EXHIBIT 10.10
GSHAMMER: 6290
C.L.C. NORTH ATTLEBORO TRUST
c/o Leatherbee & Co.
1330 Boylston Street
Chestnut Hill, Massachusetts 02167
April 4, 1994
L.G. Balfour Company, Inc.
25 County Street
Attleboro, Massachusetts 02703
Re: John L. Dietsch Boulevard, North Attleboro, MA
(Balfour Company Lease dated March 14, 1994)
Ladies and Gentlemen:
Reference is made to the above-captioned lease (the "Lease"), dated as of
March 14, 1994, in which you are named as Tenant and the undersigned is named as
Landlord. Terms which are defined in the Lease shall have the same respective
meanings when used herein.
The purpose of this letter-agreement is to memorialize certain additional
agreements between us as Landlord and Tenant under the Lease, supplementing the
terms and provisions thereof.
Reference is also made to the Landlord's inducement payment (the
"Inducement Payment") referred to in Section 13.26 of the Lease. Pursuant to the
provisions of said Section 13.26, the Inducement Payment is required to be paid
upon satisfaction of the requirements and conditions more particularly set forth
therein, including the completion and payment in full for the Tenant's Work
referred to in the Lease. In order to facilitate the initial remodelling and
other construction to be performed pursuant to the terms and provisions of the
Lease, and the "progress payments" required therefor, Tenant has requested and
the parties hereby agree as follows:
1. Both the Landlord's Work and the Tenant's Work referred to in the Lease
to be performed promptly following the execution and delivery thereof
(collectively, the "Work") shall be performed pursuant to a construction
contract (the "Construction Contract") to be entered into by and between Tenant
(as "Owner") on the one hand, and the contractor
selected by Landlord and Tenant to perform said work, Dacon Corporation of
Natick, MA (herein referred to as the "General Contractor"). The Construction
Contract will be finalized by Tenant and the General Contractor with the
assistance of the Project Architect (referred to below); and the Construction
Contract (including any amendments thereto) will be subject to the Landlord's
prior written approval with respect to the Landlord's Work-related provisions
(which approval shall not unreasonably be withheld or delayed).
2. Landlord hereby confirms and agrees that Tenant is authorized, subject
to and in accordance with all applicable provisions of the Lease (including the
provisions contained in this letter-agreement), to cause the Work to be
performed and, in that regard, to enter into the Construction Contract with the
General Contractor and to be named therein and have the rights and obligations
thereunder of the Owner referred to therein (said Construction Contract
contemplated to be in the form of the Abbreviated Form of Agreement Between
Owner and Contractor known as AIA Document A107, with such changes as may be
agreed upon between the Tenant and the General Contractor, and approved to the
extent required hereunder by the Landlord). Conversely, Tenant agrees to cause
the Work to be performed and, in that regard, to enter into the Construction
Contract, as aforesaid, and to act prudently in performing the role of the
"Owner" under the Construction Contract in order reasonably to protect the
Landlord's interests as well as those of the Tenant itself.
Any and all warranties and guarantees running to or benefitting the Tenant
with respect to materials or labor, or both, comprising the Work, shall run to
and for the benefit of Landlord (as its interests may appear) as well as Tenant;
and, either the Construction Contract expressly shall so provide, or the
Construction Contract shall permit the Tenant to assign the benefit thereof to
Landlord and, in such event, the Tenant does hereby so assign (to benefit
Landlord jointly with Tenant) any and all such warranties and guarantees to
Landlord, and agrees reasonably to cooperate, to the extent (if any) required in
any proceeding by Landlord to enforce any of the same. The Construction Contract
shall provide for at least the normal and customary warranties and guarantees
(in scope and duration) now consistent with good and accepted commercial
construction industry standards and practices, including, without limitation,
those contained in Article 18 of the Construction Contract with respect to
Correction of Work and the usual fifteen (15) year complete roofing system
warranty
(as specified in the Final Plans and Specifications referred to below). As long
as Landlord shall make its payment advances to the Tenant hereunder in
accordance with the requirements of the provisions of this letter-agreement with
respect to the Landlord's Work and Tenant's Work, respectively, the Tenant shall
be responsible, in turn, to pay the General Contractor therefor and, as set
forth in the Lease, to discharge and to indemnify Landlord against any liens
that may arise with respect to the Work, including the Landlord's Work
(notwithstanding the last sentence of Section 13.6 of the Lease) (but nonpayment
hereunder by Landlord pending satisfaction of the conditions to advances
hereunder shall not diminish or otherwise affect Tenant's obligations under said
Section 13.6; and nothing herein shall derogate from the provisions of the
Construction Contract).
3. All of the Work shall be performed subject to and in accordance with the
plans and specifications (the "Final Plans and Specifications") for the
Landlord's Work and the Tenant's Work, all as prepared by the Project Architect
(referred to below) and set forth in or determined with the approval of Landlord
and Tenant in accordance with the provisions of the Lease (and, in particular,
which were used in order to obtain the General Contractor's bid for the
performance of all such Work, which bid was accepted by the parties in awarding
the Construction Contract to the General Contractor).
4. The architect responsible for this project, Dennis L. Roth, of Roth &
Seelen, Inc., Hingham, MA (hereinafter referred to as the "Project Architect")
will be responsible for monitoring and administering the Work (and, to the
extent deemed by the parties to be necessary or appropriate, supplementary
agreements have been, or will be, entered into between one or both of Landlord
and Tenant, on the one hand, and the Project Architect, on the other hand, with
respect to its architectural and related services relative to the Project).
Because the Work includes both the Landlord's Work and the Tenant's Work
referred to in the Lease, in the event of any cost overruns, if there shall be
any question whether a particular cost overrun relates (in whole or in part) to
the Landlord's Work for which the Landlord is responsible to pay, the Project
Architect shall determine the extent to which the same would relate to
Landlord's Work as aforesaid, and the Landlord shall be consulted and have a
reasonable approval right over any change orders or the like resulting
in any increased costs to the Landlord. Likewise, any change orders or the like
resulting in a credit/cost savings shall be passed on to the appropriate party
and the Project Architect shall, if and to the extent there is any question
relative thereto, determine which party is entitled to any particular such
credit/savings. Moreover, for each requisition for payment and each payment to
be made pursuant to the following provisions hereof with respect to the Work,
the Project Architect shall determine to what extent each such payment is
attributable to Work which is Landlord's Work and Tenant's Work, respectively;
and, likewise, the Project Architect shall determine the dates of substantial
completion of the Landlord's Work and Tenant's Work for the purposes of (and in
accordance with the provisions relating thereto set forth in) the Lease.
5. The Landlord shall make advances in order to make the payments to be
made under the terms and provisions of the Construction Contract; but, subject
to and in accordance with the provisions of this letter-agreement. In
particular, the Landlord shall fund or cause to be funded an aggregate amount
which shall not exceed the sum of (i) all amounts to be paid pursuant to the
terms of the Construction Contract on account of the Landlord's Work; plus (ii)
the lesser of: all amounts to be paid pursuant to the terms of the Construction
Contract on account of the Tenant's Work; or, the $1,310,000 total amount of
the Inducement Payment set forth in said Section 13.26. Any and all excess
costs and expenses whatsoever with respect to the Tenant's Work shall be paid
for by Tenant.
6. All amounts which are advanced by the Landlord pursuant to the
provisions hereof which relate to the Tenant's Work (but not any funds advanced
which relate to the Landlord's Work) shall bear interest payable by the Tenant
to the Landlord from the time advanced until the date (the "Inducement Payment
Date") on which the Landlord's Inducement Payment becomes due and payable in
full pursuant to the terms and provisions of said Section 13.26 of the Lease or
the earlier repayment of such funds by Tenant to Landlord. Such interest shall
accrue at an annual rate equal to nine percent (9%), shall be calculated on a
daily basis and shall accrue and be payable on the actual number of days in the
period from the time of advance until repaid (actually, or as imputed as of the
Inducement Payment Date, as the case may be, as aforesaid). Such accrued
interest only shall be paid by the Tenant to the Landlord monthly, in arrears,
on the first day of each calendar month commencing June 1, 1994; and any and all
such accrued interest, if not
sooner paid, shall be so paid no later than together with the first payment of
Fixed Rent which shall become due and payable under the provisions of the Lease
after the Inducement Payment Date (or the date of any earlier termination of the
Lease).
All such advances hereunder relating to the Tenant's Work and which bear
interest as aforesaid are being treated for the purposes hereof as advances on
account of the Landlord's Inducement Payment (and, thus, are referred to
collectively and in the aggregate sometimes hereinafter as the "Inducement
Payment Advance"), which Inducement Payment Advance the Tenant hereby promises
to pay, in accordance with the provisions hereof, to the order of Landlord, on
or before the Inducement Payment Date (or the date of any earlier termination of
the Lease). To the extent of all advances on account of the Inducement Payment
Advance which remain outstanding on the Inducement Payment Date, upon the
occurrence of said date, the full amount of the Inducement Payment (or the
portion thereof equal to the aggregate amount of Landlord's said Inducement
Payment Advance, as the case may be) shall be imputed and otherwise considered
for all purposes to have been paid to Tenant (on account of the Landlord's
obligations under said Section 13.26) by virtue of repayment to Landlord of the
Inducement Payment Advance; and, correspondingly, shall be imputed and
considered for all purposes to have been applied to repayment of the Inducement
Payment Advance as of said Inducement Payment Date. In the unlikely event of a
net savings under the Construction Contract such that the total amount to be
paid thereunder with respect to the Tenant's Work ultimately is less than the
amount of the Inducement Payment specified in the Lease, then, notwithstanding
the amount of the Inducement Payment set forth in said Section 13.26 of the
Lease, the Landlord shall be relieved of its obligation to pay such portion of
the Inducement Payment as is equal to the excess of the total amount thereof
above the amount actually required in order to pay in full all amounts under the
Construction Contract payable on account of the Tenant's Work. In the event any
amounts payable under the Construction Contract on account of the Work are not
advanced by Landlord when due in accordance with the provisions hereof, then
Tenant may notify Landlord thereof (and, if applicable, that Tenant intends to
make such advance on Landlord's behalf) and, if Landlord's failure to make such
advance continues for ten (10) days after its receipt of such notice, same shall
constitute a default by Landlord hereunder for which Tenant shall have the right
to make such advance (and recoup same from Landlord, with
interest at the rate provided in the Lease to accrue on late Fixed Rent
payments) and shall have all other remedies for recoupment thereof available
under the Lease and at law.
7. Notwithstanding the provisions of Section 9.2 of the Lease requiring at
least thirty (30) days advance notice of cancellations in insurance coverages,
with respect to notices of cancellation for non-payment the insurer shall be
required to give to the Landlord the maximum notice period generally available
and given in accordance with good and accepted commercial real estate industry
insurance practices and standards from time to time; but, in no event shall the
insurer be required to give more than thirty (30) days notice and, in any event,
the insurer shall never be permitted to give the Landlord less than ten (10)
days advance notice of any such cancellation for non-payment. Moreover, the
requirements of said Section 9.2 that the Tenant carry rental loss insurance
shall be considered satisfied if and to the extent the Landlord actually is
protected against rental loss under the Lease by virtue of the Tenant's
so-called business interruption coverage all as if the Tenant had maintained
independent so-called rental loss coverage as otherwise required under and in
accordance with the provisions of said Section 9.2.
8. While the Lease itself actually was executed and delivered, and bears
the date, as of March 14, 1994, and will continue for identification purposes so
to do, nonetheless the term of the Lease for all purposes (including the
commencement of Tenant's responsibilities relative to the Property) shall not be
considered to have commenced until, and shall commence on, the date of this
letter-agreement.
9. Attached hereto, incorporated herein and made a part hereof are the
"Terms and Conditions Applicable to Advances", which set forth the conditions
precedent to and procedure for obtaining advances of the funds required in order
to pay for the Work being performed under the Construction Contract (including
the portions thereof attributable to the Tenant's Work and, thus, comprising
part of the aforesaid Inducement Payment Advance, as well as the portions
thereof attributable to the Landlord's Work).
10. The provisions hereof shall for all purposes be considered to be part
of and included in the Lease. The Lease is hereby ratified and, as modified and
affected hereby, remains in full force and effect.
11. The Project Architect, by its signature hereto, hereby joins in this
letter-agreement for the purposes of confirming its agreement to be bound by
such obligations set forth hereinabove as are applicable to the Project
Architect (but not to any other obligations).
12. Julian Cohen, of Palm Beach, Florida, one of the beneficial owners of
the Landlord, by his signature hereto, hereby joins in this letter-agreement,
and thus does hereby confirm and agree to be bound by, and unconditionally and
directly (without the need first to resort to the Landlord or its property) to
guarantee and does hereby guarantee the performance by the Landlord of, such
obligations set forth hereinabove as are applicable to the Landlord (but not to
any other obligations) including, without limitation, the obligation to make
advances to be made by the Landlord as set forth in Paragraph 5 of this
letter-agreement.
If there is anything amiss in the foregoing, please let us know. If, on the
other hand, everything appears to be in order, kindly arrange for this
letter-agreement and the four (4) enclosed photocopies to be signed on behalf of
the Tenant and joined in by the Project Architect (where indicated below), and
then for two (2) of those countersigned copies to be returned to the undersigned
and the third to be forwarded to the Project Architect, whereupon this
letter-agreement shall take effect under seal and the Lease shall be treated as
having been amended hereby.
Yours truly,
/s/William B. Leatherbee
/s/ Sandra K. Cummings
Trustees of C.L.C. North Attleboro Trust, for
them- selves and their co-Trustee, but in
their fiduciary capacity only, and without
personal liability
[LANDLORD]
CONFIRMED AND AGREED AS AFORESAID:
L.G. BALFOUR COMPANY, INC.
By: /s/ Francis X. Correra
Its Executive Vice President
Hereunto duly authorized
[TENANT]
JOINED IN UNDER SEAL FOR THE PURPOSES SET FORTH HEREINABOVE:
ROTH & SEELEN, INC.
By: /s/ Dennis L. Roth
Dennis L. Roth, President
Hereunto duly authorized
[Project Architect]
/s/ Julian Cohen
Julian Cohen, individually
GSHAMMER: 6290
TERMS AND CONDITIONS APPLICABLE TO ADVANCES
The following set forth the conditions precedent to and procedure for
obtaining the advances being made by the Landlord to the Tenant in accordance
with the provisions of the Lease (and, in particular, the foregoing
letter-agreement, which is part thereof):
I. Conditions on Advances.
Prior to the first advance, and as a condition to the Tenant's right
to receive the first and any subsequent advances hereunder for application to
the payments under the Construction Contract, there shall be furnished to the
Landlord:
a. Such evidence as the Landlord may reasonably require that the Work
complies with all applicable federal, state, and local laws, rules, regulations,
codes, requirements and ordinances applicable thereto. A building permit(s), as
required therefor, prior to commencement of the Work, and a final certificate(s)
of occupancy for the Buildings for their intended use, upon completion of the
Work, shall satisfy the foregoing, unless the Project Architect notifies
Landlord and Tenant of additional legal requirements which need to be met.
b. A Certificate from the Project Architect in the form of the
Architect's Certificate attached hereto, and acceptance thereof by the Landlord
such acceptance not unreasonably to be withheld or delayed.
c. A Certificate from the General Contractor in the form of the
"Contractor's Certificate" attached hereto, acceptance thereof by the Project
Architect, and acceptance thereof by Landlord such acceptance not unreasonably
to be withheld or delayed.
d. A Certificate from the Tenant in the form of the "Tenant's
Certificate" attached hereto, and acceptance thereof by the Landlord such
acceptance not unreasonably to be withheld or delayed.
e. A requisition from the General Contractor, and acceptance thereof
by the Project Architect, which requisition shall, subject to the following, be
in normal and customary AIA form reasonably acceptable to the Landlord.
f. A recordable lien waiver in normal and customary AIA form
reasonably acceptable to the Landlord from the General Contractor and each
subcontractor (and/or other party) performing labor or furnishing materials with
respect to the Work, waiving any and all liens attributable to labor and
materials furnished by the General Contractor and such subcontractors (and any
other such parties) in connection with the Work through the requisition date
(partial or full and final, as the case may be, and which may be conditional
upon receipt of a specified amount corresponding to such labor and/or materials
furnished through the applicable requisition date). Said lien waivers shall
likewise contain the normal and customary indemnity agreement of the General
Contractor (or the subcontractor, as the case may be) as to any labor and/or
materials furnished through the requisition date by such party or any of its
subcontractors (and any other parties) furnishing labor or materials to or for
it with respect to the Work through the requisition date. Notwithstanding the
foregoing lien waiver requirement, the Landlord shall not require that lien
waivers be provided by any subcontractor which is providing labor or materials
the total value of which does not exceed $10,000.00 with respect to the Work, as
certified to the Landlord by the General Contractor and the Architect; provided,
however, that the requirement for lien waivers shall not hereby be waived with
respect to subcontracts totalling more than $50,000.00 in aggregate value.
g. Such evidence as may reasonably be required by the Landlord
confirming that there is then in full force and effect all insurance required to
be carried by or on behalf of the Tenant, the General Contractor and
sub-contractors, relating to the performance of the Work, and that the Landlord
(and its identified mortgagee, if any) is named as additional insured on all
such policies (except for workers' compensation policies).
h. A letter from the General Contractor and addressed to the Landlord,
stating that the General Contractor will give written notice to the Landlord of
and will give the Landlord ten (10) days in which to remedy any default by the
Tenant under the Construction Contract and that if the Landlord agrees with the
General Contractor to assume the obligations of the Tenant under the
Construction Contract, and the Construction Contract is assigned by the Tenant
to the Landlord or the Lease is terminated, the General Contractor will
recognize such assumption and will perform its obligations under the
Construction Contract for the benefit of the Landlord provided that the Landlord
shall
perform all obligations of the Tenant thereunder and requests that the General
Contractor complete the work thereunder for the Landlord.
It is understood and agreed that if the Lease shall be terminated
then, at the Landlord's option, the Landlord may proceed as contemplated in the
preceding paragraph to elect to assume the Tenant's position under the
Construction Contract (but Landlord shall not be obligated so to do).
In addition, each such advance hereunder shall be conditioned upon the
Tenant having paid all charges, if any, then to have been paid pursuant to
applicable provisions of the Lease and there then being no uncured default in
any of the obligations of the Tenant thereunder.
II. Procedure for Making Advances.
Advances hereunder are to be made by the Landlord under the following
additional conditions and in accordance with the following procedure:
a. Advances may be requested no more often than monthly. Five
(5) business days at least before the date upon which an advance
is requested, the Tenant or Project Architect will give notice
to the Landlord specifying the approximate amount of the advance
which will be desired. Each such request for an advance
hereunder shall be made in writing to the Landlord and shall be
considered to have been made upon the satisfaction of all of the
applicable conditions, including receipt by the Landlord of the
certificates, etc. expressly required, as set forth in the
foregoing Part I of these Terms and Conditions. Each such
requested advance shall be made by the Landlord promptly upon
the satisfaction of said conditions applicable to the advance in
question (or the waiver by Landlord of any then unsatisfied
conditions), and in no event more than five (5) business days
after the satisfaction (or waiver) thereof.
The final advance hereunder shall also be conditioned upon the
furnishing to Landlord of a final copy of the "as-built" plans reflecting the
physical condition of the Buildings with the Work having been completed.
b. In no event shall any advance allocable to a payment on account of
the Construction Contract exceed an amount equal to ninety percent (90%) of the
total value of work and materials theretofore completed, approved and installed
in the Premises less the sum of all payments
theretofore made against construction. However, an advance may be made hereunder
for the purpose of making final payment of any balance to any subcontractor
after full and final completion of the Work or the portion thereof being
performed by such subcontractor and delivery to the Landlord of such evidence as
may be reasonably required to assure the Landlord that no claim may thereafter
arise with respect to such subcontractor's work which might result in the filing
or attachment of a lien affecting the Premises or the Landlord. Further, an
advance may be made for the purpose of making final payment of any balance due
to the General Contractor after full and final completion of the Work within the
scope of the Construction Contract and delivery to the Landlord of such evidence
as may be reasonably required to assure the Landlord that no claim may
thereafter arise on account of the General Contractor's work or any
subcontractor's work as a result of which any lien may arise affecting the
Premises or the Landlord.
III. Miscellaneous.
a. Without at any time waiving any of the Landlord's rights hereunder,
the Landlord shall have the right to make any advance without satisfaction of
each and every condition thereto; and the Landlord shall have the right,
notwithstanding a waiver relative to the first or any other prior advance, to
refuse to make any and all subsequent advances until each and every condition
hereof (and any other applicable provisions of the Lease) have been satisfied.
b. Advances shall be applied only to the Construction Contract costs
and expenses incurred by the Tenant in connection with the Work which are
required to be paid out-of-pocket by the Tenant.
* * * * * * *
ARCHITECT'S CERTIFICATE
TO: (The "Landlord")
RE: (The "Tenant")
CONSTRUCTION OF
(The "Project")
The undersigned, acting as the Project Architect supervising the
above-mentioned Project, does hereby certify to the Landlord as follows:
1. I have examined the Requisition being submitted herewith to the Landlord
by the Tenant, which Requisition includes a request for payment from (the
"General Contractor") constructing the above-referenced Project in the amount of
$ .
I find that the amount of the payment so requested by the General
Contractor does not exceed (when added to the Requisitions heretofore paid to
the General Contractor) ninety percent (90%) of the value of labor and materials
incorporated at the Site of the Project (and of the value of materials suitably
stored therein for which, in my opinion, reasonable security measures are in
effect). Accordingly, in my opinion, the General Contractor is entitled to
payment under its Construction Contract dated .
2. I hereby further certify that, to the best of my knowledge, information
and belief (based upon normal and customary inquiries and periodic
observations), all construction work in place conforms with the requirements of
the most recently applicable edition of plans and specifications prepared by me
for such construction and heretofore submitted to and approved by the Landlord
and the Tenant, and that all such work also complies with applicable laws and
regulations and Lease requirements of which I have any knowledge.
3. I hereby further certify that, to the best of my knowledge, information
and belief (based upon normal and customary inquiries and periodic
observations), the lien waivers for the period through the date of the
Requisition being submitted herewith, which lien waivers also are being
submitted herewith to the Landlord by the General Contractor, include lien
waivers from the General Contractor and from all subcontractors (and any other
parties) furnishing labor or materials in connection with the Work through the
date of said Requisition (excepting those, if any, which are not required under
the Lease and Construction Contract terms) and waiving any and all liens
attributable thereto.
This Certificate is given to induce the Landlord to authorize an advance
relative to the Project, and it is intended that the Landlord shall rely upon
the same.
IN WITNESS WHEREOF, has
caused this Certificate to be signed in its corporate name by
, its
, being thereunto duly authorized.
By:
Its
Hereunto duly authorized
ARCHITECT
Dated:
CONTRACTOR'S CERTIFICATE
TO: (The "Landlord")
RE: (The "Tenant")
CONSTRUCTION OF
(The "Project")
The undersigned, General Contractor for the Project, does
hereby certify to the Landlord as follows: --
1. Under date of , we entered into a Construction Contract (the "Construction
Contract") with the Tenant for the construction of the Project. The Construction
Contract is still in full force and effect. To the best knowledge and belief of
the undersigned, the undersigned is not in default of any of its obligations
legally due to the Tenant under the Construction Contract or of any of its
obligations to any subcontractors, workmen or materialmen, for and with respect
to work and materials supplied through and including the date of our Requisition
dated , and submitted to the Landlord herewith.
2. That full payment has been made (or will from the proceeds of the requested
advance be made) of all obligations incurred and which are legally due by the
undersigned to subcontractors, workmen and materialmen for and with respect to
all work and materials supplied through and including the date of our said
Requisition, except, as to subcontractors, for customary retainage not exceeding
ten percent (10%) of amounts earned by such subcontractors. Our said Requisition
submitted herewith includes the Application and Certificate of Payment,
completed and signed on behalf of the undersigned with respect to the
Application and on behalf of the Project Architect with respect to the
Certificate; and the information therein contained is true, complete and
accurate.
3. Our said Requisition submitted herewith includes lien waivers (partial or
full, as the case may be) which include the Landlord as a named releasee,
executed and acknowledged by the undersigned General Contractor and, to the
extent required under the provisions of the Construction Contract, by each and
every subcontractor (and any other party) furnishing labor or materials through
the date of our said Requisition with respect to the Project Work being
performed
under the Construction Contract, and waiving any and all liens attributable to
labor and materials furnished through the date of our said Requisition by all
such parties. This Certificate is given to induce the Landlord to authorize an
advance relative to the Project, and it is intended that the Landlord shall rely
upon the same. However, nothing herein shall be construed to amend or otherwise
change or enlarge the terms and provisions of the Construction Contract itself
or any rights and obligations of the General Contractor and the Tenant
thereunder.
IN WITNESS WHEREOF, has
caused this Certificate to be signed in its corporate name by
, its , being
thereunto duly authorized.
By:
Its
Hereunto duly authorized
GENERAL CONTRACTOR
Dated:
TENANT'S CERTIFICATE
TO: (the "Landlord")
RE: CONSTRUCTION OF (the "Project")
The undersigned, Tenant under the lease (the "Lease") dated as of March 14,
1994, between the Landlord and the undersigned Tenant, covering the property on
which the above-noted construction Project is being conducted under the
Construction Contract (the "Construction Contract") between the undersigned and
(the "General Contractor"), does hereby certify to the Landlord as follows: --
1. The undersigned hereby requests an advance under the terms and provisions of
the Lease relating to the Project and the Work (as that term is used in the
Lease) in an amount equal to the amount of the General Contractor's Requisition
dated and being submitted to the Landlord together herewith.
2. The Tenant is not in default of any of its obligations under the provisions
of the Lease and asserts no default on the part of the Landlord of any of its
obligations under the provisions of the Lease.
3. The balance requested hereinabove to be advanced hereunder on account of the
Tenant's Work, together with funds otherwise currently available to the Tenant
(including, without limitation, Landlord's Inducement Payment under Section
13.26 of the Lease), are sufficient for the payment of all related direct and
indirect costs for the completion of the portion of the Work constituting
Tenant's Work in accordance with all of the terms and provisions of the
Construction Contract and the Lease; all funds advanced heretofore have been
used and all funds to be advanced in accordance with this request shall be used
to make payments due under the Construction Contract.
4. The Construction Contract is still in full force and effect and, to the best
of the undersigned's knowledge, information and belief (based upon normal and
customary inquiries and observations), the General Contractor is not in default
of any of its obligations to the undersigned thereunder or to any subcontractor,
workman or materialman for and with respect to work and materials supplied
through and including the date of the General Contractor's Requisition being
submitted to the Landlord herewith. Further, the
Construction Contract has not been modified or amended in any respect whatever,
including, without limitation, the contract price, and there has been no change
order except as disclosed in the Contractor's Certificate being submitted to the
Landlord herewith (if any).
5. In all other respects, to the best of our knowledge, information and belief
(based upon normal and customary inquiries and observation): all of the
certifications contained in the Contractor's Certificate and the Architect's
Certificate being submitted herewith and relating to the within request for
advance, are true, complete and accurate; and all of the conditions on advances
set forth in the applicable provisions of the letter-agreement comprising part
of the Lease have been satisfied with respect to the advance being requested
herein.
This Certificate is given to induce the Landlord to make an advance
relative to the Project, and it is intended that the Landlord shall rely upon
the same.
IN WITNESS WHEREOF, has
caused this Certificate to be signed in its corporate name by
, its , being hereunto
duly authorized.
By:
Its
Hereunto duly authorized
TENANT
Dated: