ABA Leasing Committee Teleconference January 16, 2013 Industrial and Warehouse Use Built-to-Suit Term Sheet Considerations 1

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1 ABA Leasing Committee Teleconference January 16, 2013 Industrial and Warehouse Use Built-to-Suit Term Sheet Considerations 1 1. General Observations Term sheet can provide outline of business deal to be reflected in the lease. It can provide facts helpful for due diligence by the tenant. It can make clear any contingencies that must be satisfied by the landlord to make the lease effective. It can incorporate or contemplate specific time line and benchmark dates 2. Identity of the Parties by which certain conditions need to be satisfied. This seems very straight forward, but in the case of landlord, it can be confirmed that landlord owns or leases the parcel or parcels subject to the transaction. If landlord is a contract vendee for the purchase of the property it will be a condition to the effectiveness of the lease that landlord acquires a fee or leasehold interest in the property. If easement rights are to be utilized the easement rights need to be reviewed to see transferable and sufficient property for tenant s included use. 3. Intended Improvements 1 This outline was prepared by Robert J. Shansky for a teleconference program for the ABA Leasing Committee and expresses the views of the author and not his firm.

2 The Term Sheet could indicate the general size of the premises and any specific easement rights and general description of the type of improvements to be constructed. If improvements may be expanded that can be included in the improvement description. To the extent the tenant may have drawings of the proposed improvements 4. Commencement and specifications for the improvements, those can be included in the Term Sheet. Term Sheet may contemplate work to be performed by Landlord and date by which building made available for tenant to perform its installation. There might be per diem penalty for building not being made available for specific date. There could be a cancellation right if the landlord s work is not completed by a certain date. Commencement date might be specific tied to completion of work and issuance of a certificate of occupancy or equivalent. (e) (f) Period of time for landlord to complete punch-list could be specified. Example of landlord s work: (i) (ii) (iii) (iv) Clearing Earthwork, cuts and fill; Foundation, concrete pillars and concrete perimeter walls; Concrete building slab-on-grade including sealer; 2

3 (v) Exterior pavements (in lieu of completing pavement, landlord may provide, maintain and pay for an all-weather temporary stone access road and staging area for construction, or if applicable, tractor-trailer traffic and maneuvering at the unload doors until permanent pavement is in place to provide continuous access from the site construction entrance to a drive-in building door for deliveries of equipment and machinery to be installed by the tenant). (vi) (vii) Building structure, roofing, wall panels and insulation; All overhead and personnel doors and hardware (lockable) as required to provide a secure building; (viii) Under slab utilities and trench drains; (ix) (x) (xi) Overhead utilities; Fire protection piping (excluding system start-up); Electric power distribution, equipment and devices (main power panel must be energized); (xii) Light fixtures (overhead lighting must be functional), conduit and 5. Rent Commencement wiring, excluding overhead door task lights; (xiii) Fire alarm system (excluding system start-up). Tied to commencement date or could be earlier to induce landlord s completion of its work. 3

4 This may be affected by failure of the benchmark dates to be met, which could occur by delays caused by landlord or tenant, or by both. 6. Term Lease will be relatively long term, 20 years or longer. It would be typical the lease would include renewal rights, in which event the parties may negotiate a specific manner of calculating renewal rent or specify a renewal rent in the term sheet. 7. Use Specific use of facility to be stated. Due diligence and possible contingencies timed to any special permits, variances or the like for tenant s use. 8. Rent The annual rent will be set forth. 9. License and Permit Fees Tenant will want landlord to pay license and permit fees in connection 10. Real Estate Taxes with construction of the facility. Tenant will pay real estate taxes, if possible directly to the taxing authority. Lease may need to contemplate an escrow if landlord s lender requires a tax escrow. 11. Economic Incentives and Tax Abatements 4

5 Term sheet should contemplate cooperation of parties seeking any local and state incentives available for the land and improvements. Landlord may seek benefits allocated to land acquisition. 12. Utilities and Operating Costs Tenant should pay all utilities. Maintenance and repair of the facility (i) Tenant should be assigned all warranties related to facility construction. (ii) Landlord may be responsible for exterior structure and substructure of building and roadways and parking, if not damaged or misused by tenant. (iii) Certain of landlord s responsibilities of landlord may be limited to a period of time (for example, the first 3 years of the term). (iv) Landlord might be responsible for certain defects in mechanical systems or latent defects. (v) Subject to the foregoing with those exceptions tenant will be responsible for minor and normal exterior maintenance and repair. (vi) In certain situations after a certain period tenant may be responsible for all maintenance. 13. Security Deposit If any will be specified. With large creditworthy tenant there may be none. 14. Compliance with Law 5

6 Landlord should be responsible for compliance related to completion of the facility, other than tenant s work. Tenant responsible for compliance with tenant s installation and operations. Allocation of responsibility with ADA may be specified as this may be tenant s responsibility. Compliance with future laws may be tenant s responsibility. 15. Environmental and Hazardous Materials Conditions to Lease may be landlord conducting Phase 1 and if necessary Phase 2 environmental investigations. Results of Phase 2 could impact cost of excavation and ultimate cost of project. If known environmental conditions exist that are being addressed, Tenant may proceed if Landlord maintains acceptable pollution liability insurance policy. 16. As-Built Plans, Operation and Maintenance Manuals Tenant will want a set of close-out documentation upon completion of facility. This would include CAD-based as built drawings. Equipment guidelines, instructions, warranties and test reports should be included. 17. Lease To be in form mutually acceptable to tenant. 6

7 Tenant may require the lease be mortgageable by tenant. Tenant will want subordination non-disturbance and attornment agreements from holders of superior interests. (e) Recording a memorandum of lease. Landlord to deliver landlord waiver of lien with respect to tenant s tangible and intangible property, equipment machinery, personal property and fixtures for tenant s lender. (f) Lease may include a purchase option or right of first refusal or right of first offer. (g) The concept of force majeure needs careful attention in the built-to-suit context. (i) (ii) (iii) Affect on construction schedule; Unavoidable events which actually affect the critical path; Consequence of failing to meet benchmark dates. 18. Signage 19. Brokerage 20. Confidentiality 21. Discussion 7