Use of Demised Premises. (a) The Demised Premises shall be used for the Permitted Use set forth in Section 1(1) and for no other purpose whatsoever, except as provided to the contrary in this subsection (a). If Tenant or any permitted assignee or subtenant desires to change the Permitted Use, Tenant shall submit to Landlord a written request setting forth in detail the nature of the additional or altered Permitted Use proposed by Tenant or a permitted or proposed assignee or subtenant (the “Altered Use”). Landlord agrees that Landlord may not unreasonably withhold, delay or condition its consent to the proposed Altered Use, subject to the conditions that such Altered Use shall never extend to or allow the use or storage of (A) radioactive, explosive, highly flammable or biohazardous materials at the Demised Premises or any materials which, when present in the Demised Premises, emit a noticeable and persistent odor or fumes (e.g., tires of any nature, which are strictly prohibited), (B) any product or material which, under applicable Governmental Requirements (as defined in Section 15), would require any alteration of the Demised Premises (e.g., special safety measures for explosive or highly flammable materials, special security measures for controlled substances or freezer/coolers for food products), (C) bulk quantities of chemicals or paint or petroleum (or distillates thereof), in any size container, or the use or storage of any other product or material wherein a Hazardous Substance (as defined in Section 16) constitutes the principal or a primary component of such product or material, (D) any product or material which, in the reasonable judgment of Landlord, will result in a material increase in the risk of Contamination (as defined in Section 16) at the Demised Premises or (E) any product or material which, in the reasonable judgment of Landlord, will result in a material increase in the wear and tear on the Demised Premises, as compared to wear and tear on the Demised Premises generated by the initial Permitted Use. Landlord shall, within ten (10) business days after receipt of the written notice from Tenant regarding a proposed Altered Use, give written notice to Tenant approving or disapproving the proposal. A notice of approval may contain reasonable conditions, based on the nature of the proposed use. If the written notice from Landlord disapproves the proposed use. the reasons for such determination shall be set forth in reasonable detail. The provisions of this Section 7(a) are not intended to and will not restrict the original Permitted Use as described in Section 1(1) of this Lease or the construction by Tenant of improvements in the Demised Premises in accordance with Section 17 and Special Stipulation 5. (b) Tenant will permit no liens to attach or exist against the Demised Premises, and shall not commit any waste. (c) The Demised Premises shall not be used for any illegal purposes, and Tenant shall not allow, suffer, or permit any vibration, noise, odor, light or other effect to occur within or around the Demised Premises that either (i) violates applicable Governmental Requirements (as defined in Section 15 below) or (ii) constitutes a nuisance or trespass under applicable law with respect to Landlord or any occupant of the Building or an adjoining building, its customers, agents, or invitees. Upon notice by Landlord to Tenant that any of the aforesaid prohibited uses are occurring, Tenant agrees to promptly remove or control the same. (d) Landlord acknowledges that Tenant’s use of the Demised Premises shall include the preparation and testing of candles and waxes, which testing will likely result in fragrant emissions from the Demised Premises. Preparation shall include the use of pilot plant equipment, compression equipment, coating equipment, and melt filling of candles. Because Tenant does not, on the Lease Date, operate a facility comparable to the facility which Tenant will install in the Demised Premises, neither Landlord nor Tenant can accurately predict the intensity of the odors which will be generated by Tenant in connection with the Permitted Use. The term “odor”, as used in this subsection (d) and in subsection (e), below, is intended to mean any smell of any nature, and not just smells which might be characterized as malodorous. Landlord has expressed concern that, even if the odor generated by Tenant does not violate subsection (c) above, the odor could reach a level which would cause frequent and serious complaints by other tenants in the Building or by tenants in other buildings in the Project which are owned by IDI or affiliates of IDI (the “Other Tenants”). Tenant has advised Landlord that Tenant is unwilling to alter its activities based on any subjective determination by Landlord that the level of odor is unacceptable. In order to address the concerns of Landlord and Tenant with respect to odor from the Demised Premises which does not violate subsection (c), above, Landlord and Tenant have agreed on the procedures and provisions set forth in this subsection (d). If Landlord receives, at any time during the Term, three (3) or more written complaints in the aggregate within a period of six (6) months from three (3) or more Other Tenants regarding odors generated by the Permitted Use (the “Other Tenant Complaints”), and the odor giving rise to such Other Tenant Complaints does not violate subsection (c) above, then Landlord will be entitled to provide to Tenant copies of such Other Tenant Complaints and request that Tenant undertake a review of its operation in the Demised Premises and determine whether or not Tenant is using commercially reasonable practices to control the emission of odors from the Demised Premises. Tenant will respond to the written notice within ten (10) business days after receipt of the notice from Landlord and Landlord will meet with Tenant upon reasonable prior request to assess the Other Tenant Complaints and possible responsive measures by Tenant. In its written response, Tenant will either (i) identify changes in its practices affecting odor control which will be instituted or (ii) advise Landlord that Tenant has determined that no changes are required because commercially reasonable practices for odor control are already being utilized. The term “commercially reasonable practices”, as used in this subsection (d), is intended to include the use or installation of equipment or alterations of existing equipment and/or the utilization of maintenance practices or operating procedures which are (1) consistent with then current technology for odor control, (2) frequently or routinely used by operators comparable to Tenant for the purpose of odor control, and (3) available at a cost which is commercially reasonable, giving due regard to size of the business operation of Tenant and the amount of reduction of odor to be achieved in relation to the cost of the equipment or maintenance required to achieve the reduction. Landlord will have the right to notify Tenant, in response to its notice, whether or not Landlord concurs with the determination by Tenant. If Landlord and Tenant cannot reach agreement on whether or not Tenant is utilizing commercially reasonable practices to control the emission of odors from the Demised Premises, then Landlord will have the right to require arbitration to resolve the disagreement in the manner hereinafter specified in Section 7(e) below, (e) If Landlord disagrees with the determination of Tenant that Tenant is using commercially reasonable practices to control the emission of odors from the Demised Premises, Landlord may elect by written notice to Tenant (the “Arbitration Notice”) to submit such matter to be decided by an independent third party (“Arbitrator”) mutually satisfactory to Landlord and Tenant who shall be a Certified Industrial Hygienist in the State of Illinois having at least fifteen (15) years’ experience in the field of air quality control. Landlord shall propose in its notice to Tenant an Arbitrator meeting the foregoing criteria, and Tenant shall within five (5) business days after receipt of such Arbitration Notice notify Landlord in writing of its acceptance of such Arbitrator as so designated by Landlord, or if Tenant is not prepared to accept the Arbitrator designated by Landlord, then Tenant shall designate an Arbitrator satisfactory to it for purposes of conducting such arbitration. The one Arbitrator mutually-satisfactory to Landlord and Tenant, or the two Arbitrators separately designated by each of Landlord and Tenant (if Landlord and Tenant fail to agree on the selection of one Arbitrator) shall within five (5) business days after engagement meet with the representatives of Landlord and Tenant for the purpose of gaining information with respect to the nature of the dispute between Landlord and Tenant, and shall decide such dispute without delay and as promptly as reasonably possible under the circumstances. In the event separate Arbitrators are selected by Landlord and Tenant and such parties cannot agree upon the matter submitted to them, such Arbitrators shall within five (5) business days after reaching such impasse select a third Arbitrator mutually-satisfactory to the two Arbitrators, and thereafter the third Arbitrator shall promptly decide the matter submitted by Landlord and Tenant to arbitration pursuant to the foregoing. Each party shall pay the cost and expense of any Arbitrator engaged by it, provided that both parties shall share equally the costs of any single Arbitrator who is mutually satisfactory to Landlord and Tenant or mutually satisfactory to the Arbitrators selected by Landlord and Tenant. If the Arbitrator determines that there are additional, commercially reasonable practices which should be instituted by Tenant to control the emission of odors from the Demised Premises, Tenant will, at the expense of Tenant, promptly carry out the recommendations of the Arbitrator and provide to Landlord reasonable evidence of the completion of the required work; provided, however, that in lieu of performing such work, Tenant shall have the right to elect to cease or reduce the activities in the Demised Premises which give rise to the emission of odors from the Demised Premises. If the Arbitrator determines that Tenant is using commercially reasonable practices to control the emission of odor from the Demised Premises, then Tenant will not be required to take any further action with respect to such Other Tenant Complaints presented by Landlord which were the basis for the arbitration. The decision of such Arbitrator(s) shall be issued in writing, shall be final and binding on both Landlord and Tenant with respect to such Other Tenant Complaints and shall not be subject to further review by either Landlord or Tenant. Landlord will be entitled to initiate a subsequent arbitration in the manner described in this subsection (e) if (i) additional complaints are received from tenants that were not the Other Tenants in the prior Other Tenant Complaints or (ii) are based on odors generated by a change in Tenant’s sources, materials, procedures or equipment since the prior arbitration. (f) Tenant shall not violate any law, ordinance or restrictive covenant affecting the Demised Premises, and shall not in any manner use the Demised Premises so as to cause cancellation of, prevent the use of, or increase the rate of, the fire and extended coverage insurance policy required
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Samples: Industrial Lease Agreement (Elevance Renewable Sciences, Inc.)
Use of Demised Premises. (a) The Demised Premises 8.1 LESSEE shall be used for the Permitted Use set forth in Section 1(1) and for no other purpose whatsoevernot, except as provided to with the contrary in this subsection (a). If Tenant prior consent of LESSOR, use or any permitted assignee suffer or subtenant desires to change the Permitted Use, Tenant shall submit to Landlord a written request setting forth in detail the nature of the additional or altered Permitted Use proposed by Tenant or a permitted or proposed assignee or subtenant (the “Altered Use”). Landlord agrees that Landlord may not unreasonably withhold, delay or condition its consent to the proposed Altered Use, subject to the conditions that such Altered Use shall never extend to or allow permit the use or storage of (A) radioactive, explosive, highly flammable or biohazardous materials at the Demised Premises or any materials whichpart thereof for any purposes other than for general administrative offices; provided, when present however, anything in this Lease to the Demised Premisescontrary notwithstanding, emit a noticeable and persistent odor or fumes that (e.g., tires of any nature, which are strictly prohibited), (Ba) any product or material which, under applicable Governmental Requirements (as defined in Section 15), would require any alteration the portions of the Demised Premises which are identified as toilets or utility areas shall be used by LESSEE only for the purposes for which they are designed and (e.g.b) LESSEE complies with the requirements of Section 8.2 hereof.
8.2 LESSEE shall not use, special safety measures for explosive or highly flammable materialssuffer or permit the use of, special security measures for controlled substances the Demised Premises or freezer/coolers for food products), (C) bulk quantities of chemicals or paint or petroleum (or distillates thereof), any part thereof in any size containermanner or for any purpose or do, bring or keep anything, or suffer or permit anything to be done, brought or kept, therein (including, but not limited to, the use installation or storage operation of any electrical, electronic or other product equipment) (a) which would violate any covenant, agreement, term, provision or material wherein a Hazardous Substance condition of this Lease or is unlawful or in contravention of the certificate of occupancy for the Building, or is in contravention of any Legal or Insurance Requirement to which the Demised Premises is subject, or (as defined b) which would overload or could cause an overload of the electrical or mechanical systems of the Building or which would exceed the floor load per square foot which the floor was designed to carry and which is allowed by law, or (c) which in Section 16the reasonable judgment of the LESSOR may in any way impair or interfere with the proper and economic heating, air conditioning of the Building or (d) constitutes suffer or permit the principal Building or a primary any component of such product thereof to be used in any manner or material, (D) any product anything to be done therein or material anything to be brought into or kept thereon which, in the reasonable judgment of LandlordLESSOR, will would in any way impair or tend to impair or exceed the design criteria, the structural integrity, character or appearance of the Building, or result in the use of the Building or any component thereof in a material increase in manner or for a purpose not intended; nor shall the risk of Contamination (as defined in Section 16) at LESSEE use, or suffer or permit the use of, the Demised Premises or (E) any product part thereof in any manner, or material do, or suffer or permit the doing of, anything therein or in connection with the LESSEE’S business or advertising which, in the reasonable judgment of Landlordthe LESSOR, will result in a material increase in may be prejudicial to the wear and tear on the Demised Premises, as compared to wear and tear on the Demised Premises generated by the initial Permitted Use. Landlord shall, within ten (10) business days after receipt of the written notice from Tenant regarding a proposed Altered Use, give written notice to Tenant approving or disapproving the proposal. A notice of approval may contain reasonable conditions, based on the nature of the proposed use. If the written notice from Landlord disapproves the proposed use. the reasons for such determination shall be set forth in reasonable detail. The provisions of this Section 7(a) are not intended to and will not restrict the original Permitted Use as described in Section 1(1) of this Lease or the construction by Tenant of improvements in the Demised Premises in accordance with Section 17 and Special Stipulation 5LESSOR.
(b) Tenant will permit no liens to attach 8.3 LESSEE shall obtain, at its sole cost and expense, all permits, licenses or exist against the Demised Premises, and shall not commit authorizations of any waste.
(c) The Demised Premises shall not be used for any illegal purposes, and Tenant shall not allow, suffer, or permit any vibration, noise, odor, light or other effect to occur within or around the Demised Premises that either (i) violates applicable Governmental Requirements (as defined in Section 15 below) or (ii) constitutes a nuisance or trespass under applicable law with respect to Landlord or any occupant of the Building or an adjoining building, its customers, agents, or invitees. Upon notice by Landlord to Tenant that any of the aforesaid prohibited uses are occurring, Tenant agrees to promptly remove or control the same.
(d) Landlord acknowledges that Tenant’s use of the Demised Premises shall include the preparation and testing of candles and waxes, which testing will likely result in fragrant emissions from the Demised Premises. Preparation shall include the use of pilot plant equipment, compression equipment, coating equipment, and melt filling of candles. Because Tenant does not, on the Lease Date, operate a facility comparable to the facility which Tenant will install in the Demised Premises, neither Landlord nor Tenant can accurately predict the intensity of the odors which will be generated by Tenant nature required in connection with the Permitted Use. The term “odor”, as used in this subsection (d) and in subsection (e), below, is intended to mean any smell operation of any nature, and not just smells which might be characterized as malodorous. Landlord has expressed concern that, even if the odor generated by Tenant does not violate subsection (c) above, the odor could reach a level which would cause frequent and serious complaints by other tenants in the Building or by tenants in other buildings in the Project which are owned by IDI or affiliates of IDI (the “Other Tenants”). Tenant has advised Landlord that Tenant is unwilling to alter its activities based on any subjective determination by Landlord that the level of odor is unacceptable. In order to address the concerns of Landlord and Tenant with respect to odor from the Demised Premises which does not violate subsection (c), above, Landlord and Tenant have agreed on the procedures and provisions set forth in this subsection (d). If Landlord receives, LESSEE’S business at any time during the Term, three (3) or more written complaints in the aggregate within a period of six (6) months from three (3) or more Other Tenants regarding odors generated by the Permitted Use (the “Other Tenant Complaints”), and the odor giving rise to such Other Tenant Complaints does not violate subsection (c) above, then Landlord will be entitled to provide to Tenant copies of such Other Tenant Complaints and request that Tenant undertake a review of its operation in the Demised Premises and determine whether or not Tenant is using commercially reasonable practices to control the emission of odors from the Demised Premises. Tenant will respond to the written notice within ten (10) business days after receipt of the notice from Landlord and Landlord will meet with Tenant upon reasonable prior request to assess the Other Tenant Complaints and possible responsive measures by Tenant. In its written response, Tenant will either (i) identify changes in its practices affecting odor control which will be instituted or (ii) advise Landlord that Tenant has determined that no changes are required because commercially reasonable practices for odor control are already being utilized. The term “commercially reasonable practices”, as used in this subsection (d), is intended to include the use or installation of equipment or alterations of existing equipment and/or the utilization of maintenance practices or operating procedures which are (1) consistent with then current technology for odor control, (2) frequently or routinely used by operators comparable to Tenant for the purpose of odor control, and (3) available at a cost which is commercially reasonable, giving due regard to size of the business operation of Tenant and the amount of reduction of odor to be achieved in relation to the cost of the equipment or maintenance required to achieve the reduction. Landlord will have the right to notify Tenant, in response to its notice, whether or not Landlord concurs with the determination by Tenant. If Landlord and Tenant cannot reach agreement on whether or not Tenant is utilizing commercially reasonable practices to control the emission of odors from the Demised Premises, then Landlord will have the right to require arbitration to resolve the disagreement in the manner hereinafter specified in Section 7(e) below,
(e) If Landlord disagrees with the determination of Tenant that Tenant is using commercially reasonable practices to control the emission of odors from the Demised Premises, Landlord may elect by written notice to Tenant (the “Arbitration Notice”) to submit such matter to be decided by an independent third party (“Arbitrator”) mutually satisfactory to Landlord and Tenant who shall be a Certified Industrial Hygienist in the State of Illinois having at least fifteen (15) years’ experience in the field of air quality control. Landlord shall propose in its notice to Tenant an Arbitrator meeting the foregoing criteria, and Tenant shall within five (5) business days after receipt of such Arbitration Notice notify Landlord in writing of its acceptance of such Arbitrator as so designated by Landlord, or if Tenant is not prepared to accept the Arbitrator designated by Landlord, then Tenant shall designate an Arbitrator satisfactory to it for purposes of conducting such arbitration. The one Arbitrator mutually-satisfactory to Landlord and Tenant, or the two Arbitrators separately designated by each of Landlord and Tenant (if Landlord and Tenant fail to agree on the selection of one Arbitrator) shall within five (5) business days after engagement meet with the representatives of Landlord and Tenant for the purpose of gaining information with respect to the nature of the dispute between Landlord and Tenant, and shall decide such dispute without delay and as promptly as reasonably possible under the circumstances. In the event separate Arbitrators are selected by Landlord and Tenant and such parties cannot agree upon the matter submitted to them, such Arbitrators shall within five (5) business days after reaching such impasse select a third Arbitrator mutually-satisfactory to the two Arbitrators, and thereafter the third Arbitrator shall promptly decide the matter submitted by Landlord and Tenant to arbitration pursuant to the foregoing. Each party shall pay the cost and expense of any Arbitrator engaged by it, provided that both parties shall share equally the costs of any single Arbitrator who is mutually satisfactory to Landlord and Tenant or mutually satisfactory to the Arbitrators selected by Landlord and Tenant. If the Arbitrator determines that there are additional, commercially reasonable practices which should be instituted by Tenant to control the emission of odors from the Demised Premises, Tenant will, at the expense of Tenant, promptly carry out the recommendations of the Arbitrator and provide to Landlord reasonable evidence of the completion of the required work; provided, however, that in lieu of performing such work, Tenant shall have the right to elect to cease or reduce the activities in the Demised Premises which give rise to the emission of odors from the Demised Premises. If the Arbitrator determines that Tenant is using commercially reasonable practices to control the emission of odor from the Demised Premises, then Tenant will not be required to take any further action with respect to such Other Tenant Complaints presented by Landlord which were the basis for the arbitration. The decision of such Arbitrator(s) shall be issued in writing, shall be final and binding on both Landlord and Tenant with respect to such Other Tenant Complaints and shall not be subject to further review by either Landlord or Tenant. Landlord will be entitled to initiate a subsequent arbitration in the manner described in this subsection (e) if (i) additional complaints are received from tenants that were not the Other Tenants in the prior Other Tenant Complaints or (ii) are based on odors generated by a change in Tenant’s sources, materials, procedures or equipment since the prior arbitration.
(f) Tenant shall not violate any law, ordinance or restrictive covenant affecting the Demised Premises, and shall not in any manner use the Demised Premises so as to cause cancellation of, prevent the use of, or increase the rate of, the fire and extended coverage insurance policy required
Appears in 1 contract
Use of Demised Premises. (a) The Demised Premises 7.1. LESSEE shall be used for the Permitted Use set forth in Section 1(1) and for no other purpose whatsoevernot, except as provided to with the contrary in this subsection (a). If Tenant prior consent of LESSOR, use or any permitted assignee suffer or subtenant desires to change the Permitted Use, Tenant shall submit to Landlord a written request setting forth in detail the nature of the additional or altered Permitted Use proposed by Tenant or a permitted or proposed assignee or subtenant (the “Altered Use”). Landlord agrees that Landlord may not unreasonably withhold, delay or condition its consent to the proposed Altered Use, subject to the conditions that such Altered Use shall never extend to or allow permit the use or storage of (A) radioactive, explosive, highly flammable or biohazardous materials at the Demised Premises or any materials whichpart thereof for any purposes other than general, when present administrative and sales offices and warehousing of inventory in connection therewith; provided, however, anything in this Lease to the contrary notwithstanding, that (a) the portions of the Demised Premises which are identified as toilets or utility areas shall be used by LESSEE only for the purposes for which they are designed, (b) LESSEE complies with the requirements of Section 7.2 hereof, and (c) in no event shall LESSEE use the Demised Premises for retail purposes to the general public.
7.2. LESSEE shall not use, or suffer or permit the use of, the Demised Premises or any part thereof in any manner or for any purpose or do, bring or keep anything, or suffer or permit anything to be done, brought or kept, therein (including, but not limited to, the installation or operation of any electrical, electronic or other equipment)
(a) which would violate any covenant, agreement, term, provision or condition of this Lease or is unlawful or in contravention of the certificate of occupancy for the Building or the Demised Premises, emit a noticeable and persistent odor or fumes (e.g., tires is in contravention of any nature, Legal or Insurance Requirement to which are strictly prohibited), (B) any product the Building or material which, under applicable Governmental Requirements (as defined in Section 15), would require any alteration of the Demised Premises is subject, or (e.g.b) which would overload or could cause an overload of the electrical or mechanical systems of the Building or the Demised Premises or which would exceed the floor load per square foot which the floor was designed to carry and which is allowed by law, special safety measures for explosive or highly flammable materials, special security measures for controlled substances or freezer/coolers for food products), (Cc) bulk quantities which in the reasonable judgment of chemicals or paint or petroleum (or distillates thereof), the LESSOR may in any size containerway impair or interfere with the proper and economic heating, air conditioning of the Building or (d) suffer or permit the use Building or storage of any other product component thereof to be used in any manner or material wherein a Hazardous Substance (as defined in Section 16) constitutes the principal anything to be done therein or a primary component of such product anything to be brought into or material, (D) any product or material kept thereon which, in the reasonable judgment of LandlordLESSOR, will would in any way impair or tend to impair or exceed the design criteria, the structural integrity, character or appearance of the Building, or result in the use of the Building or any component thereof in a material increase in manner or for a purpose not intended; nor shall the risk of Contamination (as defined in Section 16) at LESSEE use, or suffer or permit the use of, the Demised Premises or (E) any product part thereof in any manner, or material do, or suffer or permit the doing of, anything therein or in connection with the LESSEE'S business or advertising which, in the reasonable judgment of Landlordthe LESSOR, will result in a material increase in may be prejudicial to the wear and tear on the Demised Premises, as compared to wear and tear on the Demised Premises generated by the initial Permitted Use. Landlord shall, within ten (10) business days after receipt of the written notice from Tenant regarding a proposed Altered Use, give written notice to Tenant approving or disapproving the proposal. A notice of approval may contain reasonable conditions, based on the nature of the proposed use. If the written notice from Landlord disapproves the proposed use. the reasons for such determination shall be set forth in reasonable detail. The provisions of this Section 7(a) are not intended to and will not restrict the original Permitted Use as described in Section 1(1) of this Lease or the construction by Tenant of improvements in the Demised Premises in accordance with Section 17 and Special Stipulation 5LESSOR.
(b) Tenant will permit no liens to attach 7.3. LESSEE shall obtain, at its sole cost and expense, all permits, licenses or exist against the Demised Premises, and shall not commit authorizations of any waste.
(c) The Demised Premises shall not be used for any illegal purposes, and Tenant shall not allow, suffer, or permit any vibration, noise, odor, light or other effect to occur within or around the Demised Premises that either (i) violates applicable Governmental Requirements (as defined in Section 15 below) or (ii) constitutes a nuisance or trespass under applicable law with respect to Landlord or any occupant of the Building or an adjoining building, its customers, agents, or invitees. Upon notice by Landlord to Tenant that any of the aforesaid prohibited uses are occurring, Tenant agrees to promptly remove or control the same.
(d) Landlord acknowledges that Tenant’s use of the Demised Premises shall include the preparation and testing of candles and waxes, which testing will likely result in fragrant emissions from the Demised Premises. Preparation shall include the use of pilot plant equipment, compression equipment, coating equipment, and melt filling of candles. Because Tenant does not, on the Lease Date, operate a facility comparable to the facility which Tenant will install in the Demised Premises, neither Landlord nor Tenant can accurately predict the intensity of the odors which will be generated by Tenant nature required in connection with the Permitted Use. The term “odor”, as used in this subsection (d) and in subsection (e), below, is intended to mean any smell operation of any nature, and not just smells which might be characterized as malodorous. Landlord has expressed concern that, even if the odor generated by Tenant does not violate subsection (c) above, the odor could reach a level which would cause frequent and serious complaints by other tenants in the Building or by tenants in other buildings in the Project which are owned by IDI or affiliates of IDI (the “Other Tenants”). Tenant has advised Landlord that Tenant is unwilling to alter its activities based on any subjective determination by Landlord that the level of odor is unacceptable. In order to address the concerns of Landlord and Tenant with respect to odor from the Demised Premises which does not violate subsection (c), above, Landlord and Tenant have agreed on the procedures and provisions set forth in this subsection (d). If Landlord receives, LESSEE'S business at any time during the Term, three (3) or more written complaints in the aggregate within a period of six (6) months from three (3) or more Other Tenants regarding odors generated by the Permitted Use (the “Other Tenant Complaints”), and the odor giving rise to such Other Tenant Complaints does not violate subsection (c) above, then Landlord will be entitled to provide to Tenant copies of such Other Tenant Complaints and request that Tenant undertake a review of its operation in the Demised Premises and determine whether or not Tenant is using commercially reasonable practices to control the emission of odors from the Demised Premises. Tenant will respond to the written notice within ten (10) business days after receipt of the notice from Landlord and Landlord will meet with Tenant upon reasonable prior request to assess the Other Tenant Complaints and possible responsive measures by Tenant. In its written response, Tenant will either (i) identify changes in its practices affecting odor control which will be instituted or (ii) advise Landlord that Tenant has determined that no changes are required because commercially reasonable practices for odor control are already being utilized. The term “commercially reasonable practices”, as used in this subsection (d), is intended to include the use or installation of equipment or alterations of existing equipment and/or the utilization of maintenance practices or operating procedures which are (1) consistent with then current technology for odor control, (2) frequently or routinely used by operators comparable to Tenant for the purpose of odor control, and (3) available at a cost which is commercially reasonable, giving due regard to size of the business operation of Tenant and the amount of reduction of odor to be achieved in relation to the cost of the equipment or maintenance required to achieve the reduction. Landlord will have the right to notify Tenant, in response to its notice, whether or not Landlord concurs with the determination by Tenant. If Landlord and Tenant cannot reach agreement on whether or not Tenant is utilizing commercially reasonable practices to control the emission of odors from the Demised Premises, then Landlord will have the right to require arbitration to resolve the disagreement in the manner hereinafter specified in Section 7(e) below,
(e) If Landlord disagrees with the determination of Tenant that Tenant is using commercially reasonable practices to control the emission of odors from the Demised Premises, Landlord may elect by written notice to Tenant (the “Arbitration Notice”) to submit such matter to be decided by an independent third party (“Arbitrator”) mutually satisfactory to Landlord and Tenant who shall be a Certified Industrial Hygienist in the State of Illinois having at least fifteen (15) years’ experience in the field of air quality control. Landlord shall propose in its notice to Tenant an Arbitrator meeting the foregoing criteria, and Tenant shall within five (5) business days after receipt of such Arbitration Notice notify Landlord in writing of its acceptance of such Arbitrator as so designated by Landlord, or if Tenant is not prepared to accept the Arbitrator designated by Landlord, then Tenant shall designate an Arbitrator satisfactory to it for purposes of conducting such arbitration. The one Arbitrator mutually-satisfactory to Landlord and Tenant, or the two Arbitrators separately designated by each of Landlord and Tenant (if Landlord and Tenant fail to agree on the selection of one Arbitrator) shall within five (5) business days after engagement meet with the representatives of Landlord and Tenant for the purpose of gaining information with respect to the nature of the dispute between Landlord and Tenant, and shall decide such dispute without delay and as promptly as reasonably possible under the circumstances. In the event separate Arbitrators are selected by Landlord and Tenant and such parties cannot agree upon the matter submitted to them, such Arbitrators shall within five (5) business days after reaching such impasse select a third Arbitrator mutually-satisfactory to the two Arbitrators, and thereafter the third Arbitrator shall promptly decide the matter submitted by Landlord and Tenant to arbitration pursuant to the foregoing. Each party shall pay the cost and expense of any Arbitrator engaged by it, provided that both parties shall share equally the costs of any single Arbitrator who is mutually satisfactory to Landlord and Tenant or mutually satisfactory to the Arbitrators selected by Landlord and Tenant. If the Arbitrator determines that there are additional, commercially reasonable practices which should be instituted by Tenant to control the emission of odors from the Demised Premises, Tenant will, at the expense of Tenant, promptly carry out the recommendations of the Arbitrator and provide to Landlord reasonable evidence of the completion of the required work; provided, however, that in lieu of performing such work, Tenant shall have the right to elect to cease or reduce the activities in the Demised Premises which give rise to the emission of odors from the Demised Premises. If the Arbitrator determines that Tenant is using commercially reasonable practices to control the emission of odor from the Demised Premises, then Tenant will not be required to take any further action with respect to such Other Tenant Complaints presented by Landlord which were the basis for the arbitration. The decision of such Arbitrator(s) shall be issued in writing, shall be final and binding on both Landlord and Tenant with respect to such Other Tenant Complaints and shall not be subject to further review by either Landlord or Tenant. Landlord will be entitled to initiate a subsequent arbitration in the manner described in this subsection (e) if (i) additional complaints are received from tenants that were not the Other Tenants in the prior Other Tenant Complaints or (ii) are based on odors generated by a change in Tenant’s sources, materials, procedures or equipment since the prior arbitration.
(f) Tenant shall not violate any law, ordinance or restrictive covenant affecting the Demised Premises, and shall not in any manner use the Demised Premises so as to cause cancellation of, prevent the use of, or increase the rate of, the fire and extended coverage insurance policy required
Appears in 1 contract
Use of Demised Premises. (a) The Demised Premises 8.1. LESSEE shall be used for the Permitted Use set forth in Section 1(1) and for no other purpose whatsoevernot, except as provided to with the contrary in this subsection (a). If Tenant prior consent of LESSOR, use or any permitted assignee suffer or subtenant desires to change the Permitted Use, Tenant shall submit to Landlord a written request setting forth in detail the nature of the additional or altered Permitted Use proposed by Tenant or a permitted or proposed assignee or subtenant (the “Altered Use”). Landlord agrees that Landlord may not unreasonably withhold, delay or condition its consent to the proposed Altered Use, subject to the conditions that such Altered Use shall never extend to or allow permit the use or storage of (A) radioactive, explosive, highly flammable or biohazardous materials at the Demised Premises or any materials whichpart thereof for any purposes other than for a warehouse/distribution facility and associated offices; provided, when present however, anything in this Lease to the contrary notwithstanding, that (a) the portions of the Demised Premises which are identified as toilets or utility areas shall be used by LESSEE only for the purposes for which they are designed and (b) LESSEE complies with the requirements of Section 8.2 hereof.
8.2. LESSEE shall not use, or suffer or permit the use of, the Demised Premises or any part thereof in any manner or for any purpose or do, bring or keep anything, or suffer or permit anything to be done, brought or kept, therein (including, but not limited to, the installation or operation of any electrical, electronic or other equipment) (a) which would violate any covenant, agreement, term, provision or condition of this Lease or is unlawful or in contravention of the certificate of occupancy for the Building or the Demised Premises, emit a noticeable and persistent odor or fumes (e.g., tires is in contravention of any nature, Legal or Insurance Requirement to which are strictly prohibited), (B) any product the Building or material which, under applicable Governmental Requirements (as defined in Section 15), would require any alteration of the Demised Premises is subject, or (e.g.b) which would overload or could cause an overload of the electrical or mechanical systems of the Building or the Demised Premises or which would exceed the floor load per square foot which the floor was designed to carry and which is allowed by law, special safety measures for explosive or highly flammable materials, special security measures for controlled substances or freezer/coolers for food products), (Cc) bulk quantities which in the reasonable judgment of chemicals or paint or petroleum (or distillates thereof), the LESSOR may in any size containerway impair or interfere with the proper and economic heating, air conditioning of the Building or (d) suffer or permit the use Building or storage of any other product component thereof to be used in any manner or material wherein a Hazardous Substance (as defined in Section 16) constitutes the principal anything to be done therein or a primary component of such product anything to be brought into or material, (D) any product or material kept thereon which, in the reasonable judgment of LandlordLESSOR, will would in any way impair or tend to impair or exceed the design criteria, the structural integrity, character or appearance of the Building, or result in a material increase in the risk of Contamination (as defined in Section 16) at the Demised Premises or (E) any product or material which, in the reasonable judgment of Landlord, will result in a material increase in the wear and tear on the Demised Premises, as compared to wear and tear on the Demised Premises generated by the initial Permitted Use. Landlord shall, within ten (10) business days after receipt of the written notice from Tenant regarding a proposed Altered Use, give written notice to Tenant approving or disapproving the proposal. A notice of approval may contain reasonable conditions, based on the nature of the proposed use. If the written notice from Landlord disapproves the proposed use. the reasons for such determination shall be set forth in reasonable detail. The provisions of this Section 7(a) are not intended to and will not restrict the original Permitted Use as described in Section 1(1) of this Lease or the construction by Tenant of improvements in the Demised Premises in accordance with Section 17 and Special Stipulation 5.
(b) Tenant will permit no liens to attach or exist against the Demised Premises, and shall not commit any waste.
(c) The Demised Premises shall not be used for any illegal purposes, and Tenant shall not allow, suffer, or permit any vibration, noise, odor, light or other effect to occur within or around the Demised Premises that either (i) violates applicable Governmental Requirements (as defined in Section 15 below) or (ii) constitutes a nuisance or trespass under applicable law with respect to Landlord or any occupant use of the Building or an adjoining building, its customers, agents, any component thereof in a manner or invitees. Upon notice by Landlord to Tenant that any of the aforesaid prohibited uses are occurring, Tenant agrees to promptly remove or control the samefor a purpose not intended.
(d) Landlord acknowledges that Tenant’s use 8.3. LESSEE shall obtain, at its sole cost and expense, all permits, licenses or authorizations of any nature required in connection with the Demised Premises shall include the preparation and testing operation of candles and waxes, which testing will likely result in fragrant emissions from LESSEE'S business at the Demised Premises. Preparation shall include the use of pilot plant equipment, compression equipment, coating equipment, and melt filling of candles. Because Tenant does not, on the Lease Date, operate a facility comparable to the facility which Tenant will install in the Demised Premises, neither Landlord nor Tenant can accurately predict the intensity of the odors which will be generated by Tenant in connection with the Permitted Use. The term “odor”, as used in this subsection (d) and in subsection (e), below, is intended to mean any smell of any nature, and not just smells which might be characterized as malodorous. Landlord has expressed concern that, even if the odor generated by Tenant does not violate subsection (c) above, the odor could reach a level which would cause frequent and serious complaints by other tenants in the Building or by tenants in other buildings in the Project which are owned by IDI or affiliates of IDI (the “Other Tenants”). Tenant has advised Landlord that Tenant is unwilling to alter its activities based on any subjective determination by Landlord that the level of odor is unacceptable. In order to address the concerns of Landlord and Tenant with respect to odor from the Demised Premises which does not violate subsection (c), above, Landlord and Tenant have agreed on the procedures and provisions set forth in this subsection (d). If Landlord receives, at any time during the Term, three (3) or more written complaints in the aggregate within a period of six (6) months from three (3) or more Other Tenants regarding odors generated by the Permitted Use (the “Other Tenant Complaints”), and the odor giving rise to such Other Tenant Complaints does not violate subsection (c) above, then Landlord will be entitled to provide to Tenant copies of such Other Tenant Complaints and request that Tenant undertake a review of its operation in the Demised Premises and determine whether or not Tenant is using commercially reasonable practices to control the emission of odors from the Demised Premises. Tenant will respond to the written notice within ten (10) business days after receipt of the notice from Landlord and Landlord will meet with Tenant upon reasonable prior request to assess the Other Tenant Complaints and possible responsive measures by Tenant. In its written response, Tenant will either (i) identify changes in its practices affecting odor control which will be instituted or (ii) advise Landlord that Tenant has determined that no changes are required because commercially reasonable practices for odor control are already being utilized. The term “commercially reasonable practices”, as used in this subsection (d), is intended to include the use or installation of equipment or alterations of existing equipment and/or the utilization of maintenance practices or operating procedures which are (1) consistent with then current technology for odor control, (2) frequently or routinely used by operators comparable to Tenant for the purpose of odor control, and (3) available at a cost which is commercially reasonable, giving due regard to size of the business operation of Tenant and the amount of reduction of odor to be achieved in relation to the cost of the equipment or maintenance required to achieve the reduction. Landlord will have the right to notify Tenant, in response to its notice, whether or not Landlord concurs with the determination by Tenant. If Landlord and Tenant cannot reach agreement on whether or not Tenant is utilizing commercially reasonable practices to control the emission of odors from the Demised Premises, then Landlord will have the right to require arbitration to resolve the disagreement in the manner hereinafter specified in Section 7(e) below,
(e) If Landlord disagrees with the determination of Tenant that Tenant is using commercially reasonable practices to control the emission of odors from the Demised Premises, Landlord may elect by written notice to Tenant (the “Arbitration Notice”) to submit such matter to be decided by an independent third party (“Arbitrator”) mutually satisfactory to Landlord and Tenant who shall be a Certified Industrial Hygienist in the State of Illinois having at least fifteen (15) years’ experience in the field of air quality control. Landlord shall propose in its notice to Tenant an Arbitrator meeting the foregoing criteria, and Tenant shall within five (5) business days after receipt of such Arbitration Notice notify Landlord in writing of its acceptance of such Arbitrator as so designated by Landlord, or if Tenant is not prepared to accept the Arbitrator designated by Landlord, then Tenant shall designate an Arbitrator satisfactory to it for purposes of conducting such arbitration. The one Arbitrator mutually-satisfactory to Landlord and Tenant, or the two Arbitrators separately designated by each of Landlord and Tenant (if Landlord and Tenant fail to agree on the selection of one Arbitrator) shall within five (5) business days after engagement meet with the representatives of Landlord and Tenant for the purpose of gaining information with respect to the nature of the dispute between Landlord and Tenant, and shall decide such dispute without delay and as promptly as reasonably possible under the circumstances. In the event separate Arbitrators are selected by Landlord and Tenant and such parties cannot agree upon the matter submitted to them, such Arbitrators shall within five (5) business days after reaching such impasse select a third Arbitrator mutually-satisfactory to the two Arbitrators, and thereafter the third Arbitrator shall promptly decide the matter submitted by Landlord and Tenant to arbitration pursuant to the foregoing. Each party shall pay the cost and expense of any Arbitrator engaged by it, provided that both parties shall share equally the costs of any single Arbitrator who is mutually satisfactory to Landlord and Tenant or mutually satisfactory to the Arbitrators selected by Landlord and Tenant. If the Arbitrator determines that there are additional, commercially reasonable practices which should be instituted by Tenant to control the emission of odors from the Demised Premises, Tenant will, at the expense of Tenant, promptly carry out the recommendations of the Arbitrator and provide to Landlord reasonable evidence of the completion of the required work; provided, however, that in lieu of performing such work, Tenant shall have the right to elect to cease or reduce the activities in the Demised Premises which give rise to the emission of odors from the Demised Premises. If the Arbitrator determines that Tenant is using commercially reasonable practices to control the emission of odor from the Demised Premises, then Tenant will not be required to take any further action with respect to such Other Tenant Complaints presented by Landlord which were the basis for the arbitration. The decision of such Arbitrator(s) shall be issued in writing, shall be final and binding on both Landlord and Tenant with respect to such Other Tenant Complaints and shall not be subject to further review by either Landlord or Tenant. Landlord will be entitled to initiate a subsequent arbitration in the manner described in this subsection (e) if (i) additional complaints are received from tenants that were not the Other Tenants in the prior Other Tenant Complaints or (ii) are based on odors generated by a change in Tenant’s sources, materials, procedures or equipment since the prior arbitration.
(f) Tenant shall not violate any law, ordinance or restrictive covenant affecting the Demised Premises, and shall not in any manner use the Demised Premises so as to cause cancellation of, prevent the use of, or increase the rate of, the fire and extended coverage insurance policy requiredARTICLE
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Use of Demised Premises. (a) The Demised Premises 7.1. LESSEE shall be used for the Permitted Use set forth in Section 1(1) and for no other purpose whatsoevernot, except as provided to with the contrary in this subsection (a). If Tenant prior consent of LESSOR, use or any permitted assignee suffer or subtenant desires to change the Permitted Use, Tenant shall submit to Landlord a written request setting forth in detail the nature of the additional or altered Permitted Use proposed by Tenant or a permitted or proposed assignee or subtenant (the “Altered Use”). Landlord agrees that Landlord may not unreasonably withhold, delay or condition its consent to the proposed Altered Use, subject to the conditions that such Altered Use shall never extend to or allow permit the use or storage of (A) radioactive, explosive, highly flammable or biohazardous materials at the Demised Premises or any materials whichpart thereof for any purposes other than general, when present administrative and sales offices, operating a network operations center, and warehousing of inventory in connection therewith; provided, however, anything in this Lease to the contrary notwithstanding, that (a) the portions of the Demised Premises which are identified as toilets or utility areas shall be used by LESSEE only for the purposes for which they are designed, (b) LESSEE complies with the requirements of Section 7.2 hereof, and (c) in no event shall LESSEE use the Demised Premises for retail purposes to the general public.
7.2. LESSEE shall not use, or suffer or permit the use of, the Demised Premises or any part thereof in any manner or for any purpose or do, bring or keep anything, or suffer or permit anything to be done, brought or kept, therein (including, but not limited to, the installation or operation of any electrical, electronic or other equipment) (a) which would violate any covenant, agreement, term, provision or condition of this Lease or is unlawful or in contravention of the certificate of occupancy for the Building or the Demised Premises, emit a noticeable and persistent odor or fumes (e.g., tires is in contravention of any nature, Legal or Insurance Requirement to which are strictly prohibited), (B) any product the Building or material which, under applicable Governmental Requirements (as defined in Section 15), would require any alteration of the Demised Premises is subject, or (e.g.b) which would overload or could cause an overload of the electrical or mechanical systems of the Building or the Demised Premises or which would exceed the floor load per square foot which the floor was designed to carry and which is allowed by law, special safety measures for explosive or highly flammable materials, special security measures for controlled substances or freezer/coolers for food products), (Cc) bulk quantities which in the reasonable judgment of chemicals or paint or petroleum (or distillates thereof), the LESSOR may in any size containerway impair or interfere with the proper and economic heating, air conditioning of the Building or (d) suffer or permit the use Building or storage of any other product component thereof to be used in any manner or material wherein a Hazardous Substance (as defined in Section 16) constitutes the principal anything to be done therein or a primary component of such product anything to be brought into or material, (D) any product or material kept thereon which, in the reasonable judgment of LandlordLESSOR, will would in any way impair or tend to impair or exceed the design criteria, the structural integrity, character or appearance of the Building, or result in the use of the Building or any component thereof in a material increase in manner or for a purpose not intended; nor shall the risk of Contamination (as defined in Section 16) at LESSEE use, or suffer or permit the use of, the Demised Premises or (E) any product part thereof in any manner, or material do, or suffer or permit the doing of, anything therein or in connection with the LESSEE'S business or advertising which, in the reasonable judgment of Landlordthe LESSOR, will result in a material increase in may be prejudicial to the wear and tear on the Demised Premises, as compared to wear and tear on the Demised Premises generated by the initial Permitted Use. Landlord shall, within ten (10) business days after receipt of the written notice from Tenant regarding a proposed Altered Use, give written notice to Tenant approving or disapproving the proposal. A notice of approval may contain reasonable conditions, based on the nature of the proposed use. If the written notice from Landlord disapproves the proposed use. the reasons for such determination shall be set forth in reasonable detail. The provisions of this Section 7(a) are not intended to and will not restrict the original Permitted Use as described in Section 1(1) of this Lease or the construction by Tenant of improvements in the Demised Premises in accordance with Section 17 and Special Stipulation 5LESSOR.
(b) Tenant will permit no liens to attach 7.3. LESSEE shall obtain, at its sole cost and expense, all permits, licenses or exist against the Demised Premises, and shall not commit authorizations of any waste.
(c) The Demised Premises shall not be used for any illegal purposes, and Tenant shall not allow, suffer, or permit any vibration, noise, odor, light or other effect to occur within or around the Demised Premises that either (i) violates applicable Governmental Requirements (as defined in Section 15 below) or (ii) constitutes a nuisance or trespass under applicable law with respect to Landlord or any occupant of the Building or an adjoining building, its customers, agents, or invitees. Upon notice by Landlord to Tenant that any of the aforesaid prohibited uses are occurring, Tenant agrees to promptly remove or control the same.
(d) Landlord acknowledges that Tenant’s use of the Demised Premises shall include the preparation and testing of candles and waxes, which testing will likely result in fragrant emissions from the Demised Premises. Preparation shall include the use of pilot plant equipment, compression equipment, coating equipment, and melt filling of candles. Because Tenant does not, on the Lease Date, operate a facility comparable to the facility which Tenant will install in the Demised Premises, neither Landlord nor Tenant can accurately predict the intensity of the odors which will be generated by Tenant nature required in connection with the Permitted Use. The term “odor”, as used in this subsection (d) and in subsection (e), below, is intended to mean any smell operation of any nature, and not just smells which might be characterized as malodorous. Landlord has expressed concern that, even if the odor generated by Tenant does not violate subsection (c) above, the odor could reach a level which would cause frequent and serious complaints by other tenants in the Building or by tenants in other buildings in the Project which are owned by IDI or affiliates of IDI (the “Other Tenants”). Tenant has advised Landlord that Tenant is unwilling to alter its activities based on any subjective determination by Landlord that the level of odor is unacceptable. In order to address the concerns of Landlord and Tenant with respect to odor from the Demised Premises which does not violate subsection (c), above, Landlord and Tenant have agreed on the procedures and provisions set forth in this subsection (d). If Landlord receives, LESSEE'S business at any time during the Term, three (3) or more written complaints in the aggregate within a period of six (6) months from three (3) or more Other Tenants regarding odors generated by the Permitted Use (the “Other Tenant Complaints”), and the odor giving rise to such Other Tenant Complaints does not violate subsection (c) above, then Landlord will be entitled to provide to Tenant copies of such Other Tenant Complaints and request that Tenant undertake a review of its operation in the Demised Premises and determine whether or not Tenant is using commercially reasonable practices to control the emission of odors from the Demised Premises. Tenant will respond to the written notice within ten (10) business days after receipt of the notice from Landlord and Landlord will meet with Tenant upon reasonable prior request to assess the Other Tenant Complaints and possible responsive measures by Tenant. In its written response, Tenant will either (i) identify changes in its practices affecting odor control which will be instituted or (ii) advise Landlord that Tenant has determined that no changes are required because commercially reasonable practices for odor control are already being utilized. The term “commercially reasonable practices”, as used in this subsection (d), is intended to include the use or installation of equipment or alterations of existing equipment and/or the utilization of maintenance practices or operating procedures which are (1) consistent with then current technology for odor control, (2) frequently or routinely used by operators comparable to Tenant for the purpose of odor control, and (3) available at a cost which is commercially reasonable, giving due regard to size of the business operation of Tenant and the amount of reduction of odor to be achieved in relation to the cost of the equipment or maintenance required to achieve the reduction. Landlord will have the right to notify Tenant, in response to its notice, whether or not Landlord concurs with the determination by Tenant. If Landlord and Tenant cannot reach agreement on whether or not Tenant is utilizing commercially reasonable practices to control the emission of odors from the Demised Premises, then Landlord will have the right to require arbitration to resolve the disagreement in the manner hereinafter specified in Section 7(e) below,
(e) If Landlord disagrees with the determination of Tenant that Tenant is using commercially reasonable practices to control the emission of odors from the Demised Premises, Landlord may elect by written notice to Tenant (the “Arbitration Notice”) to submit such matter to be decided by an independent third party (“Arbitrator”) mutually satisfactory to Landlord and Tenant who shall be a Certified Industrial Hygienist in the State of Illinois having at least fifteen (15) years’ experience in the field of air quality control. Landlord shall propose in its notice to Tenant an Arbitrator meeting the foregoing criteria, and Tenant shall within five (5) business days after receipt of such Arbitration Notice notify Landlord in writing of its acceptance of such Arbitrator as so designated by Landlord, or if Tenant is not prepared to accept the Arbitrator designated by Landlord, then Tenant shall designate an Arbitrator satisfactory to it for purposes of conducting such arbitration. The one Arbitrator mutually-satisfactory to Landlord and Tenant, or the two Arbitrators separately designated by each of Landlord and Tenant (if Landlord and Tenant fail to agree on the selection of one Arbitrator) shall within five (5) business days after engagement meet with the representatives of Landlord and Tenant for the purpose of gaining information with respect to the nature of the dispute between Landlord and Tenant, and shall decide such dispute without delay and as promptly as reasonably possible under the circumstances. In the event separate Arbitrators are selected by Landlord and Tenant and such parties cannot agree upon the matter submitted to them, such Arbitrators shall within five (5) business days after reaching such impasse select a third Arbitrator mutually-satisfactory to the two Arbitrators, and thereafter the third Arbitrator shall promptly decide the matter submitted by Landlord and Tenant to arbitration pursuant to the foregoing. Each party shall pay the cost and expense of any Arbitrator engaged by it, provided that both parties shall share equally the costs of any single Arbitrator who is mutually satisfactory to Landlord and Tenant or mutually satisfactory to the Arbitrators selected by Landlord and Tenant. If the Arbitrator determines that there are additional, commercially reasonable practices which should be instituted by Tenant to control the emission of odors from the Demised Premises, Tenant will, at the expense of Tenant, promptly carry out the recommendations of the Arbitrator and provide to Landlord reasonable evidence of the completion of the required work; provided, however, that in lieu of performing such work, Tenant shall have the right to elect to cease or reduce the activities in the Demised Premises which give rise to the emission of odors from the Demised Premises. If the Arbitrator determines that Tenant is using commercially reasonable practices to control the emission of odor from the Demised Premises, then Tenant will not be required to take any further action with respect to such Other Tenant Complaints presented by Landlord which were the basis for the arbitration. The decision of such Arbitrator(s) shall be issued in writing, shall be final and binding on both Landlord and Tenant with respect to such Other Tenant Complaints and shall not be subject to further review by either Landlord or Tenant. Landlord will be entitled to initiate a subsequent arbitration in the manner described in this subsection (e) if (i) additional complaints are received from tenants that were not the Other Tenants in the prior Other Tenant Complaints or (ii) are based on odors generated by a change in Tenant’s sources, materials, procedures or equipment since the prior arbitration.
(f) Tenant shall not violate any law, ordinance or restrictive covenant affecting the Demised Premises, and shall not in any manner use the Demised Premises so as to cause cancellation of, prevent the use of, or increase the rate of, the fire and extended coverage insurance policy required
Appears in 1 contract
Samples: Lease Agreement (Glowpoint Inc)
Use of Demised Premises. (a) Section 1. The Lessee shall have the right to use the Demised Premises shall be used only for the Permitted Use set forth in Section 1(1) Uses and for no other purpose whatsoever, except as provided to the contrary but in this subsection (a). If Tenant or any permitted assignee or subtenant desires to change the Permitted Use, Tenant no event shall submit to Landlord a written request setting forth in detail the nature of the additional or altered Permitted Use proposed by Tenant or a permitted or proposed assignee or subtenant (the “Altered Use”). Landlord agrees that Landlord may not unreasonably withhold, delay or condition its consent to the proposed Altered Use, subject to the conditions that such Altered Use shall never extend to or allow the use or storage of (A) radioactive, explosive, highly flammable or biohazardous materials Lessee conduct at the Demised Premises any use or do anything which is offensive, constitutes a nuisance or violates any provisions of any zoning, building or other applicable laws, ordinances or regulations.
Section 2. Lessee further agrees to conform to the following provisions during the entire term of this Lease or any materials whichextension thereof;
(a) Lessee shall always conduct its operations in the Demised Premises under its present trade name or any future trade name which is not offensive or in violation of law, when present unless Lessor shall otherwise consent in writing, which consent shall not be unreasonably withheld;
(b) Lessee shall not permit any auction, fire, going-out-of-business, or bankruptcy sales or any retail sales whatsoever to be conducted within the Demised Premises, emit a noticeable and persistent odor or fumes (e.g., tires of any nature, which are strictly prohibited), (B) any product or material which, under applicable Governmental Requirements (as defined in Section 15), would require any alteration without the prior written consent of the Demised Premises (e.g., special safety measures for explosive or highly flammable materials, special security measures for controlled substances or freezer/coolers for food products), (C) bulk quantities of chemicals or paint or petroleum (or distillates thereof), in any size container, or the use or storage of any other product or material wherein a Hazardous Substance (as defined in Section 16) constitutes the principal or a primary component of such product or material, (D) any product or material which, in the reasonable judgment of Landlord, will result in a material increase in the risk of Contamination (as defined in Section 16) at the Demised Premises or (E) any product or material which, in the reasonable judgment of Landlord, will result in a material increase in the wear and tear on the Demised Premises, as compared to wear and tear on the Demised Premises generated by the initial Permitted Use. Landlord shall, within ten (10) business days after receipt of the written notice from Tenant regarding a proposed Altered Use, give written notice to Tenant approving or disapproving the proposal. A notice of approval may contain reasonable conditions, based on the nature of the proposed use. If the written notice from Landlord disapproves the proposed use. the reasons for such determination shall be set forth in reasonable detail. The provisions of this Section 7(a) are not intended to and will not restrict the original Permitted Use as described in Section 1(1) of this Lease or the construction by Tenant of improvements in the Demised Premises in accordance with Section 17 and Special Stipulation 5.
(b) Tenant will permit no liens to attach or exist against the Demised Premises, and shall not commit any waste.Lessor;
(c) The Demised Premises Lessee shall not be used for any illegal purposesuse the sidewalks, and Tenant shall not allow, suffer, or permit any vibration, noise, odor, light parking areas or other effect to occur within outside areas for advertising or around the Demised Premises that either (i) violates applicable Governmental Requirements (as defined in Section 15 below) business purposes or (ii) constitutes a nuisance or trespass under applicable law with respect to Landlord or any occupant of the Building or an adjoining building, its customers, agents, or invitees. Upon notice by Landlord to Tenant that any of the aforesaid prohibited uses are occurring, Tenant agrees to promptly remove or control otherwise obstruct the same.;
(d) Landlord acknowledges Lessee shall, at its own cost and expense, be responsible for the prompt regular removal of all trash, refuse, and the like, from the Demised Premises and shall insure that Tenant’s use same be kept in covered containers at all times;
(e) All curtains and other window treatments visible from the exterior of the Demised Premises shall include be white in color;
(f) Lessee shall take whatever measures are necessary to insure that floor load limitations are not exceeded in the preparation Demised Premises; and
(g) Lessee shall not cause any offensive odors or loud noise (including, but without limitation, the use of loudspeakers), nor take nor permit any action which constitutes a nuisance or menace to any other occupant of other premises in the Building, and testing of candles and waxes, which testing will likely result in fragrant emissions no event shall any loud noises or offensive odors be emitted from the Demised Premises. Preparation shall include the use of pilot plant equipment, compression equipment, coating equipment, and melt filling of candles. Because Tenant does not, on the Lease Date, operate a facility comparable to the facility which Tenant will install in the Demised Premises, neither Landlord nor Tenant can accurately predict the intensity of the odors which will be generated by Tenant in connection with the Permitted Use. The term “odor”, as used in this subsection (d) and in subsection (e), below, is intended to mean any smell of any nature, and not just smells which might be characterized as malodorous. Landlord has expressed concern that, even if the odor generated by Tenant does not violate subsection (c) above, the odor could reach a level which would cause frequent and serious complaints by other tenants in the Building or by tenants in other buildings in the Project which are owned by IDI or affiliates of IDI (the “Other Tenants”). Tenant has advised Landlord that Tenant is unwilling to alter its activities based on any subjective determination by Landlord that the level of odor is unacceptable. In order to address the concerns of Landlord and Tenant with respect to odor from the Demised Premises which does not violate subsection (c), above, Landlord and Tenant have agreed on the procedures and provisions set forth in this subsection (d). If Landlord receives, at any time during the Term, three (3) or more written complaints in the aggregate within a period of six (6) months from three (3) or more Other Tenants regarding odors generated by the Permitted Use (the “Other Tenant Complaints”), and the odor giving rise to such Other Tenant Complaints does not violate subsection (c) above, then Landlord will be entitled to provide to Tenant copies of such Other Tenant Complaints and request that Tenant undertake a review of its operation in the Demised Premises and determine whether or not Tenant is using commercially reasonable practices to control the emission of odors from the Demised Premises. Tenant will respond to the written notice within ten (10) business days after receipt of the notice from Landlord and Landlord will meet with Tenant upon reasonable prior request to assess the Other Tenant Complaints and possible responsive measures by Tenant. In its written response, Tenant will either (i) identify changes in its practices affecting odor control which will be instituted or (ii) advise Landlord that Tenant has determined that no changes are required because commercially reasonable practices for odor control are already being utilized. The term “commercially reasonable practices”, as used in this subsection (d), is intended to include the use or installation of equipment or alterations of existing equipment and/or the utilization of maintenance practices or operating procedures which are (1) consistent with then current technology for odor control, (2) frequently or routinely used by operators comparable to Tenant for the purpose of odor control, and (3) available at a cost which is commercially reasonable, giving due regard to size of the business operation of Tenant and the amount of reduction of odor to be achieved in relation to the cost of the equipment or maintenance required to achieve the reduction. Landlord will have the right to notify Tenant, in response to its notice, whether or not Landlord concurs with the determination by Tenant. If Landlord and Tenant cannot reach agreement on whether or not Tenant is utilizing commercially reasonable practices to control the emission of odors from the Demised Premises, then Landlord will have the right to require arbitration to resolve the disagreement in the manner hereinafter specified in Section 7(e) below,
(e) If Landlord disagrees with the determination of Tenant that Tenant is using commercially reasonable practices to control the emission of odors from the Demised Premises, Landlord may elect by written notice to Tenant (the “Arbitration Notice”) to submit such matter to be decided by an independent third party (“Arbitrator”) mutually satisfactory to Landlord and Tenant who shall be a Certified Industrial Hygienist in the State of Illinois having at least fifteen (15) years’ experience in the field of air quality control. Landlord shall propose in its notice to Tenant an Arbitrator meeting the foregoing criteria, and Tenant shall within five (5) business days after receipt of such Arbitration Notice notify Landlord in writing of its acceptance of such Arbitrator as so designated by Landlord, or if Tenant is not prepared to accept the Arbitrator designated by Landlord, then Tenant shall designate an Arbitrator satisfactory to it for purposes of conducting such arbitration. The one Arbitrator mutually-satisfactory to Landlord and Tenant, or the two Arbitrators separately designated by each of Landlord and Tenant (if Landlord and Tenant fail to agree on the selection of one Arbitrator) shall within five (5) business days after engagement meet with the representatives of Landlord and Tenant for the purpose of gaining information with respect to the nature of the dispute between Landlord and Tenant, and shall decide such dispute without delay and as promptly as reasonably possible under the circumstances. In the event separate Arbitrators are selected by Landlord and Tenant and such parties cannot agree upon the matter submitted to them, such Arbitrators shall within five (5) business days after reaching such impasse select a third Arbitrator mutually-satisfactory to the two Arbitrators, and thereafter the third Arbitrator shall promptly decide the matter submitted by Landlord and Tenant to arbitration pursuant to the foregoing. Each party shall pay the cost and expense of any Arbitrator engaged by it, provided that both parties shall share equally the costs of any single Arbitrator who is mutually satisfactory to Landlord and Tenant or mutually satisfactory to the Arbitrators selected by Landlord and Tenant. If the Arbitrator determines that there are additional, commercially reasonable practices which should be instituted by Tenant to control the emission of odors from the Demised Premises, Tenant will, at the expense of Tenant, promptly carry out the recommendations of the Arbitrator and provide to Landlord reasonable evidence of the completion of the required work; provided, however, that in lieu of performing such work, Tenant shall have the right to elect to cease or reduce the activities in the Demised Premises which give rise to the emission of odors from the Demised Premises. If the Arbitrator determines that Tenant is using commercially reasonable practices to control the emission of odor from the Demised Premises, then Tenant will not be required to take any further action with respect to such Other Tenant Complaints presented by Landlord which were the basis for the arbitration. The decision of such Arbitrator(s) shall be issued in writing, shall be final and binding on both Landlord and Tenant with respect to such Other Tenant Complaints and shall not be subject to further review by either Landlord or Tenant. Landlord will be entitled to initiate a subsequent arbitration in the manner described in this subsection (e) if (i) additional complaints are received from tenants that were not the Other Tenants in the prior Other Tenant Complaints or (ii) are based on odors generated by a change in Tenant’s sources, materials, procedures or equipment since the prior arbitration.
(f) Tenant shall not violate any law, ordinance or restrictive covenant affecting the Demised Premises, and shall not in any manner use the Demised Premises so as to cause cancellation of, prevent the use of, or increase the rate of, the fire and extended coverage insurance policy required
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Samples: Lease (Nutrisystem Com Inc)
