Maintenance and Repair; Trade Fixtures. (a) During the Term, Tenant, at its sole cost and expense and without the prior consent of Landlord, shall maintain the Demised Premises and Tenant’s Property, and except as provided in, and otherwise subject to, any REAs, all private roadways, sidewalks and curbs appurtenant to the Demised Premises or which are under Tenant’s exclusive control, or under any REAs for which Tenant is responsible for compliance under this Master Lease, in good order and repair (ordinary wear and tear excepted) with the standard of care and quality taking into account the age of the Demised Premises whether or not the need for such repairs occurs as a result of Tenant’s use, any prior use, the elements, or the age of the Demised Premises or Tenant’s Property, or otherwise (but excluding (i) Landlord’s gross negligence or willful misconduct, or any affirmative acts in connection with work performed by Landlord with respect to any Recapture Space or Tenant Retained Space, and (ii) all acts and omissions of any of Landlord’s Related Users in any Recapture Space or Additional Recapture Space or under any Leases which first arise after the date of this Master Lease), and, with reasonable promptness, make all necessary and appropriate repairs thereto of every kind and nature, including without limitation those necessary to ensure continuing compliance with all Legal Requirements, and Insurance Requirements, whether interior or exterior, structural or nonstructural, ordinary or extraordinary, foreseen or unforeseen, or arising by reason of a condition existing at or prior to the Commencement Date; provided, however, that subject to all Legal Requirements and Insurance Requirements all such repairs shall only be required to be made to the standards and the conditions existing as of the Commencement Date with respect to each Demised Premises, ordinary wear and tear excepted, with the standard of care and quality taking into account the age of the Demised Premises, and shall otherwise be made in general conformity with Schedule 1.7(j)(ii) attached hereto; provided, further, however, that Tenant’s obligations under this Section 10.1 shall include the maintenance, repair and replacement (a) at all times, of any and all building systems, machinery and equipment which exclusively serve the Demised Premises, (b) up to and including the Multi-Tenant Occupancy Date, of the bearing walls, floors, foundations, roofs and all structural elements of the Demised Premises (and after the Multi-Tenant Occupancy Date, the obligations in this clause (b) shall be Landlord’s responsibility) and (c) to be made in accordance with Schedule 10.1 to the Side Letter within one year of the Commencement Date. Tenant will not take or omit to take any action the taking or omission of which would reasonably be expected to (x) materially impair the value or the usefulness of the Demised Premises or any part thereof, (y) create (or permit to continue) any dangerous condition or (z) create (or permit to continue) any condition which might reasonably be expected to involve any imminent loss, damage or injury to any person or property; provided, that subject to Article XX, Tenant shall be entitled to operate SACs in accordance with Tenant’s usual and customary business practices in effect on the date of this Master Lease, and in compliance with all Encumbrances, Legal Requirements and Insurance Requirements. In connection with the foregoing, Tenant’s obligations shall include without limitation with respect to the Demised Premises, including, prior to the Multi-Tenant Occupancy Date, with respect to all Common Areas (and Landlord’s obligations with respect to all Common Areas, including all parking lots and parking areas, and landscaping not under the exclusive control of Tenant, after the Multi-Tenant Occupancy Date shall include): (i) Maintaining (including periodic washing and painting, as necessary, but in no event shall any Party be required to paint more than once in any rolling 5-year period) and repairing the storefront, facade and exterior walls of the Demised Premises; provided, that any re-painting of a different color or any changes to the exterior shall require Landlord’s prior written consent, which will not be unreasonably withheld, conditioned or delayed; (ii) Repairing and replacing, as necessary (in the same style and appearance), the doors (including, without limitation, any overhead doors) and windows of the Demised Premises, and the mechanisms therefor; (iii) Causing the regular removal of garbage and refuse from the Demised Premises; (iv) 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, so as to limit any gaps to 1⁄4 inch or less along the bottom and sides of all doors; (v) Servicing, maintaining, repairing and replacing all Fixtures; (vi) Regular sweeping, cleaning and removal of trash, debris, grease, oils, other materials and stains from the Demised Premises and from the immediately adjacent sidewalks, service drives and loading or delivery areas, if any of the Demised Premises, as necessary to keep the same clean and in good order and condition (after the Multi-Tenant Occupancy Date Tenant shall be responsible for such sidewalks, service drives and loading or delivery areas under the exclusive control of Tenant and Landlord shall remain responsible for the immediately adjacent and all other sidewalks, service drives and loading or delivery areas and landscaping not under the exclusive control of the Tenant); (vii) Regular sweeping, cleaning and washing of the interior of the Demised Premises, including, without limitation, floors, windows and fixtures, and periodic washing and painting of interior walls; (viii) Repairing broken, damaged or leaking walls, bathrooms, roofs, or fixtures and equipment in the interior of the Demised Premises, including, without limitation, plate glass windows, windows, floors and lighting fixtures, to the extent not covered by Landlord’s “All-Risk” insurance; (ix) Irrigating and performing all gardening and landscaping of all lawns, trees, shrubs and plantings immediately adjacent to the Demised Premises and under the exclusive control of Tenant; (x) Paving, repairing and striping of all parking areas as reasonably required; and (xi) In furtherance of the foregoing obligations to service, repair and maintain any Fixtures during the Term, Tenant shall maintain a contract on at least an annual basis (which contract shall be approved by Landlord, such approval not to be unreasonably withheld) for regular servicing and maintenance (in accordance with their respective manufacturing guidelines) of the heating, ventilating, air conditioning and vertical transportation systems that are part of the Fixtures in accordance with their manufacturing guidelines, unless Landlord shall otherwise direct (without additional cost or expense to Tenant). Upon request (not more frequently than annually), Tenant shall submit to Landlord a copy of such fully paid contract and any extensions, renewals or replacements thereof. At a minimum, each maintenance contract for any Fixtures shall include a provision that such contractor shall be required to coordinate any activities performed on the roof of the Demised Premises with Landlord’s or any tenant of Landlord’s activities, as the case may be, with/by a roofing contractor, so as to not void any roof or related warranties. (b) Except as otherwise expressly required elsewhere in this Master Lease (including with respect to Landlord’s obligations from and after the Multi-Tenant Occupancy Date), Landlord shall not under any circumstances be required to (i) build or rebuild any improvements on the Demised Premises; (ii) make any repairs, replacements, alterations, restorations or renewals of any nature to the Demised Premises, whether ordinary or extraordinary, structural or nonstructural, foreseen or unforeseen, or to make any expenditure whatsoever with respect thereto; or (iii) maintain the Demised Premises in any way. Except as otherwise expressly required elsewhere in this Master Lease, Tenant hereby unconditionally waives, to the fullest extent now or hereafter permitted by law, the right to make any repairs or perform any maintenance at the expense of Landlord pursuant to any law in effect at the time of the execution of this Master Lease, or hereafter enacted. The foregoing shall not limit in any manner Landlord’s obligations to pay for, or to advance or reimburse Tenant for, all costs and expenses of all Recapture Separation Work as provided in this Master Lease. (c) Tenant shall, upon the expiration or earlier termination of the Term, vacate and surrender the Demised Premises in the condition in which such Demised Premises was originally received from Landlord, except as repaired, rebuilt, restored, altered or added to as permitted or required by the provisions of this Master Lease and except for ordinary wear and tear, and further subject to the provisions with respect to removal and restoration of Tenant’s Property and Alterations and remediation of all environmental conditions. (d) Notwithstanding the foregoing standards for Tenant’s repair and maintenance obligations, Tenant agrees to perform those items of deferred repair and maintenance set forth on Schedule 10.1 to the Side Letter; provided, however, to the extent that Tenant shall fund any Landlord Mortgage reserve for work pursuant to Schedule 10.1 to the Side Letter, Tenant’s obligation to perform such deferred repair and maintenance relating to such reserves shall be conditioned upon Landlord’s release of such funds (or an equivalent amount) to Tenant on a timely basis in connection with the performance of such work so long as Tenant has complied with its obligations under Section 21.26. Notwithstanding the foregoing, to the extent funds have been released from such reserve but are not sufficient to complete the deferred repair and maintenance in accordance with Schedule 10.1 to the Side Letter, Tenant shall remain obligated to complete such deferred repair and maintenance at Tenant’s sole cost and expense.
Appears in 2 contracts
Samples: Master Lease (Sears Holdings Corp), Master Lease (Seritage Growth Properties)
Maintenance and Repair; Trade Fixtures. (a) During the Term, Tenant, at its sole cost and expense and without the prior consent of Landlord, shall maintain the Demised Premises and Tenant’s Property, and except as provided in, and otherwise subject to, any REAs, all private roadways, sidewalks and curbs appurtenant to the Demised Premises or which are under Tenant’s exclusive control, or under any REAs for which Tenant is responsible for compliance under this Master Lease, in good order and repair (ordinary wear and tear excepted) with the standard of care and quality taking into account the age of the Demised Premises whether or not the need for such repairs occurs as a result of Tenant’s use, any prior use, the elements, or the age of the Demised Premises or Tenant’s Property, or otherwise (but excluding (i) Landlord’s gross negligence or willful misconduct, or any affirmative acts in connection with work performed by Landlord with respect to any Recapture Space or Tenant Retained Space, and (ii) all acts and omissions of any of Landlord’s Related Users in any Recapture Space or Additional Recapture Space or under any Leases which first arise after the date of this Master Lease), and, with reasonable promptness, make all necessary and appropriate repairs thereto of every kind and nature, including without limitation those necessary to ensure continuing compliance with all Legal Requirements, and Insurance Requirements, whether interior or exterior, structural or nonstructural, ordinary or extraordinary, foreseen or unforeseen, or arising by reason of a condition existing at or prior to the Commencement Date; provided, however, that subject to all Legal Requirements and Insurance Requirements all such repairs shall only be required to be made to the standards and the conditions existing as of the Commencement Date with respect to each Demised Premises, ordinary wear and tear excepted, with the standard of care and quality taking into account the age of the Demised Premises, and shall otherwise be made in general conformity with Schedule 1.7(j)(ii) attached hereto; provided, further, however, that Tenant’s obligations under this Section 10.1 shall include the maintenance, repair and replacement (a) at all times, of any and all building systems, machinery and equipment which exclusively serve the Demised Premises, (b) up to and including the Multi-Tenant Occupancy Date, of the bearing walls, floors, foundations, roofs and all structural elements of the Demised Premises (and after the Multi-Tenant Occupancy Date, the obligations in this clause (b) shall be Landlord’s responsibility) and (c) perform the repairs to be made in accordance with Schedule 10.1 to the Side Letter within one year of the Commencement Date10.1. Tenant will not take or omit to take any action the taking or omission of which would reasonably be expected to (x) materially impair the value or the usefulness of the Demised Premises or any part thereof, (y) create (or permit to continue) any dangerous condition or (z) create (or permit to continue) any condition which might reasonably be expected to involve any imminent loss, damage or injury to any person or property; provided, that subject to Article XX, Tenant shall be entitled to operate SACs in accordance with Tenant’s usual and customary business practices in effect on the date of this Master Lease, and in compliance with all Encumbrances, Legal Requirements and Insurance Requirements. In connection with the foregoing, Tenant’s obligations shall include without limitation with respect to the Demised Premises, including, prior to the Multi-Tenant Occupancy Date, with respect to all Common Areas (and Landlord’s obligations with respect to all Common Areas, including all parking lots and parking areas, and landscaping not under the exclusive control of Tenant, after the Multi-Tenant Occupancy Date shall include):
(i) Maintaining (including periodic washing and painting, as necessary, but in no event shall any Party be required to paint more than once in any rolling 5-year period) and repairing the storefront, facade and exterior walls of the Demised Premises; provided, that any re-painting of a different color or any changes to the exterior shall require Landlord’s prior written consent, which will not be unreasonably withheld, conditioned or delayed;
(ii) Repairing and replacing, as necessary (in the same style and appearance), the doors (including, without limitation, any overhead doors) and windows of the Demised Premises, and the mechanisms therefor;
(iii) Causing the regular removal of garbage and refuse from the Demised Premises;
(iv) 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, so as to limit any gaps to 1⁄4 inch or less along the bottom and sides of all doors;
(v) Servicing, maintaining, repairing and replacing all Fixtures;
(vi) Regular sweeping, cleaning and removal of trash, debris, grease, oils, other materials and stains from the Demised Premises and from the immediately adjacent sidewalks, service drives and loading or delivery areas, if any of the Demised Premises, as necessary to keep the same clean and in good order and condition (after the Multi-Tenant Occupancy Date Tenant shall be responsible for such sidewalks, service drives and loading or delivery areas under the exclusive control of Tenant and Landlord shall remain responsible for the immediately adjacent and all other sidewalks, service drives and loading or delivery areas and landscaping not under the exclusive control of the Tenant);
(vii) Regular sweeping, cleaning and washing of the interior of the Demised Premises, including, without limitation, floors, windows and fixtures, and periodic washing and painting of interior walls;
(viii) Repairing broken, damaged or leaking walls, bathrooms, roofs, or fixtures and equipment in the interior of the Demised Premises, including, without limitation, plate glass windows, windows, floors and lighting fixtures, to the extent not covered by Landlord’s “All-Risk” insurance;
(ix) Irrigating and performing all gardening and landscaping of all lawns, trees, shrubs and plantings immediately adjacent to the Demised Premises and under the exclusive control of Tenant;
(x) Paving, repairing and striping of all parking areas as reasonably required; and
(xi) In furtherance of the foregoing obligations to service, repair and maintain any Fixtures during the Term, Tenant shall maintain a contract on at least an annual basis (which contract shall be approved by Landlord, such approval not to be unreasonably withheld) for regular servicing and maintenance (in accordance with their respective manufacturing guidelines) of the heating, ventilating, air conditioning and vertical transportation systems that are part of the Fixtures in accordance with their manufacturing guidelines, unless Landlord shall otherwise direct (without additional cost or expense to Tenant). Upon request (not more frequently than annually), Tenant shall submit to Landlord a copy of such fully paid contract and any extensions, renewals or replacements thereof. At a minimum, each maintenance contract for any Fixtures shall include a provision that such contractor shall be required to coordinate any activities performed on the roof of the Demised Premises with Landlord’s or any tenant of Landlord’s activities, as the case may be, with/by a roofing contractor, so as to not void any roof or related warranties.
(b) Except as otherwise expressly required elsewhere in this Master Lease (including with respect to Landlord’s obligations from and after the Multi-Tenant Occupancy Date), Landlord shall not under any circumstances be required to (i) build or rebuild any improvements on the Demised Premises; (ii) make any repairs, replacements, alterations, restorations or renewals of any nature to the Demised Premises, whether ordinary or extraordinary, structural or nonstructural, foreseen or unforeseen, or to make any expenditure whatsoever with respect thereto; or (iii) maintain the Demised Premises in any way. Except as otherwise expressly required elsewhere in this Master Lease, Tenant hereby unconditionally waives, to the fullest extent now or hereafter permitted by law, the right to make any repairs or perform any maintenance at the expense of Landlord pursuant to any law in effect at the time of the execution of this Master Lease, or hereafter enacted. The foregoing shall not limit in any manner Landlord’s obligations to pay for, or to advance or reimburse Tenant for, all costs and expenses of all Recapture Separation Work as provided in this Master Lease.
(c) Tenant shall, upon the expiration or earlier termination of the Term, vacate and surrender the Demised Premises in the condition in which such Demised Premises was originally received from Landlord, except as repaired, rebuilt, restored, altered or added to as permitted or required by the provisions of this Master Lease and except for ordinary wear and tear, and further subject to the provisions with respect to removal and restoration of Tenant’s Property and Alterations and remediation of all environmental conditions.
(d) Notwithstanding the foregoing standards for Tenant’s repair and maintenance obligations, Tenant agrees to perform those items of deferred repair and maintenance set forth on Schedule 10.1 to the Side Letter10.1; provided, however, to the extent that Tenant shall fund any Landlord Mortgage reserve for work pursuant to Schedule 10.1 to the Side Letterwork, Tenant’s obligation to perform such deferred repair and maintenance relating to such reserves shall be conditioned upon Landlord’s release of such funds (or an equivalent amount) to Tenant on a timely basis in connection with the performance of such work so long as Tenant has complied with its obligations under Section 21.26. Notwithstanding the foregoing, to the extent funds have been released from such reserve but are not sufficient to complete the deferred repair and maintenance in accordance with Schedule 10.1 to the Side Letter, Tenant shall remain obligated to complete such deferred repair and maintenance at Tenant’s sole cost and expensework.
Appears in 1 contract
Maintenance and Repair; Trade Fixtures. (a) During the Term, Tenant, at its sole cost and expense and without the prior consent of Landlord, shall maintain the Demised Premises and Tenant’s Property, and except as provided in, and otherwise subject to, any REAs, all private roadways, sidewalks and curbs appurtenant to the Demised Premises or which are under Tenant’s exclusive control, or under any REAs for which Tenant is responsible for compliance under this Master Lease, in good order and repair (ordinary wear and tear excepted) with the standard of care and quality taking into account the age of the Demised Premises whether or not the need for such repairs occurs as a result of Tenant’s use, any prior use, the elements, or the age of the Demised Premises or Tenant’s Property, or otherwise (but excluding (i) Landlord’s gross negligence or willful misconduct, or any affirmative acts in connection with work performed by Landlord with respect to any Recapture Space or Tenant Retained Space, and (ii) all acts and omissions of any of Landlord’s Related Users in any Recapture Space or Additional Recapture Space or under any Leases which first arise after the date of this Master Lease), and, with reasonable promptness, make all necessary and appropriate repairs thereto of every kind and nature, including without limitation those necessary to ensure continuing compliance with all Legal Requirements, and Insurance Requirements, whether interior or exterior, structural or nonstructural, ordinary or extraordinary, foreseen or unforeseen, or arising by reason of a condition existing at or prior to the Commencement Date; provided, however, that subject to all Legal Requirements and Insurance Requirements all such repairs shall only be required to be made to the standards and the conditions existing as of the Commencement Date with respect to each Demised Premises, ordinary wear and tear excepted, with the standard of care and quality taking into account the age of the Demised Premises, and shall otherwise be made in general conformity with Schedule 1.7(j)(ii) attached hereto; provided, further, however, that Tenant’s obligations under this Section 10.1 shall include the maintenance, repair and replacement (a) at all times, of any and all building systems, machinery and equipment which exclusively serve the Demised Premises, and (b) up to and including the Multi-Tenant Multi‑Tenant Occupancy Date, of the bearing walls, floors, foundations, roofs and all structural elements of the Demised Premises (and after the Multi-Tenant Multi‑Tenant Occupancy Date, the obligations in this clause (b) shall be Landlord’s responsibility) and (c) to be made in accordance with Schedule 10.1 to the Side Letter within one year of the Commencement Date). Tenant will not take or omit to take any action the taking or omission of which would reasonably be expected to (x) materially impair the value or the usefulness of the Demised Premises or any part thereof, (y) create (or permit to continue) any dangerous condition or (z) create (or permit to continue) any condition which might reasonably be expected to involve any imminent loss, damage or injury to any person or property; provided, that subject to Article XX, Tenant shall be entitled to operate SACs in accordance with Tenant’s usual and customary business practices in effect on the date of this Master Lease, and in compliance with all Encumbrances, Legal Requirements and Insurance Requirements. In connection with the foregoing, Tenant’s obligations shall include without limitation with respect to the Demised Premises, including, prior to the Multi-Tenant Multi‑Tenant Occupancy Date, with respect to all Common Areas (and Landlord’s obligations with respect to all Common Areas, including all parking lots and parking areas, and landscaping not under the exclusive control of Tenant, after the Multi-Tenant Multi‑Tenant Occupancy Date shall include):
(i) Maintaining (including periodic washing and painting, as necessary, but in no event shall any Party be required to paint more than once in any rolling 5-year 5‑year period) and repairing the storefront, facade and exterior walls of the Demised Premises; provided, that any re-painting re‑painting of a different color or any changes to the exterior shall require Landlord’s prior written consent, which will not be unreasonably withheld, conditioned or delayed;
(ii) Repairing and replacing, as necessary (in the same style and appearance), the doors (including, without limitation, any overhead doors) and windows of the Demised Premises, and the mechanisms therefor;
(iii) Causing the regular removal of garbage and refuse from the Demised Premises;
(iv) 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 roll‑up doors), including, without limitation, all weather seals, so as to limit any gaps to 1⁄4 ¼ inch or less along the bottom and sides of all doors;
(v) Servicing, maintaining, repairing and replacing all Fixtures;
(vi) Regular sweeping, cleaning and removal of trash, debris, grease, oils, other materials and stains from the Demised Premises and from the immediately adjacent sidewalks, service drives and loading or delivery areas, if any of the Demised Premises, as necessary to keep the same clean and in good order and condition (after the Multi-Tenant Multi‑Tenant Occupancy Date Tenant shall be responsible for such sidewalks, service drives and loading or delivery areas under the exclusive control of Tenant and Landlord shall remain responsible for the immediately adjacent and all other sidewalks, service drives and loading or delivery areas and landscaping not under the exclusive control of the Tenant);
(vii) Regular sweeping, cleaning and washing of the interior of the Demised Premises, including, without limitation, floors, windows and fixtures, and periodic washing and painting of interior walls;
(viii) Repairing broken, damaged or leaking walls, bathrooms, roofs, or fixtures and equipment in the interior of the Demised Premises, including, without limitation, plate glass windows, windows, floors and lighting fixtures, to the extent not covered by Landlord’s “All-RiskAll‑Risk” insurance;
(ix) Irrigating and performing all gardening and landscaping of all lawns, trees, shrubs and plantings immediately adjacent to the Demised Premises and under the exclusive control of Tenant;
(x) Paving, repairing and striping of all parking areas as reasonably required; and
(xi) In furtherance of the foregoing obligations to service, repair and maintain any Fixtures during the Term, Tenant shall maintain a contract on at least an annual basis (which contract shall be approved by Landlord, such approval not to be unreasonably withheld) for regular servicing and maintenance (in accordance with their respective manufacturing guidelines) of the heating, ventilating, air conditioning and vertical transportation systems that are part of the Fixtures in accordance with their manufacturing guidelines, unless Landlord shall otherwise direct (without additional cost or expense to Tenant). Upon request (not more frequently than annually), Tenant shall submit to Landlord a copy of such fully paid contract and any extensions, renewals or replacements thereof. At a minimum, each maintenance contract for any Fixtures shall include a provision that such contractor shall be required to coordinate any activities performed on the roof of the Demised Premises with Landlord’s or any tenant of Landlord’s activities, as the case may be, with/by a roofing contractor, so as to not void any roof or related warranties.
(b) Except as otherwise expressly required elsewhere in this Master Lease (including with respect to Landlord’s obligations from and after the Multi-Tenant Multi‑Tenant Occupancy Date), Landlord shall not under any circumstances be required to (i) build or rebuild any improvements on the Demised Premises; (ii) make any repairs, replacements, alterations, restorations or renewals of any nature to the Demised Premises, whether ordinary or extraordinary, structural or nonstructural, foreseen or unforeseen, or to make any expenditure whatsoever with respect thereto; or (iii) maintain the Demised Premises in any way. Except as otherwise expressly required elsewhere in this Master Lease, Tenant hereby unconditionally waives, to the fullest extent now or hereafter permitted by law, the right to make any repairs or perform any maintenance at the expense of Landlord pursuant to any law in effect at the time of the execution of this Master Lease, or hereafter enacted. The foregoing shall not limit in any manner Landlord’s obligations to pay for, or to advance or reimburse Tenant for, all costs and expenses of all Recapture Separation Work as provided in this Master Lease.
(c) Tenant shall, upon the expiration or earlier termination of the Term, vacate and surrender the Demised Premises in the condition in which such Demised Premises was originally received from Landlord, except as repaired, rebuilt, restored, altered or added to as permitted or required by the provisions of this Master Lease and except for ordinary wear and tear, and further subject to the provisions with respect to removal and restoration of Tenant’s Property and Alterations and remediation of all environmental conditions.
(d) Notwithstanding the foregoing standards for Tenant’s repair and maintenance obligations, Tenant agrees to perform those items of deferred repair and maintenance set forth on Schedule 10.1 to the Side Letter; provided, however, to the extent that Tenant shall fund any Landlord Mortgage reserve for work pursuant to Schedule 10.1 to the Side Letter, Tenant’s obligation to perform such deferred repair and maintenance relating to such reserves shall be conditioned upon Landlord’s release of such funds (or an equivalent amount) to Tenant on a timely basis in connection with the performance of such work so long as Tenant has complied with its obligations under Section 21.26. Notwithstanding the foregoing, to the extent funds have been released from such reserve but are not sufficient to complete the deferred repair and maintenance in accordance with Schedule 10.1 to the Side Letter, Tenant shall remain obligated to complete such deferred repair and maintenance at Tenant’s sole cost and expense.
Appears in 1 contract
Maintenance and Repair; Trade Fixtures. (a) During the Term, Tenant, at its sole cost and expense and without the prior consent of Landlordexpense, shall maintain maintain, repair and, as necessary, replace any element of the Demised Premises and Property, Tenant’s Property, and except as provided in, and otherwise subject to, any REAs, all private roadways, sidewalks and curbs appurtenant to the Demised Premises or Property which are under Tenant’s exclusive control, or under any REAs other areas for which Tenant the owner of the Property is responsible for compliance under this Master Leaserequired to perform such maintenance and repair pursuant to any Encumbrance, in good order condition and repair (ordinary wear and tear excepted) with the standard of care and quality taking into account the age of the Demised Premises Property whether or not the need for such repairs occurs as a result of Tenant’s use, any prior use, the elements, or the age of the Demised Premises Property or Tenant’s Property, or otherwise (but excluding (i) Landlord’s gross negligence or willful misconduct, or any affirmative acts in connection with work performed by Landlord with respect to any Recapture Space or Tenant Retained Space, and (ii) all acts and omissions of any of Landlord’s Related Users in any Recapture Space or Additional Recapture Space or under any Leases which first arise after the date of this Master Lease)otherwise, and, with reasonable promptness, make all necessary and appropriate repairs thereto of every kind and nature, including without limitation those necessary to ensure continuing compliance with all Legal Requirements, and Insurance Requirements, whether interior or exterior, structural or nonstructural, ordinary or extraordinary, foreseen or unforeseen, or arising by reason of a condition existing at or prior to the Commencement Date; provided, however, that subject to all Legal Requirements and Insurance Requirements all such repairs shall only be required to be made to the standards and the conditions existing as of the Commencement Date with respect to each Demised Premises, ordinary wear and tear excepted, with the standard of care and quality taking into account the age of the Demised Premises, and shall otherwise be made in general conformity with Schedule 1.7(j)(ii) attached hereto; provided, further, however, that Tenant’s obligations under this Section 10.1 shall include the maintenance, repair and replacement (a) at all times, of any and all building systems, machinery and equipment which exclusively serve the Demised Premises, (b) up to and including the Multi-Tenant Occupancy Date, of the bearing walls, floors, foundations, roofs and all structural elements of the Demised Premises (and after the Multi-Tenant Occupancy Date, the obligations in this clause (b) shall be Landlord’s responsibility) and (c) to be made in accordance with Schedule 10.1 to the Side Letter within one year of the Commencement Date. Tenant will not take or omit to take any action the taking or omission of which would reasonably be expected to (x) materially impair the value or the usefulness of the Demised Premises Property or any part thereof, (y) create (or permit to continue) any dangerous condition or (z) create (or permit to continue) any condition which might reasonably be expected to involve any imminent loss, damage or injury to any person or property; provided, that subject to Article XX, Tenant shall be entitled to operate SACs in accordance with Tenant’s usual and customary business practices in effect on the date of this Master Lease, and in compliance with all Encumbrances, Legal Requirements and Insurance Requirements. In connection with the foregoing, Tenant’s obligations shall include without limitation with respect to the Demised Premises, including, prior to the Multi-Tenant Occupancy Date, with respect to all Common Areas (and Landlord’s obligations with respect to all Common Areas, including all parking lots and parking areas, and landscaping not under the exclusive control of Tenant, after the Multi-Tenant Occupancy Date shall include):
(i) Maintaining (including periodic washing and painting, as necessary, but in no event shall any Party be required to paint more than once in any rolling 5-year period) and repairing the storefront, facade and exterior walls of the Demised Premises; provided, that any re-painting of a different color or any changes to the exterior shall require Landlord’s prior written consent, which will not be unreasonably withheld, conditioned or delayed;
(ii) Repairing and replacing, as necessary (in the same style and appearance), the doors (including, without limitation, any overhead doors) and windows of the Demised Premises, and the mechanisms therefor;
(iii) Causing the regular removal of garbage and refuse from the Demised Premises;
(iv) 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, so as to limit any gaps to 1⁄4 inch or less along the bottom and sides of all doors;
(v) Servicing, maintaining, repairing and replacing all Fixtures;
(vi) Regular sweeping, cleaning and removal of trash, debris, grease, oils, other materials and stains from the Demised Premises and from the immediately adjacent sidewalks, service drives and loading or delivery areas, if any of the Demised Premises, as necessary to keep the same clean and in good order and condition (after the Multi-Tenant Occupancy Date Tenant shall be responsible for such sidewalks, service drives and loading or delivery areas under the exclusive control of Tenant and Landlord shall remain responsible for the immediately adjacent and all other sidewalks, service drives and loading or delivery areas and landscaping not under the exclusive control of the Tenant);
(vii) Regular sweeping, cleaning and washing of the interior of the Demised Premises, including, without limitation, floors, windows and fixtures, and periodic washing and painting of interior walls;
(viii) Repairing broken, damaged or leaking walls, bathrooms, roofs, or fixtures and equipment in the interior of the Demised Premises, including, without limitation, plate glass windows, windows, floors and lighting fixtures, to the extent not covered by Landlord’s “All-Risk” insurance;
(ix) Irrigating and performing all gardening and landscaping of all lawns, trees, shrubs and plantings immediately adjacent to the Demised Premises and under the exclusive control of Tenant;
(x) Paving, repairing and striping of all parking areas as reasonably required; and
(xi) In furtherance of the foregoing obligations to service, repair and maintain any Fixtures during the Term, Tenant shall maintain a contract on at least an annual basis (which contract shall be approved by Landlord, such approval not to be unreasonably withheld) for regular servicing and maintenance (in accordance with their respective manufacturing guidelines) of the heating, ventilating, air conditioning and vertical transportation systems that are part of the Fixtures in accordance with their manufacturing guidelines, unless Landlord shall otherwise direct (without additional cost or expense to Tenant). Upon request (not more frequently than annually), Tenant shall submit to Landlord a copy of such fully paid contract and any extensions, renewals or replacements thereof. At a minimum, each maintenance contract for any Fixtures shall include a provision that such contractor shall be required to coordinate any activities performed on the roof of the Demised Premises with Landlord’s or any tenant of Landlord’s activities, as the case may be, with/by a roofing contractor, so as to not void any roof or related warranties.
(b) Except as otherwise expressly required elsewhere in this Master Lease (including with respect to Landlord’s obligations from and after the Multi-Tenant Occupancy Date), Landlord shall not under any circumstances be required to (i) build or rebuild any improvements on the Demised PremisesProperty; (ii) make any repairs, replacements, alterations, restorations or renewals of any nature to the Demised PremisesProperty, whether ordinary or extraordinary, structural or nonstructural, foreseen or unforeseen, or to make any expenditure whatsoever with respect thereto; or (iii) maintain the Demised Premises Property in any way. Except as otherwise expressly required elsewhere in this Master Lease, Tenant hereby unconditionally and irrevocably waives, to the fullest extent now or hereafter permitted by law, the right to make any repairs or perform any maintenance at the expense of Landlord pursuant to any law in effect at the time of the execution of this Master Lease, or hereafter enacted. The foregoing shall not limit in any manner Landlord’s obligations to pay for, or to advance or reimburse Tenant for, all costs and expenses of all Recapture Separation Work as provided in this Master Lease.
(cb) Tenant shall, upon the expiration or earlier termination of the Term, vacate and surrender the Demised Premises Property in the condition in which such Demised Premises Property was originally received from Landlord, except as repaired, rebuilt, restored, altered or added to as permitted or required by the provisions of this Master Lease and except for ordinary wear and tear, and further subject to the provisions with respect to removal and restoration of Tenant’s Property and Alterations and remediation of all environmental conditions.
(dc) Notwithstanding Any holding over by Tenant of the foregoing standards for Tenant’s repair Property after the expiration or earlier termination of the Term of this Lease or any extensions thereof, with the consent of Landlord, shall operate and maintenance obligationsbe construed as tenancy from month to month only, at one hundred fifty percent (150%) of the Base Rent reserved herein and upon the same terms and conditions as contained in this Lease. In addition, Tenant agrees to perform those items of deferred repair and maintenance set forth on Schedule 10.1 to the Side Letter; provided, however, to the extent that Tenant shall fund any Landlord Mortgage reserve for work pursuant to Schedule 10.1 to the Side Letter, Tenant’s obligation to perform such deferred repair and maintenance relating to such reserves shall be conditioned upon Landlord’s release liable to Landlord for and shall indemnify Landlord from and against all Claims that Landlord suffers as a result of such funds (holding over, including without limitation, any claims made by any succeeding occupant or an equivalent amount) to Tenant purchaser founded on a timely basis in connection with the performance of such work so long as Tenant has complied with its obligations under Section 21.26delay. Notwithstanding the foregoing, any holding over without Landlord’s consent shall entitle Landlord, in addition to collecting Base Rent at the extent funds have been released from such reserve but are not sufficient rate set forth in this subsection (c), to complete exercise all rights and remedies provided by law or in equity, including the deferred repair and maintenance in accordance with Schedule 10.1 to the Side Letter, Tenant shall remain obligated to complete such deferred repair and maintenance at Tenant’s sole cost and expenseremedies of Section 13.2 below.
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