
Page
1. |
Basic Terms |
1 |
2. |
Definitions and Base Provisions |
2 |
3. |
Granting Clause |
10 |
4. |
Use |
11 |
5. |
Rent |
14 |
6. |
True Lease |
15 |
7. |
Net Lease |
16 |
8. |
Real Estate Taxes |
17 |
9. |
Personal Property Taxes |
19 |
10. |
Operating Expenses |
19 |
11. |
Tenant’s Repair and Maintenance Responsibilities |
20 |
12. |
Compliance with Laws |
22 |
13. |
Surrender of Premises |
24 |
14. |
Alterations |
25 |
15. |
Entry by Landlord |
27 |
16. |
Insurance |
28 |
17. |
OFAC |
34 |
18. |
Waiver of Subrogation |
35 |
19. |
Fire or Other Casualty |
35 |
20. |
Condemnation |
37 |
21. |
Indemnification |
39 |
22. |
Assignment and Subletting |
41 |
23. |
Liens |
43 |
24. |
Tenant’s Default |
44 |
25. |
Remedies of Landlord |
45 |
26. |
Subordination/Attornment |
47 |
27. |
Estoppel Certificate |
48 |
28. |
Hazardous Materials |
49 |
29. |
Press Releases |
52 |
30. |
Holding Over |
53 |
31. |
Financial Reporting |
53 |
32. |
Quiet Enjoyment |
53 |
33. |
Notices |
53 |
34. |
Personal Liability |
54 |
35. |
Entire Agreement |
55 |
36. |
Amendments |
55 |
37. |
Legal Interpretation |
55 |
38. |
Option to Renew |
55 |
39. |
Authority to Enter into Lease |
57 |
40. |
Parties Bound |
58 |
41. |
Counterparts; Electronic Signatures |
58 |
42. |
Severability |
58 |
43. |
Waiver of Jury Trial |
58 |
44. |
Memorandum of Lease |
58 |
45. |
Brokers |
59 |
46. |
Time is of the Essence |
59 |
47. |
No Third-Party Beneficiary |
59 |
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48. |
INTENTIONALLY DELETED |
59 |
49. |
REIT Protection |
59 |
50. |
Landlord and Tenant Reimbursement |
60 |
51. |
Confidentiality; Public Offering Information |
61 |
52. |
Customer Records |
62 |
53. |
Landlord’s Default |
63 |
54. |
Landlord Lien |
64 |
55. |
Locks And Security System |
64 |
56. |
Communications Equipment |
64 |
57. |
Force Majeure |
65 |
58. |
Signage |
65 |
59. |
Attorneys’ Fees; Prevailing Party |
65 |
60. |
Local Law Provisions |
66 |
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LEASE AGREEMENT
THIS LEASE AGREEMENT (this “Lease”) is entered into as of the ___ day of [________________, 202_] (the “Effective Date”), by and between [●], a Delaware limited liability company (“Landlord”), and Trustmark Bank, a Mississippi banking corporation (“Tenant”).
RECITALS
Tenant was the fee simple owner of the Premises prior to the Effective Date.
Landlord acquired the Property from Tenant pursuant to that certain Real Estate Purchase and Sale Agreement dated as of [●], 2026 (the “Purchase Agreement”).
In connection with the closing of the transactions contemplated under the Purchase Agreement (the “Closing”), Landlord and Tenant are executing this Lease, pursuant to which Landlord shall lease the Premises to Tenant, on the terms and conditions set forth below. Landlord and Tenant hereby acknowledge that the allocation of responsibility for pre-Closing matters, including, without limitation, title matters, environmental matters, property condition matters, and required repairs, is governed by the Purchase Agreement and this Lease. Except as expressly provided in the Purchase Agreement and this Lease, Tenant’s execution of this Lease shall not be deemed to expand Tenant’s liability as “Seller” under the Purchase Agreement for pre-Closing conditions beyond the obligations expressly assumed by Tenant in connection with this Lease.
The Recitals set forth above are hereby incorporated by this reference and made a part of this Lease.
NOW THEREFORE, in consideration of the mutual promises, covenants, and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:
Basic Terms
.
“Base Rent”: Base Rent shall be paid in accordance with and in the amounts set forth on Exhibit A attached hereto and made a part hereof. Base Rent shall increase on each anniversary of the Commencement Date (and on each anniversary of the Commencement Date during each Renewal Term) by one and one-half percent (1.50%) over the Base Rent payable for the immediately preceding lease year.
“Building”: The building or buildings located on the Property.
“Commencement Date”: The Effective Date.
“Expiration Date”: The last day of the calendar month in which the fifteenth (15th) anniversary of the Commencement Date shall occur, subject to extension pursuant to Section 38 of this Lease.
“Option to Renew”: three (3) additional periods of five (5) years each under the terms and conditions set forth in Section 38 of this Lease.
“Premises”: Collectively, the Building and the Property.
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“Property”: Those certain tracts or parcels of land more particularly described on Exhibit B attached hereto and made a part hereof, together with all of Landlord’s rights, interests, estates and appurtenances thereto, including without limitation Landlord’s right to the use of parking thereon (whether exclusive or non-exclusive), all improvements now or hereafter thereon, and all other rights, titles, interests and estates, if any, of the Landlord in adjacent streets and roads.
“Term”: The period commencing on the Commencement Date and expiring on the Expiration Date, unless extended pursuant to Section 38 of this Lease or sooner terminated pursuant to the terms of this Lease.
Definitions and Base Provisions
. For purposes of this Lease, the following terms shall have the meanings indicated below:
“ACM”: Defined in Section 28(c) hereof.
“ADA”: The Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., as the same may be amended or supplemented from time to time and any and all rules and regulations which have become effective prior to the date of this Lease under such statutes.
“Affiliate”: With respect to Landlord or Tenant, shall mean a person or entity that directly or indirectly through one or more intermediaries Controls, is Controlled by, or is under common Control with such person or entity.
“Alterations”: Defined in Section 14(a) hereof.
“Anti-Money Laundering Laws”: The BSA and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (commonly referred to as the USA Patriot Act), P.L. 107-56, as the same may be amended from time to time and any and all rules and regulations which have become effective prior to the date of this Lease under such statutes.
“Arbitration Notice”: Defined in Section 38(c) hereof.
“Architect”: A duly licensed architect selected by Tenant to complete any applicable Tenant’s Work, who is reasonably acceptable to Landlord.
“ATMs”: All automatic teller machines, teller cash recycling machines, interactive teller machines, and any other similar equipment or technology generally used in the banking industry, whether they be interior, exterior or drive-up.
“Banking Equipment”: Defined in Section 14(e) hereof.
“Base Rent”: Defined in Section 1(a) hereof.
“Binding Notice”: Defined in Section 38(c) hereof.
“BOREC”: Any direct or indirect owner of Landlord that is a “real estate investment trust” within the meaning of Section 856(a) of the Code.
“BSA”: The Bank Secrecy Act (otherwise known as the Currency and Foreign Transactions Reporting Act), 31. U.S.C. §§ 310 et seq., as the same may be amended from time to time and
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any and all rules and regulations which have become effective prior to the date of this Lease under such statutes.
“Building”: Defined in Section 1(b) hereof.
“Code”: The Internal Revenue Code of 1986 and, to the extent applicable, the Treasury Regulations promulgated thereunder, each as amended from time to time.
“Commencement Date”: Defined in Section 1(c) hereof.
“Comparable Buildings”: Buildings in the market in which the applicable Building is located that are comparable in size, design, use, age, location, class and quality to such Building.
“Confidential Information”: Any and all financial, technical, proprietary, confidential, and other information, including data, reports, interpretations, forecasts, analyses, compilations, studies, summaries, extracts, records, know-how, statements (written or oral) or other documents of any kind, that contain information concerning the business and affairs of a party or its Affiliates, divisions and subsidiaries, which such party or its related persons or entities provide to the other party or its related persons whether furnished before or after the Commencement Date, and regardless of the manner in which it was furnished, and any material prepared by a party or its related persons or entities, in whatever form maintained, containing, reflecting or based upon, in whole or in part, any such information; provided, however, that “Confidential Information” shall not include information which: (i) was or becomes generally available to the public other than as a result of a disclosure by the other party or its related persons or entities in breach of this Lease; (ii) was or becomes available to the other party or its related persons or entities on a non-confidential basis prior to its disclosure hereunder as evidenced by the written records of the other party or its related persons or entities, provided that the source of the information is not bound by a confidentiality agreement or otherwise prohibited from transmitting such information by a contractual, legal or fiduciary duty; or (iii) was independently developed by the other party without the use of any Confidential Information, as evidenced by the written records of the other party.
“Control”: (i) With respect to an entity that is a corporation, limited liability company, partnership or other entity, the right to exercise, directly or indirectly, more than fifty percent (50%) of the voting rights attributable to the ownership interests of the entity, (ii) with respect to any publicly traded company, either (a) more than five percent (5%) ownership, or (b) management control, or (iii) with respect to any entity, the ability to, directly or indirectly, control or direct whether through ownership or voting securities, by contract or otherwise (x) the day-to-day decisions and operations of such entity or (y) the management and policies of such entity.
“Customer Records”: Defined in Section 52 hereof.
“Default Rate”: The lesser of (i) the Prime Rate plus ten percent (10%) per annum, compounding monthly and (ii) the highest rate allowed by Law.
“Effective Date”: Defined in the Preamble hereof.
“Emergency”: A dangerous or exigent situation involving (i) imminent risk of serious bodily injury or death to any person, (ii) imminent risk of material damage to property, (iii) imminent risk of material harm to the environment, (iv) imminent violation of Law that could result in material fines, penalties, or liability or (v) conditions requiring immediate action to preserve the structural integrity of the Building.
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“Encroachment”: Defined in Section 12(d) hereof.
“Encumbrance”: Any claim, lien, pledge, option, charge, easement, security interest, deed of trust, mortgage, lease, sublease, attachment, conditional sales agreement, encumbrance, preemptive right, right of first refusal, right of first offer, covenant, condition, restriction, reciprocal easement agreement, declaration or other right of third parties, whether voluntarily incurred or arising by operation of Law, and includes any agreement to give or enter into any of the foregoing.
“Environmental Laws”: All Laws, Permits, orders and other legally-binding declarations of any Governmental Authority pertaining to environmental, health or safety matters, odors, noise, mold or Hazardous Materials, including but not limited to the (1) Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. §9601 et seq.), (2) Hazardous Substances Transportation Act (49 U.S.C. §1802 et seq.), (3) Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq.), as amended by the Hazardous and Solid Wastes Amendments of 1984, (4) Water Pollution Control Act (33 U.S.C. §1251 et seq.), (5) Safe Drinking Water Act (42 U.S.C. §300f et seq.), (6) Clean Water Act (33 U.S.C. §1321 et seq.), (7) Clean Air Act (42 U.S.C. §7401 et seq.), (8) Solid Waste Disposal Act (42 U.S.C. §6901 et seq.), (9) Toxic Substances Control Act (15 U.S.C. §2601 et seq.), (10) Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C. §11001 et seq.), (11) Radon Gas and Indoor Air Quality Research Act of 1986 (42 U.S.C. §7401 et seq.), (12) National Environmental Policy Act (42 U.S.C. §4321 et seq.), (13) Superfund Amendment Reauthorization Act of 1986 (42 U.S.C. §9601 et seq.), (14) Occupational Safety and Health Act (29 U.S.C. §651 et seq.), (15) Refuse Act of 1899 (33 U.S.C. § 407 et seq.), (16) Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136 et seq.), (17) Marine Protection, Research and Sanctuaries Act (33 U.S.C. § 1401 et seq.), (18) Noise Control Act (42 U.S.C. § 4902 et seq.), (19) Atomic Energy Act (42 U.S.C. § 2011 et seq.) and (20) Nuclear Waste Policy Act of 1982 (42 U.S.C. § 10101 et seq.), and any similar state or local Laws and any and all rules and regulations in effect under such Laws.
“Estimates”: Defined in Section 38(d) hereof.
“Event of Default”: Defined in Section 24 hereof.
“Existing Sublease”: Those certain agreements listed on Exhibit H attached hereto. Landlord and Tenant acknowledge and intend that the Existing Subleases shall be treated as subleases under this Lease and that Tenant shall remain as lessor under such Existing Subleases.
“Expiration Date”: Defined in Section 1(d) hereof.
“Final Completion”: With respect to any Tenant’s Work (a) the completion of construction of such Tenant’s Work, including all “punch list” items, in accordance with the applicable Plans as certified by the applicable General Contractor, and (b) all Permits required for the legal occupancy of such Tenant’s Work, if any, have been obtained.
“Financial Information”: Defined in Section 31 hereof.
“Financial Services Institution”: Any entity that performs one or more of the following activities: (i) operation of a state or federally regulated commercial bank, savings bank, savings and loan association, credit union, mutual or thrift association or any other institution that accepts deposits of money, (ii) operation of a stock brokerage firm, (iii) mortgage broker, (iv) finance company, mortgage company or any other institution that lends money, (v) investment banking, (vi) insurance brokerage, and (vii) provision of any other financial services or sale of any products that Tenant is permitted to offer by Law.
B - 7
“Force Majeure”: Defined in Section 57 hereof.
“General Construction Contract”: With respect to any Tenant’s Work, the applicable construction contract by and between the applicable General Contractor and Tenant and approved by Landlord, which approval shall not be unreasonably withheld, conditioned or delayed; provided, however, Landlord’s approval shall not be required for any General Construction Construct covering Alterations which may be made by Tenant without Landlord’s consent under this Lease, including, without limitation, under Section 14(a) hereof.
“General Contractor”: With respect to any Tenant’s Work, a contractor selected by Tenant to complete such Tenant’s Work and reasonably acceptable to Landlord; provided, however, Landlord’s approval shall not be required for any General Contractor for Alterations which may be made by Tenant without Landlord’s consent under this Lease, including, without limitation, under Section 14(a) hereof.
“Hazardous Materials”: Each of the following: (a) any toxic substance or hazardous waste, substance, solid waste or related material, or any pollutant or contaminant; (b) radon gas, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, radiation, mold or other microbial matter, odors, noise, per- and poly-fluoroalkyl substances, or any petroleum product or additive; (c) any substance, gas, material or chemical which is now or hereafter defined as or included in the definition of “hazardous substances,” “toxic substances,” “hazardous materials,” “hazardous wastes,” “regulated substances” or words of similar import under any Environmental Laws; and (d) any other chemical, material, gas, condition or substance, the exposure to or release of which is or may be prohibited, limited or regulated by any governmental authority, or that does or is reasonably likely to pose a hazard to human health or safety or to the environment.
“Indemnified Party”: With respect to any indemnification obligation contained in this Lease, the individual or entity so indemnified by the indemnifying party.
“Insurance Change Request”: Defined in Section 16(m) hereof.
“Landlord”: Defined in the Preamble hereof.
“Landlord Claim”: Defined in Section 21(a) hereof.
“Landlord Indemnified Parties”: Landlord and Landlord Mortgagee, and each of their respective successors and assigns, and their respective members, managers, partners, shareholders, officers, directors, agents, employees, and representatives.
“Landlord Mortgage”: Defined in Section 26(b) hereof.
“Landlord Mortgagee”: Defined in Section 26(b) hereof.
“Landlord Notice Address”:
c/o Blue Owl Real Estate Capital LLC
150 North Riverside Plaza, 37th Floor
Chicago, Illinois 60606
Attention: Asset Management
E-mail: [email protected]
With a copy to
B - 8
Kirkland & Ellis LLP
333 West Wolf Point Plaza
Chicago, Illinois 60654
Attention: David A. Rosenberg; Michael C. Shultz
E-mail: [email protected]; [email protected]
“Landlord’s Representatives”: Landlord’s agents, representatives, members, directors, officers and employees.
“Late Charge”: Defined in Section 5(c) hereof.
“Law”: All applicable statutes, ordinances, rules, regulations, codes, orders, requirements, directives, binding written interpretations and binding written policies, common law, rulings, and decrees of all local, municipal, state and federal governments, departments, agencies, commissions, boards or political subdivisions having jurisdiction over the Premises.
“Lease”: Defined in the Preamble hereof.
“Loss(es)”: Defined in Section 21 hereof.
“Market Rate”: Defined in Section 38(b) hereof.
“Material Landlord”: Defined in Section 4(f)(i).
“NFA”: Defined in Section 28(h) hereof.
“NFIP”: National Flood Insurance Program.
“O&M Plan”: Defined in Section 28(c) hereof.
“Occupancy Compliance Percentage”: Defined in Section 4(f)(ii).
“OFAC Laws and Regulations”: All Laws administered by the Office of Foreign Asset Control (“OFAC”) of the U.S. Department of the Treasury, codified at 31 C.F.R. Part 500 (including those named on OFAC’s Specially Designated Nationals and Blocked Persons list) or under any statute, executive order (including the September 23, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), interpretive guidance or other governmental action regarding persons or entities with whom U.S. persons or entities are restricted from doing business, as same may be amended from time to time.
“Option to Renew”: Defined in Section 1(e) hereof.
“Other Lease(s)”: Defined in Section 4(f)(iii) hereof.
“Other Site(s)”: Defined in Section 4(f)(iv) hereof.
“Other Tenant(s)”: Defined in Section 4(f)(v) hereof.
“Permits”: All permits, licenses, approvals, authorizations, consents, waivers, exemptions, registrations, and certificates pertaining to the Premises obtained from any governmental authority or required by any Law.
B - 9
“Permitted Encumbrances”: Any and all Encumbrances (i) affecting any portion of the Premises as of the Commencement Date, including, but not limited to, those Encumbrances shown on Landlord’s title policy obtained on the Effective Date, (ii) consisting of current taxes and assessments with respect to the Premises, not yet due or payable, (iii) arising or created by municipal and zoning ordinances, (iv) consisting of the Existing Subleases and/or subleases permitted by Section 22, and (v) arising after the Commencement Date expressly consented to by Landlord in writing pursuant to the terms and conditions of this Lease.
“Permitted Use”: Use as a Financial Services Institution, general office use, and for portions of the Premises that are subject to an Existing Sublease or vacant as of the Commencement Date, any use permitted under an Existing Sublease (whether by the subtenant under an Existing Sublease or any current or future occupant of the Premises) and/or, subject to Section 4(a) hereof, other uses to the extent permitted by Laws.
“Personal Property”: All personal property on the Premises, which shall include, without limitation, all business machinery and equipment, including, but not limited to, specialized equipment unique to the nature of Tenant’s business, business records, furniture, furnishings, communications equipment, office equipment, computer equipment, computer software, computer tapes, computer program tapes, computer program disks, computer program documentation and manuals, computer program codes, customer accounts, customer lists, customer information, inventory and proprietary information which may belong to Tenant or be in the possession of Tenant, which is located or used upon, in or about the Premises during the Term, or any renewal or extension thereof. Any generator and associated equipment located at the Premises, if any, shall, at Tenant’s election, constitute (i) a fixture and not constitute Personal Property, or (ii) Personal Property.
“Plans”: With respect to any Tenant’s Work, the plans and specifications prepared by the Architect and approved by Landlord (where Landlord’s approval is required under this Lease).
“Premises”: Defined in Section 1(f) hereof.
“Prime Rate”: The interest rate per annum as published, from time to time, in The Wall Street Journal as the “Prime Rate” for the U.S. in its column entitled “Money Rates”. The Prime Rate may not be the lowest rate of interest charged by any “large U.S. money center commercial banks” and Landlord makes no representations or warranties to that effect. In the event The Wall Street Journal ceases publication or ceases to publish the “Prime Rate” as described above, the Prime Rate shall be the average per annum discount rate (the “Discount Rate”) on ninety-one (91) day bills (“Treasury Bills”) issued from time to time by the United States Treasury at its most recent auction, plus three hundred (300) basis points. If no such 91-day Treasury Bills are then being issued, the Discount Rate shall be the discount rate on Treasury Bills then being issued for the period of time closest to ninety-one (91) days.
“Prohibited Persons”: Defined in Section 17(b) hereof.
“Property”: Defined in Section 1(g) hereof.
“Purchase Agreement”: Defined in Recital B hereto.
“Real Estate Taxes”: Defined in Section 8(a) hereof.
“Release”: Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, migrating, presence of, exposure to or disposing into the
B - 10
environment or the workplace of any Hazardous Materials, including the abandonment or discarding of barrels, containers, and other closed receptacles containing any Hazardous Materials.
“Rejection Notice”: Defined in Section 38(c) hereof.
“Renewal Amendment”: Defined in Section 38(e) hereof.
“Renewal Notice”: Defined in Section 38(a)(i) hereof.
“Renewal Option”: Defined in Section 38(a) hereof.
“Renewal Term”: Defined in Section 38(a) hereof.
“Rent”: Defined in Section 5(b) hereof.
“Replacement Letter”: That certain letter agreement re: Right of Replacement dated as of the Effective Date, by and among Landlord (and its Affiliates) and Tenant.
“Repossessed Premises”: Defined in Section 25(c) hereof.
“Required Repairs”: Defined in Section 11(d) hereof.
“Restoration Standards”: Defined in Section 19(a) hereof.
“Security Systems”: Defined in Section 55 hereof.
“SNDA”: Defined in Section 26(a) hereof.
“Special Flood Hazard Area”: Any area defined as an “area of special flood hazard” or a “special flood hazard area” in the regulations of the Federal Emergency Management Agency codified at 44 C.F.R. Part 59.
“Substitute Tenant”: Defined in Section 25(c) hereof.
“Tanks”: Defined in Section 28(h) hereof.
“Tenant”: Defined in the Preamble hereto.
“Tenant Notice Address”:
Trustmark Bank
248 East Capitol Street, Suite 517
Jackson, MS 39201
Attention: Mel Channell, Director of Corporate Facilities
Phone: (601) 208.6022
Email: [email protected]
With a copy to:
Greenberg Traurig, P.A.
450 S. Orange Avenue, Suite 650
Orlando, FL 32801
B - 11
Attention: Jonathan M. Perry, Esq.
Phone: (407) 999-2501
Email: [email protected]
“Tenant’s Personal Property”: Defined in Section 13 hereof.
“Tenant’s Representatives”: Tenant’s agents, attorneys, representatives, directors, officers and employees and any mortgagee of Tenant’s interest in this Lease or in the Premises.
“Tenant’s Work”: Defined in Exhibit C hereof.
“Term”: Defined in Section 1(h) hereof.
“Transfer”: Defined in Section 22(b) hereof.
“U.S. Publicly-Traded Entity”: Defined in Section 17(a) hereof.
“Utility Charges”: Defined in Section 10(a) hereof.
Granting Clause
.
Landlord, in consideration of the covenants and agreements to be performed by Tenant, and upon the terms and conditions contained in this Lease, does hereby lease, demise, let and deliver to Tenant, and Tenant, in consideration of the covenants and agreements to be performed by Landlord and upon the terms and conditions contained in this Lease, does hereby lease from Landlord, the Premises, to have and to hold for the Term. Tenant acknowledges receipt and delivery of complete and exclusive possession of the Premises, subject to the Permitted Encumbrances. Tenant acknowledges and confirms that for a period prior to and up to and including the execution of this Lease, Tenant has been in continuous ownership and possession of the Premises, and, accordingly, Tenant is fully familiar therewith, and Tenant has examined and otherwise has knowledge of the condition of the Premises prior to the execution and delivery of this Lease and has found the same to be satisfactory for its purposes hereunder. Regardless, however, of any knowledge, examination or inspection made by Tenant and whether or not any patent or latent defect or condition was revealed or discovered thereby, Tenant is leasing the Premises “as is,” “where is” and “with all faults” in its present condition. Tenant hereby irrevocably, unconditionally and absolutely waives and relinquishes any claim or action against Landlord whatsoever in respect of the condition of the Premises as of the Commencement Date, including any patent or latent defects or adverse conditions not discovered or discoverable or otherwise known or unknown by Tenant as of the Commencement Date.
LANDLORD MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, IN FACT OR IN LAW, IN RESPECT OF THE PREMISES OR ANY PART THEREOF, EITHER AS TO ITS FITNESS FOR USE, DESIGN OR CONDITION FOR ANY PARTICULAR USE OR PURPOSE OR OTHERWISE, OR AS TO THE NATURE OR QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, OR THE EXISTENCE OF ANY HAZARDOUS MATERIALS, IT BEING AGREED THAT ALL SUCH RISKS, KNOWN AND UNKNOWN, LATENT OR PATENT, ARE TO BE BORNE SOLELY BY TENANT EXCEPT AS EXPRESSLY PROVIDED IN SECTION 28 OF THIS LEASE, INCLUDING, ALL RESPONSIBILITY AND LIABILITY FOR ANY ENVIRONMENTAL CONDITION OF THE PREMISES, ENVIRONMENTAL REMEDIATION AND COMPLIANCE WITH ALL ENVIRONMENTAL LAWS.
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Without limiting the foregoing, Tenant realizes and acknowledges that factual matters existing as of the Commencement Date now unknown to it may have given or may hereafter give rise to losses, damages, liabilities, costs and expenses that are presently unknown, unanticipated and unsuspected, and Tenant further agrees that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that Tenant nevertheless hereby intends to release, discharge and acquit Landlord and Landlord Mortgagee, and each of their respective successors and assigns, and their respective members, managers, partners, shareholders, officers, directors, agents, attorneys and representatives, from any and all such unknown Losses (hereinafter defined) arising from factual matters existing as of the Commencement Date.
Landlord and Tenant covenant and agree that: (i) each will treat this Lease as a true lease for state law reporting purposes except as otherwise required by Law; (ii) each will treat this Lease under U.S. generally accepted accounting practices and federal, state and local income tax purposes as an “operating lease” or “true lease,” as applicable, unless otherwise reasonably determined by Landlord’s professional advisors; and (iii) each party will not, nor will it permit any Affiliate to, at any time, take any action or fail to take any action with respect to the preparation or filing of any statement or disclosure to any governmental authority, including without limitation, any income tax return (including an amended income tax return), to the extent that such action or such failure to take action would be inconsistent with the intention of the parties expressed in this Section 3(b); provided, however, that nothing herein shall prevent a party from settling or offsetting any proposed deficiency or adjustment by any governmental authority challenging such intended income tax treatment, and no party will be required to litigate any proposed adjustment by any governmental authority challenging such intended income tax treatment. In the event that the income tax treatment described in this Section 3(b) is disputed by any governmental authority, the party receiving the notice of the contest shall provide the other party with prompt written notice thereof (which, in any event, shall be within thirty (30) days of receiving notice of such contest from the governmental authority). For the avoidance of doubt, Tenant shall be entitled to all depreciation deductions associated with Tenant’s Personal Property and any leasehold improvements to the Premises.
Tenant acknowledges that fee simple title (both legal and equitable) to the Premises is vested in Landlord and that Tenant has only the leasehold right of possession and use of the Premises as provided herein.
Use
.
Tenant may use the Premises for the Permitted Use and ancillary uses associated therewith, in all cases subject to and in compliance with all Laws and Permitted Encumbrances. Tenant shall use the Premises only as provided by and in accordance with all Permitted Encumbrances. Tenant shall not use or occupy the Premises, or any part thereof, nor permit or allow the Premises or any part thereof to be used or occupied, for (x) any purpose or in any manner which is in violation of any Law or a violation of the provisions set forth in Section 28 or any other provision of this Lease or (y) in any manner which violates any certificates of occupancy for the Premises or makes void or voidable any insurance then in force with respect thereto as is required pursuant to Section 16 hereof. Tenant’s occupancy of the Premises will be in compliance with all Laws and requirements of the insurance required to be maintained hereunder by Tenant, and as otherwise provided in this Lease. Tenant shall neither suffer nor permit the Premises or any portion thereof to be used, or otherwise act or fail to act, in such a manner as (I) might impair Landlord’s title thereto or to any portion thereof, (II) may make possible a claim of adverse use or possession or an implied dedication of the Premises or any portion of the Premises, or (III) may subject the Premises or this Lease to any Encumbrances, other than Permitted Encumbrances. Notwithstanding anything herein to the contrary, Tenant shall not (1) permit any unlawful or immoral practice to be carried on or committed in the
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Premises; (2) make any use of or allow the Premises to be used for any purpose that would invalidate any insurance thereon; (3) deface or damage the Premises; (4) overload the floors, walls or ceilings of the Premises; (5) commit or suffer any material waste in or about the Premises; or (6) use the Premises for any of the following purposes without the Landlord’s prior consent (in its sole and absolute discretion): (i) bar, nightclub, adult bookstore or video shop or other adult entertainment establishment; (ii) incineration or reduction of garbage or any garbage dumps on the Premises; (iii) mortuary; (iv) fire sale, bankruptcy sale or auction house operation; (v) laundry or dry cleaning plant or laundromat; (vi) gas station; (vii) automobile, truck, trailer or RV repairs on-site; (viii) “flea market”, secondhand, surplus or other “off-price” or deep discount store; (ix) massage parlor; (x) carnival; or (xi) gambling or off-track betting operation.
For the first sixty (60) months of the Term (unless this Lease is sooner terminated), Tenant shall occupy the Premises and operate its and/or their business(es) on the Premises in the ordinary course, except (A) during periods when the Premises may be untenantable by reason of fire or other casualty or condemnation or other reasons of Force Majeure (provided, however, during all such periods while the Premises are untenantable, Tenant shall strictly comply with the terms and conditions of Section 19 and Section 20 of this Lease) or (B) during any other periods of construction or remodeling with respect to the same. Notwithstanding the foregoing, Tenant’s failure to occupy and operate the Premises in accordance with this Section 4(b) shall not be a breach of this Lease, so long as and to the extent such occupation and operation is (x) expressly prohibited by federal banking regulators or (y) prohibited by Law, provided that Tenant shall provide reasonable evidence of the same to Landlord. Notwithstanding any provision hereof to the contrary, the provisions of this Section 4(b) shall cease to apply, and Tenant shall have no further obligation to comply with the provisions of this Section 4(b), if the Landlord under this Lease ceases to be a Material Landlord, provided that it is understood and agreed that Tenant shall remain liable for each and every obligation under this Lease with respect to the Premises, including any and all obligations to pay the Rent due hereunder, regardless of whether Tenant shall occupy the Premises pursuant to this Section 4(b). Furthermore, notwithstanding the foregoing, the covenant set forth in this Section 4(b) shall not apply to any portion of the Premises that as of the Commencement Date is (i) not occupied by Tenant or (ii) subject to an Existing Sublease.
Tenant will not enter into any agreements or consent to any transaction or instruments that will create an Encumbrance on the Premises without Landlord’s prior written consent, which may be granted or withheld in its sole discretion (except as set forth to the contrary in this Lease); provided, however, Tenant may, without Landlord’s consent, create any Encumbrance (i) permitted by this Lease (such as, by way of example and not limitation, a sublease) or (ii) that will not affect the Premises or be binding on Landlord following the expiration of the Term or sooner termination of this Lease. Tenant shall be responsible for complying with the terms and conditions of, and paying the costs and expenses under, all reciprocal easement agreements, declarations, covenants, conditions and restrictions, condominium or owners’ association agreements, liens (other than those created by or through Landlord) and similar instruments affecting the Premises pursuant to which the owner or occupant has obligations, including, without limitation, the payment of assessments, dues, fees, or other charges (collectively, “Obligation Encumbrances”). Neither Landlord nor Tenant shall without the prior written consent of the other party (which consent shall not be unreasonably withheld, conditioned or delayed), apply for or otherwise seek or obtain any zoning changes or variances with respect to the Property. Tenant shall reasonably cooperate in all respects therewith, at Landlord’s request, to secure any estoppels related to an Encumbrance.
Tenant and its subtenants and their respective employees, agents, contractors, customers, licensees and invitees, shall have the right to access and use the Premises twenty-four (24) hours per day, seven (7) days per week.
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Notwithstanding anything to the contrary contained herein, it shall not be a breach hereof if Tenant fails to occupy the Premises in accordance with Section 4(b) so long as (i) the Occupancy Compliance Percentage is not less than eighty percent (80%); and (ii) Tenant continues to pay all Rent due hereunder, without setoff or abatement (except as expressly set forth in Section 53), and continues to comply with the rest of the obligations under this Lease.
For purposes of this Section 4, the following terms shall have the meanings indicated below:
“Material Landlord”: A Landlord that, together with its Affiliates, is also the “Landlord” under Other Leases that, together with this Lease, have first year Base Rent of at least $1,283,800.
“Occupancy Compliance Percentage”: At any time, a fraction, the numerator of which shall be the then aggregate annual Base Rent payable under this Lease and the Other Lease(s) (excluding, however, any such leases where Tenant or an Other Tenant thereunder is not in compliance with the provisions of Section 4(b) of this Lease or Section 4(b) of such Other Lease), and the denominator of which shall be the then aggregate annual Base Rent payable under this Lease and the Other Leases.
“Other Lease(s)”: Individually or collectively, as the context may require, each of those certain lease agreements entered into by Landlord (or its Affiliates), as landlord, and Tenant, as tenant, on or after the Effective Date with respect to an Other Site or Other Sites, as amended, modified or assigned; provided, however, that with respect to each such lease agreement, in the event, and for so long as, the Landlord under each lease agreement is not an Affiliate of the then-current Landlord hereunder, then such lease agreement shall no longer be considered an “Other Lease”.
“Other Site(s)”: Individually or collectively, as the context may require, the real property and improvements acquired by Landlord pursuant to the Purchase Agreement or the Replacement Letter, in each case, other than the Premises.
“Other Tenant(s)”: Individually or collectively, as the context may require, the tenant under the Other Lease(s).
Notwithstanding anything to the contrary contained in this Lease, Tenant’s rights under this Section 4 and Section 22 shall be interpreted to preserve Tenant’s flexibility to operate, modify, consolidate, relocate, reconfigure, reduce, expand, share, or discontinue banking, branch, office, administrative, ATM/ITM, drive-through, technology, vendor, service-provider, governmental, community, or other ordinary-course bank operations at the Premises from time to time in Tenant’s reasonable business judgment, subject to Tenant’s continued obligation to pay Rent and otherwise comply with this Lease, in each case, so long as the same are in the ordinary course of Tenant’s operation of the Premises for the Permitted Use; provided, however, that the Premises shall at all times be used primarily for the operation of a Financial Services Institution.
No such occupancy, access, shared use, license, vendor arrangement, service arrangement, ATM/ITM arrangement, branch-consolidation activity, reduction or discontinuance of customer-facing branch operations, or other ordinary-course bank operating arrangement shall be deemed to constitute an assignment, Transfer, sublease requiring Landlord’s consent, prohibited occupancy, abandonment, breach of any continuous-use or operating covenant, or impermissible change in use, provided that: (A) Tenant remains primarily liable for all obligations under this Lease; (B) such arrangement does not impose any
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additional obligations on Landlord; (C) such arrangement does not create any lien or encumbrance on Landlord’s fee interest other than Permitted Encumbrances; (D) the applicable use is permitted by Law and does not violate the express use restrictions set forth in this Lease; (E) Tenant remains responsible for the acts and omissions of such parties to the extent required under this Lease; and (F) the same are in connection with the ordinary course of Tenant’s operation of the Premises for the Permitted Use.
For the avoidance of doubt, this Lease is not intended to freeze Tenant’s branch strategy, delivery channels, staffing model, technology model, affiliate structure, customer-service model, or use of vendors and service providers as they exist on the Commencement Date. Tenant may make ordinary-course changes to the manner in which banking and related services are delivered from, at, or in connection with the Premises, including through consolidation of branch operations, conversion to limited-service or appointment-based operations, use of drive-through, ATM, ITM, digital, remote, or shared-service models, or use of Affiliates, vendors, service providers, governmental users, or community partners, so long as (x) Tenant continues to satisfy its monetary obligations and other express obligations under this Lease, (y) the Premises continues to be used primarily for the operation of a Financial Services Institution and continues to accept deposits or maintain a deposit base, and (z) the Premises is not converted solely to office or administrative use.
Rent
.
Tenant shall pay Base Rent to Landlord in the manner provided in Section 5(b) in equal consecutive monthly installments in advance on or before the first (1st) day of each calendar month commencing as of the Commencement Date and continuing through the Term. If the Term commences on a day other than the first day of a calendar month, or ends on a day other than the last day of a calendar month, Base Rent for such month shall be prorated by multiplying such Base Rent by a fraction, the numerator of which is the number of days of the Term within such calendar month and the denominator of which is the total number of days within such calendar month. Tenant shall pay its first monthly installment of Base Rent, which may be prorated pursuant to this Section 5(a), on the Commencement Date in connection with Landlord’s acquisition of the Premises pursuant to the Purchase Agreement.
For purposes of this Lease, the Base Rent, the Real Estate Taxes, the Utility Charges and any and all other amounts, sums, charges, liabilities and obligations which Tenant assumes or agrees to pay or may become liable for under this Lease at any time and from time to time are sometimes collectively referred to as “Rent”; and, in the event of any failure on the part of Tenant to pay any portion of the Rent, every fine, penalty, interest and cost which may be added for nonpayment or late payment of such items, including, without limitation, all amounts for which Tenant is or may become liable to indemnify Landlord and the Landlord Indemnified Parties under this Lease (including reasonable attorneys’ fees and court costs) shall be deemed to be Rent. All Rent is payable in lawful money of the United States of America and legal tender for the payment of public and private debts without notice, demand, abatement, deduction, or setoff under any circumstances (except as expressly set forth in Section 53), in accordance with the wire information as Landlord designates to Tenant in writing from time to time.
Tenant hereby acknowledges that late payment by Tenant to Landlord of Rent will cause Landlord to incur costs and administrative complications not contemplated hereunder, the exact amount and scope of which are presently anticipated to be extremely difficult to ascertain. Accordingly, if any installment of Rent due to Landlord is not paid within three (3) business days after delivery to Tenant of written notice from Landlord that Tenant has failed to pay Rent when due (provided, however, that Tenant shall only be entitled to such three (3) business day notice and cure period two (2) times in any twelve (12) month period during the Term), then Tenant shall pay Landlord upon demand a late charge equal to the
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lesser of (i) five percent (5%) of the delinquent installment of Rent and (ii) the highest amount allowed by Law (each a “Late Charge”). The parties agree that this Late Charge represents a fair and reasonable estimate of the costs and expenses (including economic losses) that Landlord will incur by reason of late payment by Tenant. The parties further agree that such Late Charge is Rent and not interest and such assessment does not constitute a lender or borrower/creditor relationship between Landlord and Tenant. In addition, if any installment of Rent is not paid within three (3) business days after delivery to Tenant of written notice from Landlord that Tenant has failed to pay Rent when due (provided, however, that Tenant shall only be entitled to such three (3) business day notice and cure period two (2) times in any twelve (12) month period during the Term), then any amount of delinquent Rent due to Landlord shall accrue interest at the Default Rate from the date on which such Rent was due up to the date that such Rent is paid. The payment of such Late Charge or such interest shall not constitute a waiver of, nor excuse or cure, any default under this Lease, nor prevent Landlord from exercising any other rights and remedies available to Landlord. Without limitation of the foregoing, Tenant shall be responsible for payment of all interest, late charges, and other costs and fees imposed by third parties with respect to late payments of Utility Charges or other third-party charges that are the responsibility of Tenant hereunder.
For any non-scheduled payment of Rent hereunder that is payable by Tenant on demand by Landlord, such shall be due fifteen (15) business days following written demand therefor by Landlord, without abatement, deduction, or setoff under any circumstances.
True Lease
.
It is the intent of Landlord and Tenant that this Lease establish a “true lease” and an “operating lease” of all parcels constituting the Premises for all purposes under the United States Bankruptcy Code, applicable state law, and for Federal income tax purposes. The Rent for the Term is intended to be “fixed rent” within the meaning of Treasury Regulation Section 1.467-1(h)(3) for each annual period. This Lease is intended to be a “true lease” and does not represent a financing statement, financing lease, financing agreement, device or arrangement, security interest, security agreement, capital lease, mortgage, equitable mortgage, deed of trust, deed to secure debt, trust agreement, or other financing or trust arrangement or any other non-lease transaction, and the economic realities of this Lease are those of a true lease. Each of the parties (1) waives any claim or defense based upon the characterization of the Lease as anything other than a “true lease”, (2) stipulates and agrees not to challenge, and is estopped from challenging, the validity, enforceability or characterization of the lease of the Premises under the Lease as a “true lease,” (3) stipulates and agrees, and is estopped from challenging, that nothing contained in the Lease creates or is intended to create a joint venture, partnership (de facto or de jure), equitable mortgage, trust, financing device or arrangement, security interest or the like, (4) stipulates and agrees, and is estopped from challenging, that none of the agreements contained herein is intended, or shall be deemed or construed, to make Tenant an agent, legal representative, partner, subsidiary or employee of Landlord, or to make Landlord in any way responsible for the debts, obligations or losses of Tenant, and (5) shall support the intent of the parties that the lease of the Premises pursuant to this Lease is a “true lease” and does not create a joint venture, partnership (de facto or de jure), equitable mortgage, trust, financing device or arrangement, security interest or the like, if, and to the extent that, any challenge occurs. Landlord does not intend to convey any fee interest in any of the Premises to Tenant. Tenant does not intend to obtain an interest in the Premises other than a leasehold interest pursuant to the Lease. The Lease may not be construed in any manner to create any relationship between the parties other than a landlord-tenant relationship.
If notwithstanding (x) the form and substance of this Lease and (y) the intent of the parties, and the language contained herein providing that this Lease shall at all times be construed, interpreted and applied to create an indivisible lease of all of the Premises any court of competent jurisdiction finds that
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this Lease is a financing arrangement, this Lease shall be considered a secured financing agreement and Landlord’s title to the Premises shall constitute a perfected first priority lien in Landlord’s favor on the Premises to secure the payment and performance of all the obligations of Tenant hereunder (and to that end, Tenant hereby grants, assigns and transfers to the Landlord a security interest in all right, title or interest in or to any and all of the Premises, as security for the prompt and complete payment and performance when due of Tenant’s obligations hereunder).
Net Lease
.
Landlord and Tenant acknowledge and agree that (i) this Lease is, and is intended to be, what is commonly referred to as a “net, net, net” or “triple net” lease, and (ii) the Rent shall be paid absolutely net to Landlord, so that this Lease shall yield to Landlord the full amount or benefit of the installments of Base Rent, Real Estate Taxes and all other Rent throughout the Term with respect to the entire Premises, all as more fully set forth in Section 5. Except as expressly provided in this Lease, all of the costs, expenses, including Landlord’s expenses, responsibilities and obligations of every kind and nature whatsoever foreseen and unforeseen relating to the condition, use, operation, management, maintenance, repair, restoration and replacement of the Premises and all improvements and appurtenances related thereto or any part thereof shall be performed and paid by Tenant, and Landlord shall have no responsibility or liability therefor. Tenant’s covenants to pay Base Rent, Real Estate Taxes and all other Rent hereunder are independent covenants, and Tenant shall have no right to hold back, offset, deduct, credit against or fail to pay in full any such amounts for claimed or actual default or breach by Landlord of whatsoever nature, for force majeure or for any other reason whatsoever. For the avoidance of doubt, Tenant shall not have, and hereby expressly and absolutely waives, relinquishes, and covenants not to assert, accept or take advantage of, any right to deposit or pay with or into any court or other third-party escrow, depository account or tenant account with respect to any disputed Rent, or any Rent pending resolution of any other dispute or controversy with Landlord. To the maximum extent permitted by Law, Tenant hereby expressly waives any and all defenses it may have at law or in equity to payment of Rent, including, without limitation, based on any theories of frustration of purpose, impossibility, or otherwise.
Landlord and Tenant intend that the expressions of intent, the waivers, the representations and warranties, the covenants, the agreements and the stipulations set forth in this Section 7 are a material inducement to each of Landlord and Tenant in entering into this Lease.
At Landlord’s option, for the period following the occurrence and during the continuation of a monetary Event of Default, Tenant shall be required to deposit with Landlord, at the time of any payment of Base Rent, an amount equal to one-twelfth of the sum of (i) estimated annual Real Estate Taxes payable pursuant to Section 8 hereof and (ii) Tenant’s estimated annual maintenance expenses and insurance premium costs (as reasonably determined by Landlord). Such amounts shall be applied to the payment of the obligations in respect of which said amounts were deposited in such order of priority as Landlord shall reasonably determine, on or before the respective dates on which the same or any of them would become delinquent. The reasonable cost of administering such impound account shall be paid by Tenant. Nothing in this Section 7(c) shall be deemed to affect any right or remedy of Landlord hereunder.
Nothing in this Section 7 shall limit or impair any right or remedy expressly granted to Tenant elsewhere in this Lease.
Real Estate Taxes
.
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During the Term, Tenant shall promptly pay, or cause to be paid, on a cash basis when due to the applicable taxing authority one hundred percent (100%) of all ad valorem, sales, use, rent or similar taxes, including tax increases and re-assessments; payments in lieu of taxes pursuant to any statutory service agreement, payment-in-lieu-of-taxes agreement or the like; assessments, including assessments for supplemental assessments and public improvements or benefits, whether or not commenced or completed prior to the date hereof and whether or not to be completed within the Term and including assessments under Obligation Encumbrances; and water, sewer and other utility levies and charges; excise tax levies; fees, including license, permit, inspection, authorization and similar fees; and all other governmental and other charges, in each case whether general or special, ordinary or extraordinary, or foreseen or unforeseen, of every character and any kind and nature whatsoever in respect of the Premises (including, without limitation, any Building and/or Property) and/or the Rent and all interest and penalties thereon attributable to any failure in payment by Tenant which at any time prior to, during or in respect of the Term hereof may be assessed or imposed on or in respect of or be a lien upon (i) the Premises or any part thereof or any appurtenance thereto, (ii) any Rent reserved or payable hereunder or any other sums payable by Tenant hereunder, (iii) this Lease or the leasehold estate hereby created or the operation, possession, occupancy or use of the Premises or any part thereof, (iv) any occupancy, operation, use or possession of, or sales from or activity conducted on or in connection with the Premises or the Property or the leasing or use of the Premises or the Property or any part thereof, or (v) any document to which Tenant is a party creating or transferring an interest or estate in the Premises, together with any interest or penalties thereon (all of which are hereinafter called “Real Estate Taxes”); provided, however, Real Estate Taxes shall not include excess profit taxes, franchise taxes, gift taxes, capital stock taxes, inheritance and succession taxes, estate taxes, federal, state and local income taxes, capital levy and other taxes to the extent applicable to Landlord’s general or net income, transfer taxes or any tax that does not relate to the Premises or Tenant’s use thereof that is, or may be, imposed upon Landlord or the Premises, or any revenues derived therefrom, as well as any late charges, interest or penalties. Tenant shall make such payments directly to the taxing authorities and shall promptly furnish to Landlord copies of official receipts or other satisfactory proof evidencing such direct payments upon Landlord’s written request therefor. Tenant’s obligation to pay Real Estate Taxes shall be absolutely fixed upon the date such Real Estate Taxes become a lien upon the Premises or any part thereof, subject to Section 8(c). Tenant shall also be responsible for all Real Estate Taxes which, as of the Commencement Date, are a lien upon the Premises or any part thereof.
If Landlord receives a bill for Real Estate Taxes, Landlord shall provide the bill for each installment of Real Estate Taxes to Tenant promptly upon Landlord’s receipt of such bill. Tenant shall pay the Real Estate Taxes set forth on such bill prior to the date on which such Real Estate Taxes become delinquent (provided Landlord timely provides such bill to Tenant). Upon written request by Landlord, Tenant shall promptly provide Landlord with reasonable evidence that such Real Estate Taxes have been paid. If Tenant shall default in the payment of any Real Estate Taxes, Landlord shall have the right (but not the obligation) to pay the same together with any penalties and interest, in which event the amount so paid by Landlord shall be paid by Tenant to Landlord upon demand with interest thereon at the Default Rate. Tenant may pay any Real Estate Taxes in installments, if payment may be so made without penalty, fine, premium or interest, except that on the expiration or termination of this Lease any Real Estate Taxes which Tenant has elected to pay in installments shall be apportioned between Landlord and Tenant based on the time remaining in the Term. All Real Estate Taxes for the tax year in which this Lease shall terminate shall be apportioned between Landlord and Tenant on a cash basis.
Tenant shall have the sole right of protesting, contesting, objecting to or opposing, at Tenant’s sole cost and expense, by appropriate legal proceedings conducted in good faith and with due diligence, the legality or amount of any such Real Estate Taxes, assessments or assessed valuations in its own or in Landlord’s name as the case may be, and upon Tenant’s written request, Landlord will, at no cost or expense to Landlord, reasonably cooperate with Tenant; provided, however, that (i) in the case of any due and unpaid Real Estate Taxes, the commencement and continuation of such proceedings shall suspend
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the collection or enforcement thereof from or against Landlord and the Premises, which suspension may be caused by the payment by Tenant of a bond or some other form of security for payment if required by Law to maintain such contest; (ii) neither the Premises, the Rent therefrom nor any part or interest in either thereof would be in any danger of being sold, forfeited, attached or lost pending the outcome of such proceedings solely based on the outcome of the proceeding and not if Tenant has the right to make a curative payment following the outcome of the proceeding to avoid any of the foregoing consequences; (iii) Tenant shall keep Landlord reasonably informed as to the status of and with copies of all documents in the proceedings, upon request by Landlord; (iv) if such contest shall be finally resolved against Landlord or Tenant, Tenant shall promptly pay the amount required to be paid, together with all interest and penalties accrued thereon, and (v) Tenant shall fund without reimbursement from Landlord any bond, deposit or such other security required by a taxing authority in connection with any protest or contest contemplated by this Section 8. Landlord shall execute and deliver to Tenant such authorizations and other documents as may reasonably be required in any such contest, provided Tenant shall reimburse Landlord for its actual out-of-pocket costs associated with such execution, and, if reasonably requested by Tenant, Landlord shall join as a party therein (and at no cost or expense to Landlord). The provisions of this Section 8(c) shall not be construed to permit Tenant to contest the payment of Rent or any other amount payable by Tenant to Landlord hereunder. Without limiting any other provision of this Lease, Tenant shall indemnify, defend, protect and save harmless Landlord and all Landlord Indemnified Parties and the Premises from and against any and all liability, costs, fees, damages, expenses, penalties, fines and charges of any kind (including reasonable attorneys’ fees, including those incurred in the enforcement of this indemnity) that may be imposed upon Landlord or the Premises or any portion thereof in connection with any such contest and any loss resulting therefrom. Any refund due from any taxing authority in respect of any Real Estate Taxes paid by or on behalf of Tenant shall be paid over to or retained by Tenant.
Landlord and Tenant shall, upon written request of the other, promptly provide such data as is maintained by the party to whom the request is made with respect to the Premises as may be necessary to prepare any required tax returns and reports required by a governmental authority.
Personal Property Taxes
. Tenant shall be liable for and shall promptly pay when due all personal property taxes related to Personal Property and Tenant’s Personal Property placed in the Premises. Tenant may, without Landlord’s consent, before delinquency occurs, contest any such taxes related to the Personal Property.
Operating Expenses
.
Utilities. During the Term, Tenant agrees to pay all fees, costs, expenses and charges for electricity, power, gas, oil, water, sanitary and storm sewer, septic system refuse collection, landscaping, telephone, internet, trash removal, security, and other utilities and services consumed, rendered or used on or about the Premises (or any portion thereof) and such utility franchises as may be appurtenant to the use of the Premises (or any portion thereof) (collectively, “Utility Charges”). Landlord acknowledges and agrees that Tenant may enter into contracts for any of the foregoing services or the like without Landlord’s prior consent during the Term; provided, that any such contract shall be terminable by Tenant (or Landlord following termination of this Lease in accordance with its terms) at or prior to the expiration or sooner termination of the Lease or upon no more than thirty (30) days’ prior notice to the third-party servicer. Any resulting termination premium, fee or penalty shall be the sole responsibility of Tenant.
Third Party Management. Tenant shall have the right to manage and operate the Premises (or any portion thereof) utilizing third parties for the management and operation thereof, without obtaining
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Landlord’s prior written consent of such third party. Notwithstanding the appointment of any third-party manager, Tenant shall remain fully responsible for the Premises in accordance with the terms hereof.
Tenant agrees to reimburse Landlord for all insurance premiums with respect to lessors’ risk liability maintained by Landlord on the Building, which Landlord deems reasonably necessary.
Tenant’s Repair and Maintenance Responsibilities
.
Throughout the Term, Tenant, at its sole cost and expense, will keep the Premises in a substantially similar condition as existed on the Commencement Date subject to completion of the Required Repairs (reasonable wear and tear, damage from fire or other casualty excepted), whether or not the need for such repairs occurs as a result of Tenant’s use, the elements, or the age of the applicable Building, the Property or Tenant’s Personal Property, or otherwise, and will commit or allow no physical waste with respect thereto, and with reasonable promptness, will make all necessary and appropriate repairs and replacements thereto of every kind and nature, including without limitation those necessary to ensure continuing compliance with all Laws and requirements under the insurance required to be maintained by Tenant hereunder, whether interior or exterior, structural or nonstructural, ordinary or extraordinary, foreseen or unforeseen. Tenant’s maintenance, repair and replacement obligations shall extend to and include, without limitation, all systems serving the Premises and, subject to any Permitted Encumbrances, any parking areas and landscaping on the Property. The necessity for and adequacy of repairs to any Building or other improvements forming a part of the Premises shall be measured by the standard which is appropriate for and equivalent in quality to such Building’s Comparable Buildings. Tenant’s obligations under this Section 11 shall, without limitation, include the maintenance, repair and replacement (x) at all times, of any and all building systems, machinery and equipment which exclusively serve the Premises, and (y) the bearing walls, floors, foundations, roofs and all structural elements of the Premises. Tenant will not take or omit to take any action the taking or omission of which would reasonably be expected to (i) create (or permit to continue) any dangerous condition, or (ii) create (or permit to continue) any condition which might reasonably be expected to involve any loss, damage or injury to any person or property. All repairs and replacements shall be in quality and class consistent with such Building’s Comparable Buildings and shall be made promptly as and when necessary. Repairs and replacements called for as a result of fire and/or other casualty and condemnation shall be made pursuant to the provisions of Sections 19 and 20 hereof, respectively. In connection with the foregoing, Tenant’s obligations shall include without limitation, to the extent applicable:
Maintaining, repairing, and replacing, as necessary, the roof of the Building and all parking lots, curbs, drive areas and sidewalks on the Premises;
Maintaining and repairing the bearing walls, floors, foundations, and all structural elements of the Building on the Premises;
Maintaining (including periodic window washing and periodic painting) and repairing the facade and exterior walls of the Building on the Premises;
Repairing and replacing, as necessary, the doors (including, without limitation, any overhead doors) and windows of the Building on the Premises, and the mechanisms therefor;
Causing the regular removal of garbage and refuse from the Premises;
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Causing the regular spraying for and control of insect, rodent, animal and pest infestation, and maintaining in good working order and condition all doors (both swinging and roll-up doors), including, without limitation, all weather seals;
Servicing, maintaining, repairing and replacing all systems and equipment serving the Premises, including, without limitation, heating, ventilation, sprinklers, security, plumbing, and air-conditioning equipment, and generators;
Regular sweeping, cleaning and removal of trash, debris, other materials and stains from the Premises and from the immediately adjacent sidewalks, service drives and loading or delivery areas, if any, of the Premises, as necessary to keep the same clean and in good order and condition;
Regular sweeping, cleaning and washing of the interior of the Building, including, without limitation, floors, windows and fixtures, and periodic washing and painting of interior walls;
Repairing broken, damaged or leaking walls, bathrooms, ceilings, or fixtures and equipment in the interior of the Building, including, without limitation, plate glass windows, windows, floors and lighting fixtures; and
Irrigating and performing all gardening and landscaping of all lawns, trees, shrubs and plantings comprising part of the Premises and clearing of snow and ice on parking lots, drive areas and sidewalks.
Landlord shall not be required to furnish any services or facilities or make any repairs or alterations in or to the Premises, and Landlord shall not under any circumstances be required to (i) build or rebuild any improvements on the Premises; (ii) make any repairs, replacements, alterations, restorations or renewals of any nature to the Premises, whether ordinary or extraordinary, structural or non-structural, foreseen or unforeseen, or to make any expenditure whatsoever with respect thereto; or (iii) maintain the Premises (including any parking or common areas which comprise part of the Premises) in any way. Tenant hereby expressly and unconditionally waives, to the fullest extent now or hereafter permitted by Law, the right to make repairs or perform any maintenance at the expense of Landlord which right may be provided for in any Law in effect at the time of the execution and delivery of this Lease or which may hereafter be enacted. Tenant hereby assumes the full and sole responsibility for the condition, operation, repair, replacement, maintenance and management of the Premises. However, on default of Tenant beyond the expiration of any applicable notice and cure periods in making such repairs or replacements, Landlord may, but shall not be required to, make such repairs and replacements for Tenant’s account and the expense thereof shall be paid by Tenant to Landlord upon demand with interest at the Default Rate.
Except as expressly set forth herein, nothing contained in this Lease and no action or inaction by Landlord shall be construed as (i) constituting the consent or request of Landlord, expressed or implied, to any contractor, subcontractor, laborer, materialman or vendor to or for the performance of any labor or services or the furnishing of any materials or other property for the construction, alteration, addition, repair or demolition or maintenance of or to the Premises or any part thereof or any improvements thereto; or (ii) giving Tenant any right, power or permission to contract for or permit the performance of any labor or services or the furnishing of any materials or other property in such fashion as would permit the making of any claim against Landlord in respect thereof.
Landlord may conduct property condition assessments as a post-Closing item at times reasonably coordinated with Tenant and scheduled at a mutually convenient time. Tenant shall cooperate
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in good faith with Landlord’s request for access and shall not unreasonably delay or withhold its agreement to the scheduling of such assessments. Property condition assessments shall be primarily visual in nature, and representatives performing such assessments shall use commercially reasonable efforts to complete such assessments within thirty (30) minutes on each respective Property. Following completion of the property condition assessments, Tenant shall be responsible for the correction of those conditions identified in the respective property assessments reasonably determined by Landlord to be material, provided that the following shall be deemed material: (i) a deficiency affecting the roof, structural elements, or building systems of the respective Building; (ii) a health or safety condition that presents a material risk of bodily injury or death to occupants of the respective Premises and (iii) a violation of applicable fire, building, life-safety, or similar governmental codes (collectively, the “Required Repairs”), in each case within timeframes reasonably agreed to by the parties. Landlord shall have the right to engage, at Tenant’s sole cost and expense, a consultant to oversee the completion of the Required Repairs and advise Landlord with respect to the same. Upon Landlord’s request, Tenant shall provide to Landlord documentation reasonably acceptable to Landlord evidencing Tenant’s completion of the Required Repairs, including, without limitation, any warranties, photographs, plans or lien waivers.
Compliance with Laws
.
Tenant shall, at its sole cost and expense, use and maintain the Premises in compliance with all Laws, and Tenant shall, at its sole cost and expense, comply with all Laws applicable to or having jurisdiction over the use, occupancy, operation, and maintenance of the Premises, including without limitation, all Environmental Laws, the ADA and other access laws and those which require the making of any structural, unforeseen or extraordinary changes and including those which involve a change of policy on the part of the governmental body enacting the same. Tenant shall, at its sole cost and expense, comply with all Encumbrances affecting the Premises or any portion thereof (but not including (i) obligations under any Landlord Mortgage, including Landlord’s obligations to pay debt service to any Landlord Mortgagee under any Landlord Mortgage, or (ii) any costs under Encumbrances created by Landlord). Tenant, at its sole expense, shall comply with the requirements of policies of special form insurance coverage at any time in force with respect to the Premises as required to be maintained by Tenant pursuant to Section 16 hereof and with the provisions of all contracts, agreements and restrictions affecting the Premises or any part thereof or the ownership, occupancy or use thereof, as and to the extent in effect as of the date hereof. Without diminishing the obligations of Tenant, if Tenant shall at any time fail to comply as promptly as reasonably practicable with any Law applicable to the Premises, or the use and occupation thereof, Landlord may, upon fifteen (15) business days’ prior notice (except in an Emergency) cause the Premises to so comply and the reasonable costs and expenses of Landlord in such compliance shall be paid by Tenant to Landlord upon demand with interest thereon at the Default Rate; provided that, Landlord’s exercise of the foregoing remedy shall not give rise to a default by Tenant hereunder.
Tenant may, at its expense, by appropriate proceedings, contest the amount, validity or application of any Law or Encumbrance which Tenant is obligated to comply with, provided that (i) such proceedings suspend the collection thereof, (ii) no part of the Premises, Landlord’s interest in the Premises or this Lease, or Rent or Tenant’s leasehold interest is subject to loss, sale or forfeiture during such proceedings, (iii) Landlord is not subject to any civil or criminal liability for failure to pay or perform, as the case may be, (iv) Tenant furnishes such security as may be required in the proceedings (including, without limitation, an appropriate bond or other security permitted by Law), and (v) Tenant notifies Landlord of such proceedings not less than ten (10) days prior to the commencement thereof and describes such proceedings in reasonable detail. Tenant shall conduct all such contests in good faith and with due diligence and shall, promptly after the determination of such contest, pay all amounts required to be paid by Tenant. Tenant shall indemnify, defend and hold Landlord Indemnified Parties harmless from and
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against all Liabilities that may arise or be imposed upon Landlord in connection with any such proceeding and any liabilities resulting therefrom.
Notwithstanding anything contained herein to the contrary, Tenant shall not be responsible for compliance obligations, costs, penalties, repairs, replacements, or alterations arising directly and solely from: (i) Landlord’s REIT status; (ii) any Landlord Mortgage or Landlord-created encumbrance (except for any Obligation Encumbrances); (iii) any grossly negligent act or omission (where Landlord had a duty to act) of Landlord, Landlord Mortgagee, or their respective agents, contractors, representatives, or invitees that occurs after the Commencement Date and constitutes a breach of this Lease; or (iv) any condition at the Premises first created by Landlord or Landlord’s Representatives after the Commencement Date without Tenant’s consent.
[Without limiting the generality of the foregoing, to the extent an applicable third party seeks to enforce its rights with respect to the encroachment of [the signage / building canopy / etc.] owned or used by Tenant into the applicable right of way as depicted on Exhibit __ (the “Encroachment”), Tenant shall promptly take all commercially reasonable actions to relocate or remedy, as appropriate, such Encroachment and keep Landlord reasonably informed with respect to same. Without diminishing the obligations of Tenant hereunder, if Tenant fails to cause such Encroachment to be relocated or remedied within a reasonable time after the commencement of the applicable enforcement proceedings (unless the obligations to remedy such Encroachment are stayed pending such proceedings), Landlord shall have the right, but not the obligation, to remedy the Encroachment at Tenant’s sole cost and expense and Tenant shall reimburse Landlord for its reasonable out-of-pocket costs and expenses actually incurred in connection with same within ten (10) business days following Landlord’s written demand for such reimbursement. Tenant shall indemnify, defend and hold Landlord and the Landlord Indemnified Parties harmless, without limitation to and in the manner specified in Section 21, from and against any and all Losses (including without limitation all corrective action costs, fines and penalties, and reasonable attorney’s, consultant’s and contractor’s fees) resulting or arising from such Encroachment proceedings.] 1
Surrender of Premises
. Upon the expiration of this Lease pursuant to its terms (or, in the event of a termination of this Lease on a date other than the scheduled Expiration Date of this Lease, as promptly as commercially practicable thereafter (but in any event within thirty (30) days thereafter during which period Tenant shall be liable for Holdover Rent pursuant to Section 30 hereof)), Tenant shall surrender to Landlord the Premises, including all Alterations constructed by Tenant therein that Landlord has not requested that Tenant remove in accordance with Section 14 below, with all fixtures appurtenant thereto (but not including Personal Property installed or placed on the Premises by Tenant (collectively, “Tenant’s Personal Property”), except for any Banking Equipment or Security Systems which may remain in the Premises pursuant to Section 14(e) or Section 55 below), free and clear of any occupants or tenancies (including subtenancies) (other than subtenants under subleases as in effect on the date hereof) and in compliance with Laws (including, without limitation, Environmental Laws to the extent required by Sections 12 and 28 of this Lease) and in as good (or better) condition and repair as required pursuant to Section 11 of this Lease, reasonable wear and tear and damage from fire or other casualty excepted. For the avoidance of doubt, to the extent there is any safe or bank vault in the Premises, Tenant shall have no obligation to remove such safe or vault; provided further that Tenant (a) shall not remove any vault without Landlord’s prior written consent, and (b) may remove any safe or safe deposit box without Landlord’s consent. With the exception of ATMs, any of Tenant’s Personal Property installed or placed on the Premises by Tenant or any subtenant or assignee of Tenant, if not removed within thirty (30) days after termination or expiration of this Lease
1 NTD: To be included as necessary following completion of due diligence.
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shall, at Landlord’s election, be deemed abandoned and become the property of Landlord without any payment or offset therefor if Landlord so elects. Landlord hereby acknowledges and agrees that in no event shall any ATM become the property of Landlord. If any ATM is not removed by Tenant within thirty (30) days after termination or expiration of this Lease, Landlord shall store such ATM at a reputable storage facility for ninety (90) days at Tenant’s sole cost and expense, and if after such 90-day period Tenant still has not removed such ATM from the Premises, Landlord shall send a notice stating in all caps: “IF TENANT FAILS TO REMOVE ANY ATM FROM THE PREMISES WITHIN SEVEN (7) DAYS AFTER THE DATE OF THIS NOTICE, LANDLORD WILL DISPOSE OF ANY ATMS REMAINING ON THE PREMISES.” If after receipt of such notice from Landlord, Tenant fails to remove the ATM, then Landlord may dispose of any such ATM in any manner Landlord elects. If Landlord shall so elect with respect to other Tenant’s Personal Property, Landlord may remove such property (except for any ATM) from the Premises and have it discarded at Tenant’s risk and expense. Tenant shall repair and restore and save Landlord harmless from all damage to the Premises caused by such removal by Landlord (except to the extent caused by the negligence or willful misconduct of Landlord or any of Landlord’s agents, employees or contractors in connection with exercising such removal). This Section 13 shall survive the expiration or earlier termination of this Lease.
Alterations
.
Tenant shall not make any alterations, renovations, additions or improvements to the Premises or any portion thereof (“Alterations”) without first obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld, delayed or conditioned; provided, however, that so long as no Event of Default has occurred and is then continuing, Landlord’s prior written consent shall not be required, but prior written notice shall be delivered to Landlord accompanied with full and complete drawings and Plans prepared by the Architect or engineer, if applicable, for any Alterations to the Premises that: (i) are not structural additions or structural alterations to the Premises; (ii) will not change the essential nature of any Building as to its current use or ancillary uses; (iii) will not materially and adversely affect the structural elements or roof of any Building or the proper functioning of a Building’s systems; and (iv) do not exceed the cost of $350,000.00 on a per project basis. Furthermore, so long as no Event of Default has occurred and is then continuing, Landlord’s prior written consent shall not be required for any purely so-called “cosmetic” Alterations (such as, by way of example and not limitation, painting or installation/replacement of flooring). For purposes of this Subsection 14(a), any Alterations made to an automated teller machine, overnight deposit boxes, drive-up teller kiosks and any associated improvements in the Building or on the Property, drive-through lane, drive-through canopy or related element on the Premises, vaults, safes or safe deposit boxes shall not be considered structural in nature. In seeking approval from Landlord of any Alterations, if required, Tenant shall provide Landlord with (1) full and complete drawings and Plans for the proposed Alterations prepared by the Architect or engineer, if applicable; and (2) notice of whether the Alteration will involve the installation, placement, use or storage, or affect any Hazardous Materials on the Premises. Tenant shall not have the right to seek any zoning changes or variances in connection with any Alterations without Landlord’s approval (such approval not to be unreasonably withheld, delayed or conditioned). Tenant shall reimburse Landlord for reasonable, documented third-party out-of-pocket costs actually incurred by Landlord in connection with its review of any Alteration for which Landlord’s consent is required under this Section 14, including any fees or expenses of a Landlord Mortgagee payable by Landlord to any such Landlord Mortgagee. Such reimbursable costs may include, without limitation, reasonable attorney’s, engineering, architectural, or other professional review fees. Landlord shall use commercially reasonable efforts to minimize such costs and avoid duplicative reviews. If a Landlord Mortgagee shall elect to engage a particular category of consultant to review an Alteration, Landlord shall not hire the same category of consultant to review the same matter (for example, if a Landlord Mortgagee elects to engage an architect to review an Alteration,
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then Landlord shall not engage an Architect to review the Alteration). Tenant shall not be responsible for Landlord’s internal administrative, overhead, employee, or asset management costs. The aggregate amount payable by Tenant for Landlord’s review of any single Alteration shall not exceed Three Thousand Five Hundred Dollars ($3,500.00); provided further that any fees or expenses of a Landlord Mortgagee payable by Landlord to Landlord Mortgagee shall not be subject to the foregoing $3,500.00 cap; provided, however, that any fees charged by a Landlord Mortgagee shall be reasonable and shall not exceed the amount customarily charged by institutional lenders for similar reviews.
All Alterations shall be constructed by Tenant, without expense to Landlord, in a good, first-class, professional and workmanlike manner so as not to void or make voidable any roof or other warranties, employing materials of first-class quality free of material defects, and in compliance with all Law, all applicable Encumbrances and all regulations and orders, rules and regulations of the Board of Fire Insurance Underwriters or any other body exercising similar functions, and in compliance with the terms and conditions of this Lease. Tenant shall comply with the insurance requirements set forth in Section 16.
Promptly upon the completion of construction of any Alteration that is permanently affixed to the Premises and alters the existing footprint or elevation of a Building, Tenant shall deliver to Landlord (i) one complete set of “as built” drawings thereof (and if the Alterations involve any change to the footprint of the applicable Building or the erection of a new building, an ALTA survey for the Premises certified to Landlord and any Landlord Mortgagee), (ii) proof of payment for all labor and materials, and (iii) copies of guarantees, if any, from the General Contractor in favor of Landlord and Tenant (jointly and separately) against defects and deficiencies in materials and workmanship, and requiring the correction of the same upon demand of Tenant at the expense of such General Contractor, if and to the extent any such guarantee is customarily obtained by a prudent owner or operator of real property in the ordinary course.
All Alterations, whether temporary or permanent in character, made in or upon the Premises either by Landlord or Tenant (other than Tenant’s Personal Property installed or placed on the Premises by or on behalf of Tenant) shall be Landlord’s property, and will remain with the Premises without compensation to Tenant unless Tenant elects, in its sole and absolute discretion (but subject to Section 14(a) herein), to remove such Alteration at any time prior to the expiration or sooner termination of this Lease at its sole cost and expense, in which event such Alteration shall remain the property of Tenant. Notwithstanding the foregoing, in the case of any Alteration to be made by Tenant requiring Landlord’s prior written approval under this Lease, Landlord may condition such approval on Tenant’s agreement to remove all or a portion of such Alteration at the end of the Term provided that Landlord may not, in any event, require the removal of any bank vault or safe deposit box installed by Tenant nor any cables, wiring and conduits below floors, behind walls or above dropped ceilings. Landlord shall provide Tenant with notice, simultaneously with Landlord’s written approval of the Alteration, of Tenant’s obligation to remove any Alteration approved by Landlord at the end of the Term. If Landlord does not notify Tenant that Tenant is obligated to remove such Alteration, such Alteration may be removed at Tenant’s option. Upon the expiration or sooner termination of this Lease, all Alterations on the Premises that Tenant desires to remove or that are required by Landlord to be removed as aforesaid, or any part or parts thereof so designated by Landlord, shall be removed from the Premises by Tenant and the Premises restored, at Tenant’s expense, to the same or better condition than existed immediately prior to the construction of the Alteration, reasonable wear and tear, and damage from fire or other casualty excepted.
During the Term, Tenant shall have the exclusive right without first obtaining Landlord’s prior written consent, but subject to compliance with all Laws and Encumbrances, to install, operate, maintain, remove and/or relocate any and all ATMs, safes, safe deposit boxes, overnight deposit boxes, drive-up teller kiosks and any associated improvements in the Building or on the Property, at Tenant’s sole discretion, but subject to the provisions of Article 14. The ATMs shall be deemed Tenant’s Personal Property hereunder and remain the sole property of Tenant, and shall be removed by Tenant at the expiration
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or earlier termination of this Lease, Tenant being solely responsible for any repairs made necessary by such removal to bring the Premises to a substantially similar condition as on the Commencement Date, reasonable wear and tear, and damage from fire or other casualty excepted. Notwithstanding anything to the contrary herein, Tenant shall have the right, but not the obligation, to remove any safes, safe deposit boxes, overnight deposit boxes, drive-through teller kiosks, drive-through servicing fixtures, including pneumatic tubes, drawers and under-counter steel, and any related items (collectively, “Banking Equipment”), on or prior to surrendering the Premises, provided that, if Tenant elects to not so remove any such Banking Equipment, it shall become Landlord’s personal property on expiration or termination of this Lease and further provided that, if Tenant removes such Banking Equipment, Tenant shall be solely responsible for any repairs made necessary by such removal to bring the Premises to good condition and repair, reasonable wear and tear, and damage from fire or other casualty excepted.
Except in connection with Landlord’s exercise of any rights or remedies under this Lease, Landlord shall not make any Alterations or other changes to the Premises or any part thereof or any access thereto.
Entry by Landlord
. Landlord or Landlord’s Representatives shall have the right to enter, from time to time, the Premises or any portion thereof during normal business hours (or at such other times as approved by Tenant in advance, which approval shall not be unreasonably withheld or delayed, or as may be reasonably necessary in an Emergency) to (i) inspect the Premises, (ii) exercise its rights and/or obligations under this Lease, or (iii) show the Premises to prospective purchasers, lenders or prospective tenants; and Tenant shall not be entitled to any abatement or reduction of Base Rent by reason thereof, nor shall such entry or action by Landlord constitute an actual or constructive eviction or repossession, without Landlord’s express intention to do so as expressed in writing. No such entry shall be deemed an eviction of Tenant. At any time during which Landlord or Landlord’s Representatives are on the Premises, they shall use commercially reasonable efforts to not unreasonably interrupt or interfere with Tenant’s use of the Premises and shall not cause any damage or injury to persons or property on the Premises. Any entry by Landlord, Landlord Mortgagee, or their respective representatives shall be subject to Tenant’s commercially reasonable security, confidentiality, customer privacy, cash handling, and regulatory procedures; provided, however, that Landlord and Landlord Mortgagee shall not be required to comply with procedures that would materially impair Landlord’s or Landlord Mortgagee’s ability to exercise their respective rights under this Lease. Landlord shall not access, inspect, copy, photograph, remove, disturb, or use any Customer Records, secure systems, Banking Equipment, Security Systems, cash handling areas, vaults, safe deposit areas, or other restricted areas except as expressly permitted by Tenant in writing and, except in an Emergency, only while accompanied by Tenant’s representative. Notwithstanding anything herein to the contrary, Landlord hereby acknowledges and agrees that Landlord, its agents, employees, contractors and invitees shall have no right to enter any vaults or other areas designated or marked by Tenant as “Restricted”, “secure areas” or otherwise without the prior written consent of Tenant, which consent may be withheld in Tenant’s reasonable discretion, and if Tenant’s consent is granted, any such entry shall be made only with a representative of Tenant present (except that Tenant’s consent and presence during entry shall not be required in the case of an Emergency, in which case Landlord shall provide notice to Tenant as soon as reasonably practicable, taking into account the nature of the Emergency). In no event shall Tenant be required to provide Landlord with access to Tenant’s alarm code or keys or other independent means of entry to the Premises or any portion thereof. Landlord shall indemnify, defend and hold Tenant harmless from and against any and all Losses arising from any damage to the Premises or Tenant’s property caused by Landlord’s, Landlord Mortgagee’s, or their respective representatives’ entry onto the Premises pursuant to this Section 15, except to the extent such Losses arise from the gross negligence or willful misconduct of Tenant or Tenant’s Representatives.
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Insurance
.
Landlord’s Insurance Obligations. During the Term, unless otherwise agreed upon between Tenant and Landlord, Landlord shall provide and maintain:
Property insurance on the Building and other improvements on the Premises on an “all-risk” coverage form, written in an amount equal to 100% of the full replacement cost value of the property, without deduction for depreciation or coinsurance penalties. If commercially available, coverage shall include terrorism coverage. The limits and coverages of such policy shall be in line with the requirements of any Landlord Mortgagee and with coverages and terms that Landlord deems customary for the property. All property policies shall include a waiver of subrogation in favor of Tenant.
Such property insurance can be provided on a blanket basis insuring multiple locations.
Such property policies shall be written with maximum deductibles of (A) $250,000 per occurrence for property damage, business interruption, and flood and (B) 5% of the total insurable value for the Premises for the perils of earthquake, hail, wind, flood, and named storm.
For the perils of earthquake, hail, windstorm, flood, and named storm, the policy may contain sub-limits as determined by Landlord, utilizing the most current RMS software or its equivalent.
Business interruption insurance insuring that the Base Rent will be paid to Landlord. Such coverage shall cover a period of at least twenty-four (24) months and shall include an extended period of indemnity of not less than three hundred sixty-five (365) days.
To the extent any portion of the Premises is ever located within a Special Flood Hazard Area, Landlord may maintain NFIP flood insurance for the Premises with maximum limits available per building.
Landlord shall purchase and maintain commercial general liability insurance and umbrella/excess liability insurance for the Premises, with limits and coverages that Landlord deems customary for the property.
Landlord has the right but not the obligation to purchase additional insurance as it relates to the Premises, including pollution liability, for the benefit of Landlord.
Tenant’s Insurance Obligations. During the Term, Tenant shall provide and maintain:
Property insurance on Tenant’s machinery, equipment, furniture, fixtures, tenant improvements, and all other Tenant’s Personal Property against all risk of physical loss or damage under “All-Risk” form coverage, including, but not limited to loss resulting from the perils of earthquake (including earth movement, sink-hole collapse and mine subsidence), flood (including back-up of sewers and drains, seepage and surface water) in an amount acceptable to Landlord; terrorism, hail, water damage, wildfire, windstorm, named storm and sprinkler leakage written in an amount equal to 100% of the full replacement cost of the property, in each case, on a replacement
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cost basis. All property policies shall include a waiver of subrogation in favor of Landlord and any Landlord Mortgagee. All property coverage is to be evidenced on an Acord 28 certificate.
Such property insurance can be provided on a blanket basis insuring multiple locations.
Such property policies shall be written with maximum deductibles of (A) $500,000 per occurrence for property damage and (B) a percentage of the total insurable value for the Premises for the perils of earthquake, hail, wind and named storm.
Business interruption insurance for losses outside of rental payments covered under Landlord’s property policy with limits acceptable to Landlord.
During the Term, Tenant shall also provide and maintain the following insurance at the terms and in the limits specified below for the Premises (Landlord, Landlord Mortgagee, property manager (if applicable), and other designees are collectively referred to as the “Additional Insureds”):
Commercial General Liability Insurance against claims for personal injury, bodily injury (including death and mental anguish), accident or property damage occurring on, in or as a result of the use of the Premises, in an amount not less than $1,000,000 per Occurrence/$2,000,000 General Annual Aggregate and $2,000,000 Products/Completed Operations Annual Aggregate, in each case on an occurrence basis. If such policy is issued on a blanket basis insuring multiple locations, the policy shall contain an “Aggregate Per Location” endorsement providing that the blanket policy is not subject to a policy cap or sublimit and that a designated limit of insurance has specifically been set aside for the Premises. Coverage shall also cover at least the following hazards: elevators/escalators (if any), premises, independent contractors, contractual liability for all insured contracts as defined by the most current version of ISO’s CG 00 01 form (or equivalent), contractual liability covering the indemnitees as may be required by this Lease and any lender of Landlord to the extent the same is commercially available, terrorism, and Products/Completed Operations Liability coverage, which shall be maintained for not less than the greater period under which a claim may be properly asserted under the applicable statute of limitations or repose in the local jurisdiction of the Premises. Such general liability policies shall name the Additional Insureds as additional insureds and provide a waiver of subrogation to the Additional Insureds. All such liability policies shall be primary and non-contributory to any insurance or self-insurance maintained by the Additional Insureds and include a separation of insureds clause. All such liability policies will be evidenced on an Acord 25 certificate including additional insured, waiver of subrogation and primary non-contributory endorsements, with no deductible, retention or self-insurance provisions unless otherwise agreed to in writing in advance by Landlord.
As and to the extent Tenant engages in the sale of alcoholic beverages upon the Premises, liquor liability insurance with a minimum limit of One Million and No/100 Dollars ($1,000,000.00), with Additional Insureds endorsed as additional insureds.
Tenant shall procure pollution legal liability insurance covering the Premises; if coverage is provided on a claims made basis, the policy’s retroactive date shall be no later than the first occupation by Tenant and an extended reporting period of not less than three (3) years, with a minimum aggregate limit of Five Million and No/100 Dollars ($5,000,000.00) with a deductible not greater than Fifty Thousand and No/100 Dollars ($50,000.00) for each incident, which coverage shall be primary and non-contributory and should also include coverage for any underground storage tanks located on the Premises. Additional Insureds shall be endorsed as additional insureds.
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Workers Compensation and Employer’s Liability Insurance insuring against and satisfying Tenant’s obligations and liabilities under the workers compensation laws of the jurisdiction in which the Premises are located, with Employers Liability minimum limits per insured of $1,000,000 Bodily Injury each accident; $1,000,000 Bodily Injury by disease, each employee; and $1,000,000 Bodily Injury by disease policy limit. Policies shall include Voluntary Coverage. Tenant’s worker’s compensation policy shall be endorsed to include a waiver of subrogation in favor of the Additional Insureds.
Automobile Liability Insurance for liability arising out of claims for bodily injury and property damage arising from owned (if any), leased (if any), non-owned and hired vehicles used in the performance of the business upon the Premises, with a combined single limit of One Million and No/100 Dollars ($1,000,000.00) per accident for bodily injury and property damage and containing appropriate no-fault insurance provisions wherever applicable. Additional Insureds shall be endorsed as additional insureds.
Umbrella or Excess Liability Insurance written on an occurrence basis and covering claims in excess of the underlying insurance described in the foregoing subsections (i) and (iii) above, with a Ten Million and No/100 Dollars ($10,000,000.00) minimum limit per occurrence and annual aggregate with a self-insured retention no greater than Twenty-Five Thousand Dollars ($25,000). Such insurance shall contain a provision that it will drop down as primary and noncontributory insurance in the event that the underlying insurance policy aggregate is exhausted. Additional Insureds shall be endorsed as additional insureds.
Landlord, Landlord Mortgagee, property manager, and their designees shall be named as additional insureds only with respect to third-party liability arising out of Tenant’s use, occupancy, maintenance, or operation of the Premises, and only to the extent such additional insured status is commercially available under the applicable policy. Tenant shall not be required to name Landlord or any Landlord-related party as an additional insured under cyber liability, financial institution bond, crime, bankers professional liability, directors and officers liability, employment practices liability, fiduciary liability, professional liability, errors and omissions liability, or other institution-wide coverages not directly related to third-party premises liability.
The required limits and coverages of all insurance set forth in Sections 16(b) and 16(c) above may be reasonably adjusted by Landlord from time to time (but not more frequently than once every three (3) years and only to the extent such adjustment is commercially reasonable, commercially available at commercially reasonable rates, and consistent with insurance customarily maintained by similarly situated regulated financial institutions for comparable facilities), upon ninety (90) days’ prior written notice to Tenant, in conformity with the then prevailing custom of insuring risk in Comparable Buildings. No adjustment shall require Tenant to obtain coverage that is unavailable or available only on commercially unreasonable terms.
Tenant shall waive all claims against and shall also cause all such property policies to permit Tenant’s waiver of claims against Additional Insureds under Section 18 for matters covered thereby. By this Section 16, Tenant intends that the risk of loss or damage to the Premises and all property thereon, including Personal Property and Tenant’s Personal Property described above, be borne by responsible property insurance carriers and Tenant hereby agrees to look solely to, and to seek recovery only from, its respective property insurance carriers, in the event of a loss of a type described above to the extent that such coverage is agreed to be provided hereunder.
Prior to the commencement of any structural alteration, maintenance, restoration or repair, Tenant shall cause the contractor performing such work to maintain insurance coverages that are
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commercially reasonable for the nature, scope, and risk profile of the work to be completed and generally consistent with Tenant’s vendor risk management and insurance oversight program. Tenant shall use commercially reasonable efforts to verify compliance with such requirements through its ordinary vendor onboarding, contracting, and oversight processes. Upon Landlord’s reasonable written request, Tenant shall provide evidence to Landlord that such contractor complies with the insurance requirements under Tenant’s vendor oversight program, which evidence may consist of certificates of insurance, contractual insurance provisions, or other customary documentation maintained by Tenant in the ordinary course of business. Tenant shall not be required to obtain Landlord’s approval of contractor insurance coverages or to provide Landlord with copies of insurance policies. Tenant may satisfy any builder’s risk or property insurance obligations applicable to such work through Tenant’s existing property insurance program, a project-specific builder’s risk policy, or another insurance arrangement maintained as part of Tenant’s enterprise risk management program. Landlord shall have no responsibility for obtaining insurance relating to Tenant’s work, and Tenant shall remain responsible for the acts and omissions of its contractors under this Lease. Notwithstanding the foregoing, professional liability insurance, contractors’ pollution liability insurance, builder’s risk insurance, or project-specific umbrella coverage shall not be required for ordinary-course banking, office, technology, signage, ATM, ITM, telecommunications, security system, furniture, fixture, equipment, cosmetic, maintenance, or repair work that does not materially affect the structural integrity of the Building, materially affect the roof, or involve invasive environmental work. Tenant may perform or cause such work to be performed under Tenant’s standard vendor risk management and insurance procedures.
All insurance required to be maintained by Tenant pursuant to Section 16 must be maintained with insurers authorized to do business in the jurisdiction in which the Premises is located and which have a financial strength rating of “A VIII” or better in the current A.M. Best’s Insurance Rating Report.
Tenant shall provide to Landlord, and at each renewal of expiring policies, such certificates as may be reasonably required to establish that the insurance coverage required by this Section 16 is in effect from time to time and that, to the extent commercially available, the insurer(s) have agreed to give Landlord and Landlord Mortgagee at least thirty (30) days’ notice prior to any cancellation of the required coverage. Tenant shall provide complete copies of any insurance policy required by this Lease at the reasonable request of Landlord not more frequently than once per year. Landlord and Tenant shall cooperate with each other in the collection of any insurance proceeds which may be payable in the event of any loss, including the execution and delivery of any proof of loss or other actions required to effect recovery. Tenant shall cause all liability policies maintained by Tenant to be written as primary policies, not contributing with and not supplemental or excess to any coverage that Additional Insureds may carry.
Tenant may provide the insurance required by virtue of the terms of this Lease by means of a combination of primary and excess or umbrella coverage and by means of a policy or policies of blanket property insurance so long as (i) the amount of the total insurance allocated to the Premises under the terms of the blanket policy or policies furnishes protection equivalent to that of separate policies in the amounts required by the terms of this Lease, and (ii) the blanket policy or policies comply in all other respects with the other requirements of this Lease.
Landlord may obtain insurance on Tenant’s behalf only if Tenant fails to maintain insurance expressly required under this Lease and such failure continues for seven (7) days after Tenant’s receipt of written notice from Landlord specifying the alleged deficiency. Any insurance obtained by Landlord shall be limited to the specific deficient coverage, shall provide coverage substantially equivalent to the coverage required by this Lease, and shall be obtained at commercially reasonable rates. Tenant shall not be responsible for premiums, commissions, administrative fees, or costs for coverage that exceeds the requirements of this Lease or duplicates coverage maintained by Tenant.
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At any time during the Term, with thirty (30) days’ written notice from Landlord, Landlord may, at its option, obtain any insurance required of Tenant under this Lease, and Tenant shall pay as additional Rent the cost thereof.
All policies of insurance required to be maintained pursuant to this Lease shall be endorsed, if commercially available, so that if at any time should they be canceled, such cancellation shall not be effective as to Landlord and Landlord Mortgagee for thirty (30) days, except for non-payment of premium which shall be for ten (10) days after receipt by Landlord of written notice from such insurer of such cancellation. In addition to the foregoing, all policies of insurance required to be maintained pursuant to this Lease shall contain terms in accordance with Tenant’s normal business practice and reasonably acceptable to Landlord and shall (i) contain a separation of insureds clause; (ii) name the Additional Insureds as additional insureds under all liability policies, as required by contract; and (iii) be endorsed to waive any rights of subrogation against Landlord, Landlord Mortgagee, Landlord’s property manager and any other designees, and their respective officers, directors, employees, agents, partners, and assigns. All policies of insurance required to be maintained pursuant to this Lease (other than in respect to automobile liability or workers compensation insurance) shall insure the interests of Landlord and Tenant regardless of any breach or violation by Tenant or any other party of warranties, declarations or conditions contained in such policies, any action or inaction of Tenant or others.
To the extent that any of the insurance required under this Section 16 cannot be obtained at commercially reasonable rates or is no longer usual or customary in connection with Comparable Buildings operating for the same use as the then-current use of the Premises, then Tenant may, by written notice to Landlord, propose one or more modifications to the requirements set forth in this Section 16 (each an “Insurance Change Request”). Landlord agrees to consider any Insurance Change Request in good faith and consult with any existing Landlord Mortgagee, as necessary, and shall not unreasonably withhold or condition or delay consent. Notwithstanding the foregoing, Landlord and Tenant agree that Landlord shall not be required to consent to any Insurance Change Request that would conflict with any Landlord Mortgagee, but, in the case of such a conflict, Landlord will use commercially reasonable efforts (at Tenant’s expense) to have the applicable Landlord Mortgage modified to allow such change.
If at any time during the Term, (x) Tenant is in breach of its obligations hereunder, (y) Tenant becomes insolvent, makes an assignment for the benefit of creditors, institutes a proceeding under state or federal bankruptcy or insolvency laws (or successor laws), or is adjudged bankrupt or insolvent in proceedings filed against Tenant or (z) Tenant does not have a credit rating of BBB- or better from S&P Global Ratings or the equivalent credit rating from Moody’s Investors Service, DBRS Morningstar, or Fitch Ratings, Landlord may, at its option, obtain any insurance required of Tenant under this Lease, and Tenant shall pay as additional Rent the cost thereof.
Notwithstanding the foregoing, Tenant shall be required to maintain pollution legal liability insurance only with respect to any Premises that contains underground storage tanks, known environmental conditions requiring ongoing environmental management, or operations that materially increase environmental risk beyond ordinary banking, office, ATM, drive-through, generator, and related branch operations. For all other Premises, Tenant may satisfy environmental risk obligations through Tenant’s enterprise risk management, self-insurance, captive insurance, or other insurance programs maintained for similarly situated regulated financial institutions. If pollution legal liability insurance is required for a specific Premises, the limits, deductibles, exclusions, and terms shall be commercially reasonable and consistent with the environmental risk profile of such Premises.
Tenant may satisfy any or all insurance obligations under this Lease through one or more corporate, blanket, self-insurance, captive insurance, fronted insurance, deductible, retention, umbrella, excess, or other enterprise risk management programs maintained by Tenant or its Affiliates, provided that
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such programs are consistent with the risk management practices of similarly situated regulated financial institutions. No deductible, self-insured retention, captive structure, fronted policy, or enterprise risk allocation maintained by Tenant shall constitute a default under this Lease, so long as Tenant remains financially responsible for covered losses to the extent required under this Lease.
Nothing in this Section shall require Tenant to disclose nonpublic customer information, Customer Records, confidential supervisory information, bank examination information, sensitive security information, cyber incident information, security protocols, vulnerability assessments, claims information, loss history, underwriting materials, or other confidential or regulated information, except to the extent disclosure is required by Law or approved by Tenant in writing. Certificates of insurance or other customary evidence of coverage shall be sufficient evidence of insurance unless additional information is reasonably necessary and does not include protected bank information.
Tenant shall satisfy its obligation to evidence insurance by providing certificates of insurance, binders, endorsements, memoranda of insurance, or other customary evidence of coverage. Tenant shall not be required to provide complete copies of insurance policies except to the extent reasonably necessary to confirm coverage directly related to the Premises, and Tenant may redact premiums, unrelated locations, confidential underwriting information, claims information, cyber or security information, and other information not reasonably necessary to verify compliance with this Lease.
Tenant shall not be required to maintain business interruption insurance for Landlord’s benefit except to the extent expressly required to cover Rent obligations not otherwise covered by Landlord’s rent loss or business interruption insurance. Tenant may determine, in its reasonable business judgment and consistent with its enterprise risk management program, the amount and structure of any business interruption, extra expense, or similar coverage maintained for Tenant’s own operations.
OFAC
.
Tenant has taken and will take all reasonable measures, in accordance with all applicable Anti-Money Laundering Laws, with respect to each holder of a direct or indirect ownership interest in the Tenant, to assure that funds invested by such holders in the Tenant are derived from legal sources; provided, however, none of the foregoing shall apply to any person to the extent that such person’s interest in Tenant is in or through an entity whose stock or shares are listed and traded on any recognized stock exchange located in the United States (a “U.S. Publicly-Traded Entity”).
Tenant hereby represents and warrants that neither Tenant, nor, to the actual knowledge of Tenant, any persons or entities holding any legal or beneficial ownership interest (direct or indirect) whatsoever in Tenant (1) has been designated by the President of the United States or OFAC pursuant to the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56, Executive Order 13224 (September 23, 2001) or any Executive Order of the President issued pursuant to such statutes; or otherwise a person with whom U.S. Persons are prohibited from dealing pursuant to OFAC Laws and Regulations (including without limitation Persons identified on the “List of Specially Designated Nationals and Blocked Persons”) (any of the foregoing, and any person owned or controlled by any of the foregoing, “Prohibited Persons”), (2) is under investigation by any governmental authority for, or has been charged with, or convicted of, any violation of any Anti-Money Laundering Laws, or drug trafficking, terrorist-related activities or other money laundering predicated crimes or a violation of the BSA, (3) has been assessed civil penalties under these or related laws, or (4) has had any of its funds seized or forfeited in an action under these or related laws; provided, however, none of the foregoing shall apply to any person to the extent that such person’s
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interest is in or through a U.S. Publicly-Traded Entity. If the foregoing representations are, or become untrue at any time during the Term and Landlord suffers actual damages as a result thereof, an Event of Default will be deemed to have occurred, without the necessity of notice to Tenant.
Tenant has taken and will take reasonable steps, consistent with industry practice for comparable organizations and in any event as required by Law, to ensure that Tenant is and shall be in compliance with all (1) Anti-Money Laundering Laws and (2) OFAC Laws and Regulations. Tenant will not during the Term knowingly engage in any transactions or dealings, or knowingly be otherwise associated, with any Prohibited Persons in connection with the use or occupancy of the Premises.
A breach of the representations and/or covenants contained in this Section 17 by Tenant as a result of which Landlord suffers actual damages shall constitute an immediate Event of Default and shall entitle Landlord to any and all remedies available hereunder, or at law or in equity.
Waiver of Subrogation
. Notwithstanding anything to the contrary set forth in this Lease, to the fullest extent permitted by Law, neither Landlord nor Tenant shall be liable (by way of subrogation or otherwise) to the other party (or to any insurance company insuring the other party) for any loss or damage to the property of the releasing party to the extent the loss or damage is covered by property insurance carried or required by this Lease to be carried by the releasing party EVEN THOUGH SUCH LOSS MIGHT HAVE BEEN OCCASIONED BY THE NEGLIGENT ACTS OR OMISSIONS OF LANDLORD OR TENANT OR THEIR RESPECTIVE EMPLOYEES, AGENTS, CONTRACTORS OR INVITEES. Landlord and Tenant shall give each insurance company which issues policies of insurance, with respect to the items covered by this waiver, written notice of the terms of this mutual waiver, and shall have such insurance policies properly endorsed, if necessary, to prevent the invalidation of any of the coverage provided by such insurance policies by reason of such mutual waiver. For the purpose of the foregoing waiver, the amount of any deductible or self-insured retention applicable to any loss or damage shall be deemed covered by, and recoverable by the insured under the insurance policy to which such deductible or self-insured retention relates. Each party shall pay any additional expense, if any, for obtaining such waiver.
Fire or Other Casualty
.
All proceeds (except business interruption insurance proceeds not allocated to Rent expenses) payable by reason of any property loss, damage, or destruction of or to the Premises by fire or other casualty, or any portion thereof, under any property policy of insurance required to be carried hereunder, shall be paid to Landlord, to be held by Landlord or Landlord Mortgagee for purpose of restoration of the Premises and made available to Tenant upon request, pursuant to the procedures set forth in this Section 19, including, without limitation, for the reasonable costs of preservation, stabilization, debris removal, emergency restoration, business interruption (other than any amount allocated to Rent expenses), engineering and architectural services, permit fees, reconstruction and repair, as the case may be, of any damage to or destruction of the Premises, or any portion thereof; provided, however, that the portion of such proceeds that are attributable to Tenant’s obligation to pay Rent shall be applied against Rent due by Tenant hereunder. All proceeds paid to Tenant shall be used first for the repair of any damage to the Premises (other than such payment of Rent). Any excess proceeds of insurance remaining after the completion of the restoration or reconstruction of the Premises to substantially the same condition as existed immediately before the damage or destruction and with materials and workmanship of like kind and quality and to Landlord’s reasonable satisfaction, and in accordance with the general terms and conditions of Exhibit C attached hereto, as applicable (collectively, “Restoration Standards”), shall be retained by
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Landlord, subject to disbursement by Landlord as required by this Section 19. Tenant shall have the right to reasonably prosecute and settle insurance claims, provided that Tenant shall reasonably consult with and involve Landlord in the process of adjusting any insurance claims under this Section 19.
Subject to the terms of this Section 19, Landlord shall make available to Tenant the insurance proceeds (net of all reasonable administrative and collection costs, including reasonable attorneys’ fees) paid to Landlord for such repair and rebuilding of the Premises as it progresses (other than business interruption proceeds to be allocated to Rent expenses as aforesaid). Payments shall be made against certification of the Architect responsible for the supervision of the repairs and rebuilding that the work had been performed substantially in conformance with the approved plans and specifications therefor and the value of the work in place is equal to not less than one hundred ten percent (110%) of the aggregate amount advanced by Landlord for the payment of such work. Prior to commencing the repairing and rebuilding, Tenant shall deliver to Landlord for Landlord’s approval a schedule setting forth the estimated monthly draws for such work. Landlord shall contribute to such payments, out of the insurance proceeds being held by Landlord, an amount equal to the proportion that the total net amount so held by Landlord bears to the total estimated cost of repairing and rebuilding, multiplied by the payment by Tenant on account of such work. Landlord may, however, withhold ten percent (10%) from each payment until the work has been completed and unconditional lien releases and/or other proof has been furnished to Landlord that no lien or liability has attached, or will attach, to the applicable Building or the Property or to Landlord in connection with repairing, reconstructing and rebuilding. In addition, disbursement of such proceeds to Tenant are subject to any customary administrative conditions of a Landlord Mortgagee; provided such conditions shall not materially increase Tenant’s obligations under this Lease.
If the Premises or any portion thereof is damaged by fire or other casualty, whether or not from a risk covered by insurance, Tenant shall give Landlord prompt written notice thereof and Rent shall continue unabated notwithstanding any casualty. Tenant waives any statutory rights of termination which may arise by reason of any damage or destruction of the Premises or any portion thereof.
In the event of a fire or other casualty, Tenant shall, at its expense regardless of the amount of any such damage or destruction and whether or not the insurance proceeds attributable to such damage or destruction made available to Tenant, if any, shall be sufficient for the purpose, cause the Premises to be repaired, restored and replaced in accordance with all Law, this Section 19(d) and the Restoration Standards, as expeditiously as practicable using reasonable diligence to a condition as nearly as practicable to that which existed immediately prior to occurrence of the fire or other casualty and otherwise in a good workmanlike manner, using new materials of like quality.
Except as provided in Section 19(f), no damage or destruction of the Premises or any portion thereof as a result of fire or any other hazard, risk or casualty whatsoever shall relieve Tenant from Tenant’s liability and obligation to timely pay the full Rent payable under this Lease and Rent shall continue unabated notwithstanding any casualty.
Notwithstanding the foregoing, if, during the last twelve (12) months of the Term, (x) the Premises are substantially damaged (to the extent of thirty-two (32%) percent or more of the floor area of the Building, as certified by Tenant’s architect or engineer), or (y) the Premises are rendered wholly unusable, by fire or other casualty, then in any such event, Tenant may elect not to restore the Premises and to terminate the Lease by written notice to Landlord given within sixty (60) days after such fire or casualty. In such event, the date for the expiration of this Lease shall be the date on which Landlord is paid by Tenant (whether with the insurance proceeds and/or its own funds) the sum equal to the replacement costs for the Building (excluding the replacement costs of Tenant’s Personal Property). Upon such date, the Term shall expire as fully and completely as if it were the Expiration Date. Any Rent owing shall be paid up to such
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termination date, and any payments of Rent made by Tenant that were on account of any period subsequent to such date shall be returned to Tenant.
The provisions of this Lease, including this Section 19 constitute an express agreement between Landlord and Tenant with respect to any and all damage to, or destruction of, all or any part of the Premises, and any Law with respect to any rights or obligations concerning damage or destruction in the absence of an express agreement between the parties, and any similar or successor Laws now or hereinafter in effect, shall have no application to this Lease or any damage or destruction to all or any part of the Premises.
Condemnation
.
Tenant and Landlord shall promptly give the other written notice upon knowledge of the actual or threatened commencement of any condemnation or eminent domain proceeding or other governmental taking affecting the Premises or any portion thereof, and, to the extent not otherwise received, shall deliver to the other copies of any and all papers served in connection therewith. Subject to the remainder of this Section 20, if during the Term all or any part of the Premises shall be taken for any public or any quasi‑public use under any statute or by right of eminent domain or by private purchase in lieu thereof, all compensation awarded or paid as a result thereof shall belong to and be the property of Landlord without any participation by Tenant and without any deduction therefrom for any estate hereby vested in or owned by Tenant and Tenant hereby irrevocably assigns to Landlord any award or payment to which Tenant may be or become entitled by reason of any taking of the Premises or any part thereof, subject to the other provisions of this Section 20. Landlord shall have the exclusive power to collect, receive and retain any such award proceeds and to make any compromise or settlement in connection with such award. Nothing herein shall be deemed to preclude Tenant from prosecuting any claim directly against the condemning authority in such condemnation proceeding for loss of business or depreciation to, damage to or cost of removal of, or for value of, stock, trade fixtures, furniture, machinery, equipment and other personal property belonging to Tenant (including, without limitation, Tenant’s Personal Property), Tenant’s moving expenses and such other claims permitted by Law to be made by Tenant, provided that no such claim shall diminish or otherwise adversely affect Landlord’s award. Tenant agrees to execute any and all further documents that may be reasonably required in order to facilitate collection by Landlord of any and all awards. Tenant, in cooperation with Landlord, shall have the right to participate in any condemnation proceedings for the purpose of protecting Tenant’s interest hereunder.
If during the Term all or substantially all of the Premises shall be taken for any public or any quasi-public use under any statute or by right of eminent domain or by private purchase in lieu thereof, then Tenant may, not later than thirty (30) days after any such taking, give notice to Landlord of its intention to terminate this Lease on any business day specified in such notice which occurs not less than thirty (30) nor more than one hundred eighty (180) days after such taking. In such event, this Lease shall terminate on the date set forth in the notice provided by Tenant and upon such termination neither party shall have any obligation to the other under this Lease. A taking of substantially all of the Premises under this Section 20(b) shall be deemed to have occurred if (i) forty percent (40%) or more of the square footage of the Building shall have been subject to a taking and the Premises can no longer reasonably be used by Tenant in substantially the manner it has previously operated, or (ii) there shall have been a permanent loss of access, ingress or egress, parking capacity or any other appurtenance necessary for the operation of the Premises substantially in the manner in which it had previously been operated and there is no reasonably equivalent replacement therefor.
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If during the Term all or any part of the Premises shall be taken for any public or any quasi-public use under any statute or by right of eminent domain or by private purchase in lieu thereof and if the Lease is not terminated pursuant to Section 20(b) as expressly provided in Section 20(b), then this Lease shall continue in full effect without abatement or reduction of Rent or other sums payable by Tenant under this Lease, notwithstanding such taking or private purchase. Tenant shall, promptly after any such taking and at its expense (regardless of whether any awards are available as a result of such taking), repair any damage caused by any such taking in accordance with this Section 20 and the Restoration Standards and so that, after the completion of such repair, the Premises shall be, as nearly as possible, in a condition as good as the condition thereof immediately prior to such taking, except for reasonable wear and tear and damage by fire or other casualty. In the event of a taking as described in this Section 20(c), all of the net award collected by Landlord pursuant to Section 20(a) shall be held by Landlord (or Landlord Mortgagee) and applied and paid over toward the cost of repair of damage due to such taking against certificates of Tenant, signed by an authorized officer of Tenant, delivered to Landlord from time to time as such repair progresses or is completed, each such certificate describing such repair for which Tenant is requesting payment, the cost incurred by Tenant in connection therewith and stating that Tenant has not theretofore received payment for such repair. If the cost of repairs shall exceed the net award collected by Landlord, Tenant shall pay the deficiency. Any balance remaining in the hands of Landlord after payment of such costs of demolition, repair and restoration shall be retained by Landlord.
If the use or occupancy of the Premises or any portion thereof shall be temporarily requisitioned by any governmental authority, civil or military, then this Lease shall continue in full effect notwithstanding such requisition, without abatement or reduction of Rent or other sums payable by Tenant hereunder, and Tenant shall be entitled to receive the entire net award payable by reason of such temporary requisition. Any requisition lasting for a duration equal to or longer than the remaining Term of this Lease or longer shall be considered a taking of substantially all of the Premises under Section 20(b), and Tenant shall be afforded the termination rights as and to the extent set forth in said Section 20(b).
Without limiting the provisions of Section 20(a), Tenant may pursue and receive separate awards from the condemning authority, to the extent available under applicable Law and to the extent such awards do not reduce, diminish, or otherwise adversely affect Landlord’s or any Landlord Mortgagee’s award, for relocation costs, business interruption, loss of business, moving expenses, removal and replacement of Banking Equipment, Security Systems, communications equipment, customer notification costs, regulatory closure or relocation costs, safe deposit box procedures, and other Tenant-specific losses or costs. Tenant shall pursue any such separate awards at its sole cost and expense, and Landlord shall have no obligation to assist Tenant in pursuing any such claims.
Indemnification
.
Notwithstanding the existence of any insurance required to be provided hereunder (but not in duplication thereof), and without regard to the policy limits of any such insurance, and in addition to and not in limitation of any other indemnity provided in this Lease, but subject to Section 18 hereof, Tenant shall protect, indemnify, defend and hold harmless all Landlord Indemnified Parties from and against any and all liabilities, obligations, claims, damages, penalties, causes of action, losses, costs, fees and expenses, including without limitation reasonable counsel fees and court costs, to the maximum extent permitted by Law (“Losses”) imposed upon, asserted against or suffered or incurred by any Landlord Indemnified Party directly or indirectly, which arise out of, are occasioned by, or are in any way attributable to or related to the following: (i) Tenant’s or any subtenant’s use or occupancy of the Premises; (ii) the conduct of Tenant’s or any subtenant’s business at the Premises; (iii) any activity, work or thing done or permitted by or on behalf of Tenant or its agents, contractors or subtenants in or about the Premises; (iv) the condition of the
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Premises (except with respect to a diminution in value claim following the expiration or earlier termination of this Lease); (v) the Lease or any breach or default in the performance of any obligation to be performed by Tenant under the terms of this Lease or arising from any act, neglect, fault or omission of Tenant or Tenant’s Representatives; (vi) any Existing Sublease or any sublease or similar agreement entered into by Tenant with respect to the Premises (or any portion thereof); or (vii) the Premises or any accident, injury to or death of any person or damage to any property howsoever caused in or on the Premises; except to the extent that any of the foregoing are directly caused by the gross negligence or willful misconduct of Landlord, any Landlord Indemnified Parties, or any of their respective contractors, licensees or invitees. [IT BEING AGREED THAT THIS INDEMNITY IS INTENDED TO INDEMNIFY ALL LANDLORD INDEMNIFIED PARTIES AGAINST THE CONSEQUENCES OF THEIR OWN NEGLIGENCE OR FAULT, EVEN WHEN ANY LANDLORD INDEMNIFIED PARTIES ARE JOINTLY, COMPARATIVELY, CONTRIBUTIVELY, OR CONCURRENTLY NEGLIGENT WITH TENANT, AND EVEN THOUGH ANY SUCH CLAIM, CAUSE OF ACTION OR SUIT IS BASED UPON OR ALLEGED TO BE BASED UPON THE STRICT LIABILITY OF ANY LANDLORD INDEMNIFIED PARTY; HOWEVER, SUCH INDEMNITY SHALL NOT APPLY TO THE SOLE OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY LANDLORD INDEMNIFIED PARTY.]2 Tenant, at its expense, shall contest, resist and defend any such claim, action or proceeding asserted or instituted against any Landlord Indemnified Party (“Landlord Claim”). If at any time a Landlord Indemnified Party shall have received written notice of or shall otherwise be aware of any Landlord Claim which is subject to indemnity under this Section 21(a), such Landlord Indemnified Party shall give reasonably prompt written notice of such Landlord Claim to Tenant; provided, that, except to the extent Tenant is materially prejudiced in its defense of such Landlord Claim, (I) such Landlord Indemnified Party shall have no liability for a failure to give notice of any Landlord Claim, and (II) the failure of such Landlord Indemnified Party to give such a notice to Tenant shall not limit the rights of such Landlord Indemnified Party or the obligations of Tenant with respect to such Landlord Claim. Tenant shall have the right to reasonably control the defense or settlement of any Landlord Claim, provided, that (1) if the compromise or settlement of any such Landlord Claim shall not result in the complete release of such Indemnified Party from the Landlord Claim so compromised or settled, the compromise or settlement shall require the prior written approval of such Landlord Indemnified Party (in its sole and absolute discretion) and (2) no such compromise or settlement shall include any admission of wrongdoing on the part of such Landlord Indemnified Party, provided, further, that a Landlord Indemnified Party shall have the right, but not the obligation at its election, to participate fully in the defense of any Landlord Claim with counsel of its choice. Tenant’s liability under this Section 21 shall survive the expiration or earlier termination of this Lease for a period equal to the applicable statute of limitations for the underlying claim giving rise to the indemnification obligation.
Except to the extent prohibited by Law or to the extent caused by the gross negligence or willful misconduct of Landlord, its contractors, licensees or invitees and/or any Landlord Indemnified Parties, Tenant hereby expressly releases Landlord and Landlord Mortgagee and all other Landlord Indemnified Parties from, and waives all claims for, damage or injury to person, theft, loss of use of or damage to property and loss of business sustained by Tenant and resulting from the Premises, including the Building, Property, Personal Property or Tenant’s Personal Property or any part thereof or any equipment therein or appurtenances thereto becoming in disrepair, or resulting from any damage, accident or event in or about the Premises. Without limiting the generality of the foregoing, this Section 21(b) shall apply particularly, but not exclusively, to flooding, damage caused by Building equipment and apparatuses, water, snow, frost, steam, excessive heat or cold, broken glass, sewage, gas, odors, excessive noise or vibration,
2 NTD: To be included for Texas properties.
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death, loss, conversion, theft, robbery, or the bursting or leaking of pipes, plumbing fixtures or sprinkler devices.
Assignment and Subletting
.
This Lease shall be fully assignable by the Landlord or its successors and assigns, in whole or in part in connection with Landlord’s sale or transfer of its interest in the Premises, provided such purchaser or transferee shall assume in writing all of Landlord’s obligations under this Lease arising from and after such assignment, and a copy of such assignment and assumption agreement shall be delivered to Tenant within ten (10) business days after the effective date of the assignment. In the event of any such sale or assignment other than a security assignment, Tenant shall attorn to such purchaser or assignee. In addition, Tenant agrees to cooperate reasonably with Landlord in connection with any such sale or assignment, at no material cost or expense to Tenant.
Tenant acknowledges that Landlord has relied both on the business experience and creditworthiness of Tenant and upon the particular purposes for which Tenant intends to use the Premises in entering into this Lease. Except as provided in Sections 22(c) or 22(h), without the prior written consent of Landlord, which consent may be granted or withheld in Landlord’s sole and absolute discretion: (i) Tenant shall not assign, transfer, convey, sublease, pledge or mortgage this Lease or any interest therein, whether by operation of law or otherwise; (ii) no direct or indirect transfer of fifty percent (50%) or more of an interest in Tenant (whether by stock, partnership interest or otherwise, voluntarily or by operation of law) shall occur except for any such transfer to an Affiliate; and (iii) no change of Control of Tenant shall occur (each of items (i) through (iii) are hereinafter referred to as a “Transfer”); provided, however, that notwithstanding the foregoing, any Transfer described in clause (ii) or clause (iii) above shall be permitted without Landlord’s consent, upon written notice to Landlord, so long as immediately following such Transfer, Tenant carries an issuer credit rating of “BBB” or better from S&P Global Ratings (or the equivalent credit rating from DBRS Morningstar, Moody’s Investors Service or Fitch Ratings).
Without limiting the generality of Section 22(b) above, and notwithstanding any other term or condition of this Lease (but subject to Section 49 below), Tenant shall have the right, without the prior written consent of Landlord and upon written notice to Landlord, to assign this Lease to (i) an Affiliate or (ii) any bank or other Financial Services Institution that acquires all or substantially all of the assets or stock (or other equity interests) of Tenant by merger, consolidation, acquisition, purchase or otherwise; provided that, in either case, the original Tenant (or in the case of a Transfer contemplated under subsection (ii) of this Section 22(c), its successor-in-interest) shall not be relieved of its obligations under this Lease unless following such Transfer, such assignee (or a guarantor of such assignee that provides a guaranty in a form reasonably acceptable to Landlord to guarantee all of Tenant’s obligations hereunder) carries an issuer credit rating of “BBB” or better from S&P Global Ratings (or the equivalent credit rating from DBRS Morningstar, Moody’s Investors Service or Fitch Ratings).
Notwithstanding anything to the contrary contained herein, no interest in Tenant, or in any individual or person owning directly or indirectly any interest in Tenant, shall be transferred, assigned or conveyed to any individual or person whose property or interests are subject to being blocked under any of the OFAC Laws and Regulations and/or who is in violation of any of the OFAC Laws and Regulations, and any such transfer, assignment or conveyance shall not be effective until the transferee has provided written certification to Tenant and Landlord that (i) the transferee or any person who owns directly or indirectly any interest in transferee, is not an individual or entity whose property or interests are subject to being blocked under any of the OFAC Laws and Regulations or is otherwise in violation of the OFAC Laws and Regulations, and (ii) the transferee has taken reasonable measures to assure that any individual or entity
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who owns directly or indirectly any interest in transferee, is not an individual or entity whose property or interests are subject to being blocked under any of the OFAC Laws and Regulations or is otherwise in violation of the OFAC Laws and Regulations; provided, however, the covenant contained in this sentence shall not apply to any person to the extent that such person’s interest is in or through a U.S. Publicly-Traded Entity.
Landlord’s consent to a Transfer shall be subject to the satisfaction of such conditions as Landlord shall determine, in its sole and absolute discretion, including, without limitation, the proposed transferee having satisfactory creditworthiness as determined by Landlord in its sole and absolute discretion. In addition, any such consent shall be conditioned upon the payment by Tenant to Landlord of all reasonable, third-party out-of-pocket costs and expenses incurred by Landlord in connection with such consent, including, without limitation, reasonable attorneys’ fees. The provisions of this Section 22 shall apply to every Transfer regardless of whether voluntary or not, or whether or not Landlord has consented to any previous Transfer. Notwithstanding anything to the contrary contained herein, no Transfer shall relieve Tenant of its obligations under this Lease, it being understood that the initial Tenant under this Lease always shall remain liable and responsible for the obligations of the tenant hereunder except as expressly provided in Section 22(c). Any Transfer in violation of this Section 22 shall be voidable at the sole option of Landlord.
Except as set forth in Section 22(c), any Transfer shall not relieve Tenant, or any person claiming by, through or under Tenant, of the obligation to obtain the consent of Landlord, pursuant to this Section 22, to any further Transfer. In the event of a sublease, if there exists an Event of Default, Landlord may collect rent from the subtenant without waiving any rights under this Lease while such Event of Default is continuing. Any rent Landlord may collect from any such subtenant will be first applied to the Rent due and payable under this Lease and any other amounts then due and payable and then applied to the Rent as it becomes due and payable under this Lease. The collection of the Rent and any other sums due and payable under this Lease, from a person other than Tenant shall not be a waiver of any of Landlord’s rights under this Section 22(f), an acceptance of assignee or subtenant as Tenant, or a release of Tenant from the performance of Tenant’s obligations under this Lease.
No Transfer shall impose any additional obligations on Landlord under this Lease. Tenant shall reimburse Landlord (and Landlord Mortgagee, if applicable) for Landlord’s reasonable, third-party costs and expenses (including reasonable attorneys’ fees) incurred in conjunction with the reviewing and processing and documentation of any Transfer requiring Landlord’s consent regardless of whether such Transfer is consummated.
Notwithstanding anything to the contrary in this Section 22, Tenant shall have the right, without the prior written consent of Landlord and upon five (5) Business Days’ prior written notice to Landlord, to sublease or license any portion of the Premises. With respect to any sublease, (i) such sublease, by its terms, must be expressly subordinate to and subject to the terms of this Lease (and all future amendments to this Lease); (ii) the use contemplated under such sublease must not breach the use restrictions herein; (iii) such sublease shall not impose any additional obligations on Landlord under this Lease; and (iv) Landlord shall have no obligation to recognize any or to agree to not disturb any subtenant or other occupant of Tenant upon any Event of Default of Tenant under this Lease, unless Landlord shall agree to do so in writing by separate instrument, but Landlord, acting in its sole and absolute discretion, shall have no obligation to do so. In the event of a sublease, if there exists an Event of Default, Landlord may collect rent from the subtenant without waiving any rights under this Lease while such Event of Default is continuing. Any rent Landlord may collect from any such subtenant will be first applied to the Rent due and payable under this Lease and any other amounts then due and payable and then applied to the Rent as it becomes due and payable under this Lease. The collection of the Rent and any other sums due and payable under this Lease from a person other than Tenant shall not be a waiver of any of Landlord’s rights
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under this Section 22(h), an acceptance of assignee or subtenant as Tenant, or a release of Tenant from the performance of Tenant’s obligations under this Lease. For the avoidance of doubt, Tenant shall remain fully liable under this Lease for the Premises, notwithstanding any such sublease. On or before the effective date of such sublease, Tenant shall provide to Landlord, in form and substance reasonably acceptable to Landlord, an acknowledgment and affirmation from such sublessee or a copy of the sublease, providing that such sublessee agrees to be bound by the terms of this Lease with respect to the Premises being subleased and that Tenant agrees that it remains liable for the full and punctual performance of all of the terms and obligations of this Lease.
Without limiting the foregoing, and without requiring Landlord’s consent, Tenant may permit the Premises or any portion thereof to be used, occupied, accessed, or shared by: (i) Tenant’s Affiliates; (ii) employees, contractors, consultants, vendors, service providers, armored-car providers, technology providers, security providers, telecommunications providers, facilities-management providers, ATM/ITM operators, cash-handling providers, and other third parties supporting Tenant’s banking, financial services, technology, administrative, facilities, or branch operations; (iii) governmental authorities, regulators, law enforcement agencies, community organizations, nonprofit organizations, educational institutions, economic development organizations, and civic groups in connection with banking, financial literacy, community development, charitable, civic, regulatory, disaster-response, customer-service, or other activities reasonably related to Tenant’s business or community outreach programs; and (iv) other persons or entities reasonably related to Tenant’s operation, administration, maintenance, security, technology, customer-service, branch, financial-services, or community activities at the Premises, in each case, in the ordinary course of Tenant’s operation of the Premises for the Permitted Use; provided that, for the avoidance of doubt, no such use, occupancy, or access shall release Tenant from its obligations under this Lease, except as expressly permitted under this Lease.
Liens
. Tenant will not, directly or indirectly, create or permit to be created or to remain, and will promptly discharge, at its expense, any mechanic’s, supplier’s or vendor’s lien, encumbrance or charge on the Premises or any part thereof. The existence of any mechanic’s, supplier’s or vendor’s lien, or any right in respect thereof, shall not constitute a violation of this Section 23 if payment is not yet due upon the contract or for the goods or services in respect of which any such lien has arisen or, if Tenant is protesting or challenging such lien in good faith and has, within thirty (30) days after Tenant receives actual notice of such lien, bonded over or otherwise similarly secured such lien pursuant to Law as required so as to not attach to the Premises. Nothing contained in this Lease shall be construed as constituting the consent or request of Landlord, expressed or implied, of any contractor, subcontractor, laborer, materialman or vendor to or for the performance of any labor or services or the furnishing of any materials for any construction, alteration, addition, repair or demolition of or to the Premises or any part thereof, and any such contractor, subcontractor, laborer, materialman or vendor shall look solely to Tenant and Tenant’s interest in the Premises to secure the payment of any bills for any labor, services, or materials furnished. Notice is hereby given that Landlord will not be liable for any labor, services or materials furnished or to be furnished to Tenant, or to anyone holding the Premises or any part thereof through or under Tenant, and that no mechanic’s or other liens for any such labor, services or materials shall attach to or affect the interest of Landlord in and to the Premises. If Tenant has not removed or bonded over or otherwise similarly secured any such lien pursuant to Law as required so as to not attach to the Premises or other encumbrance described above within thirty (30) days after written notice thereof to Tenant, Landlord may, but shall not be obligated to, pay the amount of such lien or other encumbrance or discharge the same by deposit, and the amount so paid or deposited shall constitute additional Rent and be collectible upon demand with interest at the Default Rate. Landlord hereby consents to the granting of a lien or security interest on the fixtures, furnishings, trade fixtures, furniture, computers, telephone systems, machinery, equipment and other of Tenant’s Personal Property installed or placed on the Premises by Tenant in connection with any customary credit
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facility that Tenant has or may have during the Term hereof, and Tenant shall give Landlord written notice of any such lien.
Tenant’s Default
. Each of the following events shall be deemed to be an “Event of Default” under this Lease: (i) failure to pay Rent or any other monetary obligation as and when due and such failure continues for three (3) business days after Tenant’s receipt of Landlord’s written notice thereof (provided that, with respect to any delinquent Base Rent, Tenant shall only be entitled to such notice and cure period two (2) times in any consecutive 12-month period); (ii) subject to Tenant’s rights in Section 4 herein, Tenant abandons the Premises; (iii) Tenant becomes insolvent, makes an assignment for the benefit of creditors, or institutes a proceeding under state or federal bankruptcy laws (or successor laws) or Tenant shall be adjudged bankrupt or insolvent in proceedings filed against Tenant; (iv) a writ of attachment or execution is levied on this Lease, or a receiver is appointed with authority to take possession of the Premises (or any portion thereof), which attachment, execution or receiver is not removed within thirty (30) days of filing or appointment of a receiver; (v) Tenant shall be liquidated or dissolved; (vi) Tenant shall violate Section 23 hereof; (vii) the estate or interest of Tenant in the Premises or any part thereof shall be levied upon or attached in any proceeding relating to more than One Hundred Seventy-Five Thousand and No/100 Dollars ($175,000.00), and the same shall not be vacated, discharged or stayed pending appeal (or bonded or otherwise similarly secured payment) within the earlier of sixty (60) days after commencement thereof or thirty (30) days after receipt by Tenant of notice thereof from Landlord or any earlier period provided by Law for obtaining any stay pending appeal or to prevent foreclosure or sale; provided, however, that such notice shall be in lieu of and not in addition to any notice required under Law; (viii) Tenant fails to maintain any insurance required by this Lease; and (ix) failure by Tenant to perform any other covenant, agreement or undertaking of the Tenant contained in this Lease if the failure to perform is not cured within thirty (30) days after Tenant’s receipt of Landlord’s written notice thereof; provided, however, if the breach cannot reasonably be cured within thirty (30) days, the same shall not result in an Event of Default if Tenant commences to cure the breach within thirty (30) days after receipt of Landlord’s written notice thereof and diligently and in good faith continues to prosecute the cure of said breach to completion provided such breach is cured within two hundred forty (240) days after Tenant’s receipt of Landlord’s written notice thereof.
Remedies of Landlord
.
From and after the occurrence of any Event of Default, Landlord shall have the option to pursue any one or more of the following remedies as well as any other remedy available at Law or in equity for such Event of Default: (i) terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord; (ii) using lawful means, enter upon and take possession of the Premises without being liable for prosecution or claim for damages, and relet, upon reasonable terms, all or a portion of the Premises; provided that if Landlord elects to enter and relet the Premises, Landlord shall terminate this Lease; (iii) sue periodically to recover damages during the period corresponding to the portion of the Term for which suit is instituted, and if Landlord elects to sue and is successful in such suit, Landlord shall be entitled to recover all costs and expenses of such suit, including reasonable attorneys’ fees, together with interest at the Default Rate; (iv) re-enter the Premises or any portion thereof and attempt to cure any default of Tenant, or make any such payment or perform such act for the account of and at the expense of Tenant, in which event Tenant shall, upon demand, reimburse Landlord as additional Rent for all reasonable costs and expenses which Landlord incurs to cure such default, together with interest at the Default Rate accruing from the date such costs and expenses were incurred, and Tenant agrees that no such entry or action by Landlord shall constitute an actual or constructive eviction or repossession, without Landlord’s express intention to do so as expressed in writing, and no such entry shall be deemed an eviction of Tenant; (v) to
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the extent permitted by Law, accelerate and recover from Tenant all Rent and other monetary sums scheduled to become due and owing under this Lease after the date of such breach for the entire Term and any Renewal Term that has been exercised but subject to the limitation set forth in Section 25(b) below; and (vi) enforce the provisions of this Lease by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy. Tenant shall reimburse Landlord for any out-of-pocket expenses which Landlord actually incurs in complying with the terms of this Lease on behalf of Tenant, together with interest at the Default Rate.
Upon termination of this Lease in accordance with this Section 25, Landlord shall be entitled to recover from Tenant all Rent accrued and unpaid for the period up to and including such termination date, as well as all other additional Rent payable by Tenant, or for which Tenant is liable or for which Tenant has agreed to indemnify Landlord, which may be then owing and unpaid, and all costs and expenses, including court costs and reasonable attorneys’ fees, incurred by Landlord in the enforcement of its rights and remedies hereunder, together with interest at the Default Rate. In addition, to the fullest extent permitted by Law, in the event of a monetary Event of Default (which shall include any default that could be cured by the payment of a liquidated sum) or material non-monetary Event of Default, Landlord shall be entitled to recover as damages for loss of the bargain and not as a penalty the lesser of (i) the sum of (1) the aggregate sum which at the time of such termination represents the excess, if any, of the present value of the aggregate Rent which would have been payable after the termination date had this Lease not been terminated for the remainder of the Term or Renewal Term, as applicable, during which such termination occurred, such present value to be computed in each case on the basis of the rate of U.S. Treasury Bills with the closest maturity date correlating with the amount of time left in the Term had this Lease not been terminated, and (2) any damages in addition thereto, including without limitation reasonable attorneys’ fees and court costs, which Landlord sustains as a result of the breach of any of the covenants of this Lease other than for the payment of Rent, and interest at the Default Rate or (ii) the greatest amount permitted by Law.
Notwithstanding anything to the contrary herein contained, Landlord shall use commercially reasonable efforts to mitigate its damages following an Event of Default by Tenant, however Landlord’s mitigation obligation shall be satisfied in full if Landlord undertakes to lease the Premises (the “Repossessed Premises”) to another tenant (a “Substitute Tenant”) in accordance with the following criteria: (1) Landlord shall have no obligation to solicit or entertain negotiations with any other prospective tenants for such Repossessed Premises until Landlord obtains full and complete possession of such Repossessed Premises including, without limitation, the final and unappealable legal right to relet such Repossessed Premises free of any claim of Tenant; (2) Landlord shall not be obligated to lease or show such Repossessed Premises, on a priority basis, or offer such Repossessed Premises to a prospective tenant when other premises in the applicable Building or any other building in the vicinity of the Premises owned by Landlord suitable for that prospective tenant’s use are (or will be) available; (3) Landlord shall not be obligated to lease such Repossessed Premises to a Substitute Tenant for a rent less than the current fair market rent then prevailing for similar uses in Comparable Buildings for such Repossessed Premises, nor shall Landlord be obligated to enter into a new lease under other terms and conditions which are not reasonably acceptable to Landlord; (4) Landlord shall not be obligated to enter into a lease with a Substitute Tenant whose use would: (i) violate any restriction, covenant, or requirement contained in the lease of another tenant of the applicable Building; or (ii) materially and adversely affect the reputation of the applicable Building; and (5) Landlord shall not be obligated to enter into a lease with any proposed Substitute Tenant which does not have, in Landlord’s reasonable opinion, sufficient financial resources to operate such Repossessed Premises in a manner consistent with Comparable Buildings and to fulfill all of the obligations in connection with the lease thereof as and when the same become due.
Pursuit of any of the above stated remedies by Landlord after an Event of Default by Tenant shall not preclude pursuit of any other remedy provided in this Lease or at Law or in equity to the fullest
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extent permitted by Law, nor shall pursuit of any remedy constitute forfeiture or waiver of any remedy of Landlord or payment due to Landlord. No waiver by Landlord of any violation or breach of any of the terms, provisions and covenants herein contained shall be deemed or construed to constitute a waiver of any other violation or breach of any of the terms, provisions and covenants herein contained. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an Event of Default shall not be deemed or construed to constitute a waiver of any other violation or default. Once an Event of Default occurs, Landlord shall not be obligated to accept any cure of such Event of Default, and such Event of Default shall continue unless and until Landlord states in writing, in its sole and absolute discretion, that no Event of Default exists under this Lease. The subsequent acceptance of Rent hereunder by Landlord after an Event of Default shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant or condition of this Lease, other than the failure of Tenant to pay the particular Rent so accepted, regardless of Landlord’s knowledge of such preceding breach at the time of acceptance of such Rent. No waiver by Landlord of any breach hereof shall be effective unless such waiver is in writing and signed by Landlord.
Notwithstanding any provision hereof to the contrary, Landlord hereby acknowledges that Tenant is, by law (12 USC §1831r-1), required to give its customers a minimum of ninety (90) days’ notice before closing its business operation. Therefore, notwithstanding anything contained in this Lease to the contrary, Landlord agrees that any termination of this Lease by Landlord before the end of the Term shall provide that Tenant shall have possession of the Premises to operate its business for one hundred twenty (120) days from the date of such termination at the then current monthly Rent. In the event Landlord exercises any right or remedy to terminate this Lease and terminate Tenant’s right to possess and occupy the Premises, Landlord shall not take any affirmative action to evict Tenant until the earlier of (i) one hundred twenty (120) days following the date of Landlord’s notice to Tenant electing to exercise its right to terminate this Lease and terminate Tenant’s right to possess and occupy the Premises and (ii) the date Tenant has complied with the requirements of 12 USC §1831r-1 and any other Law relating to the closing of banking operations at the Premises, provided that, for the avoidance of doubt, the foregoing shall not reduce any damages for which Tenant is liable to Landlord or otherwise limit Landlord’s rights and remedies hereunder.
Notwithstanding anything contained herein to the contrary, Landlord shall not exercise self-help, lockout, dispossession, or other possession remedies in a manner that would prevent Tenant from complying with applicable banking Laws, regulatory directives, customer notice requirements, safe deposit box procedures, or cash handling requirements, or that would prevent the secure removal or transfer of Customer Records, Banking Equipment, Security Systems, communications equipment, or other property regulated under applicable banking Laws; provided, however, that this Section 25(f) shall not limit, restrict, or delay any of Landlord’s rights or remedies under this Lease, including Landlord’s right to recover possession of the Premises, damages, or any other relief to which Landlord is entitled.
This Section 25 shall be enforceable to the maximum extent such enforcement is not prohibited by Law, and the unenforceability of any portion thereof shall not thereby render unenforceable any other portion.
Subordination/Attornment
.
Landlord Mortgage. Landlord may mortgage its fee interest in the Premises or any portion thereof, at any time, and from time to time, in accordance with the terms hereof. Notwithstanding anything to the contrary contained herein, Landlord and Tenant agree that this Lease shall be subordinate to any Landlord Mortgage and the rights of any Landlord Mortgagee; provided, however, (i) in the event of a
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foreclosure under any such Landlord Mortgage, or conveyance or assignment in lieu of foreclosure or by deed in lieu of foreclosure, such Landlord Mortgagee and its successors and assigns shall not disturb the occupancy or other rights of Tenant under the terms of this Lease so long as no Event of Default exists hereunder and (ii) except as expressly set forth herein, Tenant shall not have any obligations under any Landlord Mortgage. The foregoing shall be self-operative and not require any additional documentation, provided, however, if requested by Landlord, Tenant shall, promptly and in no event later than twenty (20) days after a request from Landlord, enter into a customary subordination, non-disturbance and attornment agreement which is reasonably acceptable to Tenant (“SNDA”) with Landlord and Landlord Mortgagee to effectuate the subordination, non-disturbance and attornment rights contemplated by this Section 26(a). As a condition to Tenant’s subordination to any Landlord Mortgage, Landlord shall use commercially reasonable efforts to cause the applicable Landlord Mortgagee to deliver an SNDA reasonably acceptable to Tenant confirming that, so long as no Event of Default exists beyond applicable notice and cure periods, Tenant’s possession, use, occupancy, renewal rights, and other rights under this Lease shall not be disturbed.
For the purposes of this Lease, the following definitions shall apply:
“Landlord Mortgage” shall mean any financing obtained by Landlord, as evidenced by any mortgage, deed of trust, assignment of leases and rents, financing statement or other instruments, and secured by the interest of Landlord in the Premises or any portion thereof, including any extensions, modifications, amendments, replacements, supplements, renewals, refinancings and consolidations thereof.
“Landlord Mortgagee” shall mean the mortgagee (and its successors and assigns) under any Landlord Mortgage.
Estoppel Certificate
.
At any time, and from time to time, Tenant shall, promptly and in no event later than fifteen (15) days after a written request from Landlord, execute, acknowledge and deliver to Landlord a certificate substantially in the form attached hereto as Exhibit D or such other reasonable form as may be supplied by Landlord certifying: (i) that Tenant has accepted the Premises; (ii) that this Lease is in full force and effect and whether this Lease has been modified (and if modified, setting forth all modifications); (iii) the commencement and expiration dates of the Term, including the terms of any extension options of Tenant; (iv) the date to which the rentals have been paid under this Lease and the amount thereof then payable; (v) whether, to Tenant’s actual knowledge, there are then any existing defaults by Landlord in the performance of its obligations under this Lease, and, if there are any such defaults, specifying the nature and extent thereof; (vi) that Tenant is not in default under this Lease beyond any grace or cure periods, except as to defaults specified in the certificate; (vii) the capacity of the person executing such certificate, and that such person is duly authorized to execute the same on behalf of Tenant; (viii) that Landlord has no actual involvement in the management or control of decision making related to the operational aspects or the day-to-day operations of the Premises; and (ix) any other information reasonably requested by Landlord relating to the Premises or the Lease and necessary for purposes of the estoppel certificate being requested.
At any time, and from time to time, Tenant shall, at Landlord’s request, use commercially reasonable efforts to obtain estoppel certificates, in a form reasonably requested by Landlord or any Landlord Mortgagee, from any applicable counterparties under any applicable declarations, covenants, conditions and restrictions, reciprocal easement agreements or other encumbrances; provided, however, that (i) Landlord shall not request such estoppel certificates more than twice in any twelve (12) month period (except in connection with a bona fide sale or financing), (ii) Tenant shall not be required to make
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any representations, warranties, or certifications regarding the content, accuracy, or enforceability of any such third-party estoppel certificates, and (iii) Tenant’s failure to obtain any such estoppel certificate despite commercially reasonable efforts shall not constitute a default under this Lease.
At any time, and from time to time, Landlord shall, promptly and in no event later than fifteen (15) days after a request from Tenant, execute, acknowledge and deliver to Tenant a certificate in substantially the form attached hereto as Exhibit F or such other reasonable form as may be supplied by Tenant certifying: (i) that this Lease is in full force and effect and whether the Lease has been modified (and if modified, setting forth all modifications); (ii) the commencement and expiration dates of the Term, including the terms of any extension options of Tenant; (iii) the date to which the rentals have been paid under this Lease and the amount thereof then payable; (iv) whether, to Landlord’s actual knowledge, there are then any existing defaults by Tenant in the performance of its obligations under this Lease, and, if there are any such defaults, specifying the nature and extent thereof; (v) that Landlord is not in default under this Lease beyond any grace or cure periods, except as to defaults specified in the certificate; (vi) the capacity of the person executing such certificate, and that such person is duly authorized to execute the same on behalf of Landlord; (vii) that Landlord has no actual involvement in the management or control of decision making related to the operational aspects or the day-to-day operations of the Premises; and (viii) any other information reasonably requested by Tenant relating to the Premises or the Lease and necessary for purposes of the estoppel certificate being requested.
Hazardous Materials
. Notwithstanding anything contained herein to the contrary:
Tenant covenants and agrees that it shall not cause, conduct, authorize, or knowingly allow (i) the presence, generation, transportation, storage, treatment, or usage at the Premises, or any portion thereof, of any Hazardous Material in violation of or as would give rise to liability under Environmental Laws; (ii) a Release or threat of Release of any Hazardous Material on, under, about or in the Premises; or (iii) any violation of or liability under any Environmental Law at or with respect to the Premises or activities conducted thereon. For avoidance of doubt, nothing in this Section 28(a) shall prohibit Tenant from using at the Premises (I) cleaning materials, pesticides, and other common household and office products, and/or (II) materials in connection with any fuel tanks, generators or the like on the Premises, solely to the extent, with respect to each of the preceding clauses (I) and (II), that any such use thereof is in compliance with Environmental Laws.
Tenant shall, at its own cost, comply and ensure that the Premises and all operations and activities conducted at the Premises comply with all Environmental Laws and the terms of this Lease with respect to Hazardous Materials. Tenant shall, at its own cost, obtain all Permits required under Environmental Laws for the operations and activities conducted at the Premises.
Tenant shall, at Tenant’s sole cost and expense, prepare, establish, implement and maintain an operations and maintenance plan (“O&M Plan”) with respect to asbestos-containing building materials (“ACM”) at the Premises where recommended by any Phase I environmental site assessment obtained with respect to the Premises or required by applicable Law, and, if otherwise warranted based on an environmental report relating to the Premises (or any portion thereof), at Landlord’s reasonable request, Tenant shall, at Tenant’s sole cost and expense, establish and implement an O&M Plan prepared by an environmental consulting firm reasonably approved by Landlord, in each case to ensure continued compliance with Environmental Laws and the proper management of ACM and other Hazardous Materials at the Premises.
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Landlord and Landlord’s Representatives, including such environmental consultants as Landlord may designate, shall have the right and upon reasonable prior notice, and subject to Section 15 hereof, to enter the Premises and/or conduct appropriate tests and non-invasive investigations, such as a Phase I site assessment for the purpose of ascertaining that Tenant complies with all applicable Environmental Laws that relate in any way to the Premises. If such Phase I site assessment concludes a “Recognized Environmental Condition” (as that term is defined in ASTM E-1527-21 “Standard Practice for Environmental Assessments”) exists or otherwise identifies findings indicative of confirmed or potential contamination or a Release, on, at or under the Premises or that a material risk to human health or the environment exists at the Premises, then Landlord, may conduct invasive tests or investigation, such as a Phase II Environmental Site Assessment to investigate as applicable.
If the presence, Release, threat of Release, presence or placement on, in or around the Premises, or the generation, transportation, storage, use, treatment, or disposal at or around the Premises of any Hazardous Material by Tenant, Tenant’s Representatives, or by any third party other than Landlord or Landlord’s Representatives: (i) gives rise to any liability or obligation to the owner or operator of the Premises (including, but not limited to, any investigatory, remedial, removal, reporting, or other response action) under any Environmental Law, (ii) causes or threatens to cause any adverse effect on public health or occupational safety and health, (iii) pollutes or threatens to pollute the environment, or endanger human health, or (iv) otherwise violates Environmental Law, Tenant shall promptly take any and all remedial and removal actions to the extent required by Environmental Laws or otherwise necessary to clean up the Premises to comply with all environmental standards applicable to the Premises using the least restrictive cleanup standards permissible under Environmental Laws, which may include the establishment or implementation of institutional controls and/or engineering controls given its use at the time of the remediation and mitigate exposure to liability arising from the Hazardous Material.
Tenant shall promptly notify Landlord upon Tenant becoming aware of: (i) any actual or alleged violations of Environmental Laws relating to the Premises, (ii) any enforcement action, investigation, cleanup, notice of violation, or other regulatory action taken or threatened against Tenant or otherwise related to the Premises by any governmental authority under Environmental Laws or relating to any Hazardous Materials in connection with the Premises, (iii) any demands or claims made or threatened by any governmental authority or other person against Tenant or Landlord or otherwise relating to any actual or alleged violation of or liability under Environmental Laws or relating to any loss or injury resulting from any Hazardous Material or based on Environmental Laws, (iv) any Release of Hazardous Materials in violation of Environmental Laws, unlawful discharge, or non-routine, improper or unlawful disposal or transportation of any Hazardous Material on or from the Premises or any other location that may affect the Premises, and (v) except in connection with routine operational matters conducted in compliance with Environmental Laws, any matters where Tenant is required by Environmental Law to give a notice to any governmental authority respecting any Hazardous Materials in, at, on, under or about the Premises, and Tenant shall thereafter keep Landlord reasonably apprised with respect to the status and Tenant’s actions to resolve such matters, and shall furnish Landlord with copies of all reports, site assessments, material communications with third parties, and such other documents and information as Landlord may reasonably request with respect thereto. At such times as Landlord may reasonably request, Tenant shall provide Landlord with a written list identifying any Hazardous Material then actually known by Tenant to be used, stored, or maintained in, on or upon the Premises. In such case, Tenant shall if requested by Landlord provide Landlord with information with respect to the use and approximate quantity of each such material, a copy of any Safety Data Sheet issued by the manufacturer therefor, written information concerning the removal, transportation, and disposal of the same, and such other information as the Landlord may reasonably require or as may be required by Environmental Laws.
Tenant shall indemnify, defend and hold Landlord and the Landlord Indemnified Parties harmless, without limitation to and in the manner specified in Section 21, from and against any and all
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Losses (including without limitation all investigation, monitoring, remediation and corrective action costs, fines and penalties, and reasonable attorney’s, consultant’s and contractor’s fees but, except as applicable to any such damages asserted by or payable to any third party against Landlord, expressly excluding special, consequential and punitive damages, diminution in value and loss of rent) incurred by Landlord and resulting or arising from (i) the breach by Tenant of its covenants and agreements set forth in this Section 28, (ii) the presence, Release, placement on, in or around the Premises, or the generation, transportation, storage, use, treatment or disposal at or around the Premises of any Hazardous Materials before or during the Term and any Renewal Term, as applicable, by Tenant or any Tenant’s Representatives, or by any third party other than Landlord or Landlord’s Representatives, (iii) any violation of or obligation under Environmental Law before or during the Term and any Renewal Term, as applicable, by Tenant or any Tenant’s Representatives, or by any third party other than Landlord or Landlord’s Representatives, and (iv) claims by governmental authorities or other third parties associated with Hazardous Materials or violations of or obligations under Environmental Laws by Tenant or any Tenant’s Representatives, or by any third party other than Landlord or Landlord’s Representatives, or Hazardous Materials present at, on, under or about the Premises before or during the Term and any Renewal Term by Tenant or any Tenant’s Representatives, as applicable, including, without limitation those that were discovered during the Term and any Renewal Term, as applicable, which were caused prior to the Term by Tenant or its agents, representatives, employees, contractors, subcontractors, licensees or invitees, or any third party other than Landlord or Landlord’s Representatives. The foregoing indemnity obligations shall survive the expiration or earlier termination of this Lease for a period equal to the applicable statute of limitations for the underlying claim giving rise to the indemnification obligation. Notwithstanding the foregoing, Tenant shall have no obligation to defend, indemnify or hold Landlord or any Landlord Indemnified Party harmless for Losses arising from (i) any gross negligence or willful misconduct of Landlord or any Landlord Indemnified Party, (ii) breach of this Lease by Landlord or any Landlord Indemnified Party, (iii) failure by Landlord or Landlord Indemnified Parties to comply with applicable Environmental Laws, (iv) the Release or placement of any Hazardous Materials on, in or around the Premises in violation of Environmental Law by Landlord or any Landlord Indemnified Party or (v) any Hazardous Materials that are first Released or placed on the Premises after Tenant vacates the Premises and this Lease is terminated with respect to the Premises.
Without limitation to the foregoing, Tenant shall, at its sole cost and expense, comply with all Environmental Laws relating to the operation and use of all aboveground and underground storage tanks (“Tanks”) at any time located at the Premises, such compliance to include without limitation ensuring that all Tanks are equipped with leak detection systems and otherwise meet all applicable construction standards and technical requirements, are subject to regular inspections and tightness tests to confirm Tank integrity to the extent required by applicable Environmental Laws, and are covered by pollution insurance policies or other financial assurance mechanisms to the extent required under Environmental Laws. Tenant shall upon request provide Landlord copies of inspection reports, insurance policies, and other documentation reasonably necessary to confirm the compliance status of such Tanks. In the event of any spills, releases or evidence of leakage from or associated with the use of the Tanks, Tenant shall report the same to the appropriate regulatory agency to the extent required by applicable Environmental Laws and shall conduct testing of environmental media to confirm the nature and extent of contamination, complete all remedial and corrective actions required under Environmental Laws with respect to such spill, release or leakage, and upon completion of work provide Landlord a copy of a No Further Action letter or the equivalent determination from the applicable regulatory agency (“NFA”) with respect to the remedial work stating that no further active remediation is required, which may, with Landlord’s prior written consent, be subject to ongoing monitoring and/or the placement or establishment of institutional and/or engineering controls as required to clean up to applicable commercial standards.
Upon the expiration or earlier termination of the Lease, at Landlord’s request, which shall be provided at least ninety (90) days prior to expiration of the Lease, Tenant, at its sole expense, shall remove from the Premises all Tanks in accordance with all Environmental Laws and applicable commercial
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guidelines, perform post-removal testing of soil and groundwater to confirm the presence or absence of contamination associated with such Tanks to the extent required under applicable Environmental Laws, and to the extent that such removal involves any excavation or remedial work at the Premises, Tenant shall perform such remediation and restore the Premises to the same grade level as immediately prior to excavation using clean fill soil, and Tenant shall obtain and provide Landlord a copy of a NFA with respect to the Tank removal and remedial work, as applicable.
Notwithstanding anything to the contrary in this Lease, an Event of Default shall not be deemed to have occurred as a result of the failure of Tenant to satisfy any one or more of the covenants set forth in Sections 28(a)-(i) provided that Tenant is diligently addressing and remediating any Release (including, as applicable, diligently pursuing any responsible or potentially responsible third party actors) in compliance with Environmental Laws and to the extent applicable, in compliance with the requirements or orders of any governmental authority.
Press Releases
. Except for any announcement intended solely for internal distribution by Landlord or Tenant or any disclosure required by legal, accounting or regulatory requirements, including, without limitation, any disclosure, filing, periodic report, investor presentation, rating agency presentation, securities document, or other disclosure required or reasonably deemed necessary by counsel to comply with applicable securities laws, stock exchange requirements, SEC rules, or similar regulatory requirements, all media releases or public announcements (including, but not limited to, promotional or marketing material) by Landlord or Tenant or either party’s employees or agents relating to this Lease or its subject matter, or including the name, trade name, trade mark, or symbol of Tenant or an Affiliate of Tenant, or Landlord or an Affiliate of Landlord, shall be coordinated with and approved in writing by the other party prior to the release thereof; provided, that subject to Section 51 of this Lease nothing herein is intended to require Tenant’s consent to the identification of Tenant or the particulars of this Lease in connection with any marketing of the Premises or any portion thereof by Landlord.
Holding Over
. Except as set forth below, if Tenant continues to occupy the Premises or any portion thereof after the expiration or other termination of this Lease or the termination of Tenant’s right of possession with respect to the Premises, such occupancy shall be that of a tenancy at sufferance. Tenant shall, throughout the entire holdover period, be subject to all the terms and provisions of this Lease (other than provisions relating to length of the Term) and shall pay for its use and occupancy an amount (on a per month basis without reduction for any partial months during any such holdover) equal to (i) one hundred percent (100%) of the additional Rent due under this Lease for, and allocable to, the holdover period, and (ii) (A) for the first thirty (30) days of the holdover period, one hundred twenty-five percent (125%) of the monthly Base Rent due in the month immediately prior to the expiration or earlier termination of the Term, and (B) after the first thirty (30) days of the holdover period, one hundred fifty percent (150%) of the monthly Base Rent due in the month immediately prior to the expiration or earlier termination of the Term (each of the foregoing referred to herein as “Holdover Rent”). Except as set forth below, no holding over by Tenant or payments of money by Tenant to Landlord after the expiration of the Term shall be construed to extend the Term or prevent Landlord from recovery of immediate possession of the Premises by summary proceedings or otherwise. In the event that Tenant continues to occupy the Premises or any portion thereof after the expiration or termination of this Lease, such occupancy shall be that of a tenancy at sufferance and Tenant shall be liable to Landlord for all direct and consequential damages which Landlord may suffer after such initial thirty (30)-day holdover period by reason of any holding over by Tenant.
Financial Reporting
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. Tenant shall deliver to Landlord, (i) within ninety (90) days after the end of each fiscal year of Tenant, audited financial statements of the Tenant for such fiscal year, and (ii) within forty-five (45) days after the end of each fiscal quarter of Tenant, complete unaudited financial statements of the Tenant (collectively, the “Financial Information”). Notwithstanding the foregoing, to the extent that the Financial Information otherwise required to be provided by Tenant to Landlord in accordance with this Section 31 is filed with the Federal Financial Institutions Examination Council in Tenant’s quarterly call reports and is publicly available, Tenant shall not be required to deliver such Financial Information to Landlord. Tenant shall not be required to provide non-public, Confidential, supervisory, customer, competitively sensitive, or regulatory examination information, except to the extent expressly required by Law or agreed by Tenant in writing.
Quiet Enjoyment
. So long as Tenant is not in default under this Lease beyond any applicable notice and cure periods, except in connection with Landlord’s exercise of its rights and remedies under this Lease, Landlord shall not take any action to disturb Tenant’s quiet enjoyment of the Premises (subject, however, to the exceptions, reservations and conditions of this Lease). Tenant hereby waives any right or defense (including, without limitation, any offset, abatement or termination right) it may have at law or in equity relating to Tenant’s quiet enjoyment of the Premises, except for its right to file a suit against Landlord for monetary damages, injunctive relief or specific performance.
Notices
. Any notice, demand, request, or other communication that any party hereto may be required or may desire to give hereunder shall be in writing and shall be deemed properly given (a) if hand delivered, when delivered; (b) if mailed by United States Certified Mail (postage prepaid, return receipt requested), three (3) business days after mailing; (c) if by Federal Express or other nationally recognized overnight courier service, the next business day after delivered to such courier service for delivery on the next business day; or (d) if by e-mail transmission, on the day of transmission so long as (i) the e-mail is sent prior to 5:00 P.M. Central time on a business day (and if sent later on such business day or on a non-business day, such e-mail shall be deemed sent on the next business day), and (ii) a copy is sent on the same day (or prior thereto) by Federal Express or other nationally recognized overnight courier service for delivery on the next business day, to the addresses set forth in Section 2 hereof, or at such other address as the party to be served with notice has furnished in writing to the party seeking or desiring to serve notice as a place for the service of notice. Attorneys for either party hereto may provide notice on behalf of such party, provided that all other requirements of this Section 33 are satisfied.
Personal Liability
.
Notwithstanding anything to the contrary provided in this Lease, it is specifically understood and agreed, such agreement being a primary consideration for the execution of this Lease by Landlord, that (i) there shall be absolutely no personal liability on the part of the direct and indirect members, partners, shareholders, officers, directors, employees and agents of Landlord and its successors or assigns, to Tenant with respect to any of the terms, covenants and conditions of this Lease, (ii) Tenant waives all claims, demands and causes of action against the direct and indirect members, partners, shareholders, officers, directors, employees and agents of Landlord and its successors or assigns in the event of any breach by Landlord of any of the terms, covenants and conditions of this Lease to be performed by Landlord, and (iii) Tenant shall look solely to Landlord’s interest in the Premises for the satisfaction of each and every remedy of Tenant in the event of any breach by Landlord of any of the terms, covenants and
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conditions of this Lease to be performed by Landlord, or any other matter in connection with this Lease or the Premises, such exculpation of liability to be absolute and without any exception whatsoever. No breach by Landlord of any provision of this Lease shall give rise to a right of Tenant to terminate this Lease, it being understood and agreed that Tenant’s sole remedy for any such breach shall be a claim for actual damages (if any). Furthermore, except as otherwise expressly set forth herein, Tenant and Landlord each hereby knowingly, voluntarily and intentionally waives any right it may have to seek punitive, consequential, special and indirect damages from the other party and any of such party’s direct and indirect members, partners, shareholders, officers, directors, employees and agents and its successors or assigns with respect to any matter arising out of or in connection with this Lease or any document contemplated herein or related hereto. The waiver by Tenant and Landlord of any right it may have to seek punitive, consequential, special and indirect damages has been negotiated by the parties hereto and is an essential aspect of their bargain.
Notwithstanding anything to the contrary provided in this Lease, it is specifically understood and agreed, such agreement being a primary consideration for the execution of this Lease by Tenant, that (i) there shall be absolutely no personal liability on the part of the direct and indirect members, partners, shareholders, officers, directors, employees and agents of Tenant and its successors or assigns, to Landlord with respect to any of the terms, covenants and conditions of this Lease, (ii) Landlord waives all claims, demands and causes of action against the direct and indirect members, partners, shareholders, officers, directors, employees and agents of Tenant and its successors or assigns in the event of any breach by Tenant of any of the terms, covenants and conditions of this Lease to be performed by Tenant. Furthermore, except as expressly provided in Section 30 or with respect to any indemnifiable Losses pursuant to Section 21 arising from or related to any third-party claim, Landlord hereby knowingly, voluntarily and intentionally waives any right it may have to seek punitive, consequential, special and indirect damages from Tenant and any of such Tenant’s direct and indirect members, partners, shareholders, officers, directors, employees and agents of Tenant and its successors or assigns with respect to any matter arising out of or in connection with this Lease or any document contemplated herein or related hereto. The waiver by Landlord of any right it may have to seek punitive, consequential, special and indirect damages has been negotiated by the parties hereto and is an essential aspect of their bargain.
Entire Agreement
. This Lease represents the entire agreement and understanding between Landlord and Tenant with respect to the subject matter herein, and there are no representations, understandings, stipulations, agreements or promises not incorporated in writing herein.
Amendments
. No amendments or modifications of this Lease shall be effective unless such amendment or modification is in writing and executed and delivered by and between Tenant and Landlord, nor shall any custom, practice or course of dealing between the parties be construed to waive the right to require specific performance by the other party in compliance with this Lease.
Legal Interpretation
. Each of Landlord and Tenant hereby agree that this Lease shall be governed by and construed according to the Laws of the State in which the Premises is located (the “State”), and the obligations arising hereunder. To the fullest extent permitted by Law, Tenant and Landlord hereby unconditionally and irrevocably waive any claim to assert that the law of any other jurisdiction governs this Lease. Words of any gender shall be construed to include any other gender, and words in the singular number shall be construed to include the plural, unless the context otherwise requires. The headings of the sections have
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been inserted for convenience only and are not to be considered in any way in the construction or interpretation of this Lease. Except as otherwise herein expressly provided, the terms of this Lease shall apply to, inure to the benefit of, and be binding upon, the parties and their respective assigns, successors and legal representatives. Any legal suit, action or proceeding against Tenant arising out of or relating to this Lease shall exclusively be instituted in any federal court in the State or State court sitting in the county in which the Premises are located, and Landlord and Tenant each waives any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding in such federal district or county and state, and Landlord and Tenant each hereby expressly and irrevocably submits to the jurisdiction of any such court in any suit, action or proceeding. In this Lease, the words “include”, “includes” or “including” mean “include without limitation”, “includes without limitation” and “including without limitation”, respectively, and the words following “include”, “includes” or “including” shall not be considered to set forth an exhaustive list. As used herein, a “business day” shall mean each day of the week other than (a) a Saturday, Sunday, or (b) holidays on which national banking associations are authorized to be closed.
Option to Renew
.
Tenant shall have the right, at its election made in its sole discretion, to extend the Term (the “Renewal Option”) for the additional periods set forth in Section 1(e) (each, a “Renewal Term”), provided that each of the following occurs:
Landlord receives irrevocable written notice of exercise of the Renewal Option (the “Renewal Notice”), not less than fifteen (15) full months but not greater than eighteen (18) full months prior to the expiration of the then existing Term (or Renewal Term, as the case may be); and
There is no uncured Event of Default beyond any applicable notice and cure period at the time that Tenant delivers the Renewal Notice or at the time Tenant delivers its Renewal Notice.
The Renewal Term shall be upon the same terms and conditions as in this Lease except Base Rent for the first year of the applicable Renewal Term shall be equal to the greater of (i) one hundred one and one-half percent (101.5%) of the Base Rent for the immediately preceding lease year, and (ii) the then Market Rate for the Premises. The Base Rent shall increase by one and one-half percent (1.50%) annually during each Renewal Term. “Market Rate” for the Premises shall mean the Base Rent rate (including escalations) that the Premises would be expected to be leased for, for a term commencing on the applicable commencement date and ending on the applicable expiration date, in its then-existing condition, in an arm’s-length transaction between a willing landlord and tenant in the commercial space market existing in the vicinity of the Premises at the time such rate is established. Such determination shall include consideration of (i) the size and location of the Premises, and the quality of, condition of, and the nature of the improvements in, the Building, including without limitation, the necessity to remove such improvements, but shall exclude the value of improvements installed by Tenant in the Premises that are to be removed by Tenant at the expiration of the Term; (ii) other Comparable Buildings to the Building; (iii) other comparable leasing transactions in comparable locations in the vicinity of the Premises for new leases (with appropriate adjustments for different size premises and different length terms), and the rents and concessions, allowances and commissions granted along with the other terms of such transactions; and (iv) the financial condition of Tenant, provided, however, that in no event shall the Market Rate be less than the rate of Base Rent in effect at the expiration of the then current Term (or Renewal Term, as the case may be).
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Within forty-five (45) days after receipt of the Renewal Notice, Landlord shall advise Tenant of Landlord’s determination of the Market Rate for the applicable Renewal Term. Tenant, within twenty (20) days after the date on which Landlord advises Tenant of the applicable Market Rate for the Renewal Term, shall either (i) give Landlord final binding written notice (the “Binding Notice”) of Tenant’s exercise of the Renewal Option, or (ii) if Tenant disagrees with Landlord’s determination, provide Landlord with written notice of rejection (the “Rejection Notice”). If Tenant fails to provide Landlord with either a Binding Notice or Rejection Notice within such twenty (20) day period, Tenant’s Renewal Option shall be null and void and of no further force and effect. If Tenant provides Landlord with a Binding Notice, Landlord and Tenant shall enter into the Renewal Amendment upon completion of the process set forth in these Sections 38(b) and 38(c) subject to such Binding Notice upon the terms and conditions set forth herein. If Tenant provides Landlord with a Rejection Notice, Landlord and Tenant shall reasonably cooperate to agree upon the Market Rate. Upon agreement, Tenant shall provide Landlord with a Binding Notice and Landlord and Tenant shall enter into the Renewal Amendment upon completion of the process set forth in these Sections 38(b) and 38(c) in accordance with the terms and conditions hereof. Notwithstanding the foregoing, if Landlord and Tenant are unable to agree upon the Market Rate within thirty (30) days after the date Tenant provides Landlord with the Rejection Notice, Tenant, by written notice to Landlord (the “Arbitration Notice”) within ten (10) days after the expiration of such thirty (30) day period, shall have the right to have the Market Rate determined in accordance with the arbitration procedures described in Section 38(d) below. If Landlord and Tenant are unable to agree upon the Market Rate within the thirty (30) day period described and Tenant fails to timely exercise its right to arbitrate, the Renewal Option shall be deemed to be null and void and of no further force and effect.
If Tenant provides Landlord with an Arbitration Notice, Landlord and Tenant, within ten (10) days after the date of the Arbitration Notice, shall each simultaneously submit to the other, in a sealed envelope, its good faith estimate of the Market Rate for the Premises during the Renewal Term (collectively referred to as the “Estimates”) and shall each select an appraiser (hereinafter, an “appraiser”) to determine which of the two Estimates most closely reflects the Market Rate during the Renewal Term. Each appraiser so selected shall be a member of the Appraisal Institute and have not less than ten (10) years’ experience in the field of commercial real estate appraisal and/or brokerage and shall be experienced in the vicinity of the Premises subject to such Arbitration Notice. Upon selection, Landlord’s and Tenant’s appraisers shall work together in good faith to agree upon which of the two Estimates most closely reflects the Market Rate. The Estimate chosen by such appraisers shall be binding on both Landlord and Tenant as the Base Rent rate during the Renewal Term. If either Landlord or Tenant fails to appoint an appraiser within the ten (10) day period referred to above, the appraiser appointed by the other party shall be the sole appraiser for the purposes hereof. If the two appraisers cannot agree upon which of the two Estimates most closely reflects the Market Rate within thirty (30) days after their appointment, then, within ten (10) days after the expiration of such thirty (30) day period, the two appraisers shall select a third appraiser meeting the aforementioned criteria, the cost of which shall be borne equally by Landlord and Tenant. Once the third appraiser (i.e. arbitrator) has been selected as provided for above, then, as soon thereafter as practicable but in any case within fourteen (14) days, the arbitrator shall make his determination of which of the two Estimates most closely reflects the Market Rate for the Premises, or the arbitrator may determine a Market Rate which is not equal to either Estimate, provided, however, that the arbitrator’s Market Rate may not be higher than the higher of the Estimates nor lower than the lower of the Estimates. The determination by such third appraiser shall be binding on both Landlord and Tenant.
If Tenant is entitled to and properly exercises its Renewal Option, upon completion of the process of determination of Market Rent set forth in Sections 38(b) and 38(c), Landlord and Tenant shall execute an amendment (the “Renewal Amendment”) to reflect changes in the Base Rent, the Term, the Expiration Date and other appropriate terms; provided that an otherwise valid exercise of the Renewal Option shall be fully effective whether or not the Renewal Amendment is executed. During any validly
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exercised Renewal Term, references to the Term in this Lease shall mean and refer to the Term as extended by the Renewal Term.
Authority to Enter into Lease
. Each of Tenant and Landlord represents and warrants (a) that the individual executing this Lease on its behalf is duly authorized to execute and deliver this Lease on behalf of the corporation, limited liability company or partnership, as the case may be, and (b) that this Lease is binding on the corporation, limited liability company or partnership, as the case may be, in accordance with its terms.
Parties Bound
. The preparation and submission of a draft of this Lease by either party to the other party shall not constitute an offer, nor shall either party be bound to any terms of this Lease or the entirety of this Lease, until both parties have fully executed a final document. Until such time as described in the previous sentence, either party is free to terminate negotiations without penalty or any further obligation to the other party.
Counterparts; Electronic Signatures
. The parties agree that this Lease (and any amendment thereto) shall be deemed validly executed and delivered by a party if a party executes this Lease by manual signature or by affixing its signature hereto by means of an electronic signature tool, application, or software (e.g., DocuSign). This Lease may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become a binding agreement when one or more counterparts have been signed by each of the parties and delivered to the other party. Signatures to this Lease, any amendment hereof and any notice given hereunder, delivered electronically via .pdf, .jpeg, .TIF, .TIFF or similar electronic format shall be deemed an original signature and fully effective as such for all purposes. Each party agrees to deliver promptly an executed original of this Lease (and any amendment hereto) with its actual signature to the other party, but a failure to do so shall not affect the enforceability of this Lease (or any amendment hereto), it being expressly agreed that each party to this Lease shall be bound by its own electronically transmitted signature and shall accept the electronically transmitted signature of the other party to this Lease.
Severability
. If any term or other provision of this Lease is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all of the other conditions and provisions of this Lease will nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the parties hereto will negotiate in good faith to modify this Lease so as to reflect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.
Waiver of Jury Trial
. LANDLORD AND TENANT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER OR ITS SUCCESSORS AND/OR ASSIGNS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT’S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM FOR INJURY OR
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DAMAGE, OR ANY EMERGENCY OR STATUTORY REMEDY. THIS WAIVER BY THE PARTIES HERETO OF ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
Memorandum of Lease
. This Lease shall not be recorded, either independently or as an exhibit, schedule, annex, or addendum to any other document. However, at Tenant’s or Landlord’s election, a Memorandum of Lease in the form annexed hereto as Exhibit E, shall be executed, acknowledged and delivered for recording in the county in which the Premises is located by both parties with the costs of recording the Memorandum of Lease to be borne by Tenant. Tenant shall execute, acknowledge and deliver to Landlord a termination of the Memorandum of Lease in recordable form within fifteen (15) days following the expiration or earlier termination of this Lease in accordance with its terms. If Tenant fails to so execute, acknowledge and deliver the termination within such fifteen (15) day period, Landlord shall hereby be deemed to be Tenant’s attorney-in-fact for the sole purpose of executing and recording the release on behalf of Tenant. Tenant shall pay any and all recording and other costs, fees and taxes in connection with the execution and recordation of the Memorandum of Lease.
Brokers
. Tenant represents that it has engaged Jones Lang LaSalle Americas, Inc. (“JLL”) as its exclusive real estate broker in connection with this transaction and, except for JLL, Tenant has had no dealings with any broker or agent claiming through Tenant that would be entitled to a commission, fee, or compensation in connection with this Lease. Tenant shall be responsible for any commission or compensation payable to JLL pursuant to a separate agreement between Tenant and JLL. Tenant covenants and agrees to pay, hold harmless and indemnify Landlord for any compensation, commissions and charges claimed by any broker or agent representing Tenant with respect to this Lease. Landlord warrants that it has had no dealings with any broker or agent representing Landlord which is entitled to a commission in connection with this Lease. Landlord covenants and agrees to pay, hold harmless and indemnify Tenant for any compensation, commissions and charges claimed by any broker or agent representing Landlord with respect to this Lease.
Time is of the Essence
. Time is of the essence with respect to all agreements and obligations of the parties contained in this Lease.
No Third-Party Beneficiary
. This Lease is not intended to give or confer any benefits, rights, privileges, claims, actions or remedies to any person or entity other than Landlord and Tenant (including, without limitation, any licensee or sublessee at the Property) as a “third-party” beneficiary.
INTENTIONALLY DELETED
.
REIT Protection
. The parties hereto intend that Rent and other amounts paid by Tenant hereunder will qualify as “rents from real property” within the meaning of Section 856(d) of the Code, or any similar or successor provision thereto and this Lease shall be interpreted consistent with this intent.
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Anything contained in this Lease to the contrary notwithstanding, Tenant shall not, without Landlord’s advance written consent (which consent shall not be unreasonably withheld) (i) sublet, assign or enter into a management arrangement for the Premises to any person or entity (other than a “taxable REIT subsidiary” (within the meaning of Section 856(l) of the Code) of BOREC) in which Landlord or BOREC owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Code); or (ii) sublet, assign or enter into a management arrangement for the Premises in any other manner, in each case for purposes of clauses (i) and (ii), which could reasonably be expected to cause any portion of the amounts received by Landlord pursuant to this Lease or any sublease to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Code, or any similar or successor provision thereto, or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Code. The requirements of this Section 49(a) shall likewise apply to any further subleasing by any subtenant.
Anything contained in this Lease to the contrary notwithstanding, the parties acknowledge and agree that Landlord, in its sole discretion, may assign this Lease or any interest herein to another person (including without limitation, a “taxable REIT subsidiary” (within the meaning of Section 856(l) of the Code)) in order to maintain Landlord’s status as a “real estate investment trust” (within the meaning of Section 856(a) of the Code); provided, however, Landlord shall be required to (i) comply with any applicable legal requirements related to such transfer and (ii) give Tenant notice of any such assignment; and provided, further, that any such assignment shall be subject to all of the rights of Tenant hereunder.
Anything contained in this Lease to the contrary notwithstanding, upon request of Landlord, Tenant shall reasonably cooperate with Landlord in good faith and at no cost or expense to Tenant, and provide such documentation and/or information as may be in Tenant’s possession or under Tenant’s control and otherwise readily available to Tenant as shall be reasonably requested by Landlord in connection with verification of BOREC’s “real estate investment trust” (within the meaning of Section 856(a) of the Code) compliance requirements. Anything contained in this Lease to the contrary notwithstanding, Tenant shall take such reasonable action as may be requested by Landlord from time to time in order to ensure compliance with the Internal Revenue Service requirement that Rent allocable for purposes of Section 856 of the Code to personal property, if any, at the beginning and end of a calendar year does not exceed fifteen percent (15%) of the total Rent due hereunder as long as such compliance does not (i) increase Tenant’s monetary obligations under this Lease or (ii) materially and adversely increase Tenant’s nonmonetary obligations under this Lease or (iii) materially diminish Tenant’s rights under this Lease or (iv) result in the imposition of any additional material obligation upon Tenant under any Laws.
Tenant acknowledges that Landlord’s direct or indirect parent intends to qualify as a “real estate investment trust” (within the meaning of Section 856(a) of the Code). Tenant agrees that it will not knowingly or intentionally take any action or permit any status or condition to exist at the Premises which Tenant actually knows (acting in good faith) would or could reasonably be expected to result in the Rent payable under this Lease not qualifying as “rents from real property” within the meaning of Section 856(d) of the Code.
No REIT compliance request shall require Tenant to disclose Customer Records, Confidential Information, confidential supervisory information, nonpublic bank regulatory information, sensitive security information, or competitively sensitive operational information, or to modify its banking operations, branch strategy, vendor arrangements, affiliate arrangements, sublease rights, license rights, or permitted use in any manner that would materially burden Tenant.
Landlord and Tenant Reimbursement
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. Subject to any limitations set forth in this Lease, for purposes of this Lease, (a) “at no cost or expense to Landlord”, “at Tenant’s sole cost and expense” or similar phrases shall require Tenant to reimburse Landlord for all of Landlord’s reasonable costs and expenses (including, without limitation attorneys’ fees and/or other consultants’ fees) incurred in connection with any applicable action taken by or consent requested from Landlord, and (b) “at no cost or expense to Tenant”, “at Landlord’s sole cost and expense” or similar phrases shall require Landlord to pay for, or reimburse Tenant, as applicable, for all of Tenant’s reasonable costs and expenses (including, without limitation attorneys’ fees and/or other consultants’ fees) incurred in connection with any applicable action taken by or consent requested from Tenant.
Confidentiality; Public Offering Information
.
The parties recognize and acknowledge that they may receive certain Confidential Information of the other party. Each party agrees that neither such party shall, and such party shall direct its representatives acting on its behalf not to, during the Term or within five (5) years after the termination or expiration of this Lease, directly or indirectly use any Confidential Information of the other party or disclose Confidential Information of the other party to any person for any reason or purpose whatsoever, except as reasonably required in order to comply with the obligations and otherwise as permitted under the provisions of this Lease. Notwithstanding anything to the contrary contained herein, (a) Landlord shall be permitted to share Confidential Information with its advisors, accountants, counsel, employees, investors, potential investors, lenders and potential lenders, so long as Landlord informs such parties of the confidential nature of such Confidential Information and further, in connection with any securitization, syndication or participation of any Landlord Mortgage, Landlord’s Mortgagee may disclose such Confidential Information as is customary in connection with such securitization, syndication or participation so long as such Confidential Information is identified as being confidential, and (b) Tenant shall be permitted to share Confidential Information of Landlord with its advisors, accountants, counsel, employees, investors, potential investors, lenders and potential lenders, so long as Tenant informs such parties of the confidential nature of such Confidential Information. Notwithstanding the foregoing, in the event that a party or any of its representatives is requested or becomes legally compelled (pursuant to any Law or legal, governmental, judicial, administrative or regulatory order, authority or process) to disclose any Confidential Information of the other party, it will, to the extent reasonably practicable and not prohibited by law, provide the party to whom such Confidential Information belongs prompt written notice of the existence, terms or circumstances of such event so that the party to whom such Confidential Information belongs may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Section 51(a). In the event that such protective order or other remedy is not obtained or the party to whom such Confidential Information belongs waives compliance with this Section 51(a), the party compelled to disclose such Confidential Information will furnish only that portion of the Confidential Information or take only such action as, based upon the advice of its legal counsel, is legally required and will use commercially reasonable efforts to obtain reasonable assurance that confidential treatment will be accorded any Confidential Information so furnished. The party compelled to disclose the Confidential Information shall cooperate with any action reasonably requested by the party to whom such Confidential Information belongs (at the sole cost and expense of the party to whom such Confidential Information belongs) to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
Notwithstanding anything to the contrary in Section 51(a), Tenant specifically agrees that Landlord may include financial information and such information concerning the operation of the Premises (1) which is approved by Tenant in writing in its sole discretion, (2) which is publicly available, or (3) the inclusion of which is approved by Tenant in writing, which approval may not be unreasonably withheld, in
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offering memoranda or prospectuses or confidential information memoranda, or similar publications or marketing materials, rating agency presentations, investor presentations or disclosure documents in connection with syndications, private placements or public offerings of Landlord’s securities or loans or securities or loans of any direct or indirect parent entity of Landlord, and any other reporting requirements under applicable federal and state laws, including those of any successor to Landlord, provided that, with respect to matters permitted to be disclosed solely under this clause (3), the recipients thereof shall be obligated to maintain the confidentiality thereof pursuant to Section 51(a) or pursuant to confidentiality provisions substantially similar thereto and to comply with all federal, state and other securities laws applicable with respect to such information. Unless otherwise agreed by Tenant, Landlord shall not revise or change the wording of information previously publicly disclosed by Tenant and furnished to Landlord or any direct or indirect parent entity of Landlord pursuant to this Lease and Landlord’s Form 10-Q or Form 10-K (or supplemental report filed in connection therewith) shall not disclose the operational results of the Premises prior to Tenant’s parent’s, Tenant’s or its Affiliate’s public disclosure thereof so long as Tenant’s parent, Tenant or such Affiliate reports such information in a timely manner consistent with historical practices and SEC disclosure requirements. Tenant agrees to provide such other reasonable information and, if necessary, participation in road shows and other presentations at Landlord’s sole cost and expense, with respect to Tenant and its Premises to facilitate a public or private debt or equity offering or syndication by Landlord or any direct or indirect parent entity of Landlord or to satisfy Landlord’s SEC disclosure requirements or the disclosure requirements of any direct or indirect parent entity of Landlord. In this regard, Landlord shall provide to Tenant a copy of any information prepared by Landlord to be published, and Tenant shall have a reasonable period of time (not to exceed three (3) business days) after receipt of such information to notify Landlord of any corrections.
Notwithstanding anything to the contrary, Landlord shall not disclose, include, or use any Confidential Information relating to Tenant’s customers, Customer Records, regulatory matters, supervisory information, security procedures, cash handling, branch operations, confidential financial information, or other sensitive bank information in any offering memorandum, prospectus, lender presentation, investor presentation, rating agency presentation, marketing material, or similar disclosure without Tenant’s prior written consent, which may be withheld in Tenant’s sole discretion.
Customer Records
. Landlord is not being given, nor is Landlord expected to have access to, any records or information about Tenant’s customers that is subject to the Gramm-Leach-Bliley Act or any other applicable federal or state Law protecting the privacy of banking customers (“Customer Records”), and it is Tenant’s sole obligation to comply with any such Laws and to protect the confidentiality of its records and information relating to its customers. Landlord shall use commercially reasonable efforts not to take possession of any Customer Records; provided, however, that in the event that Landlord, using such commercially reasonable efforts, inadvertently and unknowingly takes possession of any Customer Records due to a default or abandonment by Tenant, whether such Customer Records are in paper, electronic, or other format, Landlord’s sole obligation with respect to such records or information is to use commercially reasonable efforts to secure such Customer Records and to promptly notify Tenant, at the Tenant Notice Address, of the location of such Customer Records and Landlord shall under no circumstances convey, deliver, or release any Customer Records to any third party, except as expressly provided in this Section 52. Notwithstanding anything to the contrary contained in this Lease, Tenant shall be entitled to take possession of such Customer Records. In no event shall the Customer Records become the property of Landlord and, in the event that Landlord is unable to return the Customer Records to Tenant, Landlord shall continue to store and maintain the Customer Records, at Tenant’s sole cost and expense; provided, in no event shall Landlord access, read or use the Customer Records for any purpose. The obligations contained in this Section 52 shall survive the expiration or sooner termination of this Lease. If Landlord obtains possession, custody, or control of any Customer Records, Landlord shall immediately secure such records,
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restrict all access, notify Tenant, follow Tenant’s reasonable instructions, and cooperate with Tenant to return or securely transfer such records. Landlord shall not review, copy, scan, image, disclose, destroy, sell, pledge, transfer, or otherwise use Customer Records for any purpose. Landlord shall be responsible for any unauthorized access, disclosure, loss, or misuse of Customer Records caused by Landlord or its representatives.
Landlord’s Default
. An “Event of Default by Landlord” under this Lease shall occur if Landlord has breached or failed to perform any covenant, agreement or undertaking of Landlord under this Lease and has not commenced to cure such breach or failure within thirty (30) days of receipt of written notice thereof from Tenant, and diligently and in good faith continued to cure the breach or failure until completion. If the breach or failure cannot reasonably be cured within such thirty (30) day period, Landlord shall not be in default if Landlord commences to cure the breach or failure within the thirty (30) day period and diligently and in good faith continues to prosecute the cure of said breach or failure to completion, provided such breach or failure is cured within one hundred and eighty (180) days after Landlord’s receipt of written notice thereof (or ninety (90) days if such breach or failure is having a material adverse effect on Tenant’s ability to conduct banking operations at the Premises), subject to extension for reasons due to Force Majeure. Upon the occurrence of any Event of Default by Landlord, Tenant’s sole and exclusive remedy shall be a suit for monetary damages against Landlord. In no event shall Tenant have the right to terminate this Lease or offset or abate any sums due to Landlord hereunder as a result of a default by Landlord. Notwithstanding the foregoing, Tenant may offset against Rent any monetary amount that has been finally determined to be due and owing from Landlord to Tenant pursuant to a final, non-appealable judgment of a court of competent jurisdiction, but only to the extent such judgment remains unsatisfied for more than thirty (30) days after Landlord’s receipt of written notice thereof from Tenant. No waiver by Tenant of any violation or breach of any of the terms, provisions and covenants herein contained by Landlord shall be deemed or construed to constitute a waiver of any other violation or breach of any of the terms, provisions and covenants contained herein. Notwithstanding the foregoing, Tenant shall be entitled to seek injunctive relief, specific performance, or other equitable relief to prevent or remedy any Landlord breach that materially affects Tenant’s access, possession, Customer Records, Banking Equipment, Security Systems, or ability to conduct banking operations at the Premises; provided, however, that such equitable relief shall not entitle Tenant to terminate this Lease or to offset or abate Rent except as expressly provided in this Lease.
Landlord Lien
. Landlord hereby waives, releases and relinquishes any and all claims, rights, interests, liens upon and rights of distraint, levy, attachment or recourse (whether arising by virtue of statute, common law or otherwise) against Personal Property and Tenant’s Personal Property. The foregoing waiver, release and relinquishment is self-operative and does not require any further instrument or document. Tenant may, without Landlord’s consent, finance Tenant’s Personal Property through equipment leases, conditional sales contracts, chattel mortgages, security agreements or otherwise. If Tenant shall obtain any such financing, Landlord hereby agrees to execute and deliver to Tenant (or its designee), at Tenant’s sole cost and expense, commercially reasonable waivers of Landlord’s rights and liens as described herein in a form reasonably acceptable to Landlord, within fifteen (15) days after written request by Tenant. For the avoidance of doubt, no property of Tenant’s customers will be subject to a lien, distraint, levy, attachment or recourse from Landlord. For the further avoidance of doubt, Landlord shall have no lien, distraint, levy, attachment, security interest, ownership interest, or recourse against cash, negotiable instruments, Customer Records, ATMs, customer property, safe deposit box contents, Banking Equipment, Security Systems, communications equipment, data, software, records, leased equipment, vendor-owned equipment, or property of Tenant’s customers, employees, vendors, or service providers; provided, however, that nothing
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in this Section 54 shall limit Landlord’s rights or remedies under this Lease with respect to any Event of Default by Tenant.
Locks And Security System
. Tenant shall be permitted to install, or use in substitution, combination, cipher or proximity locks or any other locking mechanism on interior and/or exterior doors at the Premises. Tenant shall also be permitted to install security systems at the Premises, including, but not limited to, pass card door lock systems, camera surveillance systems and other security systems (collectively, “Security Systems”), subject to compliance with the Law. Tenant shall be responsible for the cost of any installation, maintenance or removal of the Security Systems. All such Security Systems shall remain Tenant’s Personal Property and may, at Tenant’s election, be removed by Tenant at the Expiration Date or earlier termination of this Lease, and Tenant shall, at Tenant’s sole cost and expense, repair any damage caused by such installation, maintenance and removal. Landlord shall have no right to access, control, copy, monitor, retrieve, or use Tenant’s alarm codes, access credentials, camera footage, surveillance systems, security protocols, network credentials, or other security-related information, except as expressly approved by Tenant in writing and subject to Tenant’s commercially reasonable security procedures; provided, however, that in an Emergency, Landlord may take reasonable actions necessary to protect life or property.
Communications Equipment
. Tenant may operate and maintain existing telephone, computer and communication equipment and systems and install, operate and maintain, at Tenant’s sole cost and expense, additional telephone, computer and communications equipment and systems on any Building from time to time. Notwithstanding the foregoing, any such installations shall comply with Law. There will be no additional charge for the communication equipment currently located or to be located on the roof of the Buildings. Landlord hereby approves of any communication equipment currently located at the Premises and/or on any Building. Landlord shall not have the right to approve the installation of additional communication equipment at any Building, except to the extent required by Section 14. Tenant agrees to repair any damage arising out of the installation, operation or removal of such communications equipment, and Tenant shall be solely liable for any loss of warranty that may arise as a result of such installation, operation or removal. Subject to the provisions of this Section 56, Tenant shall also have the right to use the roof riser space of any Building. Tenant’s communications rights include the right to install, maintain, replace, upgrade, relocate, and operate telecommunications, data, network, fiber, wireless, security monitoring, ATM/ITM connectivity, disaster recovery, and other communications systems reasonably necessary for Tenant’s banking, administrative, security, regulatory, and operational needs, subject to compliance with Law and the provisions of Section 14.
Force Majeure
. Neither Landlord nor Tenant shall be deemed to be in default of this Lease if such default is due to epidemics, pandemics (other than delays that are reasonably foreseeable and avoidable from COVID-19), strikes, lock-outs, inability to procure materials, power failure, acts of God, earthquakes, floods, storms, wind, radiation, unanticipated and/or unavoidable governmental restrictions affecting the Premises that are not the result of any act or inaction on the part of the party responsible for performing an obligation hereunder, enemy action, civil commotion, fire, unavoidable casualty or condemnation (provided, however, that such party substantially complies with applicable Law and cooperated with the requirements of such governmental authority regarding approvals, permitting, registration, licensing, or similar legal requirements for the conduct of Tenant or Landlord’s business or the construction on or operation of all or any portion of the Premises) (“Force Majeure”); provided, that this provision shall not apply to failures by a party to comply with its respective monetary obligations, which shall include any obligation that can be
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satisfied by the payment of a liquidated sum. Notwithstanding the foregoing, under no circumstances shall an event of Force Majeure entitle Tenant to terminate this Lease based on the common law doctrines of frustration of purpose, impossibility, or otherwise. Nothing in this Section 57 shall limit Tenant’s express rights under this Lease with respect to casualty or condemnation.
Signage
. Landlord hereby approves all signage of Tenant currently existing at the Premises. To the extent not already present, Tenant shall have the right, at Tenant’s sole cost and expense, to install and maintain additional signage on the Premises; provided, however, that all such installations shall be in compliance with applicable Law. Upon expiration or termination of this Lease, Tenant shall remove any signage then existing on the Premises, and Tenant shall be solely responsible for the repair of any damage caused by such removal. Tenant agrees to maintain, repair, and replace each and every sign it elects to erect or maintain on the Premises in as good a condition as it existed on the Commencement Date as to signs existing on the Commencement Date (or on the date that installation is completed as to any signs installed after the Commencement Date, as applicable), reasonable wear and tear excepted, and to repair any damage caused by the installation, maintenance or removal of any such sign. Notwithstanding the foregoing, Tenant shall not be required to repair holes in the Building or walls for electricity to the signage.
Attorneys’ Fees; Prevailing Party
. If either party commences any litigation, arbitration (if and to the extent permitted hereunder) or other action or proceeding in order to enforce the obligations of the other party under this Lease or by reason of the breach of this Lease by such other party, the prevailing party in such action shall be reimbursed for its reasonable attorneys’ fees, expenses and court costs from the non-prevailing party. The “prevailing party” for purposes of this Lease shall be deemed to be that party who obtains substantially the result sought, whether by final dismissal, order or judgment.
Local Law Provisions
.3
[Florida.
Radon Gas. The following notification is provided under Section 404.056(5), Florida Statutes: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county health department.
Lien Prohibition. The interest of Landlord in the Premises shall not be subject in any way to any liens, including construction liens, for alterations or improvements made by or on behalf of Tenant. This exculpation is made with express reference to Section 713.10, Florida Statutes. Nothing contained in this Lease shall be deemed or construed in any way as constituting Landlord’s consent, express or implied, for any contractor or subcontractor to perform any labor or furnish any materials or equipment for any specific improvement, alteration to or repair of the Premises or any part thereof. Furthermore, nothing contained in this Lease shall give Tenant any
3 NTD: Local law provisions to be added as applicable.
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right, power, or authority to contract for, or permit the rendering of, any services or the furnishing of any materials on behalf of Landlord that would give rise to the filing of any lien against the Premises. Tenant represents to Landlord that any improvements that might be made by Tenant to the Premises are not required to be made under the terms of this Lease and that any improvements that may be made by Tenant do not constitute the “pith of the lease” under applicable Florida case law. Tenant shall provide notice of the restriction set forth herein in advance to any and all contractors, subcontractors, or other entities that may furnish any such material, service or labor to the Premises on Tenant’s behalf.]
[Texas.
CALCULATION OF CHARGES. Landlord and Tenant are knowledgeable and experienced in commercial transactions and agree that the provisions set forth in this Lease for determining charges, amounts and additional rent payable by Tenant are commercially reasonable and valid even though such methods may not state a precise mathematical formula for determining such charges. ACCORDINGLY, TENANT HEREBY VOLUNTARILY AND KNOWINGLY WAIVES ALL RIGHTS AND BENEFITS OF TENANT UNDER SECTION 93.012 OF THE TEXAS PROPERTY CODE, AS SUCH SECTION NOW EXISTS OR AS MAY BE HEREAFTER AMENDED OR SUCCEEDED.
WAIVER OF DTPA. TENANT HEREBY WAIVES ITS RIGHTS UNDER THE DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT, SECTION 17.41 ET. SEQ., BUSINESS & COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER CONSULTATION WITH AN ATTORNEY OF TENANT’S OWN SELECTION, TENANT VOLUNTARILY CONSENTS TO THIS WAIVER.
WAIVER OF RIGHT TO PROTEST. TENANT HEREBY WAIVES ANY AND ALL RIGHTS UNDER SECTION 41.413 AND 42.015 OF THE TEXAS TAX CODE GRANTING TO TENANT THE RIGHT TO CONTEST APPRAISED VALUES, OR TO RECEIVE NOTICE OF REAPPRAISED VALUES, ON ALL OR ANY PORTION OF THE BUILDING IRRESPECTIVE OF WHETHER LANDLORD HAS ELECTED TO CONTEST SAME. To the extent such waiver is prohibited by applicable law, Tenant hereby appoints Landlord as Tenant’s attorney in fact, coupled with an interest, to appear and take all actions on behalf of Tenant which Tenant may have under said Section of the Texas Tax Code with respect to the Building, but not with respect to Tenant’s personal property located within the Premises.
WAIVER OF LIEN. TENANT WAIVES ALL LIEN RIGHTS UNDER SECTION 91.004 OF THE TEXAS PROPERTY CODE, AS WELL AS ANY SUCCESSOR STATUTE GRANTING TENANT A LIEN IN LANDLORD’S PROPERTY.]
[Signatures on following page]
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IN WITNESS WHEREOF, the undersigned have executed this Lease Agreement effective as of the date first written above.
LANDLORD:
[●],
a Delaware limited liability company
By:
Name:
Title: Authorized Representative
STATE OF ___________________ )
COUNTY OF _________________ )
I, the undersigned authority, a Notary Public in and for said County in said State, hereby certify that ____________________________, whose name as _____________________ of _________________________________, a Delaware limited liability company, is signed to the foregoing instrument, and who is known to me, acknowledged before me on this day that, being informed of the contents of said instrument, he, as such [officer] and with full authority, executed the same voluntarily for and as the act of said [corporation], acting in its capacity as _________________________ of said limited liability company as aforesaid.
Given under my hand and official seal, this ______ day of _______________, 20___.
Notary Public
AFFIX SEAL
My commission expires: ___________________________
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TENANT:
TRUSTMARK BANK,
a Mississippi banking corporation
By:
Name:
Title:
STATE OF ___________________ )
COUNTY OF _________________ )
I, the undersigned authority, a Notary Public in and for said County in said State, hereby certify that ____________________________, whose name as _____________________ of Trustmark Bank, a Mississippi banking corporation, is signed to the foregoing instrument, and who is known to me, acknowledged before me on this day that, being informed of the contents of said instrument, he, as such [officer] and with full authority, executed the same voluntarily for and as the act of said [corporation], acting in its capacity as _________________________ of said limited liability company as aforesaid.
Given under my hand and official seal, this ______ day of _______________, 20___.
Notary Public
AFFIX SEAL
My commission expires: ___________________________
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EXHIBIT A
TO
LEASE AGREEMENT
Base Rent Schedule
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EXHIBIT B
TO
LEASE AGREEMENT
LEGAL DESCRIPTION
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EXHIBIT C
TO
LEASE AGREEMENT
GENERAL REQUIREMENTS AND CONDITIONS
All provisions of this Exhibit are expressly subject to the provisions in the Lease above governing any work performed by Tenant (or an Affiliate of Tenant, as the case may be) on its own behalf, including Alterations or any casualty or condemnation restoration (“Tenant’s Work”). In the event of any conflict between the Lease and this Exhibit, the Lease shall control.
Tenant’s Work will be performed by Tenant in substantial accordance with final Plans approved by Landlord (where such approval is required in the Lease) and the terms of the General Construction Contract (where approval of the General Construction Contract is required by this Lease) applicable to such Tenant’s Work. Tenant or Tenant’s General Contractor(s), if applicable, shall secure and pay for all necessary permits, inspections, certificates, legal approvals, certificates of occupancy and/or fees required by Law and/or utility companies with respect to Tenant’s Work.
A. General Requirements
1. All Tenant’s Work shall be completed in a good and workmanlike manner and in accordance with the Plans as approved by Landlord (where such approval is required by this Lease).
2. Tenant and Tenant’s General Contractor, if applicable, shall provide all insurance required by Landlord as set forth in this Lease prior to the start of any construction work within the Premises. Landlord and Landlord Mortgagee shall each be named as an additional insured in all such insurance.
3. Tenant shall, at all times, keep or cause to be kept the Premises and the surrounding area reasonably free from accumulations of waste materials and/or rubbish caused by it or its contractors’ employees or workers. Tenant and/or its contractors shall provide, if required in Tenant’s or its contractor’s reasonable opinion, dumpsters and maintenance of said dumpsters during the construction period in a secure, neat and orderly condition and shall remove and empty the same on a regular basis to avoid unsightly, obstructive or hazardous accumulations or conditions.
B. Approval of Plans
1. If Tenant is required to (a) obtain Landlord’s approval of any Tenant’s Work under the terms of this Lease, and (b) obtain Landlord’s approval of Plans for such Tenant’s Work, Tenant shall first furnish Landlord with plans for the performance of the Tenant’s Work prior to the commencement of such Tenant’s Work that specifically identifies the applicable plans and contains the following statement in bold and capital letters: “THIS IS A REQUEST FOR APPROVAL PURSUANT TO THE PROVISIONS OF SECTION B.1 OF EXHIBIT C TO THE LEASE BETWEEN THE UNDERSIGNED TENANT AND LANDLORD AND LANDLORD’S RESPONSE IS REQUESTED WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF THE LEASE.” (the “Initial Request”). Landlord shall endeavor, within ten (10) business days after Landlord receives the Initial Request from or on behalf of Tenant, to notify Tenant in writing if Landlord objects to such plans, the details of such objection, and the
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changes required to make such plans and specifications acceptable to Landlord (such notice, an “Objection Notice”). If Landlord does not respond within ten (10) business days following its receipt of an Initial Request, Tenant may send an additional written request to Landlord (a “Second Request”) that specifically identifies the applicable plans and contains the following statement in bold and capital letters: “THIS IS A SECOND REQUEST FOR APPROVAL PURSUANT TO THE PROVISIONS OF SECTION B.1 OF EXHIBIT C TO THE LEASE. IF LANDLORD FAILS TO RESPOND WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF THIS NOTICE, THEN LANDLORD SHALL BE DEEMED TO HAVE APPROVED THE PLANS AS DESCRIBED HEREIN.” If Landlord fails to respond to such Second Request within five (5) business days after Landlord’s receipt thereof, the plans shall be deemed approved by Landlord. If Landlord timely delivers an Objection Notice to Tenant, Tenant may make necessary revisions and resubmit the same to Landlord. Landlord shall endeavor to approve or send an Objection Notice with respect to such revised plans within five (5) business days after Tenant submits the same to Landlord; provided that such revised plans shall be considered an Initial Request for the purposes of deemed approval of the same and be subject to the same notice requirements (including the requirement for a Second Request) as set forth above. This process shall continue until Landlord has approved (or been deemed to have approved) Tenant’s plans.
C. Construction Procedures
1. When submitting construction Plans (preliminary, completed or final), Tenant or Tenant’s appointed representative shall issue Tenant’s Plans and supporting documents electronically via email to Landlord’s construction coordinator.
2. Once the applicable Plans are approved by Landlord, except for (A) changes required by governmental authorities having jurisdiction over the Premises or (B) changes requested by Tenant, and in each case which would not lessen the value of the Premises, with respect to a General Construction Contract which requires Landlord’s approval under this Lease: Tenant shall not (i) amend, modify or supplement the applicable General Construction Contract in any material respect, except pursuant to change orders approved by Landlord, and (ii) shall not attempt to terminate, whether by legal proceedings or otherwise, the applicable General Construction Contract without the prior written consent of Landlord, which shall not be unreasonably withheld, conditioned or delayed.
3. Not later than ninety (90) days after the Final Completion of the applicable Tenant’s Work, Tenant shall deliver or cause to be delivered to Landlord (with a copy to Landlord’s consultant) each of the following (1) a certificate addressed to Landlord, signed by a duly authorized officer of Tenant and the applicable Architect or General Contractor (but only if such General Contractor is a design-builder for the applicable Tenant’s Work), stating that the Tenant’s Work (and any equipment therein) including all “punch list” items have been completed and installed in accordance with the applicable Plans therefor; (2) a complete release of liens for the Premises signed by the General Contractor and all subcontractors of the Tenant’s Work in excess of $5,000.00 and Tenant shall, if a release is not obtainable, in lieu of such release cause such lien to be removed of record by bond or otherwise so that such lienor has no recourse for recovery from or collection out of the Premises; (3) evidence of receipt of a certificate of occupancy, if available, or comparable instruments, by all governmental authorities whose approval is required of the applicable completed Tenant’s Work for the occupancy thereof and the intended uses thereof; (4) if applicable, a volume containing all warranties and indemnities from the applicable General
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Contractor or manufacturer for the applicable Tenant’s Work or equipment therein (excepting therefrom any of Tenant’s Personal Property), each of which shall be enforceable by Landlord and all in customary form for the jurisdiction in which the Premises is situated; (5) final as-built Plans if Tenant’s Work alters the existing footprint or elevation of a Building and, in the event that the Tenant’s Work has modified the footprint of the Building, an as-built ALTA-ACSM Land Title Survey for the Premises indicating the applicable Tenant’s Work thereon, together with a surveyor’s certification in a customary form as reasonably satisfactory to Landlord; and (6) a title commitment dated no earlier than the date that is thirty (30) days after Final Completion and which title commitment shall not disclose any mechanics’ liens affecting the Property, except that with respect to any bona fide dispute with the applicable General Contractor or any such subcontractor that has resulted in a lien, Tenant shall, if a release is not obtainable, in lieu of such release cause such lien to be removed of record by bond or otherwise so that such lienor has no recourse for recovery from or collection out of the Premises.
4. Tenant hereby agrees to indemnify, save harmless, pay, protect and defend Landlord from and against any and all Losses of any nature whatsoever under this Lease or Landlord’s ownership of the Premises arising from or in connection with (a) any General Construction Contract, if any, and any and all construction contracts or architect’s agreement or resulting from the failure of Tenant to discharge Tenant’s obligations thereunder or resulting from the failure of Tenant to perform its obligations under this Lease with respect to any instance of Tenant’s Work, and (b) construction and completion of Tenant’s Work, whether by reason of any act or omission of Tenant, the General Contractor, Architect or by any other contractor, subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable.
5. Tenant’s Work shall comply in all respects with applicable Law.
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EXHIBIT D
TO
LEASE AGREEMENT
FORM OF TENANT ESTOPPEL CERTIFICATE
This ESTOPPEL CERTIFICATE (this “Estoppel”) is made as of ________________, by [ ], a [ ] (“Tenant”), based upon the following facts and understandings of Tenant:
RECITALS
A. Tenant is the tenant under that certain Lease Agreement (the “Lease”), dated as of _______________, 20___, between Tenant and [________], a Delaware limited liability company, as landlord (“Landlord”) of certain real property commonly known as _______________, and as more particularly described in the Lease (the “Property”).
B. Landlord has requested that Tenant provide this Estoppel pursuant to Section 27 of the Lease.
C. [IF APPLICABLE] Landlord has agreed to convey the Property to _____________, a ______________ (“Purchaser”). As a condition to Purchaser purchasing the Property, Purchaser has required that Tenant furnish certain assurances to, and make certain agreements with, Purchaser, as set forth below.
D. [IF APPLICABLE] [Landlord] [Purchaser], as borrower or as co-borrower with one or more other co-borrower(s), has applied to __________________, a ______________ (together with its successors and assigns, “Lender”) for a loan (“Loan”), which will be secured by, among other things, a mortgage, encumbering the Property. As a condition to making the Loan, Lender has required that Tenant furnish certain assurances to Lender, as set forth below.
E. Capitalized terms used but not otherwise defined herein shall have the definitions given such terms pursuant to the terms of the Lease.
THEREFORE, [as a material inducement to Lender to make the Loan and Purchaser to purchase the Property], Tenant certifies to Landlord [Lender] and [Purchaser] as follows as of the date hereof:
1. ESTOPPEL.
1.1 Agreements Effective. Attached hereto as Exhibit A is a true, complete and accurate copy of the Lease. The Lease has been duly executed and delivered by Tenant and is in full force and effect, and there have been no modifications or additions to the Lease, written or oral, other than those, if any, which are attached on Exhibit A attached hereto and made a part hereof. There are no other promises, agreements, understandings or commitments between Landlord and Tenant relating to the Property other than as set forth in the Lease, and Tenant has not given Landlord any notice of termination under the Lease.
1.2 Possession. Except as set forth in Exhibit B attached hereto and made a part hereof, Tenant is in full and complete possession of the Property and has accepted the Property, including any tenant improvements or other work of Landlord performed thereon pursuant to the terms and provisions of the Lease. There are no contributions, credits, free rent, rent abatements, deductions, concessions, rebates, unpaid or unreimbursed construction
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allowances, offsets or other similar sums due to Tenant from Landlord under the Lease, except __________________________________________________.
1.3 Minimum Rent. The current monthly Base Rent under the Lease is $__________, subject to any escalation and/or additional Rent charges provided in the Lease, and such Base Rent is current as of the date hereof.
1.4 Additional Rent. The current monthly additional Rent under the Lease is $__________, and such additional Rent is current within thirty (30) days as of the date hereof.
1.5 Rental Payment Commencement Date. The Base Rent stated in Section 1.3 above began on _______________, 20___.
1.6 [Reserved].
1.7 Commencement Date. The Term of the Lease commenced on _______________, 20___.
1.8 Expiration Date. The Term of the Lease will expire on _______________ (unless sooner terminated or extended in accordance with the Lease).
1.9 Options to Renew or Extend. Tenant has no option to renew or extend the Term of the Lease, except as follows: ____________________ (if none, write “None”).
1.10 No Default. There exists no breach, default, or event or condition which, with the giving of notice or the passage of time or both, would constitute a breach or default under the Lease by Tenant or, to Tenant’s actual knowledge, Landlord, except as follows: __________________(if none, write “None”). To Tenant’s actual knowledge, Tenant has no existing claims, defenses or offsets against Rent due or to become due under the Lease, except as follows: __________________(if none, write “None”). When the phrase “to Tenant’s actual knowledge” or similar language is used in this Estoppel, such phrase shall be limited to the actual knowledge of ___________, without any duty of investigation by such individual and without liability to such individual.
1.11 Entire Agreement. The Lease constitutes the entire agreement between Landlord and Tenant with respect to the Property, and Tenant claims no rights of any kind whatsoever with respect to the Property, other than as set forth in the Lease, except as follows: __________________(if none, write “None”).
1.12 No Deposits or Prepaid Rent. No deposits, including security deposits, or prepayments of Rent have been made in connection with the Lease, except: ___________________ (if none, write “None”). None of the Rent has been paid more than one (1) month in advance of the due date thereof.
1.13 No Purchase Option or Preferential Right to Purchase. Tenant does not have any option or preferential right to purchase all or any part of the Property.
1.14 Authority. The undersigned representatives of Tenant are each duly authorized and fully qualified to execute this instrument on behalf of Tenant thereby binding Tenant.
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1.15 Financial Condition; Bankruptcy. To Tenant’s actual knowledge, there are no voluntary or involuntary actions pending against Tenant under the bankruptcy laws of the United States or any state thereof.
2. HEIRS, SUCCESSORS AND ASSIGNS. The certifications herein shall be binding upon, and inure to the benefit of, the heirs, successors and assigns of the parties hereto. Whenever necessary or appropriate to give logical meaning to a provision of this Estoppel, the term “Landlord” shall be deemed to mean the then current owner of the Property and the landlord’s interest in the Lease.
[Signature Page to Follow]
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IN WITNESS WHEREOF, Tenant has executed this instrument as of the date first listed above.
TENANT:
[____________________________],
a [___________________________]
By:
Name:
Title:
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EXHIBIT A
TO
ESTOPPEL CERTIFICATE
LEASE AND AMENDMENTS (IF ANY)
[Attached]
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EXHIBIT B
TO
ESTOPPEL CERTIFICATE
SUBLEASES (IF ANY)
[Attached]
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EXHIBIT E
TO
LEASE AGREEMENT
FORM OF MEMORANDUM OF LEASE
RECORD AND RETURN TO:
__________________________
__________________________
__________________________
MEMORANDUM OF LEASE AGREEMENT
THIS MEMORANDUM OF LEASE AGREEMENT (this “Memorandum”) is made as of this ____ day of _____________, 20___, by and between [________], a Delaware limited liability company (“Landlord”), and Trustmark Bank, a Mississippi banking corporation (“Tenant”).
1. Memorandum of Lease of Premises. This Memorandum is recorded in connection with, and as evidence of, that certain Lease Agreement (the “Lease”) dated as of _________ _________, 20___, as may be amended from time to time, by and between Landlord and Tenant for that certain real property and the improvements thereon described on Exhibit A attached hereto and made a part hereof (the “Premises”). The Lease is incorporated by reference into this Memorandum. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Lease.
2. Lease Term and Certain Other Provisions. The initial Term of the Lease commenced on ____________________, 20___ and expires on _________________, 20___. Tenant has [ ] options to extend the initial Term of the Lease pursuant to the applicable provisions thereof for an additional term of [ ] years each.
3. Recharacterization. If, notwithstanding (a) the form and substance of the Lease and (b) the intent of the parties, and the language contained therein providing that the Lease shall at all times be construed, interpreted and applied to create an indivisible lease of all of the Premises, any court of competent jurisdiction finds that the Lease is a financing arrangement, the Lease shall be considered a secured financing agreement and Landlord’s title to the Premises and this Memorandum shall constitute a perfected first priority lien in Landlord’s favor to secure the payment and performance of all the obligations of Tenant thereunder, as more particularly detailed in [Section 7] of the Lease.
4. Purpose of Memorandum; Conflicting Provisions. The purpose of this Memorandum is to make the Lease a matter of public record. If a provision of this Memorandum conflicts with a provision in the Lease, the provision in the Lease will control.
5. Landlord’s Declaration. Upon expiration of the Term or the earlier termination of the Lease, Landlord may unilaterally execute and record a declaration indicating that the Term has expired, or the Lease has been earlier terminated, as applicable, which recorded declaration shall be conclusive proof that the Term has expired or the Lease has been earlier terminated, as applicable.
6. Counterparts. This Memorandum may be executed in multiple counterparts, each of which shall be deemed an original instrument, and all of which, taken together, shall constitute one and the same
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instrument. The signature of a party hereto to any counterpart hereof shall be deemed a signature to, and may be appended to, any other counterpart hereof.
[Signature Pages Follow]
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Memorandum of Lease Agreement as of the day and year first above written.
LANDLORD:
[________], a Delaware limited liability company
By:
Name:
Title:
STATE OF ___________________ )
COUNTY OF _________________ )
I, the undersigned authority, a Notary Public in and for said County in said State, hereby certify that ____________________________, whose name as _____________________ of _________________________________, a Delaware limited liability company, is signed to the foregoing instrument, and who is known to me, acknowledged before me on this day that, being informed of the contents of said instrument, he, as such [officer] and with full authority, executed the same voluntarily for and as the act of said [corporation], acting in its capacity as _________________________ of said limited liability company as aforesaid.
Given under my hand and official seal, this ______ day of _______________, 20___.
Notary Public
AFFIX SEAL
My commission expires: ___________________________
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TENANT:
Trustmark bank,
a Mississippi banking corporation
By:
Name:
Title:
STATE OF ___________________ )
COUNTY OF _________________ )
I, the undersigned authority, a Notary Public in and for said County in said State, hereby certify that ____________________________, whose name as _____________________ of Trustmark Bank, a Mississippi banking corporation, is signed to the foregoing instrument, and who is known to me, acknowledged before me on this day that, being informed of the contents of said instrument, he, as such [officer] and with full authority, executed the same voluntarily for and as the act of said [corporation], acting in its capacity as _________________________ of said limited liability company as aforesaid.
Given under my hand and official seal, this ______ day of _______________, 20___.
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EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
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EXHIBIT F
TO
LEASE AGREEMENT
FORM OF LANDLORD ESTOPPEL
This ESTOPPEL CERTIFICATE (this “Estoppel”) is made as of _______________, by [ ], a Delaware limited liability company (“Landlord”), based upon the following facts and understandings of Landlord:
RECITALS
A. Landlord is the landlord under that certain Lease Agreement (the “Lease”), dated as of _______________, 20___, between Landlord and [________________], a [______________], as tenant (“Tenant”) of certain real property commonly known as [●], and as more particularly described in the Lease (the “Property”).
B. Tenant has requested that Landlord provide this Estoppel pursuant to Section 27 of the Lease.
C. [IF APPLICABLE] [Tenant, as borrower or as co-borrower with one or more other co-borrower(s), has applied to __________________, a ______________ (together with its successors and assigns, “Lender”) for a loan (“Loan”), which will be secured by, among other things, a mortgage, encumbering Tenant’s leasehold interest in the Property. As a condition to making the Loan, Lender has required that Landlord furnish certain assurances to Lender, as set forth below.] [Tenant, as assignor, is assigning its interest in this Lease to __________, a ________ (together with its successors and assigns, “Assignee”). As a condition of the assignment of this Lease to Assignee, Assignee has required that Landlord furnish certain assurances to Assignee, as set forth below.] [Tenant, as sublandlord, is subleasing a portion of the Property to __________, a ________ (together with its successors and assigns, “Subtenant”). As a condition of the sublease to Subtenant, Subtenant has required that Landlord furnish certain assurances to Subtenant, as set forth below.]
D. Capitalized terms used but not otherwise defined herein shall have the definitions given such terms pursuant to the terms of the Lease.
THEREFORE, [as a material inducement to Lender to make the Loan] [as a material inducement to Assignee to accept the assignment of the Lease] [as a material inducement to Subtenant to sublease a portion of the Property], Landlord certifies to, Tenant [Lender] [Assignee] [Subtenant], as of the date hereof, that:
1. ESTOPPEL.
1.1 Agreements Effective. Attached hereto as Exhibit A is a true, complete and accurate copy of the Lease. The Lease has been duly executed and delivered by Landlord and is in full force and effect, and there have been no modifications or additions to the Lease, written or oral, other than those, if any, which are attached on Exhibit A attached hereto and made a part hereof. There are no other promises, agreements, understandings or commitments between Landlord and Tenant relating to the Property other than as set forth in the Lease, and Landlord has not given Tenant any notice of termination under the Lease.
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1.2 Minimum Rent. The current monthly Base Rent under the Lease is $__________, subject to any escalation and/or additional Rent charges provided in the Lease, and such Base Rent is current as of the date hereof.
1.3 Rental Payment Commencement Date. The Base Rent stated in Section 1.2 above began on _______________, 20___.
1.4 Commencement Date. The Term of the Lease commenced on _______________, 20___.
1.5 Expiration Date. The Term of the Lease will expire on _______________ (unless sooner terminated or extended in accordance with the Lease).
1.6 Options to Renew or Extend. Tenant has no option to renew or extend the Term of the Lease, except as set forth in the Lease or as follows: ____________________ (if none, write “None”).
1.7 No Default. There exists no breach, default, or event or condition which, with the giving of notice or the passage of time or both, would constitute a breach or default under the Lease by Landlord or, to Landlord’s knowledge, Tenant, except as follows: __________________ (if none, write “None”).
1.8 Entire Agreement. The Lease constitutes the entire agreement between Landlord and Tenant with respect to the Property.
1.9 Authority. The undersigned representative(s) of Landlord are each duly authorized and fully qualified to execute this instrument on behalf of Landlord thereby binding Landlord.
1.10 Bankruptcy. There are no voluntary or involuntary actions pending against Landlord under the bankruptcy laws of the United States or any state thereof.
[Signature Page to Follow]
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IN WITNESS WHEREOF, Landlord has executed this instrument as of the date first listed above.
LANDLORD:
[____________________________],
a [___________________________]
By:
Name:
Title:
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EXHIBIT A
TO
ESTOPPEL CERTIFICATE
LEASE AND AMENDMENTS (IF ANY)
[Attached]
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EXHIBIT G
TO
LEASE AGREEMENT
REQUIRED REPAIRS
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EXHIBIT H
TO
LEASE AGREEMENT
EXISTING SUBLEASES AND CURRENT USES
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EXHIBIT C
ASSIGNMENT OF LICENSES, PERMITS,
PLANS, CONTRACTS AND WARRANTIES
THIS ASSIGNMENT OF LICENSES, PERMITS, PLANS, CONTRACTS AND WARRANTIES (this “Assignment”) is entered into and effective as of the _____ day of _______________, 2026, by TRUSTMARK BANK, a ______________, having a mailing address at 248 East Capitol Street, Suite 1006, Jackson MS 39201 (“Assignor”) in favor of __________________, a __________, having a mailing address at ____________________ (“Assignee”).
W I T N E S S E T H:
WHEREAS, Assignor has this day conveyed to Assignee certain real property situate in *** County, ***, more particularly described on Exhibit A attached hereto and made a part hereof, together with all improvements thereon (the “Real Property”); and
WHEREAS, in conjunction with the conveyance of the Real Property, Assignor has agreed to assign all of its right, title and interest in and to certain licenses, permits, plans, contracts and warranties relating to the design, development, construction, ownership, operation, management and use of the Real Property.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties agree as follows:
1. Assignment. Assignor does, to the extent permitted by law, hereby transfer, assign and set over to Assignee to the extent assignable all of Assignor’s right, title and interest in and to (i) all general intangibles relating to the design, development, construction, ownership, operation, management and use of the Real Property, (ii) all certificates of occupancy, zoning variances, licenses, building, use or other permits, approvals, authorizations and consents obtained from and all materials prepared for filing or filed with any governmental agency in connection with the design, development, construction, ownership, operation, management and use of the Real Property, (iii) all architectural drawings, plans, specifications, soil tests, feasibility studies, appraisals, engi neering reports and similar materials relating to the Real Property, to the extent in Assignor’s actual possession and (iv) all contract rights (including without limitation rights to indemnification), payment and performance bonds or warranties or guaranties relating to the Real Property (the items described in this Section 1 being hereinafter referred to as the “Licenses, Permits, Plans, Contracts and Warranties”). This Assignment is made without representation or warranty of any kind, express or implied.
2. Further Assurances. Assignor shall, at the sole cost and expense of Assignee, reasonably cooperate with Assignee to establish the rights of Assignee hereunder; provided, however, that Assignor shall have no obligation to (i) incur any material out-of-pocket expense (unless reimbursed by Assignee), (ii) commence or participate in any litigation, or (iii) take any action that would impose any liability or obligation on Assignor. With respect to any of the Licenses, Permits, Plans, Contracts and Warranties that are, by their terms, not assignable to Assignee, Assignor shall, at the sole cost and expense of Assignee, reasonably cooperate with Assignee to obtain the benefits thereof for Assignee, but Assignor shall not be required to remain a party to or guarantor of any such agreement.
3. Binding Effect. This Assignment shall be binding upon and inure to the benefit of Assignor, Assignee and their respective successors and assigns. This document may be executed via electronic signature and, upon receipt, will be deemed original and binding upon the signatory hereto. The
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electronic signature shall for all purposes have the same validity, legal effect and admissibility in evidence as an original inked or “wet” signature, and the parties hereby waive any objection to the contrary.
[SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as of the date first above written.
ASSIGNOR:
[__________________],
a[________________]
By:
Name:
Title:
ASSIGNEE:
[________________],
a Delaware limited liability company
By:
Name:
Title:
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EXHIBIT D
FORM OF DEED FOR PREMISES LOCATED IN: ALABAMA, FLORIDA, MISSISSIPPI, TENNESSEE AND TEXAS
Alabama Form of Deed:
THIS INSTRUMENT WAS PREPARED
BY AND SHOULD BE RETURNED TO:
Attn:
STATE OF ALABAMA
COUNTY OF ___________
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS:
THAT __________________________, a ________________________, whose mailing address is _____________________________, hereinafter referred to as “Grantor,” for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) cash, and other good and valuable consideration to Grantor in hand paid by __________________________, a ________________________, whose mailing address is __________________________, hereinafter referred to as “Grantee,” has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY unto the said Grantee all that certain lot, tract, or parcel of land situated in ___________________ County, Alabama, more particularly described on Exhibit A attached hereto;
TOGETHER WITH all of the improvements, tenements, hereditaments, mineral rights and appurtenances belonging or in any way appertaining to such real property, and all of Grantor’s right, title and interest in and to (i) any and all property lying in a bed of any street, road or avenue, open or proposed, in front of or adjoining such real property to the center line thereof, (ii) any strips and gores of land adjacent to, abutting or used in connection with such real property, (iii) mineral rights, and (iv) any easements and rights, if any, inuring to the benefit of such real property or to Grantor in connection therewith (the land and all of the foregoing being hereinafter referred to as the “Property”);
PROVIDED, HOWEVER, that this conveyance is made and accepted subject to (i) taxes and assessments not yet due and payable, (ii) zoning and other governmental regulations, ordinances, codes, rules and requirements, (iii) covenants, conditions, restrictions, easements, agreements, rights of way and other matters of record, and (iv) all matters which would be disclosed by a survey of the Property (collectively, the “Permitted Encumbrances”), without intending to reimpose same.
TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging to Grantor, unto the said Grantee, Grantee’s successors and assigns in fee simple forever;
D-1
AND Grantor does hereby covenant with Grantee that Grantor is lawfully seized of the Property in fee simple and has good right and lawful authority to sell and convey the Property, and Grantor does hereby bind itself and its successors to Warrant and Forever Defend all and singular the Property unto the said Grantee, Grantee’s successors and assigns, against every person whomsoever lawfully claiming by, through or under the said Grantor, but against no other, subject, however, to the Permitted Encumbrances.
EXECUTED as of this ____ day of ____________, 2026.
D-2
IN WITNESS WHEREOF, the said Grantor has caused these presents to be executed in its name, the day and year first above written.
GRANTOR:
________________________,
a ______________________
By:
Name:
Title:
(CORPORATE SEAL)
STATE OF )
COUNTY OF )
I, the undersigned Notary Public in and for said County, in said State, hereby certify that _______________________, whose name as ____________________ of __________________________, a _________________________, is signed to the foregoing conveyance, and who is known to me, acknowledged before me on this day that, being informed of the contents of the conveyance, he/she, as such ____________________ and with full authority, executed the same voluntarily for and as the act of said limited liability company.
Given under my hand and official seal this ______ day of ___________, 2026.
NOTARY PUBLIC
My Commission Expires:
D-3
EXHIBIT A
PROPERTY
Florida Form of Deed:
THIS INSTRUMENT WAS PREPARED
BY AND SHOULD BE RETURNED TO:
Attn:
Parcel Identification Number: _________________
SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED, is made and entered into as of this ____ day of ______________, 2026, by ______________________, a ____________________, whose mailing address is _____________________ (the “Grantor”), to ______________________, a ____________________, whose mailing address is _____________________ (the “Grantee”).
W I T N E S S E T H:
THAT Grantor, for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged by Grantor, by these presents, does hereby grant, bargain, sell, alien, remise, release, convey and confirm to Grantee all that certain land situated in _____________ County, Florida, more particularly described as follows, together with all improvements located thereon (the “Property”):
SEE EXHIBIT “A” ATTACHED HERETO AND INCORPORATED HEREIN BY THIS REFERENCE
TOGETHER with all the tenements, hereditaments and appurtenances belonging or in anywise appertaining to the Property, including, but not limited to, Seller’s right, title, and interest, if any, in and to all strips and gores and any land lying in the bed of any street, road or alley, open or proposed, adjoining such Property, riparian and other water rights, and all minerals, oil, gas, other hydrocarbons and associated substances, sulphur, nitrogen, carbon dioxide, helium and other commercially valuable substances, if any, which may be in, under or produced from any part of the Property.
TO HAVE AND TO HOLD the same in fee simple, forever. The Property is subject to (i) taxes and assessments not yet due and payable, (ii) zoning and other governmental regulations, ordinances, codes, rules and requirements, (iii) covenants, conditions, restrictions, easements, agreements, rights of way and other matters of record, and (iv) all matters which would be disclosed by a survey of the Property (collectively, the “Permitted Encumbrances”), without intending to reimpose same.
AND Grantor hereby covenants with Grantee that Grantor is lawfully seized of the Property in fee simple, that Grantor has good right and lawful authority to sell and convey the Property, that Grantor hereby fully warrants the title to the Property subject to the Permitted Encumbrances and will defend the same against the lawful claims of all persons under the Grantor but against none other.
D-4
[Signature page follows]
D-5
IN WITNESS WHEREOF, Grantor has executed this Special Warranty Deed as of the day and year first above written.
WITNESSES:
Printed Name: Address:
Printed Name: Address:
|
GRANTOR: , a ____________________
By: Name: Title: |
STATE OF )
COUNTY OF )
I hereby certify that the foregoing instrument was acknowledged before me by means of
[X] physical presence or [ ] online notarization, this _______ day of _____________, 2026, by _______________, as ______________ of ______________________, a _______________________, on behalf of said company. He/She [X] is personally known to me, or [ ] has produced __________________________________ as identification.
Affix Notary Stamp/Seal Below:
Notary Public; State of
Print Name:
My commission expires:
D-6
EXHIBIT “A”
LEGAL DESCRIPTION OF PROPERTY
Mississippi Form of Deed:
Prepared by and after recording return to: |
Co-Prepared By:
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Attn: |
Attn: , Esq. |
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Telephone No. |
Telephone No. |
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MS Bar # |
INDEXING INSTRUCTIONS: To the Chancery Clerk of ___________ County, Mississippi: [________________________]
Grantor: _______________________, a _________________________
_____________________
_____________________
Telephone No. _________
Grantee: _______________________, a _________________________
_____________________
_____________________
Telephone No. _________
SPECIAL WARRANTY DEED
STATE OF MISSISSIPPI §
§ KNOW ALL BY THESE PRESENTS:
COUNTY OF ___________ §
THIS SPECIAL WARRANTY DEED is made effective the _____ day of ____________, 2026. THAT, FOR AND IN CONSIDERATION of the sum of Ten and no/100 dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of all of which is hereby acknowledged, __________________________, a ________________________ (“Grantor”), does hereby GRANT, BARGAIN, SELL, FOREVER CONVEY AND WARRANT SPECIALLY, unto _________________________, a ________________________ (“Grantee”), that certain tract of real property located in the County of ___________________, State of Mississippi, as more particularly described on Exhibit A attached hereto, incorporated herein, and made a part hereof for all purposes, together with any and all rights and appurtenances thereto in any way belonging, and all of the improvements located thereon (said real property, together with said improvements, rights, and appurtenances, being herein collectively referred to as the “Property”).
TO HAVE AND TO HOLD the Property unto Grantee and Grantee’s administrators, legal representatives, successors and assigns forever, subject to the matters herein stated; and Grantor does hereby bind itself and its successors and assigns to WARRANT AND FOREVER DEFEND all and singular
D-7
the Property unto Grantee and Grantee’s administrators, legal representatives, successors and assigns, against every person lawfully claiming or to claim the same or any part thereof by, through or under Grantor, but not otherwise; provided, that this conveyance and the warranty of Grantor herein contained are subject to (a) all matters of record, (b) the 2026 and subsequent years ad valorem taxes which are assumed by the Grantee; and (c) any current tenants in possession of the Property.
[Signature page follows]
D-8
WITNESS the signature of the Grantor the day and year set forth below but effective as of the day and year first above written.
GRANTOR:
________________________,
a ______________________
By:
Name:
Title:
STATE OF )
COUNTY OF )
Personally appeared before me, the undersigned authority in and for the said county and state, on this ______ day of ___________, 2026, within my jurisdiction, the within named ________________, who acknowledged to me that he/she is the __________________ of ___________________, a _______________________, and that in said representative capacity he/she executed the above and foregoing instrument, after having been duly authorized so to do.
(Notary Public)
Print Name:
My Commission Expires:
D-9
EXHIBIT A
PROPERTY
Tennessee Form of Deed:
THIS INSTRUMENT PREPARED BY
AND WHEN RECORDED RETURN TO:
Attn:
ADDRESS OF NEW OWNER: |
SEND TAX BILL TO: |
MAP-PARCEL: |
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SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS:
THAT _____________________, a ______________________, whose mailing address is ________________________, hereinafter referred to as “Grantor,” for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) cash, and other good and valuable consideration to Grantor in hand paid by _____________________, a ______________________, whose mailing address is ________________________, hereinafter referred to as “Grantee,” has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY unto the said Grantee all that certain lot, tract, or parcel of land situated in ______________ County, Tennessee, more particularly described on Exhibit A attached hereto (the “Property”);
TOGETHER WITH all of the improvements, tenements, hereditaments, mineral rights and appurtenances belonging or in any way appertaining to such real property, and all of Grantor’s right, title and interest in and to (i) any and all property lying in a bed of any street, road or avenue, open or proposed, in front of or adjoining such real property to the center line thereof, (ii) any strips and gores of land adjacent to, abutting or used in connection with such real property, mineral rights, and (iii) any easements and rights, if any, inuring to the benefit of such real property or to Grantor in connection therewith;
PROVIDED, HOWEVER, that this conveyance is made and accepted subject to (i) taxes and assessments not yet due and payable, (ii) zoning and other governmental regulations, ordinances, codes, rules and requirements, (iii) covenants, conditions, restrictions, easements, agreements, rights of way and other matters of record, and (iv) all matters which would be disclosed by a survey of the Property (collectively, the “Permitted Encumbrances”), without intending to reimpose same.
TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging to Grantor, unto the said Grantee, Grantee’s successors and assigns in fee simple forever;
D-10
AND Grantor does hereby covenant with Grantee that Grantor is lawfully seized of the Property in fee simple and has good right and lawful authority to sell and convey the Property, and Grantor does hereby bind itself and its successors to Warrant and Forever Defend all and singular the Property unto the said Grantee, Grantee’s successors and assigns, against every person whomsoever lawfully claiming by, through or under the said Grantor, but against no other, subject, however, to the Permitted Encumbrances.
This is improved property, located at _______________________________.
EXECUTED as of this ____ day of _____________, 2026.
D-11
IN WITNESS WHEREOF, the said Grantor has caused these presents to be executed in its name, the day and year first above written.
GRANTOR:
________________________,
a ______________________
By:
Name:
Title:
(CORPORATE SEAL)
STATE OF )
COUNTY OF )
Before me, the undersigned, a Notary Public of said County and State, personally appeared ___________________, with whom I am personally acquainted, who, upon oath, acknowledged himself/herself to be the _________________ of ______________________, a __________________, the within-named bargainor, and that as such executed the foregoing instrument for the purposes therein contained, by signing the name of the within named bargainor, and on its behalf, by himself/herself as ________________.
WITNESS my hand and seal, at office, this _______ day of ____________, 2026.
Notary Public
My commission expires:
D-12
I, or we, hereby swear or affirm that, to the best of affiant’s knowledge, information and belief, the actual consideration for this transfer or value of the property transferred, whichever is greater, is $__________________ which amount is equal to or greater than the amount which the property transferred would command at a fair and voluntary sale.
Affiant:
________________________,
a ______________________
By:
Name:
Title:
Subscribed and sworn to before me this ________ day of _____________, 2026.
Notary Public, State of
Typed or Printed Name
My commission expires:
(SEAL)
D-13
EXHIBIT A
PROPERTY
Being the same property conveyed to ___________________, a _______________________, by Warranty Deed from ___________________, a _______________________, of record in Book __________, Page ___________, in the Register’s Office of ____________ County, Tennessee.
Texas Form of Deed:
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER’S LICENSE NUMBER.
SPECIAL WARRANTY DEED
THIS INSTRUMENT PREPARED BY
AND WHEN RECORDED RETURN TO:
Attn:
STATE OF TEXAS §
COUNTY OF ________ §
KNOW ALL MEN BY THESE PRESENTS:
THAT _______________________, a __________________________, whose mailing address is ________________________________, hereinafter referred to as “Grantor,” for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) cash, and other good and valuable consideration to Grantor in hand paid by _______________________, a __________________________, whose mailing address is ________________________________, hereinafter referred to as “Grantee,” has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY unto the said Grantee all that certain lot, tract, or parcel of land situated in _______________ County, Texas, more particularly described on Exhibit A attached hereto;
TOGETHER WITH all of the improvements, tenements, hereditaments, mineral rights and appurtenances belonging or in any way appertaining to such real property, and all of Grantor’s right, title and interest in and to (i) any and all property lying in a bed of any street, road or avenue, open or proposed, in front of or adjoining such real property to the center line thereof, (ii) any strips and gores of land adjacent to, abutting or used in connection with such real property, mineral rights, and (iii) any easements and rights, if any, inuring to the benefit of such real property or to Grantor in connection therewith (the land and all of the foregoing being hereinafter referred to as the “Property”);
PROVIDED, HOWEVER, that this conveyance is made and accepted subject to (i) taxes and assessments not yet due and payable, (ii) zoning and other governmental regulations, ordinances, codes, rules and requirements, (iii) covenants, conditions, restrictions, easements, agreements, rights of way and
D-14
other matters of record, and (iv) all matters which would be disclosed by a survey of the Property (collectively, the “Permitted Exceptions”), without intending to reimpose same.
TO HAVE AND TO HOLD the Property, subject to the Permitted Exceptions, together with all and singular the rights and appurtenances thereto in anywise belonging to Grantor, unto the said Grantee, Grantee’s successors and assigns forever, and Grantor does hereby bind itself and its successors to WARRANT AND FOREVER DEFEND all and singular the Property unto the said Grantee, Grantee’s successors and assigns, against every person whomsoever lawfully claiming by, through or under the said Grantor but not otherwise.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
D-15
EXECUTED as of this ____ day of __________, 2026, to be effective the ____ day of _________, 2026.
GRANTOR:
________________________,
a ______________________
By:
Name:
Title:
STATE OF §
COUNTY OF §
This instrument was acknowledged before me on this ______ of _____________, 2026, by ___________________, ___________________ of ___________________________, a ______________________, of and on behalf of such limited liability company.
Notary Public, State of
Printed Name:
My commission expires:
D-16
EXHIBIT A
PROPERTY
D-17
EXHIBIT E
BUYER ENTITIES; PROPERTY ADDRESSES; ALLOCATION OF PURCHASE PRICE & ALLOCATED RENT
Buyer |
Allocated Rent |
Allocated Purchase Price |
Address |
City |
State |
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Total / W. Average |
$6,419,000.00 |
$91,700,000.00 |
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E-1
EXHIBIT F
QUIT CLAIM BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS:
THAT, TRUSTMARK BANK, a _________________, whose address is 248 East Capitol Street, Suite 1006, Jackson, MS 39201, hereinafter referred to as “Grantor,” for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) paid by________________, a ________________, whose address is _______________, hereinafter referred to as “Grantee,” the sufficiency and receipt of which is hereby acknowledged, has granted, bargained, sold, transferred and delivered, and by these presents does grant, bargain, sell, transfer and deliver unto the Grantee, its successors and assigns, any and all of Grantor’s right, title and interest in and to all items, goods, chattels, equipment and other tangible personal property which are presently existing and located on and used or useful in connection with the construction, maintenance and operation of the real property described on Exhibit A attached hereto, without warranty of any kind, express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose, title, or condition, and in “AS IS, WHERE IS” condition.
TO HAVE AND TO HOLD the same unto the Grantee, its successors and assigns forever.
This document may be executed via electronic signature and, upon receipt, will be deemed original and binding upon the signatory hereto. The electronic signature shall for all purposes have the same validity, legal effect and admissibility in evidence as an original inked or “wet” signature, and the parties hereby waive any objection to the contrary.
F-1
IN WITNESS WHEREOF, the Grantor has caused these presents to be executed in manner and form sufficient to bind it effective as of the ____ day of __________________, 20____.
***,
a ***
By:
Name:
Its:
F-2
EXHIBIT G
EXISTING OCCUPANCY AGREEMENTS
Title Commitment # |
Property Address |
Lease |
Tenant |
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G-1
EXHIBIT H
FORM OF RIGHT OF REPLACEMENT SIDE LETTER
[Attached]
H-1
[_______________]
c/o Blue Owl Real Estate Capital LLC
150 North Riverside Plaza, 37th Floor
Chicago, Illinois 60606
[__________ ___, 2026]
Trustmark Bank
248 East Capitol Street, Suite 1006
Jackson, MS 39201
Attention: Marc Porter
Email:
with a copy to:
Greenberg Traurig, P.A.
450 S. Orange Avenue, Suite 650
Orlando, FL 32801
Attention: Jonathan M. Perry, Esq.
RE: Right of Replacement
To Whom It May Concern:
Reference is made to those certain Lease Agreements, each dated as of the date hereof (collectively, the “Leases”, and each individually, a “Lease”), each entered into by and between certain affiliates of Blue Owl Real Estate Capital LLC, an Illinois limited liability company named therein and listed in the column titled “Landlord” on Schedule 1 attached hereto (each, and collectively, “Landlord”), as landlord, and Trustmark Bank, a Mississippi banking corporation (“Tenant”, and collectively with Landlord, the “Parties”, and each individually, a “Party”), as tenant, with respect to the Premises listed on Schedule 1 attached hereto (each, an “Original Premises”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the applicable Lease.
With respect to each Lease, Landlord and Tenant hereby agree as follows:
At any time during the Term (hereinafter defined), subject to the terms and conditions hereof, Tenant may, by written notice to Landlord, substitute a parcel of real property and improvements thereon consisting of a retail bank branch (a “Replacement Property”) for any one or more Original Premises or Replacement Property consisting of a retail bank branch (each, an “Individual Premises”), pursuant to the terms of this letter agreement (this “Agreement”). Tenant shall designate the Replacement Property and the Individual Premises to be replaced (the “Replaced Property”) by written notice to Landlord in the same manner as provided in the applicable Lease (the “Replacement Designation Notice”). Tenant shall deliver to Landlord, together with or promptly following the Replacement Designation Notice, the following documents: (i) a commitment for owner’s title insurance for the Replacement Property effective no more than thirty (30) days prior to the Replacement Designation Notice, issued by the national office of a nationally-recognized title insurance company (the “Title Commitment”), (ii) a current, “as-built” survey of the Replacement Property, prepared and certified to Landlord and Tenant as to all matters shown thereon by a licensed professional engineer or surveyor, and in form and substance in compliance with the 2021 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys as adopted by
H-2
the American Land Title Association and the National Society of Professional Surveyors, including customary Table A items (the “Survey”); (iii) an ASTM standard “phase I” environmental assessment of the Replacement Property, prepared by a licensed environmental engineer, in a form reasonably acceptable to Landlord (the “Environmental Report”); (iv) a current customary property condition report in form reasonably acceptable to Landlord (the “PCR”); (v) a current customary zoning report in form reasonably acceptable to Landlord (the “Zoning Report”) ((i) – (v) hereinafter collectively referred to as the “Replacement Property Due Diligence Materials”); and (vi) Tenant’s determination of the Base Rent proposed to be paid by Tenant with respect to the Replacement Property for the first (1st) year of the Lease of the Replacement Property (it being understood that such Base Rent shall be subject to one and one-half percent (1.5%) annual escalations as set forth in the Lease) (the “Replacement Rent”). Such Base Rent, and the fair market value of the Replacement Property and the Replaced Property, shall be reasonably determined by Tenant in good faith and shall be subject to Landlord’s approval, not to be unreasonably withheld, conditioned or delayed. Such Base Rent shall bear a commercially reasonable relationship to the fair market value of the Replacement Property. If the proposed Base Rent of the Replacement Property is less than or greater than the Base Rent of the Replaced Property by an amount less than or equal to five percent (5.00%) of the Base Rent of the Replaced Property, then the Base Rent of the Replacement Property shall be adjusted to be equal to the Base Rent of the Replaced Property. Tenant shall deliver a written notice to Landlord (the “Delivery Notice”) confirming that all such Replacement Property Due Diligence Materials have been delivered to Landlord.
Landlord shall, within thirty (30) days after Tenant’s delivery of the Delivery Notice, by written notice to Tenant (the “Substitution Notice”), elect, in Landlord’s sole and absolute discretion, either (i) to accept the substitution of the Replacement Property for the Replaced Property or (ii) reject the substitution of the Replacement Property for the Replaced Property. In the event Landlord rejects the substitution of the Replacement Property for the Replaced Property, then Landlord shall notify Tenant of same and Tenant may propose one or more alternative Replacement Properties pursuant to the terms and conditions of Section A above.
If Landlord delivers a Substitution Notice pursuant to which Landlord accepts the substitution of the Replacement Property for the Replaced Property, then the following shall apply:
Within forty-five (45) days after Landlord’s Delivery of the Substitution Notice, Tenant and Landlord (or an affiliate of Landlord designated by Landlord (“Affiliate Transferee”)) shall execute and deliver all deeds, agreements, instruments and other documents necessary (x) to transfer the Replacement Property from Tenant to Landlord or Affiliate Transferee, and a new lease agreement (a “Replacement Lease”) from Landlord or Affiliate Transferee to Tenant for the Replacement Property giving effect thereto, on the same terms and conditions of the Lease for the Replaced Property, except that the Base Rent under such Replacement Lease shall be in the amount of the Replacement Rent (escalating annually as provided above) and the term of the Replacement Lease shall be for the then remaining term and with any renewal options under the Lease for the Replaced Property, and (y) to transfer the Replaced Property from Landlord to Tenant, and a termination of the Lease for the Replaced Property, which will contain a mutual release of claims with respect thereto (excluding, however, any obligations of Tenant which survive such termination of the Lease, including, without limitation, indemnification obligations by Tenant in favor of Landlord, which shall survive such termination and shall not be released). All such deeds, agreements, instruments and other documents shall be substantially in form and substance of those executed and delivered at the time of Landlord’s acquisition of the Replaced Property, mutatis mutandis, except as hereinafter provided in this Agreement. Tenant shall reimburse Landlord and Affiliate Transferee for all of Landlord’s and Affiliate Transferee’s actual out-of-pocket costs and expenses in connection with the Replacement Property Closing (as hereafter defined), including, without limitation, costs with respect to review of the Replacement Property Due Diligence Materials, and Landlord’s reasonable and actual out-of-pocket expenses incurred in releasing and discharging the Landlord Mortgage on the Replaced Property
H-3
and granting the Landlord Mortgage lien on the Replacement Property. In addition, Tenant shall pay any and all transfer, recording or other taxes, duties or fees imposed on any of the documentation or in connection with the Replacement Property Closing (as hereinafter defined). If applicable, Landlord or Affiliate Transferee (as applicable) and Tenant will execute a Memorandum of Lease for the Replacement Property and a Termination of Memorandum of Lease for the Replaced Property for registration or recording purposes. The consummation of the transactions described in this Section C(1) shall be referred to herein as the “Replacement Property Closing”.
Tenant, Landlord and any Affiliate Transferee may effect the Replacement Property Closing by means of a 1031 like kind exchange as defined in the United States Internal Revenue Code (“IRC”), or, if the IRC is amended and IRC Section 1031 is no longer available for the Replacement Property Closing, Landlord and Tenant shall reasonably cooperate and endeavor to structure the transactions described herein in a manner that minimizes, to the extent reasonably possible, income taxes payable by Tenant, Landlord and any Affiliate Transferee solely as a result of such transactions in the taxable year in which such party reports such transactions. Tenant shall indemnify, defend and hold harmless Landlord and Affiliate Transferee (and, if Landlord or Affiliate Transferee is a disregarded entity or a partnership for tax purposes, its applicable direct or indirect parent entities that are regarded for tax purposes) (as applicable, the “Taxpayer”) from and against any and all U.S. federal, state or local tax liability or any resulting costs or expenses (including penalties, interest, and reasonable attorney or accounting fees) incurred by the Taxpayer on an after-tax basis, as a result of any Replacement Property Closing that results in taxable income or gain to the Taxpayer.
If the Base Rent of the Replacement Property is lower than the Base Rent of the Replaced Property (after any adjustment pursuant to Section A above), Tenant shall pay the Make-Whole Payment at the Replacement Property Closing in cash to Landlord or as Landlord directs. If the Base Rent of the Replacement Property is higher than the Base Rent of the Replaced Property (after any adjustment pursuant to Section A above), Landlord shall pay the Positive Differential Price at the Replacement Property Closing in cash to Tenant or as Tenant directs. The Make-Whole Payment and the Positive Differential Price shall constitute payments of, or adjustments to, the purchase price of the Replacement Property (and not expenses).
If Landlord elects (or is deemed to have elected) to reject the substitution of the Replacement Property for the Replaced Property, then the Replaced Property shall remain subject to the Lease and this Agreement in accordance with their respective terms.
For purposes hereof, the following terms shall have the following meanings:
“Make-Whole Payment” shall mean the quotient of (i) the difference between (x) the Base Rent then in effect for the Replaced Property, minus (y) the Replacement Rent, divided by (ii) 6.0%.
“Positive Differential Price” shall mean the quotient of (i) the difference between (x) the Replacement Rent, minus (y) the Base Rent then in effect for the Replaced Property, divided by (ii) 7.0%.
Tenant shall be permitted to effectuate Replacement Property Closings with respect to a maximum of the lesser of (i) three (3) Individual Premises in any twelve-month period during the Term and (ii) seven (7) Individual Premises in any five (5) year period during the Term.
With respect to any Individual Premises, this Agreement shall automatically terminate and be of no further force or effect upon the sale, transfer or other conveyance of all of Landlord’s right, title
H-4
and interest in and to such Individual Premises (the period from the date hereof until such termination, as applicable, is referred to herein as the “Term”).
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Delaware, which state the parties agree has a substantial relationship to the parties and to the underlying transaction embodied hereby. This Agreement is the product of joint drafting by the parties and shall not be construed against either Party as the drafter hereof.
Waiver of Jury Trial. EACH PARTY HERETO, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT, WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS AGREEMENT.
Severability. If any term or provision of this Agreement or any application thereof shall be held invalid or unenforceable, the remainder of this Agreement and any other application of such term or provision shall not be affected thereby.
Time of Essence. TIME IS OF THE ESSENCE OF THIS AGREEMENT AND EACH PROVISION HEREOF IN WHICH TIME OF PERFORMANCE IS ESTABLISHED.
Attorneys’ Fees. In the event that a Party hereto prevails against the other Party in any action to enforce the obligations of such other Party under this Agreement, the prevailing Party shall be reimbursed by the other for all reasonable costs and expenses incurred thereby with respect to such action (including reasonable attorneys’ fees).
Affiliate. For the purposes of this Agreement, the term “affiliate”, when used with respect to any corporation, limited liability company, partnership or legal entity, shall mean any Person which, directly or indirectly, controls or is controlled by or is under common control with such corporation, limited liability company, partnership or legal entity. For the purposes of this Agreement, “control” (including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any Person, shall mean (i) the ownership, directly or indirectly, through one or more intermediaries, of more than 50% of the outstanding equity interests in such Person and/or (ii) the possession, directly or indirectly, of the power to decide, affirmatively (by direction) or negatively (by veto), the management and policies, whether through the ownership of voting securities or by contract or otherwise.
This Agreement constitutes a valid and binding obligation of Landlord and Tenant (together with their respective affiliates under common control and their respective successors and permitted assigns), enforceable against each of them in accordance with law. Landlord and Tenant will be responsible for the failure of their respective Affiliates to comply with provisions of this Agreement as if Landlord and Tenant, as applicable, were the Affiliate that so failed to comply. In the event of a conflict between the provisions of between this Agreement and the Lease, in each case the provisions of this Agreement shall control. This Agreement may be executed in multiple counterparts which, taken together, shall constitute one and the same agreement.
Please indicate your acceptance of and agreement to the foregoing by signing in the space provided below, whereupon this Agreement shall become a binding agreement between the Parties hereto.
[Remainder of page intentionally left blank.]
H-5
Sincerely,
[________]
By:
Name: Michael Reiter
Title: Authorized Representative
H-6
AGREED AND ACCEPTED BY:
TRUSTMARK BANK,
a Mississippi banking corporation
By:
Name: Marc C. Porter
Title: First Vice President & Associate
Legal Counsel III
Right of Replacement
H-7
SCHEDULE 1
Original Premises
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State |
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H-8
EXHIBIT I
FORM OF POST-CLOSING LETTER AGREEMENT
[Attached]
I-1
[LANDLORD ENTITY]
c/o Blue Owl Real Estate Capital LLC
150 North Riverside Plaza, 37th Floor
Chicago, Illinois 60606
[___], 2026
Trustmark Bank
248 East Capitol Street, Suite 1006
Jackson, MS 39201
Attention: Marc Porter
Email:
With a copy to:
Greenberg Traurig, P.A.
450 S. Orange Avenue, Suite 650
Orlando, FL 32801
Attention: Jonathan M. Perry, Esq.
Re: Post-Closing Letter Agreement – [PROPERTY ADDRESS]
Ladies and Gentlemen:
This letter agreement (this “Letter Agreement”) is written and entered into in connection with that certain Real Estate Purchase and Sale Agreement dated as of [___], 2026 (the “PSA”), by and between TRUSTMARK BANK, a Mississippi banking corporation (“Tenant”), as seller, and [LANDLORD ENTITY], a Delaware limited liability company, and certain of its affiliates named therein (“Landlord”), as buyers, and that certain Lease (as defined below). Initially capitalized terms used herein and not otherwise defined shall have the meanings given to them in the Lease (as defined below).
WHEREAS, in connection with the PSA, Landlord and Tenant have entered into that certain Lease Agreement dated as of even date herewith (the “Lease”), pursuant to which Tenant leases the above-referenced real property from Landlord. Landlord is willing to enter into the Lease, notwithstanding that certain due diligence matters required by Landlord have not been fully satisfied by Tenant as of the date first written above (the “Effective Date”), on the condition that Tenant execute and deliver this Letter Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Landlord and Tenant hereby agree as follows:
O&M Plan. Prior to any demolition, renovation, construction, maintenance, or other activities that may disturb suspect asbestos-containing building materials (“ACM”) at the Premises, Tenant shall use commercially reasonable efforts to prepare, implement and maintain, at Tenant's sole cost and expense, an operations and maintenance plan (an “O&M Plan”) with respect to ACM at the Premises as recommended by the Phase I environmental site assessment obtained with respect to the Premises. Such O&M Plan shall be prepared by an environmental consulting firm reasonably approved by Landlord to ensure continued compliance with Environmental Laws and the proper management of ACM and other Hazardous Materials at the Premises.
I-2
REA Estoppels. Prior to the Effective Date, Tenant has requested the estoppel certificates set forth on Schedule A attached hereto (each such estoppel certificate, a “REA Estoppel”), in form provided by Landlord, from the counterparties to declarations, development agreements, reciprocal and/or operating easement agreements, or the like, impacting the Property. From and after the Effective Date until the date that is six (6) months from the Effective Date, Tenant shall use commercially reasonable efforts to obtain executed copies of such REA Estoppels. Tenant’s failure to obtain such REA Estoppels, after using commercially reasonable efforts to do so, shall not be a default or Event of Default under the Lease. In the event Tenant obtains any such REA Estoppels and such REA Estoppels or communications from the applicable counterparty regarding the applicable REA Estoppel disclose a breach or outstanding obligations of the Property or Tenant (including of Landlord as Tenant’s successor-in-interest to Tenant), Tenant shall use continuous, diligent efforts to remedy or satisfy the same.
Remediation of Zoning Violations. From and after the Effective Date and without limiting Tenant’s obligation to ensure the Premises’ compliance with Laws as set forth in the Lease, Tenant agrees to use continuous, diligent efforts, at Tenant’s sole cost and expense, to remedy each of the violations set forth on Schedule B attached hereto or identified on any update to a zoning report, as applicable, or any open fire code, building code or zoning code violations set forth in any update to the zoning reports received by Landlord and delivered to Tenant after the date hereof (each such violation, a “Violation”), and to deliver to Landlord satisfactory proof evidencing that a subject Violation has been remedied in accordance with applicable Law. Without diminishing the obligations of Tenant hereunder, if Tenant fails to remedy the Violations within one hundred fifty (150) days following the Effective Date (or the date upon which Landlord delivers any update to a zoning report identifying a Violation, as applicable) and if such Violations are capable of being cured by Landlord, Landlord shall have the right, but no obligation, to cause such Violations to be remedied at Tenant’s sole cost and expense and Tenant shall reimburse Landlord for its actual reasonable and documented out-of-pocket costs and expenses incurred in connection with remedying such Violations within fifteen (15) business days following Tenant’s receipt of Landlord’s written demand for such reimbursement, together with documentation evidencing such costs and expenses.
Self-Help; Default. If Tenant is not maintaining continuous, diligent efforts to satisfy its obligations set forth herein, and such failure shall continue for thirty (30) days after Tenant’s receipt of Landlord’s written notice thereof (provided that Tenant shall only be entitled to such notice and cure one (1) time), then, in addition to the rights and remedies set forth in this Letter Agreement, Tenant shall be in default hereunder, and such default shall be an Event of Default under the Lease entitling Landlord to pursue any and all remedies under the Lease.
Termination. Upon satisfaction of Tenant’s obligations under this Letter Agreement this Letter Agreement shall automatically terminate without the need for any further writing in support thereof and thereafter be of no further force and effect; provided, however, Landlord agrees to deliver a written acknowledgement of such termination if requested by Tenant.
Binding on Successors and Assigns. This Letter Agreement shall inure to the benefit of, and be binding upon, each of the parties hereto and their respective successors and assigns.
I-3
Further Assurances. Landlord and Tenant, upon request by the other, agree to perform all further acts and to execute and deliver any other or further documents which may be reasonably necessary, appropriate or desirable to carry out the provisions of this Letter Agreement.
Time is of the Essence. Time is of the essence of this Letter Agreement, including, without limitation, the performance of the obligations of each of the parties hereunder.
Governing Law. This Letter Agreement is made pursuant to and shall be governed by the laws of Delaware without regard to conflict of law principles.
Counterparts. This Letter Agreement may be executed in multiple counterparts, which, taken together, shall constitute one and the same agreement. Facsimile signatures, including electronic or PDF signatures, to this Letter Agreement shall be valid signatures. This Letter Agreement shall be deemed validly executed and delivered by a party if a party executes this Letter Agreement by manual signature or by affixing its signature hereto by means of an electronic signature tool, application, or software (e.g., DocuSign). This Letter Agreement may not be amended or modified except by an instrument signed by all the parties hereto.
Please countersign this Letter Agreement below to indicate your agreement to the foregoing.
[Signature page to follow]
I-4
Sincerely,
LANDLORD:
[______],
a Delaware limited liability company
By:
Name: Michael Reiter
Title: Authorized Representative
ACCEPTED AND AGREED AS OF
THE DATE FIRST WRITTEN ABOVE:
TENANT:
TRUSTMARK BANK, a Mississippi banking corporation
By:_____________________________
Name:
Title:
I-5
Schedule A
REA Estoppels
I-6
Schedule B
Violations
I-7
SCHEDULE 1
TITLE COMMITMENTS AND SURVEYS
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FATIC Commitment No. |
BV Survey Project No. |
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Schedule 1-1
SCHEDULE 11
ALLOCATION OF CLOSING COSTS
Type of Cost |
Florida |
Texas |
Mississippi |
Tennessee |
Alabama |
Title Policy Premiums |
Seller Pays |
Seller Pays |
Buyer Pays |
Buyer Pays |
Seller pays |
Title Commitment Search and Examination |
Seller Pays |
Seller Pays |
Buyer Pays |
Split 50/50 |
Seller Pays |
Transfer taxes applicable to transfer of the Property |
Seller Pays |
N/A |
N/A |
Buyer Pays |
Buyer Pays |
Owner’s Policy Endorsement Fees |
Buyer Pays |
Seller Pays |
Buyer Pays |
Buyer Pays |
Buyer Pays |
Deed Recording Charges |
Buyer Pays |
Buyer Pays |
Buyer Pays |
Buyer Pays |
Split 50/50, except Buyer Pays for Prattville, AL |
Schedule 11-1