Exhibit 10(v)(c)(4)
LEASE
between
ALX OF PARAMUS LLC
Landlord
and
IKEA PROPERTY, INC.
Tenant
Dated as of October 4, 2001
Table of Contents
Page
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Section 1. Definitions .................................................. 1
Section 2. Demise of Premises ........................................... 10
Section 3. No Warranty by Landlord ...................................... 11
Section 4. Term ......................................................... 11
Section 5. Rent ......................................................... 11
Section 6. Basic Term Loan and Extended Term Loan ....................... 13
Section 7. Net Lease; Non-Terminability; Tenant's Liability ............. 14
Section 8. Use .......................................................... 15
Section 9. Surrender .................................................... 15
Section 10. Construction ................................................ 16
Section 11. Governmental Actions, Easements, Etc ........................ 17
Section 12. Alterations ................................................. 18
Section 13. Maintenance and Repairs ..................................... 19
Section 14. Claims Against Landlord ..................................... 20
Section 15. Inspection .................................................. 20
Section 16. Liens and Encroachments ..................................... 20
Section 17. Impositions; Utility Services ............................... 20
Section 18. Indemnification ............................................. 21
Section 19. Compliance With Legal and Insurance Requirements and
Instruments of Record ....................................... 22
Section 20. Taking ...................................................... 22
Section 21. Insurance ................................................... 24
Section 22. Damage or Destruction ....................................... 27
Section 23. Assignment by Tenant ........................................ 28
Section 24. Rights of Leasehold Mortgagees .............................. 29
Section 25. Subletting .................................................. 33
Section 26. Advances by Landlord ........................................ 35
Section 27. Permitted Contests .......................................... 36
Section 28. Conditional Limitations; Default Provisions ................. 37
Section 29. Remedies of Landlord; Waivers ............................... 38
Section 30. Quiet Enjoyment; Subordination to Qualified Fee Mortgage .... 40
Section 31. Certificates ................................................ 40
Section 32. Consents, Approvals, Etc .................................... 41
Section 33. Notices, Demands, Etc ....................................... 41
Section 34. Limitation on Landlord's Liability .......................... 42
Section 35. No Merger of Title .......................................... 43
Section 36. Relationship of Parties ..................................... 43
Section 37. Separability ................................................ 43
Section 38. Brokers ..................................................... 43
Section 39. Entire Agreement ............................................ 43
Section 40. Amendments .................................................. 43
Section 41. Recording of Lease .......................................... 43
Section 42. Rules of Usage .............................................. 44
ii
Table of Contents
(continued)
Page
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Section 43. Governing Law ............................................... 45
Section 44. Counterpart Execution ....................................... 45
Section 45. Environmental Matters ....................................... 45
Section 46. Purchase Option ............................................. 47
Section 47. SPE Covenants ............................................... 48
Section 48. Confidentiality ............................................. 49
Schedule A - Description of Land
Exhibit A - Form of Deed
iii
LEASE dated as of October 4, 2001 between ALX OF PARAMUS LLC, a
Delaware limited liability company ("Landlord"), and IKEA PROPERTY, INC., a
Delaware corporation ("Tenant").
SECTION 1. DEFINITIONS.
Except as otherwise specified or as the context may otherwise require,
the following terms have the meanings set forth below for all purposes of this
Lease and the definitions of such terms are equally applicable both to the
singular and the plural forms thereof:
ADDITIONAL INSUREDS is defined in Section 21(d).
AFFILIATE, with respect to any person, means any other person directly
or indirectly controlling or controlled by, or under direct or indirect common
control with, such person. For purposes of this definition, the term "control"
(including the correlative meanings of the terms "controlled by" and "under
common control with"), as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of such person, whether through the
ownership of voting securities or by contract or otherwise.
APPLICABLE LAWS means all applicable laws, statutes, treaties, codes,
acts, ordinances, orders, interpretations, judgments, decrees, injunctions,
rules, regulations, permits, licenses, authorizations, directions and
requirements of and agreements with all courts and Governmental Authorities,
foreseen or unforeseen, ordinary or extraordinary.
BASIC TERM is defined in Section 4(a).
BASIC TERM LOAN means the loan outstanding from time to time during the
Basic Term from an Institutional Lender to Landlord and secured by the Qualified
Fee Mortgage, provided (i) the principal amount of the loan is $68,000,000,
unless otherwise agreed in writing by Landlord, Tenant and such Institutional
Lender or reduced by the application of condemnation awards or proceeds pursuant
to this Lease, (ii) the loan shall be non-recourse to Landlord and shall be
secured solely by Landlord's interest in the Premises and Landlord's interest as
Landlord under this Lease, (iii) no parent, affiliate or subsidiary of Landlord,
or any officer, director or employee of any of the foregoing shall be required
to obligate itself or himself on the note evidencing the loan or execute any
indemnity or guaranty with respect to the loan and Landlord shall not be
required to execute any indemnity or guaranty with respect to the loan, (iv) the
conditions to closing contained in the commitment therefor and the other terms
contained therein shall be consistent with industry standards for similar loans
then being made by Institutional Lenders, (v) the term thereof shall be at least
seven years, (vi) such loan shall require the payment of interest only and (vii)
such loan shall be prepayable during the Basic Term only if Tenant makes the
payments required pursuant to Section 6(b).
BASIC TERM LOAN DOCUMENTS means all documents evidencing or securing,
or delivered in connection with, the Basic Term Loan.
CONTAMINANT means any pollutant or substance that is or may be harmful
to human health, natural resources or the environment and any hazardous
substance, radioactive substance,
hazardous material, toxic substance, hazardous waste, medical or infectious
waste, radioactive waste, special waste, industrial waste, petroleum or
petroleum-derived substance or waste, asbestos, PCBs, pesticide, explosive,
paint or coating containing lead or mercury, urea formaldehyde, radon, or any
hazardous, toxic, radioactive, or infectious constituent thereof defined as such
or, regulated under Environmental Laws as harmful to human health, natural
resources or the environment.
CPI means the Consumer Price Index for All Urban Consumers, CPI-U,
N.Y.-Northern N.J. - Long Island, NY-NJ, All Items (1982-84--100), published by
the Bureau of Labor Statistics of the U.S. Department of Labor, or any successor
index thereto.
CURRENT DOLLARS means that the dollar amount to which it refers shall
be increased (but not decreased) at two-year intervals commencing with 2003 as
necessary to adjust such amount for inflation by multiplying such amount by a
fraction, the numerator of which is the CPI for the month immediately preceding
the month in which each such adjustment shall be made, and the denominator of
which is the CPI for the month in which the date of this Lease occurs. If the
CPI is converted to a different standard reference base or otherwise revised,
the determination of adjustments provided for herein shall be made with the use
of such conversion factor, formula or table for converting the CPI as may be
published by the Bureau of Labor Statistics or, if such Bureau shall not publish
the same, then with the use of such conversion factor, formula or table as may
be published by Xxxxxxxx-Xxxx, Inc., or any other nationally recognized
publisher of similar statistical information. If the CPI ceases to be published,
and there is no successor thereto, such other index as Landlord shall reasonably
select shall be substituted for the CPI.
DEPOSITARY means:
(i) the Qualified Fee Mortgagee, or Escrow Agent, if the Qualified
Fee Mortgagee is an Institutional Lender, or
(ii) the First Leasehold Mortgagee, or Escrow Agent, if clause (i)
is not applicable and the First Leasehold Mortgagee is an Institutional Lender,
or
(iii) if clauses (i) and (ii) are not applicable, Tenant or an
Affiliate of Tenant if it is an Institutional Lender, or
(iv) if clauses (i), (ii) and (iii) are not applicable, a bank or
trust company selected by Landlord having a combined capital and surplus (as
shown by its most recent financial statement distributed to its shareholders) of
at least $50,000,000 in Current Dollars and its head office not more than 50
miles from the city in which the Premises are located.
ELIGIBLE INVESTMENTS means direct obligations of the United States of
America and obligations of any agency of the United States of America backed by
the full faith and credit of the United States of America.
ENVIRONMENTAL LAWS means any and all past, present, and future
applicable federal, state, local and foreign laws (including duties under the
common law), statutes, codes, ordinances, rules, regulations, directives,
binding policies, permits, authorizations or orders relating to or
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addressing the environment, natural resources or human health, including, but
not limited to, any law, statute, code, ordinance, rule, regulation, directive,
binding policy, permit, authorization or order relating to (a) the use,
handling, disposal, presence, suspected presence, Release, or threatened Release
of any Contaminant or (b) worker or public health.
ESCROW AGENT means any escrow, collateral or lockbox agent designated
by a Qualified Fee Mortgagee to receive rent payments.
EVENT OF DEFAULT is defined in Section 28(a).
EVENT OF INSOLVENCY means either:
(i) commencement by Tenant or Guarantor of a voluntary case or
other proceeding seeking liquidation, reorganization, moratorium, dissolution,
winding-up or composition or readjustment of a substantial portion of its debts
or other relief with respect to it or a substantial portion of its debts under
any bankruptcy, insolvency or other similar law now or hereafter in effect, or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or the consent
by Tenant or Guarantor to any such relief or to the appointment of or taking of
possession of any substantial part of its property by any such official in an
involuntary case or other proceeding commenced against it, or the making by
Tenant or Guarantor of a general assignment for the benefit of creditors, or the
taking by Tenant or Guarantor of any corporate action to authorize or consent to
any of the foregoing or indicating its consent to or approval of or acquiescence
in any of the foregoing;
(ii) the commencement of an involuntary case or other proceeding
against Tenant or Guarantor seeking liquidation, reorganization, moratorium,
dissolution, winding-up or composition or readjustment of its debts or other
relief with respect to it or a substantial portion of its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, which
involuntary case or other proceeding shall remain undismissed or unstayed for a
period of 90 consecutive days;
(iii) Tenant's or Guarantor's admission in writing of its inability
to pay its debts generally as they become due or declaration or effecting of a
general moratorium on payment of its debts; or
(iv) repudiation or anticipatory breach of this Lease by Tenant or
repudiation of the Guaranty by Guarantor.
EXTENDED TERM is defined in Section 4(b).
EXTENDED TERM LOAN means the loan which (i) Tenant is required to
obtain on behalf of Landlord pursuant to Section 6(c), (ii) is outstanding
during the Extended Term, (iii) is made by an Institutional Lender to Landlord
and (iv) is secured by the Qualified Fee Mortgage, provided (A) the initial
principal amount of the loan is $68,000,000, or such other amount as may then be
required to refinance the Basic Term Loan, (B) the loan shall be non-recourse to
Landlord and shall be secured solely by Landlord's interest in the Premises and
Landlord's interest as Landlord
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under this Lease, (C) no parent, affiliate or subsidiary of Landlord, or any
officer, director or employee of any of the foregoing shall be required to
obligate itself or himself on the note evidencing the loan or execute any
indemnity or guaranty with respect to the loan and Landlord shall not be
required to execute any indemnity or guaranty with respect to the loan, (D) the
conditions to closing contained in the commitment therefor and the other terms
contained therein shall be consistent with industry standards for similar loans
then being made by Institutional Lenders, (E) the term thereof shall be at least
10 years and (F) such loan shall be fully self-amortizing by the end of the
Extended Term and shall provide for constant debt service.
EXTENDED TERM LOAN DOCUMENTS means all documents evidencing or
securing, or delivered in connection with, the Extended Term Loan.
FIRST LEASEHOLD MORTGAGE means at any time the Leasehold Mortgage on
the entire Premises which is then prior of record to all other Leasehold
Mortgages on the Premises.
FIRST LEASEHOLD MORTGAGEE means at any time the mortgagee or
beneficiary under the First Leasehold Mortgage.
FIXED RENT means the fixed rent payable by Tenant for the Premises for
the Premises pursuant to Section 5(a).
GOVERNMENTAL ACTION means any of the following affecting the Premises
from time to time: permits, inspections, certificates of occupancy,
authorizations, registrations, consents, approvals, waivers, exceptions,
variances, orders, judgments, decrees, licenses, exemptions, publications,
filings, notices to and declarations of or with, or required by, any
Governmental Authority, or required by any Applicable Law.
GOVERNMENTAL AUTHORITY means any federal, state, local or other
governmental or regulatory authority, agency, board, body, commission,
instrumentality, court or quasi-governmental authority.
IMPOSITIONS means all taxes, assessments, levies and other governmental
charges (including any environmental or transit impact development fee and
taxes, assessments, levies and charges for public improvements, benefits or
services, no matter when commenced or completed), general, special, ordinary,
extraordinary and otherwise, whether or not now customary or within the
contemplation of the parties, together with all interest and penalties thereon,
which, pursuant to Applicable Laws in effect from time to time, are levied or
imposed upon or assessed against:
(i) the Premises,
(ii) the Rent,
(iii) this Lease or the leasehold estate hereby created,
(iv) the gross receipts from the Premises or the earnings arising
from the use thereof,
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(v) Landlord by reason of any actual or asserted engagement by
Landlord, directly or indirectly, in any business, occupation or other activity
in connection with the Premises, provided that such engagement is in compliance
with the terms of this Lease and for the ends contemplated by this Lease,
(vi) the ownership, possession, leasing, operation, management,
maintenance, alteration, repair, rebuilding, use or occupancy of the Premises,
or
(vii) the Qualified Fee Mortgage, to the extent payable by Landlord
under the Basic Term Loan Documents or the Extended Term Loan Documents, as
applicable.
other than (A) franchise or capital stock taxes of Landlord or its Affiliates,
or (B) income, estate, inheritance, succession, transfer, stamp or gift taxes of
Landlord or its Affiliates. If by reason of a change in the method of taxation,
any tax referred to in clause (A) or (B) is levied in substitution for or in
lieu of the whole or any part of, or in lieu of any increase in the amount of,
any tax which would otherwise constitute an Imposition, such tax shall be
included in the term "Impositions" as if the Land were the only asset of
Landlord and as if the fixed rent reserved under this Lease were the only income
of Landlord. Tenant shall not, however, be responsible for payment of any taxes
payable as, or in lieu of, transfer taxes upon the conveyance of title to the
Premises upon the exercise of the Purchase Option.
IMPROVEMENTS means all buildings and other improvements now or
hereafter located on the Land and all fixtures and personal property attached or
appurtenant to or used in connection with such buildings and improvements,
including all lines, pipes, mains, cables, manholes, wires, conduits, equipment
and other facilities required in connection with or relating to the mechanical,
utility, electrical, storm sewer, telephone, sanitary sewer, telephone, fire
alarm, fire protection, gas and other systems needed for the physical operation
of such buildings and improvements, all necessary roadways, ramps and pedestrian
circulation areas on the Land and all landscaping on the Land, provided,
however, that the foregoing definition of Improvements specifically excludes
fixtures and personal property owned by: (i) independent contractors engaged by
Tenant; (ii) any person claiming under Tenant in connection with the maintenance
and operation of such buildings and improvements; (iii) owned by any subtenant
of Tenant or any person claiming under any subtenant; or (iv) Tenant to the
extent they may constitute trade fixtures, inventory, supplies, goods, equipment
for the retail business or service activities conducted from the Premises, or
racking and storage or warehousing systems.
INSTITUTIONAL LENDER means any person which, at the time of
determination, has a net worth of not less than $50,000,000 in Current Dollars
and is a national bank organized under the laws of the United States, a
commercial or savings bank, a savings and loan association, a trust company, a
European bank or trust company of comparable stature (or their United States or
offshore branches and affiliates), a bank comparable in credit rating to that of
Svenska Handelsbanken AB (publ) as of the date hereof, a real estate investment
trust or an insurance company organized, licensed or regulated under the laws of
the United States or any state of the United States, or a pension or retirement
trust or fund supervised by a Governmental Authority of any state of the United
States.
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INSURANCE REQUIREMENTS means all terms of any insurance policy covering
or applicable to the Premises and all applicable and related requirements of the
issuer of any such policy, and all orders, rules, regulations and any other
requirements of the National Fire Protection Association (or any successor body
exercising similar functions) applicable in connection therewith to or affecting
the Premises or any use or condition of the Premises.
INVOLUNTARY RATE means at any time the lesser of (i) four points over
Prime Rate or (ii) the highest rate not prohibited by Applicable Laws then in
effect.
LAND means the land described in Schedule A hereto and all rights,
privileges and appurtenances belonging or pertaining thereto.
LANDLORD means ALX of Paramus LLC, a Delaware limited liability
company, or, after the transfer of its interest in the Premises permitted by the
Qualified Fee Mortgagee, the owner from time to time of such interest.
LEASEHOLD MORTGAGE is defined in Section 24(a).
Leasehold Mortgagee is defined in Section 24(a).
LIEN means any of the following upon and running with the Premises, the
income therefrom or any other interest therein from time to time: any mortgage,
deed of trust, pledge, security interest, encumbrance, lien, easement,
restriction, servitude or charge of any kind, including any conditional sale or
other title retention agreement, any lease in the nature thereof or the filing
of, or binding agreement to execute as "debtor", any financing statement under
the Uniform Commercial Code of any jurisdiction.
LOAN shall mean the Basic Term Loan or the Extended Term Loan, as
applicable.
LOAN RETIREMENT AMOUNT shall mean the amount required at any time to
pay all amounts then or thereafter due and owing under the Basic Term Loan
Documents or the Extended Term Loan Documents, as applicable, including all
unpaid principal, interest, late charges, fees, costs and expenses then or
thereafter due and owing thereunder.
MANAGER shall mean Vornado Management Corp. or any substitute manager
of the Premises.
Mortgage includes (i) a mortgage and security agreement, (ii) deed of
trust and (ii) an indenture of mortgage and deed of trust which creates a Lien
in favor of one or more mortgagees or trustees for the benefit of one or more
lenders, and mortgagee includes (A) the mortgage holder; (B) the beneficiary
under such a deed of trust and (C) the trustee(s) under any such indenture.
NET TENANT'S AWARD is defined in Section 20(b).
NEW IMPROVEMENTS is defined in Section 10(a).
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NEW LEASE means a lease of the Premises between Landlord and the First
Leasehold Mortgagee or its designee entered into in accordance with Section
24(f), for a term beginning on the date of the termination of this Lease and
continuing for the remainder of the term provided for in this Lease, and
otherwise containing the same terms and conditions as those set forth in this
Lease, provided that (i) unless otherwise provided herein or as may be agreed in
writing by Landlord and First Leasehold Mortgagee, such lease shall require the
tenant thereunder promptly to commence, and expeditiously to continue, to remedy
all defaults on the part of Tenant hereunder which existed on the date of such
termination (other than an Event of Insolvency), (ii) Landlord shall have no
obligation to deliver physical possession of the Premises to the First Leasehold
Mortgagee or its designee except to the extent that Landlord has physical
possession of the Premises at the time of execution and delivery of such lease,
(iii) such lease shall assign to the tenant thereunder, without recourse and
without representation or warranty, all rights of Landlord in subleases which
became leases upon termination of this Lease and in leases entered into by
Landlord after termination of this Lease and all security deposits and similar
amounts held by Landlord pursuant to such leases and (iv) such lease shall
require Landlord to pay to the Depositary all Taking awards or insurance
proceeds received by Landlord to the extent such awards or proceeds would have
been required to be paid to the Depositary under this Lease.
NO COST TO LANDLORD shall mean that Landlord shall not be responsible
for, and that Tenant (or if applicable, the subtenant) shall be obligated to
reimburse for out-of-pocket costs actually expended, if any, in connection with
the applicable action, review or response to be undertaken under any "No Cost"
provision of this Lease; provided, however, that (i) "internal" costs such as
time and overhead shall not constitute "Costs" for this purpose and shall not be
subject to any reimbursement obligation, (ii) there shall be no obligation to
reimburse for professional fees incurred in reviewing requests for approvals or
consents of Landlord by or on behalf of Tenant or subtenants and (iii) there
shall be no obligation to reimburse non-material costs incurred (which for this
purpose shall be defined as costs or fees of $5,000 or less incurred in
connection with any review or approval requested or action to be taken).
PARENT is defined in Section 47(a).
PERMITTED LIENS means:
(i) the rights of a Qualified Subtenant under a Qualified
Sublease;
(ii) Liens for Impositions that either are not yet due and payable
or are being contested in accordance with Section 27;
(iii) materialmen's, mechanics', workmen's, repairmen's, carriers',
warehousemen's and other like Liens arising out of the construction of
Improvements or alterations thereto or arising in the ordinary course of
business if (A) such Liens secure sums which under the terms of the related
contracts are not at the time due, or (B) such Liens are being contested in
accordance with Section 27;
(iv) Liens of any of the types referred to in clause (iii) that
have been bonded for the full amount thereof or discharged of record (or as to
which other security arrangements satisfactory to Landlord have been made);
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(v) matters of title existing as Permitted Liens on the date of
this Lease or permitted under the terms of this Lease;
(vi) the respective rights and interests of the parties hereto arising
under the terms of this Lease; and
(vii) all Leasehold Mortgages permitted pursuant to the Basic Term
Loan Documents or the Extended Term Loan Documents, as applicable, and the
Qualified Fee Mortgage.
PERSON includes an individual, corporation, partnership, joint venture,
estate, trust, unincorporated association, Governmental Authority or any other
entity.
PREMISES means the Land and the Improvements.
PRIME RATE means the fluctuating annual interest rate announced
publicly from time to time by Citibank, N.A. in New York, New York as Citibank,
N.A.'s base rate.
PROJECT ARCHITECT means either (i) the registered or licensed in-house
architects of Ikea, Inc. and/or Ikea Property, Inc. or (ii) other firm of
registered architects or licensed professional engineers selected by Tenant and
satisfactory to Landlord.
PROJECT COST means, as to any Improvement, all direct and indirect cost
of construction and initial leasing thereof, including site improvements,
building shell construction, parking, tenant finish, architectural and
engineering, Governmental Actions, inspection fees, Impositions, insurance,
legal, title, overhead and supervision, developer fee, contingency and operating
deficit, financing costs (including interest, commitment fees and lender
out-of-pocket costs), and leasing commissions.
PURCHASE OPTION is defined in Section 46.
PURCHASE OPTION PRICE is defined in Section 46.
QUALIFIED FEE MORTGAGE means the mortgage(s) or deed of trust(s)
constituting a lien on the Premises as security for the Basic Term Loan or the
Extended Term Loan.
QUALIFIED FEE MORTGAGEE means the holder of the Qualified Fee Mortgage.
On the date hereof, Svenska Handelsbanken AB (publ) is the only Qualified Fee
Mortgagee.
QUALIFIED SUBLEASEHOLD MORTGAGE means a pledge, mortgage, or security
agreement pursuant to which (i) a Qualified Subtenant shall have pledged, or
mortgaged or granted a security interest in its Qualified Sublease and (ii) the
holder of such pledge, mortgage or security agreement shall have entered into an
agreement with Tenant, the Qualified Fee Mortgagee and each Leasehold Mortgagee
(if such Leasehold Mortgagee then holds a mortgage encumbering the portion of
the Premises to which such Qualified Sublease applies) pursuant to which each of
Tenant, the Qualified Fee Mortgagee and the Leasehold Mortgagee(s) shall have
agreed to recognize such pledge, mortgage or security agreement.
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QUALIFIED SUBTENANT AND/OR QUALIFIED SUBLEASE means any subtenant of
Tenant and its applicable sublease provided that with respect to such sublease:
(i) it complies with Section 25;
(ii) if any Leasehold Mortgage then encumbers the portion of the
Premises to be occupied by such subtenant under such sublease, the holder of
each such Leasehold Mortgage is an Institutional Lender and shall have entered
into a written non-disturbance agreement with the subtenant under such sublease,
providing in substance that such Leasehold Mortgagee shall not join such
subtenant as a party defendant in any foreclosure action or proceeding
instituted by such Leasehold Mortgagee and shall not evict such subtenant
(except in the case of default under such sublease) in the event of foreclosure
or the exercise of a power of sale by such Leasehold Mortgagee, which agreement
shall then be in effect and an executed copy of which shall have been delivered
to Landlord;
(iii) such sublease is on market terms as of the date of its execution;
(iv) the subtenant has, as of the execution of the sublease, a net
worth of at least $50,000,000 in Current Dollars or subtenant's guarantor is
creditworthy in relation to the sublease obligation;
(v) such sublease is for at least 50,000 square feet;
(vi) if any Qualified Fee Mortgage then encumbers the portion of the
Premises to be occupied by such subtenant under such sublease, the holder of
each such Qualified Fee Mortgage is an Institutional Lender and shall have
entered into a written agreement providing in substance that such Qualified Fee
Mortgagee shall not join such subtenant as a party defendant in any foreclosure
action or proceeding instituted by such Qualified Fee Mortgagee and shall not
evict such subtenant (except in the case of default under such sublease) in the
event of foreclosure or the exercise of a power of sale by such Qualified Fee
Mortgagee, which agreement shall then be in effect and an executed copy of which
shall have been delivered to Landlord; and
(vii) if such subtenant shall have pledged, mortgaged or granted a
security interest in such sublease, such pledge, mortgage or security agreement
shall be a Qualified Subleasehold Mortgage.
RELEASE means the release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migrating into
the indoor or outdoor environment of any Contaminant through or in the air,
soil, surface water, groundwater, or any structure.
RENT means the Fixed Rent and all other sums payable by Tenant
hereunder.
RESTORATION means, in case of damage or destruction resulting from any
cause, the restoration, replacement or rebuilding of the Improvements as nearly
as possible to their fair market value and condition immediately prior to such
damage or destruction (assuming that immediately prior to such damage or
destruction, the Improvements were in the condition
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required by this Lease) and with such alterations as may be made at Tenant's
election pursuant to and subject to the conditions of Section 12.
STRUCTURAL ALTERATION means (i) any alteration to the Improvements
which materially affects the structure of the Improvements or the heating,
ventilation, air conditioning, plumbing, electrical or other mechanical systems
of the Improvements or affects in any way the outer skin of the Improvements,
and (iii) construction of new Improvements, including any addition to the
Improvements. The term Structural Alteration does not include restoration of
Improvements following damage or destruction resulting from casualty or Taking,
in accordance with the original plans therefor approved (to the extent required
by Section 10 or Section 12) by Landlord.
TAKING means any condemnation, requisition or other taking or sale of
the use or occupancy of or title to the Premises in, by or on account of any
actual or threatened eminent domain proceedings or other action having such
effect by any Governmental Authority or other person under the power of eminent
domain. A Taking of the Premises shall be deemed to have occurred on the
earliest to occur of the dates that use, occupancy or title is taken.
TENANT means IKEA Property, Inc., a Delaware corporation, or, after the
transfer of its interest in the Premises, the owner from time to time of such
interest.
TENANT'S NOTICE is defined in Section 24(a).
TERM shall mean the Basic Term, and, if applicable, the Extended Term.
TOTAL TAKING is defined in Section 20(b).
UNAVOIDABLE DELAYS means any act of God, fire, flood, earthquake,
explosion, riot, sabotage, failure of utility services, labor dispute,
governmental act or failure to act or other event (i) which in fact prevents
Tenant from or delays Tenant in curing a default under Section 28(a)(iii) or in
taking any other action which, under the terms of this Lease, may be postponed
for Unavoidable Delays, (ii) which is beyond the control of Tenant despite all
reasonable efforts of Tenant to prevent, avoid, delay or mitigate such event or
occurrence, (iii) which is not caused by lack of funds or the negligence or
intentional act of Tenant or any of its agents or contractors, (iv) which
Tenant, promptly after obtaining knowledge thereof, is using all reasonable
efforts to cure and (v) as to which Tenant shall have notified Landlord no later
than 10 days after Tenant first obtained knowledge of the occurrence thereof.
VALUE OF THE LAND means at any time the fair market value of the Land
considered as vacant, unimproved and unencumbered by this Lease or any other
lease and available for its highest and best use under Applicable Laws then in
effect, which may be the then existing Improvements whether or not they could
then be constructed under such Applicable Laws.
SECTION 2. DEMISE OF PREMISES.
Landlord hereby demises and lets to Tenant and Tenant hereby takes and
hires from Landlord, upon the terms and conditions of this Lease, the Premises
including all appurtenances and rights relating thereto, together with all
right, title and interest of Landlord in and to the land
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lying in the streets and ways adjoining the Land and the right of surface
support of the Land and Improvements.
SECTION 3. NO WARRANTY BY LANDLORD.
Tenant has inspected the Premises and is fully familiar with the
condition and state of repair thereof, including the presence or absence of
Contaminant, and accepts the Premises "as is" and in their present condition.
Tenant has made such examination of title to the Premises and of the operation,
income and expenses of the Premises and all other matters affecting or relating
to the Premises as Tenant deemed necessary. UNLESS EXPRESSLY STATED ELSEWHERE IN
THIS LEASE, LANDLORD MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED,
WITH RESPECT TO THE PREMISES OR ANY FIXTURE OR ITEM OF PERSONAL PROPERTY
CONSTITUTING A PART THEREOF OR THE LOCATION, USE, DESCRIPTION, DESIGN,
MERCHANTABILITY, FITNESS FOR USE FOR ANY PARTICULAR PURPOSE, CONDITION, OR
DURABILITY THEREOF, OR AS TO THE TITLE THERETO OR OWNERSHIP THEREOF OR
OTHERWISE, IT BEING AGREED THAT ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY
TENANT. IN CASE OF ANY DEFECT OR DEFICIENCY IN THE PREMISES, OR ANY SUCH FIXTURE
OR ITEM OF PERSONAL PROPERTY, WHETHER PATENT OR LATENT, LANDLORD SHALL HAVE NO
RESPONSIBILITY OR LIABILITY WITH RESPECT THERETO. THE PROVISIONS OF THIS Section
3 HAVE BEEN NEGOTIATED AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION
BY LANDLORD OF, AND LANDLORD HEREBY DISCLAIMS, ALL WARRANTIES BY LANDLORD,
EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR OF HABITABILITY WITH RESPECT TO THE PREMISES, OR ANY SUCH
FIXTURE OR ITEM OF PERSONAL PROPERTY, WHETHER ARISING PURSUANT TO THE UNIFORM
COMMERCIAL CODE OR OTHER APPLICABLE LAW.
SECTION 4. TERM.
(a) The basic term of this Lease (the "Basic Term") shall commence
on October 4, 2001 and shall end on October 3, 2021.
(b) Unless this Lease shall have sooner terminated by reason of
Tenant's exercise of its right to purchase the Premises pursuant to Section 46
or otherwise, the Term shall continue automatically, and without need for notice
or exercise by Tenant, for one extended term of 20 years ending October 3, 2041
(the "Extended Term"). The Extended Term shall commence on the day next
succeeding the expiration date of the Basic Term.
(c) The Basic Term and the Extended Term shall, subject to the
provisions of this Lease, including the Purchase Option, constitute the Term.
SECTION 5. RENT.
(a) Tenant shall pay Landlord as annual Fixed Rent for the
Premises the sum of (i) $700,000 plus (ii) all interest on the Basic Term Loan
during the Basic Term. Subject to the Purchase Option, Tenant shall pay Landlord
as annual Fixed Rent during the Extended Term an
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amount equal to all debt service (including interest and required amortization)
on the Extended Term Loan. Fixed Rent shall be payable in equal monthly
installments in advance on the day specified for the payment of interest by the
Qualified Fee Mortgagee. For so long as Svenska Handelsbanken AB (publ) is the
Qualified Fee Mortgagee, all payments of Fixed Rent shall be made on the fifth
day of the month (or, if the fifth day of the month is not a day on which banks
are open for business in New York City, New York, the next day on which banks
are open for business in New York City, New York).
(b) Fixed Rent shall be paid to Landlord in lawful money of the
United States of America, by wire transfer of immediately available funds to
Landlord, or to such other person or at such other place or by such other means
(including to Escrow Agent) as Landlord from time to time may designate by
notice to Tenant. Landlord and Tenant agree that either simultaneously with the
execution of this Lease, or thereafter, they will enter into a payment
arrangement with Escrow Agent, if and as requested by a Qualified Fee Mortgagee
(and in connection with the refinancing of the Basic Term Loan or the Extended
Term Loan as provided in this Lease), which arrangement: (i) may only be revoked
or modified at the request of such Qualified Fee Mortgagee; (ii) shall be on
standard commercial terms and in form and content reasonable satisfactory to
such Qualified Fee Mortgagee; and (iii) shall provide that such Fixed Rent and
all other sums payable by Tenant under this Lease, whether or not characterized
hereunder as Rent, shall be applied first to current obligations under the Basic
Term Loan Documents or the Extended Term Loan Documents, as applicable
(including, if then applicable, repayment of outstanding principal and interest
at maturity), with the balance thereof to be distributed as directed by Landlord
under such terms. Landlord hereby irrevocably directs Tenant that for so long as
Svenska Handelsbanken AB (publ) is the Qualified Fee Mortgagee, all payments of
Fixed Rent shall be made directly to Escrow Agent.
(c) All other amounts, liabilities and obligations which Tenant
assumes or agrees to pay or discharge pursuant to this Lease, together with any
fine, penalty, interest or cost which may be added for late payment, shall
constitute additional rent, and in case of failure of Tenant to pay or discharge
them, Landlord shall have the rights and remedies provided in this Lease or by
law in the case of nonpayment of minimum rent.
(d) As compensation for the administrative costs incurred by
Landlord by reason of Tenant's failure to make prompt payment, Tenant shall pay
on demand to Landlord, as additional rent, interest at the Involuntary Rate on
overdue payments of Fixed Rent, from the date due until paid, and on overdue
amounts of additional rent which Landlord shall have paid on behalf of Tenant,
from the date of payment by Landlord until paid by Tenant.
(e) Tenant shall pay to Landlord, as additional rent within 10
days of demand, Landlord's out-of-pocket costs for any lender's counsel fees,
commitment fees, closing fees, inspection or appraisal fees, escrow or similar
fees imposed by the Qualified Fee Mortgagee and payable by Landlord under the
Basic Term Loan Documents or Extended Term Loan Documents, as applicable, as a
condition for the making, renewal or maintenance for the Basic Term Loan(s) and
the Extended Term Loan(s), including without limitation all fees and expenses
imposed by the Qualified Fee Mortgagee and payable by Landlord in connection
with obtaining consents, approvals, waivers and non-disturbance and recognition
of subtenants and subtenants' mortgagees.
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(f) Tenant shall pay to Landlord, or to such other person or at
such other place or by such other means (including Escrow Agent) as Landlord
from time to time may designate by notice to Tenant, on demand, all late fees,
interest in excess of the rate stipulated in the Basic Term Loan Documents or
the Extended Term Loan Documents, as applicable, and all escrow fees, breakage
fees, funding losses, "make whole" fees, tax "gross ups", taxes imposed on the
Basic Term Loan or the Extended Term Loan and payable by Landlord under the
Basic Term Loan Documents on the Extended Term Loan Documents, as applicable,
and all other sums, charges, costs and fees due to the Qualified Fee Mortgagee
pursuant to the Basic Term Loan Documents or the Extended Term Loan Documents,
as applicable, unless the same have been incurred solely due to the act or
omission of Landlord or Landlord's Affiliates.
(g) Landlord and Tenant shall cooperate in making any rate
elections permitted or required by the Basic Term Loan Documents or the Extended
Term Loan Documents, as applicable, and Tenant shall evidence its consent to or
agreement with any rate election in the manner required pursuant to the Basic
Term Loan Documents or the Extended Term Loan Documents, as applicable, provided
that if Landlord and Tenant cannot agree with respect to a rate election,
Tenant's determination with respect to such election shall be binding on both
Tenant and Landlord.
SECTION 6. BASIC TERM LOAN AND EXTENDED TERM LOAN. (a) If (i) the
initial Basic Term Loan shall have a maturity date before the end of the Basic
Term and (ii) this Lease remains in effect and shall not have been terminated
earlier in accordance with its provisions, then Tenant shall use its best
efforts to refinance of the Basic Term Loan by obtaining, on behalf of Landlord,
a substitute Basic Term Loan for a term not less than (A) seven years (if it is
the first substitute Basic Term Loan) or (B) the remainder of the Basic Term of
this Lease (if it is the second substitute Basic Term Loan). Landlord shall, at
No Cost to Landlord, cooperate with Tenant in refinancing the Basic Term Loan
through the obtaining of such substitute Basic Term Loan(s). Landlord shall not,
during the Basic Term, enter into any loan secured by the Premises, or otherwise
encumber or permit any encumbrance of the Premises other than (1) a Qualified
Fee Mortgage, (2) the Basic Term Loan Documents or the Extended Term Loan
Documents and (3) those encumbrances contemplated by Section 11, and any other
such loan or encumbrance by or permitted by Landlord shall be deemed a breach of
the covenant of quiet enjoyment and Tenant's Purchase Option.
(b) If, despite use of its best efforts and Landlord's compliance
with its obligations under Section 6(a) with respect thereto, Tenant fails to
cause the refinancing the Basic Term Loan pursuant to Section 6(a) by obtaining,
on behalf of Landlord, a substitute Basic Term Loan, then, upon the maturity of
the then-applicable Basic Term Loan, (i) notwithstanding the dates for exercise
set forth in Section 46, Tenant shall be deemed automatically to have exercised
and shall exercise the Purchase Option, (ii) Landlord shall transfer the
Premises to Tenant in the manner required pursuant to Section 46 and (iii)
Tenant shall pay (A) the amounts required by Section 46 in the manner required
by Section 46 and (B) to Landlord the additional cost (determined on a present
value basis using a discount rate equal to the Prime Rate) of all federal, state
and local income taxes (on a grossed-up basis) incurred by Landlord and
Landlord's Affiliates, and the direct and indirect shareholders and partners of
Landlord and such Affiliates, because the Premises was transferred before the
earliest date Tenant could have closed on the Purchase Option pursuant to
Section 46. The
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amounts described in clause (B) of this Section 6(b)(iii) shall be computed
assuming that the income realized is taxable at the highest marginal rates for
the tax domiciles of such taxpayers, and assuming no losses, credits or other
tax attributes are available to offset such income.
(c) If Tenant does not exercise its right to purchase the Premises
and this Lease extends into Extended Term, then Tenant shall, on behalf of the
Landlord, on or before the first day of the Extended Term, obtain an Extended
Term Loan.
(d) If (i) Tenant, through its action or omission, causes an
acceleration of the Basic Term Loan which is not cured within the applicable
cure periods, if any (including by obtaining a substitute Basic Term Loan
pursuant to the terms of this Lease) or (ii) there is an acceleration of the
Basic Term Loan because of a casualty or condemnation, then Tenant shall be
deemed to have exercised the Purchase Option and Tenant shall, as soon as
possible thereafter, close on the Purchase Option in accordance with Section 46
and make the payments required by Section 6(b).
(e) If there is an acceleration or prepayment of the Basic Term
Loan or Extended Term Loan for any reason other than Landlord's independent
election to prepay or Landlord's act or omission, then Tenant shall pay to the
lender any breakage fees, prepayment premiums or like charges incurred because
of such acceleration or prepayment.
SECTION 7. NET LEASE; NON-TERMINABILITY; TENANT'S LIABILITY.
(a) This Lease is an absolutely net lease and the Rent shall be
paid by Tenant, except as otherwise expressly provided in this Lease, without
notice or demand, and without set-off, counterclaim, abatement, deduction or
defense. The parties intend that by the execution of this Lease, Tenant shall
assume with respect to the Premises every obligation relating thereto which the
ownership thereof entails and which, but for this Lease, would be borne by
Landlord.
(b) Except as otherwise expressly provided in this Lease, this
Lease shall not terminate, nor shall Tenant have any right to terminate this
Lease, nor shall Tenant be entitled to the abatement of any Rent hereunder or
any reduction thereof, nor shall the obligations of Tenant under this Lease be
affected, by reason of damage to the Premises from any cause, or a Taking, or
the prohibition, cessation, interruption, limitation or restriction of Tenant's
use of the Premises, or the interference with such use by any person, or a
default on the part of Landlord or for any other cause whether similar or
dissimilar to the foregoing, any present or future law to the contrary
notwithstanding, it being the intention of the parties that, except as otherwise
expressly provided in this Lease, the obligations of Tenant shall be separate
and independent covenants and agreements, that the Rent shall be payable in all
events, and that the obligations of Tenant shall continue unaffected, unless the
requirement to pay or perform the same shall have been terminated or modified
pursuant to an express provision of this Lease or pursuant to separate written
agreement executed by Tenant and Landlord, and consented to by the Qualified Fee
Mortgagee and, if applicable, the First Leasehold Mortgagee(s). Tenant waives
all rights which may now or hereafter be conferred by Applicable Law to quit,
terminate or surrender this Lease or the Premises, or to any abatement,
deferment or reduction of Rent, except as expressly provided in this Lease. Each
payment of Rent made by Tenant hereunder shall be final, and Tenant shall not
seek or have any right to recover all or any part of such payment from Landlord
or any other person.
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(c) All obligations of Tenant shall be performed at its cost
unless otherwise expressly stated.
SECTION 8. USE.
Tenant may at any time use or permit the use of the Premises for any
purposes permitted by Applicable Laws, Governmental Actions and Insurance
Requirements then in effect (subject to Tenant's rights to contest same pursuant
to Section 27, provided that none of the following will be conducted or
permitted at, on, under, to, or from the Premises: (a) a use which creates a
public or private nuisance, (b) a use which violates zoning and laws that may be
applicable to the Premises from time to time, (c) a use that violates any
covenants or restrictions applicable to the Premises from time to time, (d) the
treatment, storage, handling or disposal of a Contaminant in violation of
Applicable Law, (e) any use that creates noise or sound that is objectionable by
reason of intermittence, frequency, shrillness or loudness, (f) any use that
creates an obnoxious odor, (g) any use that creates any excessive quantity of
dust, dirt or fly ash, provided, however, this prohibition shall not preclude
the sale of soils, fertilizers or other garden materials or building materials
in closed containers if incident to the operation of home improvement or general
merchandise store, (h) any use which involves fire, explosion or other damaging
or dangerous hazard, including the storage, display or sale or explosives or
fireworks, (i) any distillation, refining, smelting, agricultural or mining
operations, (j) any drilling for and/or removal of subsurface substances (other
than for testing purposes or as required by law), (k) any dumping of garbage,
solid waste or refuse, other than in enclosed receptacles intended for such
purpose, (l) any disposal, Release, or threatened Release of any Contaminant or
(m) any use that is deemed environmentally sensitive by the Qualified Fee
Mortgagee pursuant to the Basic Term Loan Documents or the Extended Term Loan
Documents.
SECTION 9. SURRENDER.
(a) Upon the expiration or earlier termination of this Lease,
Tenant shall surrender the Premises to Landlord in good order, condition and
repair, except for ordinary wear and tear and provided, however, that
notwithstanding the foregoing, Tenant shall have the right to raze some or all
the Improvements damaged and destroyed so long as (i) Tenant removes all rubble
and debris so as to remove any hazardous or unsightly conditions and (ii) Tenant
shall have obtained any required consent of the Qualified Fee Mortgagee; and
provided further that in the case of a Taking, such obligation shall only apply
to the portion not taken and damage to the remaining Improvements resulting from
such Taking. At the time of surrender, the Premises shall be free and clear of
all subleases (other than subleases which Landlord is obligated to recognize or
elects to recognize under Section 25) and all Liens (other than Permitted
Liens).
(b) Tenant shall remove from the Premises on or prior to such
expiration or earlier termination all personal property situated thereon which
is not part of the Improvements and not owned by Landlord or permitted
subtenants, and shall repair any damage caused by such removal. Property not so
removed shall become the property of Landlord, which may thereafter cause such
property to be removed from the Premises and disposed of, but the cost of any
such removal and disposition as well as the cost of repairing any damage caused
by such removal shall be borne by Tenant.
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(c) At the time of such surrender, Tenant shall deliver to
Landlord the original (or if the original is not in Tenant's possession, a copy)
of (i) in case of termination of this Lease, executed copies of all subleases
and all rent prepayments, security deposits and payments in the nature of
additional rent (which have not been applied to the purposes for which they were
paid), such as payments of taxes and operating expenses, paid to Tenant pursuant
to each sublease which Landlord is obligated to recognize or elects to recognize
under Section 25, to be held by Landlord subject to the terms of such sublease,
(ii) each written guaranty and warranty then in effect with respect to the
Improvements, (iii) to the extent then in Tenant's possession, each Governmental
Action then required under Applicable Laws for the use, possession, operation or
maintenance of the Premises, (iv) executed copies of all service and maintenance
contracts then in effect with respect to the Premises, (v) all operating
manuals, maintenance records and similar documents then in Tenant's possession
that relate to the operation or maintenance of the Premises, (vi) all keys and
combinations in Tenant's possession to all doors and other locks in the
Improvements and (vii) at least one complete set of as-built plans of the
Improvements.
(d) If Tenant remains in possession of the Premises after the
expiration or earlier termination of this Lease, without Landlord's consent or a
new lease, then Landlord, without waiving any other rights or remedies
hereunder, may elect to treat Tenant as a tenant from month to month, subject to
all the terms of this Lease, except that the Fixed Rent shall be the amounts
provided for herein multiplied by 150%, provided that if Fixed Rent immediately
before such expiration or termination is $0, then Fixed Rent shall be 150% of
the fair market rental value of the Premises for a month-to-month "as-is" Lease.
(e) The provisions of this Section 9 shall not be applicable if
this Lease is terminated pursuant to Tenant's exercise of its right to purchase
the Premises pursuant to Section 6(a) and (b) or Section 46.
SECTION 10. CONSTRUCTION.
(a) Any construction of any new Improvements on the Premises (the
"New Improvements") shall be accomplished at Tenant's cost, in a first-class,
workmanlike manner, free and clear of all Liens other than Permitted Liens and
in conformity with the plans therefor and all Applicable Laws, Governmental
Actions and Insurance Requirements then in effect. Prior to commencement of
construction, as to New Improvements having a Project Cost of $500,000 or more,
Tenant shall deliver to Landlord or cause to be delivered:
(i) a detailed estimate of the Project Cost of such
construction, prepared or reviewed and approved by the Project
Architect,
(ii) evidence satisfactory to Landlord in its reasonable
discretion that Tenant or, if applicable, the subtenant, has or has
access to funds sufficient to pay such Project Cost as incurred during
such construction,
(iii) evidence of all Governmental Actions required for
such construction,
(iv) evidence of the insurance required under Section
21(b), and
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(v) evidence of any consent or approval required from the
Qualified Fee Mortgagee.
(b) During the course of such construction, Tenant shall deliver
to Landlord or cause to be delivered: (i) any revision of $100,000 or more to
the estimate of Project Cost delivered pursuant to Section 10(b)(i) required to
keep such estimate current in light of cost overruns and the like, prepared or
reviewed and approved by the Project Architect and (ii) in case of any such
increase in Project Cost, evidence satisfactory to Landlord in its reasonable
discretion that Tenant, or if applicable subtenant has or has access to funds
sufficient to pay such increased Project Cost as incurred.
(c) Notwithstanding the above, the Project Cost estimates, updates
thereto, and Landlord's review and approval thereof shall not be required so
long as Tenant, or, if applicable, subtenant, have a net worth of $50,000,000 or
more in Current Dollars.
(d) Prior to and during the course of all construction work,
Tenant shall take all reasonable measures to prevent erosion of the soil and the
blowing of sand or materials.
(e) Promptly upon substantial completion of New Improvements
having a Project Cost greater than $100,000 (i.e., all construction,
installation and finishing work has been completed in the New Improvements,
except for tenant improvements and minor items commonly found on a "punch list",
as such term is used in the construction industry), Tenant shall deliver or
cause to be delivered to Landlord:
(i) "as built" plans, specifications and drawings for the
New Improvements,
(ii) a certificate, in standard form used by such
professionals, of the Project Architect, dated currently, to the effect
that the New Improvements comply with Applicable Laws and Governmental
Actions then in effect,
(iii) a survey or site plan of the Premises (or the portion
thereof affected by the New Improvements) satisfactory to Landlord,
showing the New Improvements as completed free of encroachment on any
property, street or way adjoining the Premises, and
(iv) all Governmental Actions for which such level of
completion qualifies under Applicable Laws then in effect.
(f) All guaranties and warranties made by any contractor, supplier
or material man in connection with the New Improvements shall be for the benefit
of both Landlord and Tenant or if applicable, subtenant) and the contract with
each such contractor, supplier or materialman shall so provide.
SECTION 11. GOVERNMENTAL ACTIONS, EASEMENTS, ETC.
(a) Tenant shall obtain or cause to be obtained all Governmental
Actions required for the lawful use, occupation, operation and management of the
Premises and shall comply or cause
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compliance with all conditions and requirements necessary to preserve and extend
such Governmental Actions.
(b) Subject to the Basic Term Loan Documents, Tenant shall have
the right to petition for any change in zoning of the Premises, for itself or on
behalf of subtenant(s) and Landlord shall cooperate with Tenant and/or
subtenant(s) in connection therewith at No Cost to Landlord, which cooperation
shall include, but not be limited to signing applications where required by law.
Tenant shall have the right to make, on its own behalf or for subtenant(s) all
necessary applications for utilities, provided that Tenant shall have no right
to enter into an agreement which will be recordable against the Premises or will
otherwise bind Landlord or any future owner or occupant of the Premises (other
than Tenant, subtenants and their successors and assigns) without Landlord's
consent, which will not be withheld if the agreement does not affect Landlord,
Landlord's interest in the Premises or its successors in any material way and
will otherwise not be unreasonably withheld.
(c) Without limiting the foregoing, Landlord shall cooperate with
Tenant in preparing and filing zoning or rezoning applications, environmental
impact reports, or any other application, study or declaration required under
Applicable Laws or Governmental Actions then in effect in connection with
construction of the New Improvements. Tenant shall pay Landlord's costs in
complying with this Section 11(c).
(d) Landlord shall join with Tenant, from time to time at the
request of Tenant and at Tenant' cost, with respect to their respective
interests in the Premises, to (i) grant customary and reasonable easements and
licenses, (ii) release easements and licenses which benefit the Premises from
time to time, (iii) dedicate or transfer unimproved portions of the Land for
road, highway or other public purposes, (iv) execute petitions to have the
Premises annexed to any municipal corporation or utility district and (v)
execute and deliver any instrument, in form and substance satisfactory to
Landlord, necessary or appropriate in connection with the foregoing, but
Landlord shall be required to do so only if Landlord shall have reasonably
determined that such action does not affect Landlord, Landlord's interest in the
Premises or Landlord's successors in any material way. If Landlord shall
determine that any such easement, release, petition or instrument shall so
affect Landlord, Landlord's interest in the Premises or Landlord's successors in
any material way, then Landlord shall have the right, in the exercise of its
reasonable discretion, to refuse to join in such easement, release, petition or
instrument.
SECTION 12. ALTERATIONS.
(a) Tenant may, without the prior consent of Landlord, make any
alteration, including Structural Alterations, to the Premises.
(b) Prior to commencement of Structural Alterations having a
Project Cost of $500,000 or more, Tenant shall deliver to Landlord the
following:
(i) a notice, signed by an authorized partner or officer
of Tenant, or, if applicable, subtenant, describing the nature of the
work, the area of the Premises affected and the estimated describing
the nature of the work, and, if Tenant or, if applicable, the
subtenant, does not have a net worth of $50,000,000 or more at such
time in Current
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Dollars, also setting forth Tenant's proposal for providing Landlord
with evidence of access to funds sufficient to assure, in Landlord's
reasonable discretion, that the work will be completed and paid for,
(ii) evidence of all Governmental Actions required prior
to commencement of the work,
(iii) the security if such is required under clause Section
12(b)(i) approved by Landlord to assure that the work will be completed
and paid for, and
(iv) evidence of the insurance required under Section
21(b).
(c) Tenant shall complete all alterations with diligence and
continuity (subject to Unavoidable Delays), in a first-class, workmanlike
manner, free and clear of all Liens other than Permitted Liens and in conformity
with all Applicable Laws, Governmental Actions and Insurance Requirements then
in effect. Upon completion of any such Structural Alteration, Tenant shall
deliver to Landlord:
(i) a certificate of Tenant, or, if applicable, subtenant
signed by an authorized partner or officer, to the effect that the work
has been completed and paid for and that, as to any Liens arising out
of such work, Tenant is in compliance with Section 16(a),
(ii) if the alteration affected any area of the Premises
outside the perimeter of any structure on the Land immediately prior to
such alteration, a survey of the Premises showing the Improvements as
altered free of encroachment on any property, street or way adjoining
the Premises, and
(iii) all Governmental Actions required under Applicable
Laws then in effect in connection with such work.
(d) All guaranties and warranties made by any contractor, supplier
or materialman in connection with any alteration shall be for the benefit of
both Landlord and Tenant and the contract with each such contractor, supplier or
materialman shall so provide.
(e) During the Term, all alterations and improvements made by
Tenant at Tenant's cost shall be the property of Tenant. Unless otherwise
provided herein, at the expiration or earlier termination of this Lease, all
such alterations and improvements remaining on the Premises shall become the
property of Landlord.
SECTION 13. MAINTENANCE AND REPAIRS.
(a) Subject to Section 10, Section 13(c), Section 20 and Section
22, Tenant shall keep and maintain the Premises and the adjoining sidewalks and
curbs in good repair and condition, except for ordinary wear and tear, and shall
promptly make all repairs thereto and replacements thereof necessary or
appropriate to maintain the same in good repair and condition, whether interior
or exterior, structural or nonstructural, ordinary or extraordinary, foreseen or
unforeseen. All repairs and replacements shall be equal in quality to the
original work. Landlord shall not be required to maintain, alter, repair,
rebuild or replace the Premises. Notwithstanding the above, there is no
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covenant, express or implied, in this Lease requiring Tenant or any subtenant to
operate or remain open for business.
(b) In connection with any excavation or other construction work
on the Premises or adjoining property, Tenant shall do or cause to be done all
shoring and other work necessary or appropriate for the preservation and safety
of the Premises whether or not required under Applicable Laws then in effect.
(c) Tenant shall have the right to raze all or any part of the
Improvements so long as (i) Tenant removes all rubble and debris so as to remove
any hazardous or unsightly conditions and otherwise to comply with Applicable
Laws and (ii) if same shall occur when the Basic Term Loan is outstanding,
Tenant shall have received consent from the Qualified Fee Mortgagee as required
pursuant to the Basic Term Loan Documents.
SECTION 14. CLAIMS AGAINST LANDLORD.
Nothing in this Lease shall constitute a consent or request by
Landlord, express or implied, for the performance of any labor or services or
the furnishing of any materials or other property in respect of the Premises or
as giving Tenant the right or power to contract for or permit the performance or
furnishing of any labor or materials or other property in such manner as would
permit the making of a claim against Landlord in respect thereof. Tenant waives
any right to make repairs at the expense of Landlord which may be provided for
in Applicable Laws in effect from time to time.
SECTION 15. INSPECTION.
Landlord, the Qualified Fee Mortgagee and their authorized
representatives shall have the right to inspect the Premises at any time in
emergencies without notice and from time to time during business hours upon at
least five business days' notice. No such entry shall constitute an eviction of
Tenant. Landlord shall have no duty to make any such inspection.
SECTION 16. LIENS AND ENCROACHMENTS.
(a) Subject to Section 27 relating to contests, Tenant shall not
permit to remain, and shall promptly discharge, all Liens, other than Permitted
Liens and any Liens that are Landlord's responsibility to discharge.
(b) If the New Improvements or any subsequent Improvements
encroach upon any adjoining property, Tenant shall, on Landlord's demand, remove
the encroaching portion of the Improvements and restore the Improvements so that
they will not encroach on adjoining property and otherwise meet the requirements
of this Lease for Restoration after a casualty or Taking.
SECTION 17. IMPOSITIONS; UTILITY SERVICES.
(a) Subject to Section 27 relating to contests, Tenant shall pay,
not later than 10 days before delinquency, all Impositions becoming due on or
prior to the date of the expiration of the Term provided that, if on or prior to
such expiration date the Premises are subject to any assessment payable in
annual installments of which the first installment is a Lien or has been paid,
Tenant
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shall pay and discharge on or prior to such expiration date only the
installments due and payable prior to such expiration date, and the proration
provisions in the immediately succeeding sentence shall apply only to the last
such installment paid, if payable in advance, or the next such installment to be
paid, if payable in arrears. Subject to the proviso in the immediately preceding
sentence, upon such expiration date, Impositions shall be prorated between the
parties on a per diem basis so that Tenant shall be responsible for all
Impositions, whenever they become due, which are allocable to the period
beginning on the commencement date of this Lease and ending on such expiration
date and Landlord shall be responsible for all Impositions, whenever they become
due, which are allocable to any period prior to such commencement date and
following such expiration date. Tenant shall deliver to Landlord, within 10 days
after demand therefor, satisfactory proof of the payment of any Imposition
required to be paid by Tenant. If, to compute the amount of any Imposition, it
shall be necessary to apportion between the Premises and any other property any
tax, assessment, levy or other governmental charge, Tenant shall obtain such
apportionment.
(b) Notwithstanding anything to the contrary contained in this
Section 17, if escrow deposits of Impositions are required pursuant to the Basic
Term Loan Documents or the Extended Term Loan Documents, as applicable, Tenant
will make such deposits in the manner so required. If any such escrow deposits
are released or are more than actually required pursuant to the Basic Term Loan
Documents or the Extended Term Loan Documents, as applicable, Landlord shall
return such difference to Tenant as, if and when received from the Qualified Fee
Mortgagee, Escrow Agent or otherwise.
(c) Tenant shall pay or cause to be paid, before delinquency, all
charges for public or private utility or communication services and any
sprinkler systems and protective services at any time rendered to or in
connection with the Premises, shall comply with all contracts relating to such
services, and shall do all other things required for the maintenance and
continuance of all such services. Upon the expiration or earlier termination of
the this Lease, the charges for such services for the applicable period
containing the date of such expiration or termination shall be prorated between
the parties as of the date of such expiration or termination on the basis of
meter readings, receipts or other evidence of payment of amounts due reasonably
satisfactory to Landlord.
SECTION 18. INDEMNIFICATION.
Tenant shall pay or indemnify, hold harmless and defend Landlord, Manager and
the Qualified Fee Mortgagee from and against all loss, liability, damage,
litigation, sums paid in settlement of any of the foregoing and cost (including
reasonable attorneys' fees), except to the extent caused by the gross negligence
(other than negligence imputed by law) or willful misconduct or from the acts
and omissions prior to the Term of Landlord or any of its Affiliates,
representatives, agents, employees, contractors or invitees, arising during the
Term from: (a) any use or condition of the Premises or the adjoining sidewalks,
curbs, streets or ways, including (i) claims or penalties arising from any
violation of Applicable Laws or Governmental Actions or in tort, (ii) loss of
or damage to any property or the environment (including clean-up costs, response
costs, costs of corrective action, costs of financial assurance and natural
resource damage), or death or injury to any person, (iii) latent or other
defects, whether or not discoverable, (iv) the existence or Release of any
Contaminant at the Premises and (v) breach of this Lease; (b) Tenant's
negligence; (c) Tenant's work on the
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Premises; (d) any encroachment of the Improvements (excluding the existing
Improvements) on any property, street or way adjoining the Premises; and (e) any
liability imposed upon Landlord pursuant to any indemnification given by
Landlord under Basic Term Loan Documents or the Extended Term Loan Documents, as
applicable. Subject to Section 34, Landlord shall pay or indemnify, hold
harmless and defend Tenant from and against all loss, liability, damage,
litigation, sums paid in settlement of any of the foregoing and cost (including
reasonable attorneys' fees) arising from (A) Landlord's breach of its covenants,
representations and warranties contained in this Lease, (B) the gross negligence
(other than negligence imputed by law) or willful misconduct of Landlord,
Manager or Landlord's Affiliates, representatives, agents, contractors,
employees or invitees or (C) any default under the Basic Term Loan Documents or
the Extended Term Loan documents resulting solely from the acts or omissions of
Landlord, Manager or Landlord's Affiliates. Landlord shall promptly reimburse
Tenant for any late fees, default interest or other charges paid by Tenant which
resulted solely from the acts or omissions of Landlord, Manager or Landlord's
Affiliates.
SECTION 19.
COMPLIANCE WITH LEGAL AND INSURANCE REQUIREMENTS AND INSTRUMENTS OF
RECORD.
Subject to Section 27 relating to contests, Tenant shall promptly (a)
comply with and cause the Premises and all occupants of the Premises to comply
with all Applicable Laws, Governmental Actions and Insurance Requirements in
effect from time to time, whether or not compliance shall require structural or
extraordinary changes in the Premises, or shall interfere with any use of the
Premises, and (b) comply with the provisions of any instruments at the time of
record against the Premises, other than those recorded after the date of this
Lease and resulting from acts of Landlord not requested by or consented to by
Tenant.
SECTION 20. TAKING.
(a) NOTICE AND RIGHT TO APPEAR. In case of a Taking or the
commencement during the Term of any proceedings or negotiations that Tenant
believes may result in a Taking, Tenant shall promptly give notice thereof to
Landlord, generally describing the nature and extent of such Taking or the
nature of such proceedings or negotiations and the nature and extent of the
Taking which might result therefrom, as the case may be. Landlord and Tenant
shall have the right to appear in such proceedings, as their interests may
appear and be represented by their respective counsel.
(b) TERMINATION OF LEASE ON TOTAL TAKING. In case of a Taking of
all or substantially all of the Premises (other than a temporary taking for 365
days or less), including any Taking which deprives Tenant of the occupancy, use
or ownership of all or substantially of the Premises (a "Total Taking") during
the Basic Term, this Lease shall terminate on the date of such Taking, except
with respect to obligations and liabilities of Tenant under this Lease, which
have accrued on or prior to such date and obligations expressed herein as
surviving termination, and Tenant shall pay all minimum rent accrued to such
date of termination and all other amounts then due and payable by Tenant
hereunder. In case of a Total Taking during the Extended Term, then, at the
option of Tenant exercised by notice to Landlord not more than 30 days after
such Taking, this Lease shall terminate on the date of such Taking, except with
respect to obligations and liabilities of Tenant under this Lease, which have
accrued on or prior to such date and obligations expressed herein as surviving
termination, and Tenant shall pay all minimum rent
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accrued to such date of termination and all other amounts then due and payable
by Tenant hereunder.
(c) TOTAL TAKING DURING THE BASIC TERM. If there is a Total Taking
during the Basic Term, then the award on account of such Taking shall be applied
as follows: (i) first to the repayment of all amounts then due pursuant to the
Basic Term Loan Documents (including interest, principal, fees, costs and other
charges due thereunder), (ii) then to Landlord up to a maximum of $7,000,000 and
(iii) then to Tenant.
(d) TOTAL TAKING DURING EXTENDED TERM. Unless Tenant elects not to
terminate this Lease on a Total Taking pursuant to Section 20(b), if there is a
Total Taking during the Extended Term, then the award on account of such Taking
shall be applied as follows: (i) first to the repayment of all amounts then due
pursuant to the Extended Term Loan Documents (including interest, principal,
fees, costs and other charges due thereunder), (ii) then to Landlord up to a
maximum of $7,000,000, (iii) then to Tenant and subtenant(s) to reimburse them
for leasehold improvements (net of amortization through the date of the
condemnation) and, to the extent of remaining funds from the award, the full
amount allocated for relocation, loss of business, interruption of business, or
similar damage and (iv) then to Landlord.
(e) PARTIAL TAKING. In case of a Taking (other than a Taking for
temporary use of 365 days or less) of a portion of the Premises which does not
result in termination of this Lease as provided in Section 20(b), this Lease
shall continue in full force and effect as to the portion of the Premises
remaining after the Taking, the minimum rent shall be abated in accordance with
Section 20(f), and Tenant shall, whether or not any award paid to Tenant on
account of such Taking shall be sufficient for the purpose, promptly commence or
promptly cause the commencement of either the prompt removal of any remaining
debris or hazardous conditions upon the remaining Premises or, at Tenant's
option, Restoration of all or part of the Premises and/or new construction on
the Premises consistent with the provisions of this Lease, in a first-class,
workmanlike manner, free and clear of all Liens other than Permitted Liens and
in conformity with all Applicable Laws, Governmental Actions and Insurance
Requirements then in effect. Prior to commencement of Restoration, Tenant shall
deliver to Landlord:
(i) an estimate of the cost of Restoration prepared by a
licensed professional engineer or registered architect satisfactory to
Landlord,
(ii) evidence of access to funds sufficient to pay for
such Restoration, or in the alternative, security satisfactory to
Landlord that Restoration will be completed and paid for; provided that
such will not be required if Tenant then has a net worth in excess of
$50,000,000 in Current Dollars,
(iii) evidence of all Governmental Actions required prior
to such commencement, and
(iv) evidence of the insurance required under Section
21(b).
To the extent that such Restoration involves Structural Alterations,
Tenant shall also comply with Section 12. If the grade of any street abutting
the Premises is changed, Tenant shall
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promptly do whatever is necessary to restore the Premises as nearly as
practicable to their condition and utility immediately prior to such change.
(f) DISTRIBUTION OF AWARD ON PARTIAL TAKING. If there is a partial
taking, or in the absence of Tenant's election to terminate this Lease upon a
Total Taking during the Extended Term, this Lease shall continue in full force
and effect. In either such events, the entire award up to the Loan Retirement
Amount shall be applied to prepayment of the Loan. If there remains any award
thereafter, any balance of the award up to $7,000,0000 shall be paid to
Landlord, the unamortized value of any Improvements constructed by Tenant or
subtenants which are the subject of such Taking plus the costs incurred by
Tenant or subtenants for relocation, loss of business, interruption of business,
or similar damage shall be paid to Tenant (or, if applicable, subtenants) and
any balance of the award thereafter shall be paid to Landlord. In case of such
Partial Taking the annual Fixed Rent shall thereafter be reduced, dollar for
dollar, by the amount by which annual debt service under the Loan shall be
reduced as a result thereof.
(g) AWARDS INCLUDE SETTLEMENT PAYMENTS. All amounts paid pursuant
to any agreement with any Governmental Authority which has been made in
settlement of any Taking proceeding affecting the Premises shall be deemed to
constitute an award made in such proceeding.
(h) DISTRIBUTION OF AWARD ON TEMPORARY TAKING. In the event of a
temporary Taking of all or a portion of the Premises (i.e., for less than 365
days), any award thereon or compensation on account thereof shall be paid to
Tenant or if applicable, to its subtenant(s), this Lease shall continue in full
force and effect and there shall be no abatement of Fixed Rent.
(i) EFFECT OF TERMINATION. If this Lease shall terminate pursuant
to this Section 20, all of Tenant's obligations under this Lease (other than (i)
obligations which are impossible of performance because Tenant no longer has
possession of the Premises, (ii) Tenant's obligation to pay Fixed Rent pursuant
to Section 5(a)(i) and (iii) Tenant's obligation to pay in sum in excess of the
Loan Retirement Amount in connection with any exercise or deemed exercise of the
Purchase Option) shall nevertheless survive until all obligations under the
Basic Term Loan Documents are satisfied.
Section 21. INSURANCE.
(a) Tenant shall at all times maintain with respect to the
Improvements insurance of the following character:
(i) "All risk" fire and extended coverage insurance,
including fire, legal liability for contracts including this Lease,
theft, flood, water damage, collapse, earthquake, windstorm, hail,
boiler and machinery, lightning, explosion (excluding nuclear),
aircraft and back-up and seepage of sewers and drains, against loss or
damage to the Premises, in an amount not less than the full replacement
value of the Improvements, exclusive of architectural and engineering
fees, excavation, footings and foundations, on an agreed amount basis
as determined not less often than every two years, at the request of
Landlord and at Tenant's cost by the insurer or insurers or by an
expert approved by
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Landlord. The maximum permitted deductible under such policy shall be
$1,000,000 in Current Dollars.
(ii) Commercial general liability insurance (including
coverage for contractual liability, personal injury, death and property
damage) covering claims arising out of the ownership, operation,
maintenance, condition or use of the Premises and the adjoining
sidewalks, curbs, vaults and ways, with a combined single limit of not
less than $1,000,000 in Current Dollars per occurrence for injury to
persons, including death resulting therefrom, and property damage, an
aggregate limit of not less than $2,000,000 in Current Dollars and
"umbrella coverage" of at least $20,000,000 in Current Dollars. The
policy of such insurance shall provide that the coverage afforded
thereby shall not be affected by any demolition, construction or other
work on the Premises.
(iii) Worker's compensation insurance meeting all
requirements of Applicable Laws in effect from time to time.
(iv) From the earlier of (A) the time Tenant or any of its
agents or contractors enters the Premises or (B) November 4, 2001,
Environmental Impairment Liability insurance for third party damages
and injuries with limits of no less than $1,000,000 in Current Dollars
or other security acceptable to Landlord and the Qualified Fee
Mortgagee.
(v) Malicious Mischief Insurance coverage with limits of
no less than $3,000,000 in Current Dollars per occurrence and no less
than $3,000,000 in Current Dollars in the aggregate.
(vi) Such other insurance in such amounts and with such
deductibles as may be required by the Qualified Fee Mortgagee.
(b) During the period of any demolition or construction on the
Premises, Tenant shall, in addition to the insurance required under Section
21(a), maintain or cause to be maintained builder's risk insurance in completed
value (nonreporting) form for improvements under construction, during the period
of such construction, including building materials, against loss or damage by
fire, lightning and other risks from time to time included under extended
coverage endorsements, earthquake and perils insured under a difference in
conditions policy in an amount not less than the cost, as reasonably estimated
by the parties, of the improvements under construction. The maximum permitted
deductible under the policy of such insurance shall be $1,000,000 in Current
Dollars. Tenant shall cause contractors under contracts entered into by Tenant
with respect to construction of the New Improvements, Restoration and
alterations to maintain worker's compensation insurance meeting all requirements
of Applicable Laws then in effect.
(c) All insurance required under Section 21(a) and (b) shall be
written by insurers of recognized financial standing which are authorized to do
an insurance business in the state in which the Premises are located and have,
at the time such insurance is issued or renewed, an Xxxxxx X. Best Company, Inc.
rating of A-:X or better (or equivalent ratings by a generally recognized
successor rating agency).
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(d) Tenant shall obtain endorsements to the insurance policies
carried pursuant to Section 21(a)(i) and (b) providing that (i) Landlord,
Manager and the Qualified Fee Mortgagee (collectively, the "Additional
Insureds") are included as additional insureds, as their interests may appear,
but are not liable for the payment of premiums, (ii) the insurer waives all
rights of subrogation against the Additional Insureds with respect to their
respective interests in the Premises, (iii) such insurance is primary, without
right of contribution of any other insurance carried by or on behalf of any
Additional Insured with respect to its interest in the Premises (including its
leasehold in the Premises and interest in the Improvements), (iv) loss payable
under such policies shall not be reduced by reason of any right of set-off or
counterclaim that the insurer may have against Tenant or any Additional Insured,
(v) as to the Additional Insureds, such policies shall not be invalidated by and
loss shall be payable notwithstanding (A) any action or inaction of Tenant or of
any other person, (B) any act or negligence, including any breach of any
condition, declaration or warranty in any policy of insurance, of Tenant or any
Additional Insured, (C) the occupation or use of the Premises for purposes more
hazardous than permitted by the terms of the policies, (D) any foreclosure or
other proceeding or notice of sale relating to the Premises, or (E) as to any
mortgagee, any change in the title to or ownership of the Premises, and (vi) no
lapse, cancellation or material change with respect to such policies shall be
effective as to an Additional Insured until at least 30 days after receipt by
such Additional Insured of written notice thereof. With respect to the insurance
policies carried pursuant to Section 21(a)(ii), Tenant shall obtain the
endorsements described in clauses (i), (iv) and (vi) of this Section 21(d), and
in addition Tenant shall obtain a "severability of interest" or
"cross-liability" endorsement which shall preclude the insurer from denying the
claim of any named insured or Additional Insured due to the negligent acts of
any other named insured or Additional Insured.
(e) Any insurance required under this Section 21 may be evidenced
by blanket insurance policies covering the Premises and other property or assets
of Tenant or any subtenant of Tenant, provided that the protection afforded
thereby shall be no less than that which would have been afforded under a
separate policy relating only to the Premises and each policy of such insurance
shall in all other respects comply with this Section 21. The Premises shall be
separately scheduled with respect to the Qualified Fee Mortgagee on any
insurance policy obtained by Tenant and such insurance shall be for a stipulated
amount so as to avoid co-insurance.
(f) Loss, if any, under each policy of property insurance required
under Section 21(a) or (b) shall be adjusted with the insurance companies by
Tenant, Landlord and the Qualified Fee Mortgagee. The proceeds thereof shall be
paid to or upon the direction of the Qualified Fee Mortgagee (which shall be the
loss payee) to the extent required by the Basic Term Loan Documents or the
Extended Term Loan Documents, as applicable. Any proceeds which are not required
to be paid to or upon the direction of the Qualified Fee Mortgagee pursuant to
the Basic Term Loan Documents or the Extended Term Loan Documents, as
applicable, shall be paid to Tenant as loss payee.
(g) Upon the execution and delivery of this Lease and promptly
after Tenant shall become obligated to maintain any other insurance provided for
in this Section 21, Tenant shall deliver to Landlord either certificates of
insurers evidencing all insurance which is then required to be maintained by
Tenant hereunder or, upon request of Landlord, original or duplicate policies of
such insurance, and in either case evidence satisfactory to Landlord and the
Qualified Fee
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Mortgagee of the payment of the related premiums. Within 30 days prior to the
expiration of any such insurance, Tenant shall deliver to Landlord either
certificates of insurers evidencing the renewal of such insurance or, upon
request of Landlord, original or duplicate policies of such insurance, and in
either case evidence satisfactory to Landlord of the payment of the related
premiums.
(h) Should Tenant fail to maintain any insurance provided for in
this Section 21, or to pay the premium therefor, or to deliver to Landlord any
of such policies or certificates, Landlord may, upon 10 days' notice to Tenant
of its intention to do so, procure such insurance and any sums expended by it to
procure such insurance shall be repaid by Tenant on demand of Landlord.
(i) Neither Landlord nor Tenant shall obtain or carry separate
insurance with respect to the Premises concurrent in form or contributing in the
event of loss with that required in this Section 21 unless the other party is
included as a named insured or additional insured, with loss payable as provided
in this Section 21. Each party shall promptly notify the other whenever any such
separate insurance is obtained and shall deliver to the other original or
duplicate policies, or certificates of insurers in form and substance
satisfactory to the other, evidencing such insurance.
Section 22. DAMAGE OR DESTRUCTION.
(a) If the Improvements are damaged or destroyed, Tenant shall
promptly give notice to Landlord of such damage or destruction in excess of an
amount equal to $100,000 in Current Dollars, generally describing the nature and
extent of such damage or destruction and setting forth Tenant's best estimate of
the cost of Restoration.
(b) In case of damage to or destruction of the Improvements, or
other damage caused by fire or casualty with respect to the Premises that occurs
while a Basic Term Loan or Extended Term Loan is outstanding, all insurance
proceeds shall be paid in accordance with Section 21(f). If such Restoration is
commenced, Tenant shall complete it in a first-class, workmanlike manner, free
and clear of all Liens other than Permitted Liens and in conformity with all
Applicable Laws, Governmental Actions and Insurance Requirements then in effect.
Prior to commencement of Restoration, Tenant shall deliver to Landlord:
(i) an estimate of the cost of Restoration prepared by a
licensed professional engineer or registered architect satisfactory to
Landlord,
(ii) evidence that Tenant has access to sufficient funds,
including insurance proceeds, or, in the alternative, security
satisfactory to Landlord that Restoration will be completed and paid
for,
(iii) evidence of all Governmental Actions required prior
to such commencement,
(iv) evidence of the insurance required under Section
21(b), and
(v) evidence of all consents and approvals required from
the Qualified Fee Mortgagee.
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The evidence required pursuant to Section 21(b)(ii) shall not be required if
Tenant, or, if the damage pertains to any portion of the Premises applicable
thereto, subtenant, then has a net worth in excess of $50,000,000 in Current
Dollars.
(c) Tenant waives the provisions of Applicable Laws in effect from
time to time relating to damage or destruction, and agrees that the provisions
of this Lease shall control the rights of Landlord and Tenant.
Section 23. ASSIGNMENT BY TENANT.
(a) Tenant shall have the right to assign this Lease only in
accordance with this Section 23. Landlord's consent to an assignment shall be
required only if such consent is required pursuant to this Section 23. No
assignment of Tenant's interest under this Lease shall be made, directly or
indirectly, whether by operation of law or otherwise, without (i) in connection
with an assignment to a governmental or quasi-governmental bureau, department or
agency, foreign or domestic, including an autonomous governmental corporation or
diplomatic or trade mission, or any other person or entity entitled to
diplomatic or sovereign immunity, the prior consent of Landlord, which consent
may be withheld in Landlord's sole discretion, (ii) in all cases, compliance by
Tenant with the applicable requirements set forth in Section 23(b) and (iii) the
Qualified Fee Mortgagee shall have consented to such assignment. In no event
shall Landlord be required to give its consent to any assignment of this Lease
unless and until the Qualified Fee Mortgagee shall have consented thereto.
(b) No assignment of this Lease shall be effective for any
purposes unless (i) Tenant shall deliver to Landlord, at least 30 days prior to
the consummation of such transaction, (A) an executed counterpart of the
instrument effecting such assignment, in recordable form and otherwise in form
and substance satisfactory to Landlord, containing inter alia the name, address
and telephone number of the assignee, (B) an executed instrument of assumption
of Tenant's obligations under this Lease by such assignee, in recordable form
and otherwise in form and substance satisfactory to Landlord in its reasonable
judgment, and (C) such other implementation documents consistent therewith and
with the terms of this Lease as Landlord may reasonably request, and (ii) on the
date such assignment is consummated, no Event of Default, or event which with
notice or the passage of time would constitute an Event of Default, shall have
occurred and be continuing which Event of Default will not be cured by the
assignment.
(c) Notwithstanding Section 23(a), in no event shall the ownership
of the Improvements or Tenant's interest under this Lease be subjected to a
condominium or horizontal property regime or be converted to cooperative
ownership during the Term.
(d) Tenant may not assign this Lease or any interest of Tenant
hereunder separately from its title to the Improvements.
(e) No assignment of Tenant's interest under this Lease shall be
valid unless made in compliance with this Section 23.
(f) For purposes of this Section 23, the term "assignment of
Tenant's interest under this Lease" shall include the direct or indirect
assignment (in either a single transaction or a series of
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transactions) of the controlling stock ownership of any corporation which is
Tenant under this Lease (other than through the sale of shares of a publicly
traded corporation on a nationally recognized stock exchange or a nationally
recognized over-the-counter quotation system, unless that sale is part of a
tender offer or similar transaction pursuant to which direct or indirect control
of Tenant is acquired by one or more related persons or entities) or which is a
general partner of any partnership which is Tenant under this Lease or which is
a direct or indirect parent of any such Tenant or general partner, and the
direct or indirect assignment of any general partner's interest in a partnership
which is Tenant under this Lease; and the term "assignment" shall include a sale
or any other transfer.
(g) The assignment, and Landlord's review of documentation and
implementation thereof under this Section 23 shall be at No Cost to Landlord.
(h) No assignment of this Lease shall release the originally named
Tenant, Guarantor or any assignee thereof from the obligations of Tenant
hereunder without the consent of Landlord and the Qualified Fee Mortgagee, which
consent may be withheld in the Qualified Fee Mortgagee's sole discretion so long
as Svenska Handelsbanken AB (publ) is the Qualified Fee Mortgagee.
Section 24. RIGHTS OF LEASEHOLD MORTGAGEES, SUBLEASEHOLD MORTGAGEES AND
QUALIFIED FEE MORTGAGEE.
(a) TENANT'S RIGHT TO MORTGAGE. Tenant shall have the right to
mortgage, pledge or grant a security interest in its interest in the Premises
and in its leasehold in the Premises, and interest in the Improvements,
furnishings, furniture, equipment, fixtures, and personal property thereon, from
time to time by one or more mortgages, deeds of trust, deeds to secure debt,
security agreements or other appropriate instruments, subject to this Section 24
and, if the same occurs during the Basic Term, the consent of the Qualified Fee
Mortgagee to the extent required under the Basic Term Loan Documents. Tenant
may, subject to obtaining any consent required pursuant to the Basic Term Loan
Documents but without the consent of Landlord, execute and deliver from time to
time one or more mortgages of, or pledges or grants of a security interest in,
its interest in the Premises (including its leasehold and its interest in the
Improvements) to one or more Institutional Lenders, each of which mortgages
shall encumber no other premises or any interest therein and shall provide in
substance that the mortgagee thereunder waives any right to retain and apply any
Taking award to the extent such award is required to be applied otherwise by the
express terms of this Lease (each such mortgage or instrument being herein
referred to as a "Leasehold Mortgage" until it is discharged or satisfied). The
lien of a Leasehold Mortgage shall in all events be subject and subordinate to
the lien of the Qualified Fee Mortgage but prior to any "landlord" or similar
lien now or hereafter existing upon personal property in connection with the
Premises, but shall be subordinate to the Basic Term Loan and, if applicable the
Extended Term Loan and the Qualified Fee Mortgage securing same. At any time
after the execution and delivery of a Leasehold Mortgage, Tenant may send
Landlord a notice ("Tenant's Notice") advising of the existence thereof and the
address of the mortgagee or beneficiary thereunder for the service of notice,
which notice shall be accompanied by conformed copies of such Leasehold
Mortgage, the note or other obligation secured thereby and all other documents
securing such note or obligation and a certificate of Tenant to the effect that
such copies are correct and complete. Each mortgagee or beneficiary under a
Leasehold Mortgage with respect
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to which a notice is given to Landlord in accordance with the immediately
preceding sentence is herein referred to as a "Leasehold Mortgagee" until the
related Leasehold Mortgage is discharged or satisfied. Upon the request of
Landlord, Tenant shall furnish Landlord with proof satisfactory to Landlord of
the priority of such Leasehold Mortgage with respect to other Liens. Any
Leasehold Mortgagee may from time to time send Landlord a notice advising of the
change of its address for purposes of this Lease or of the assignment of its
Leasehold Mortgage and the name and address of the assignee, and upon receipt
thereof by Landlord, Tenant's Notice shall be deemed amended accordingly. All
Leasehold Mortgages shall be subordinate to the Qualified Fee Mortgage.
(b) SUBTENANT'S RIGHT TO MORTGAGE. Subtenants who are (and whose
subleases are) Qualified Subtenants and Subleases hereunder or that are required
to be recognized by Landlord hereunder shall have the right to mortgage, pledge
or grant a security interest in its interest in a sublease and subtenant's
subleasehold estate in the Premises and interest in the Improvements,
furnishings, fixtures and personal property thereon, from time to time by a
Leasehold Mortgage to an Institutional Lender as Leasehold Mortgagee, subject to
the Qualified Fee Mortgage, any First Leasehold Mortgage and this Section 24 and
the consent of the Qualified Fee Mortgagee to the extent required. Each such
mortgage shall encumber no other premises or any interest therein (each such
mortgage being also herein referred to as a "Leasehold Mortgage" until it is
discharged or satisfied). The lien of a Leasehold Mortgage shall be subject and
subordinate to the lien of the Qualified Fee Mortgage but in all events prior to
any "landlord" or similar lien now or hereafter existing upon personal property
in connection with the Premises, but shall be subordinate to any First Leasehold
Mortgage and the Qualified Fee Mortgage. At any time after the execution and
delivery of a Leasehold Mortgage, Tenant or, if applicable, Subtenant, may send
Landlord a notice ("Tenant's Notice") advising of the existence thereof and the
address of the mortgagee or beneficiary thereunder for the service of notice,
which notice shall be accompanied by conformed copies of such Leasehold
Mortgage, the note or other obligation secured thereby and all other documents
securing such note or obligation and a certificate of Tenant to the effect that
such copies are correct and complete. Each mortgagee or beneficiary under a
Leasehold Mortgage with respect to which a notice is given to Landlord in
accordance with the immediately preceding sentence is herein referred to as a
"Leasehold Mortgagee" until the related Leasehold Mortgage is discharged or
satisfied. Upon request of Landlord, Tenant shall furnish Landlord with proof
satisfactory to Landlord of the priority of such Leasehold Mortgage with respect
to other Liens. Any Leasehold Mortgagee may from time to time send Landlord a
notice advising of the change of its address for purposes of this Lease or of
the assignment of its Leasehold Mortgage and the name and address of the
assignee, and upon receipt thereof by Landlord, Tenant's Notice shall be deemed
amended accordingly.
(c) RECOGNITION AGREEMENTS. Landlord shall, upon request of
Tenant, execute a recognition agreement with Tenant and/or such Qualified
Subtenant and/or the Leasehold Mortgagee in the then current forms adopted by
the Qualified Fee Mortgagee further evidencing and agreeing to those rights of
non-disturbance and recognition in favor of Qualified Subtenants and their
lenders (as to subleasehold improvements) contemplated hereby and under the
terms of the Basic Term Loan Documents, and also to changes to the form as such
Leasehold Mortgagee and such Qualified Subtenant shall reasonably require,
provided that Landlord shall have no obligation to enter into any such agreement
unless and until the Qualified Fee Mortgagee shall
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have entered into a comparable agreement with Tenant and/or such Qualified
Subtenant and/or the Leasehold Mortgagee.
(d) RIGHT OF LEASEHOLD MORTGAGEE AFTER EVENT OF DEFAULT. If an
Event of Default by Tenant hereunder occurs, notice to that effect shall be sent
by Landlord to each Leasehold Mortgagee, and Landlord shall take no action to
terminate this Lease or to interfere with the occupancy, use or enjoyment of the
Premises as a result of such Event of Default, provided that (i) not later than
20 days after the giving of each such notice by Landlord, a Leasehold Mortgagee
shall give Landlord notice that such Leasehold Mortgagee intends to exercise its
rights under this Section 24(d) to forestall such action, and (ii):
(A) if such Event of Default is a default in the payment
of Rent, such Leasehold Mortgagee shall remedy such default not later
than 20 days after the giving of such notice by Landlord; or
(B) if such Event of Default is a default in observing or
performing any other condition or covenant to be observed or performed
by Tenant and can be remedied by such Leasehold Mortgagee without
obtaining possession of the Premises, such Leasehold Mortgagee shall
remedy such default not later than 30 days after the giving of such
notice by Landlord, provided that in the case of a default which cannot
with diligence be remedied, or the remedy of which cannot be commenced,
within such period of 30 days, such Leasehold Mortgagee shall have such
additional period as may be necessary to remedy such default with
diligence and continuity but not in excess of 180 days after the giving
of such notice by Landlord; or
(C) if such Event of Default is a default which can only
be remedied by such Leasehold Mortgagee upon obtaining possession of
the Premises, such Leasehold Mortgagee shall obtain such possession
with diligence and continuity, through a receiver or otherwise, and
shall remedy such default within 30 days after obtaining such
possession, provided that in the case of a default which cannot with
diligence be remedied, or the remedy of which cannot be commenced,
within such period of 30 days, such Leasehold Mortgagee shall have such
additional period as may be necessary to remedy such default with
diligence and continuity but not in excess of 180 days after obtaining
such possession; or
(D) if such Event of Default is an Event of Insolvency,
such Leasehold Mortgagee shall have no obligation to remedy such Event
of Default but shall foreclose its Leasehold Mortgage with diligence
and continuity or accept an assignment in lieu of foreclosure and upon
completion of such foreclosure of acceptance of such assignment, such
Event of Default shall be deemed remedied.
Upon compliance with the foregoing, the notice of Landlord advising of
such Event of Default and any action of Landlord to terminate this Lease or to
interfere with the occupancy, use or enjoyment of the Premises by reason of such
Event of Default shall be deemed rescinded and this Lease shall continue in full
force and effect. If more than one Event of Default of which Landlord shall have
given notice as aforesaid shall exist at the same time, the restrictions on
Landlord's remedies in this Section 24(d) shall cease unless clauses (i) and
(ii) above are complied
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with as to each such Event of Default. Tenant acknowledges that the Qualified
Fee Mortgagee shall not be obligated to afford any of the cure periods set forth
in this Section 24(d) or to accept any cure proffered by a Leasehold Mortgagee
under this Section 24(d) during such cure periods, except in accordance with the
rights of a Qualified Subleasehold Mortgagee in accordance with a recognition
agreement as contemplated hereunder and under the Basic Term Loan Documents or
the Extended Term Loan Documents, as applicable.
(e) PERFORMANCE OF TENANT'S OBLIGATION BY LEASEHOLD MORTGAGEE. If
an Event of Default occurs, each Leasehold Mortgagee shall have the right, but
not the obligation, to remedy such Event of Default or to cause it to be
remedied, and Landlord shall accept such remedy on the part of such Leasehold
Mortgagee. No Leasehold Mortgagee shall have any personal liability for
performance of Tenant's obligations under this Lease unless and until such
Leasehold Mortgagee acquires title to Tenant's leasehold estate or assumes
possession of the premises. Tenant acknowledges that the Qualified Fee Mortgagee
shall not be obligated to accept such performance, except in accordance with the
rights of a Qualified Subleasehold Mortgagee pursuant to a recognition agreement
as contemplated hereunder and under the Basic Term Loan Documents.
(f) NEW LEASE. If, prior to the expiration of the Term, Landlord
shall terminate this Lease for any reason, Landlord shall promptly notify the
First Leasehold Mortgagee of such termination and the First Leasehold Mortgagee
shall have the right to request Landlord to enter into a New Lease of the
Premises with the First Leasehold Mortgagee or a person designated by the First
Leasehold Mortgagee, such right to be exercisable by notice to Landlord within
30 days after the giving of such notice of termination by Landlord, accompanied
by a statement by the First Leasehold Mortgagee of the amount of principal,
interest and other sums due it under its Leasehold Mortgage and its undertaking
in writing to remedy all defaults on the part of Tenant under this Lease (other
than an Event of Insolvency) and to pay to Landlord the sum of the following
(the "accrued amounts"): all Rent accrued hereunder to the date of termination,
all minimum rent that would have accrued hereunder to the date of delivery of
such New Lease had this Lease not been terminated, any net deficit incurred by
Landlord in operating the Premises from the date of termination of this Lease to
the date of delivery of such New Lease and all costs, including attorneys' fees,
incurred by Landlord in connection with the termination of this Lease and with
the execution and delivery of such New Lease. Within 30 days after receipt by
Landlord from Tenant of such notice, statement and undertaking, at Landlord's
election: (i) Landlord shall pay the First Leasehold Mortgagee the amount due it
under its Leasehold Mortgage, exclusive of prepayment premiums or penalties, if
any, in which event the First Leasehold Mortgagee shall execute and deliver to
Landlord either (at Landlord's election) a recordable form of satisfaction and
discharge of the First Leasehold Mortgage or an assignment thereof to Landlord,
the First Leasehold Mortgagee shall be released from its undertaking and
Landlord shall have no obligation to enter into a new lease with the First
Leasehold Mortgagee, or (ii) Landlord shall tender to the First Leasehold
Mortgagee or its designee the New Lease, executed by Landlord. If Landlord
tenders the New Lease pursuant to clause (ii) of this Section 24(f), then unless
within 10 days after such tender the First Leasehold Mortgagee or its designee
executes and delivers the New Lease to Landlord and the First Leasehold
Mortgagee pays Landlord the accrued amounts, Landlord shall have no further
obligation to the First Leasehold Mortgagee or its designee under this Section
24(f). It is the intention of the parties that such New
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Lease shall have the same priority relative to other rights or interests to or
in the Premises as this Lease (and that any subleases and rights and obligations
of subtenants shall not be merged or discharged thereby, but continue and attach
as subleases and rights and obligations of subtenants under the New Lease in the
same manner and with the same effect as hereunder), but Landlord shall have no
liability to any person as a result of the New Lease not having that priority.
The provisions of this Section 24(f) shall survive the termination of this Lease
and shall continue in full force and effect thereafter to the same extent as if
this Section 24(f) were a separate and independent contract among Landlord,
Tenant and the First Leasehold Mortgagee. Notwithstanding anything to the
contrary contained in this Section 24(f), in no event shall Landlord grant a New
Lease to the First Leasehold Mortgagee for so long as Svenska Handelsbanken AB
(publ) is the Qualified Fee Mortgagee.
(g) NON-TERMINATION/CONSENT OF MORTGAGEES. Notwithstanding
anything else contained in this Lease, without the prior consent of each
Leasehold Mortgagee, this Lease shall not be terminated, surrendered or amended
(other than pursuant to Tenant's exercise of the Purchase Option, which
purchase, as provided in this Lease, shall not merge the estates hereunder or
terminate the rights of subtenants or Leasehold Mortgagees without their prior
written consent), except by termination, if any, after an Event of Default by
Tenant hereunder and the expiration of all notice and cure periods (including
notice and cure periods to Leasehold Mortgagees and Qualified Subtenants
hereunder), nor shall Landlord accept a surrender of this Lease. Without the
prior consent of each Leasehold Mortgagee, which consent shall not be
unreasonably withheld or delayed, this Lease shall not be amended in any way
that affects the interests of such Qualified Fee Mortgagee or such Leasehold
Mortgagee. Without the prior consent of the Qualified Fee Mortgagee, Landlord
and Tenant shall not terminate, surrender, amend, modify or extend this Lease
(other than pursuant to Tenant's exercise of the Purchase Option, which
purchase, as provided in this Lease, shall not merge the estates hereunder or
terminate the rights of subtenants or Leasehold Mortgagees without their prior
written consent), nor shall Landlord grant to Tenant any waivers, extensions of
time or deferrals.
(h) LANDLORD'S DEALINGS WITH TENANT. No provision of any Leasehold
Mortgage or of any other document evidencing or securing the loan secured by
such Leasehold Mortgage shall be notice, constructive or otherwise, of any
restriction on the rights or powers of Tenant to deal with Landlord, and, except
as specifically provided in this Lease, Landlord shall have the right to deal
with Tenant in the same manner as if such Leasehold Mortgage or other document
had not been entered into.
Section 25. SUBLETTING.
(a) Tenant shall have the right to sublet the Premises only in
accordance with this Section 25. Tenant shall have the right to sublet the
Premises, provided that (i) Tenant may not sublet to a governmental or
quasi-governmental bureau, department or agency, foreign or domestic, including
an autonomous governmental corporation or diplomatic or trade mission, or any
other person or entity entitled to diplomatic or sovereign immunity, (ii) a
sublease of all or substantially all of the Premises shall be for actual
occupancy by the subtenant and (iii) if such sublease occurs during a time when
the Basic Term Loan or any substitute Basic Term Loan is outstanding, the
Qualified Fee Mortgagee (acting in accordance with the Basic Term Loan
Documents) shall have consented to such subletting. In no event shall Landlord
be required to
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give its consent to any subletting unless and until the Qualified Fee Mortgagee
shall have consented thereto.
(b) Tenant shall cause each sublease to provide that:
(i) such sublease shall be subject to this Lease, the
rights of Landlord under this Lease, and any modifications and
extensions of this Lease that are not inconsistent with subtenant's
rights as set out hereunder;
(ii) the term of such sublease shall expire no later than
October 3, 2041, unless the continuation of the term beyond that date
is conditioned on Tenant's having exercised the Purchase Option
pursuant to this Lease;
(iii) if this Lease is terminated for any reason whatsoever
(including an uncured Event of Default by Tenant) other than a Total
Taking followed by Tenant's election to terminate, then, and
immediately prior to such termination such sublease shall be in effect,
such sublease shall, if the sublease is a one recognized or required to
be recognized as a Qualified Sublease or shall at Landlord's election
if not so recognized or required to be recognized, become a lease of
the space covered thereby between Landlord and the subtenant upon the
terms and conditions set forth in such sublease, provided that
Landlord's liability and that of its partners, directors, officers and
shareholders, if any, under such lease shall be subject to the
limitations in Section 35 and Landlord shall not be (A) liable for any
act or omission of the sublessor prior to such termination, (B) subject
to offsets, defenses or counterclaims which such subtenant may have had
against the sublessor, (C) bound by any covenant to undertake or
complete any construction on the premises demised by such sublease, (D)
bound by any obligation to make any payment to such subtenant or (E)
bound by payments by such subtenant of rent for more than one month in
advance of the due date provided in such sublease, security deposits or
amounts in the nature of additional rent, such as payments of taxes and
operating expenses, unless Tenant delivers such amounts to Landlord;
and
(iv) the parties to such sublease shall not enter into a
modification of such sublease that does not comply with this Section
25.
(c) Not later than 30 days after the end of each calendar year,
Tenant shall deliver to Landlord (i) a rent roll with respect to the Premises,
setting forth at least the name of each subtenant, the date of its sublease, the
space sublet, the term of its sublease, the fixed and any percentage rent
payable under such sublease, any options of such subtenant to extend, expand,
contract or buy, and any unpaid obligations of Tenant to any broker, agent or
finder in respect of such sublease, and (ii) a certificate of Tenant, signed by
an authorized partner or officer, to the effect that all subleases then in
effect comply with the provisions of this Section 25 relating thereto. Upon
request of Landlord from time to time, Tenant shall deliver to Landlord a
correct and complete copy of each sublease of the Premises not theretofore
delivered to Landlord
(d) If this Lease is terminated for any reason whatsoever
(including an uncured Event of Default by Tenant) other than by Tenant's
exercise of the Option to Purchase or by a Total Taking followed by Tenant's
election to terminate, then, notwithstanding anything to the
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contrary contained in Section 29, Landlord shall recognize and give effect to
each sublease then in effect which is not in default beyond any applicable
notice or grace period thereunder, provided that (i) such sublease complies with
Section 25, (ii) such subtenant shall have received a written agreement to
recognize it from the Qualified Fee Mortgagee, (iii) each applicable Leasehold
Mortgagee is an Institutional Lender and shall have entered into a written
non-disturbance agreement with the subtenant under such sublease, providing in
substance that such Leasehold Mortgagee shall not join such subtenant as a party
defendant in any foreclosure action or proceeding instituted by such Leasehold
Mortgagee and shall not evict such subtenant (except in the case of default
under such sublease) in the event of foreclosure or the exercise of a power of
sale by such Leasehold Mortgagee, which agreement shall then be in effect and an
executed copy of which shall have been delivered to Landlord, (iv) such sublease
was on market terms as of the date of its execution, (v) the subtenant has a net
worth of at least $50,000,000 in Current Dollars or subtenant's guarantor is
creditworthy in relation to the sublease obligations and (vi) such sublease is
for at least 50,000 square feet.
(e) As further security for Tenant's performance of its
obligations hereunder, Tenant hereby assigns to Landlord, subject to any prior
rights therein of the Qualified Fee Mortgagee and the First Leasehold Mortgagee,
all of Tenant's right, title and interest in and to all subleases of the
Premises, all rent and other sums payable thereunder and all cash or instruments
deposited with Tenant pursuant to such subleases, provided that such assignment
shall become operative and effective only if (i) an Event of Default shall occur
(ii) this Lease shall terminate, or (iii) Landlord shall re-enter the Premises
after an Event of Default pursuant to the terms of this Lease by legal
proceedings or otherwise, but in each case only as to such of the subleases as
Landlord is obligated to recognize or elects to recognize under this Section 25.
Such assignment shall be subject to any assignment of subleases and rents given
as collateral security to (i) a Qualified Fee Mortgagee and (ii) the First
Leasehold Mortgagee so long as such Leasehold Mortgagee shall have given
Landlord notice that such Leasehold Mortgagee intends to exercise its rights
under Section 24(d), shall be exercising such rights with diligence and
continuity and shall apply any rents so assigned to the payment of any sums due
to Landlord under this Lease prior to applying the same to payments of debt
service due on the obligations secured by its Leasehold Mortgage. Tenant shall
not make any assignment of subleases or the rents thereunder to any person other
than a Leasehold Mortgagee or a permitted assignee of this Lease. No collection
of rent by Landlord from a subtenant shall constitute a waiver of any default
hereunder or any Event of Default or an acceptance of the subtenant as a tenant
or a release of Tenant from any of its obligations hereunder. For so long as
Svenska Handelsbanken AB (publ) is the Qualified Fee Mortgagee, Tenant shall not
assign to the First Leasehold Mortgagee Tenant's right, title and interest in
and to any sublease of the Premises or the rents thereunder.
(f) Landlord's action and review consistent with this Section 25,
and of any request by Tenant to recognize any Sublease shall be at No Cost to
Landlord.
Section 26. ADVANCES BY LANDLORD.
If Tenant fails to make or perform any payment or act on its part to be
made or performed under this Lease, Landlord may, at any time upon expiration of
the applicable notice and cure period and without notice in case of an emergency
make such payment or perform such act for the account of Tenant. The making of
such payment or the performance of such act shall not be
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deemed a waiver of any default or a release of Tenant from any obligation. All
sums so paid by Landlord and all necessary and incidental costs (including
attorneys' fees and the allocable direct and indirect cost of Landlord's
employees) incurred in connection with the performance of any such act by
Landlord, together with interest at the Involuntary Rate from the date of the
making of such payment or of the incurring of such costs by Landlord, shall be
payable by Tenant to Landlord, on demand.
Section 27. PERMITTED CONTESTS.
(a) Tenant, or, if applicable, subtenant(s) or the First Leasehold
Mortgagee acting in Tenant's behalf, may contest, by appropriate legal
proceedings conducted in good faith and with diligence and continuity as
provided in this Section 27, the amount, validity or application, in whole or in
part, of any Imposition or Lien therefor, any materialmen's, mechanics',
workmen's, repairmen's, carriers', warehousemen's or other like Lien, or any
Applicable Law, Governmental Action or Insurance Requirement, provided that (i)
no Event of Default shall have occurred and be continuing beyond the expiration
of any applicable notice and cure period, (ii) such proceedings do not (A)
involve any material danger of the sale, forfeiture or loss of the Premises, (B)
interfere with the disposition of the Premises under this Lease, or (C)
interfere with the payment of Rent, (iii) in the case of Impositions or Liens
therefor, Tenant shall pay or cause the payment of such Impositions before
delinquency (unless (A) payment would operate as a bar to such contest and (B)
that unless Tenant has a net worth of $50,000,000 or more in Current Dollars,
Tenant has provided evidence reasonably satisfactory to Landlord that it has
funds sufficient to pay, or that Tenant has deposited or caused the deposit with
Landlord (or, if required by the Qualified Fee Mortgagee or the First Leasehold
Mortgagee, with the Depositary) a sum sufficient, in Landlord's judgment, to
fully pay the taxes and (C) neither the Premises nor any part thereof would by
reason of such postponement or deferment be subject to forfeiture or the
imposition of any penalty or other liability on Landlord that would not be paid
or reimbursed by Tenant), (iv) in the case of an Applicable Law or Governmental
Action, Landlord shall not be in any danger of any criminal liability or civil
liability that would not be paid or reimbursed by Tenant for failure to comply
therewith, the Premises shall not be subject to the imposition of any Lien other
than a Permitted Lien as a result of such noncompliance other than liens for
Impositions being contested thereby, and the ultimate imposition of or
compliance with such Applicable Law or Governmental Action shall not extend
beyond the last day of the Term (v) unless Tenant has a net worth of $50,000,000
or more in Current Dollars, Tenant has provided evidence reasonably satisfactory
to Landlord that it has funds sufficient to pay, or, in the alternative, Tenant
shall have furnished to Landlord, if requested by Landlord, a bond or other
security satisfactory to Landlord to assure payment of or compliance with the
matter being contested and (vi) Tenant shall have provided Landlord with
evidence of any consent to such contest required pursuant to the Basic Term Loan
Documents of the Extended Term Loan Documents, as applicable. If, under
Applicable Laws then in effect, such proceedings must be brought in the name of
Landlord, Landlord shall, at Tenant's cost, join in such proceedings, execute
documents required in connection therewith and otherwise cooperate with Tenant
and/or subtenant(s) in the conduct of such proceedings.
(b) Tenant shall provide Landlord and the Qualified Fee Mortgagee
with prior notice in reasonable detail of any contest it proposes to make
pursuant to Section 27(a).
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(c) Each contest permitted under Section 27(a) shall be promptly
prosecuted to a final conclusion, and Tenant shall pay or indemnify, hold
harmless and defend Landlord and the Qualified Fee Mortgagee from and against
all loss, liability, damage, litigation, sums paid in settlement of any of the
foregoing and cost (including attorneys' fees) in connection therewith, and
shall promptly after the final termination of such contest pay and discharge the
amounts which shall be levied, assessed or imposed or determined to be payable
therein, together with all penalties, fines, interest and costs thereon or in
connection therewith.
(d) If Tenant shall not contest the assessed valuation of the
Premises within 30 days of the last day to file an application to do so,
Landlord shall have the right to do so. Any refund received as a result of a
contest of the assessed valuation of the Premises by either Landlord or Tenant
shall be paid to the party which paid the Taxes.
Section 28. CONDITIONAL LIMITATIONS; DEFAULT PROVISIONS.
Any of the following occurrences or acts shall constitute an "Event of
Default" under this Lease:
(a) if Tenant fails to make any payment of Rent and such failure
continues for 10 days after Landlord has given Tenant notice specifying such
default, or
(b) if Tenant fails to maintain any insurance required to be
maintained by Tenant under Section 21 and such failure continues for 10 days
after Landlord has given Tenant notice specifying such default, or ---------
(c) if the insurance maintained fails to comply with Section 21,
or any Lien that is not a Permitted Lien continues to exist for 20 days from the
earlier of (A) the date on which Landlord gives Tenant notice of the existence
of such Lien and (B) the date on which Tenant otherwise acquires knowledge of
the existence of such Lien, or Tenant shall sublet the Premises or make an
assignment of Tenant's interest under this Lease except in accordance with the
applicable provisions of this Lease, or
(d) if Tenant fails to perform or observe any other covenant or
condition to be performed or observed by Tenant under this Lease and such
failure continues for 30 days after Landlord has given Tenant notice specifying
such failure, or if such failure cannot be cured by the payment of money and
cannot with due diligence be cured within such 30-day period because of the
nature of the default or Unavoidable Delay(s) and cure after such period shall
not subject Landlord to the risk of criminal liability, if Tenant fails to
proceed promptly to cure such failure and thereafter complete the curing of such
failure with diligence and continuity and in any event within 180 days after the
giving of such notice,
(e) if an Event of Insolvency shall occur, or
(f) any act or omission of Tenant which causes a default
beyond applicable notice grace and cure periods, if any, any, under the Basic
Term Loan Documents or the Extended Term Loan Documents, as applicable (provided
that Landlord shall give Tenant notice thereof promptly upon Landlord's receipt
of such notice, if any, from the Qualified Fee Mortgagee and
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permit Tenant the opportunity to cure same to the extent of Landlord's rights of
cure under the Basic Term Loan Documents or Extended Term Loan Documents, as
applicable),
then, in any such case, Landlord shall, in addition to any other remedies
available to it at law or in equity, but subject to the rights of certain
mortgagees and subtenants as set out in other provisions of this Lease be
entitled to give Tenant a notice of intention to end the Term at the expiration
of five days from the date of the giving of such notice, and, if such notice is
given, this Lease and the Term and estate hereby granted shall terminate on the
expiration of such five-day period with the same effect as if the last day of
such period was the date provided in Section 4 for the expiration of the Term,
but Tenant shall remain liable for damages as provided herein or pursuant to
law.
Section 29. REMEDIES OF LANDLORD; WAIVERS.
(a) Subject to the provisions of this Lease, if (i) Tenant
defaults in the making of any payment of Rent and such default continues for 10
days after Landlord gives Tenant a notice specifying such default, (ii) a
default of the type described in Section 28(f) shall occur or (iii) this Lease
shall terminate as provided in Section 28, Landlord or its agents and employees
may immediately or at any time thereafter re-enter the Premises, either by
summary dispossess proceedings or by any suitable action or proceeding at law or
otherwise, without being liable to indictment, prosecution or damages therefor,
and may repossess the same and may remove any persons therefrom, to the end that
Landlord may have, hold and enjoy the Premises again as its first estate and
interest therein. Landlord may complete any construction required to be
completed by Tenant hereunder and may relet the Premises for any period, to any
person and for any use or purpose and in that connection make any alterations to
the Premises it deems advisable, but shall not have any obligation to relet or
attempt to relet the Premises or to make any such alterations or to collect rent
after reletting. Tenant shall remain liable for all obligations of Tenant
hereunder even after eviction or abandonment.
(b) If this Lease is subject to termination or shall terminate as
provided in Section 28 and if Tenant does not then exercise the Purchase Option
and pay any amounts required pursuant to Section 6(b)(iii) by reason of such
early exercise of the Purchase Option (which Tenant may do, notwithstanding the
dates set forth in Section 46, provided that such exercise occurs during the
Basic Term and Tenant shall also cure any defaults under this Lease before, by
means of or simultaneously with the closing of title pursuant to the Purchase
Option), Tenant shall forthwith pay to Landlord (or, for so long as Svenska
Handelsbanken AB (publ) is the Qualified Fee Mortgagee, Escrow Agent) the amount
of the unpaid Rent payable by Tenant up to the time of such termination or
re-entry plus the Loan Retirement Amount plus $7,000,000. Action(s) for the
recovery of any such amounts payable by Tenant may be brought by Landlord from
time to time at its election, and Landlord shall not be required to delay any
such action until the date this Lease would have expired but for such
termination.
(c) Landlord shall be entitled, to the extent permitted by
Applicable Laws then in effect, to injunctive relief in case of the breach or
attempted or threatened breach, of any covenant or condition of this Lease or to
a decree compelling performance or observance of any covenant or condition of
this Lease, and to any other appropriate equitable relief.
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(d) No right or remedy herein conferred upon or reserved to
Landlord is intended to be exclusive of any other right or remedy, and every
right and remedy shall be cumulative and in addition to any other right or
remedy given hereunder or now or hereafter existing at law or in equity. Nothing
in this Lease shall be construed to limit the right of Landlord to prove for and
obtain as liquidated damages by reason of the termination of this Lease or
re-entry on the Premises for the default of Tenant, an amount equal to the
maximum allowed by any Applicable Law in effect at the time such damages are to
be proved, whether or not such amount is greater or less than or equal to any
damages provided for herein.
(e) Tenant hereby waives and surrenders, for itself and all those
claiming under it, (i) any right or privilege which it or any of them may have
under Applicable Law in effect from time to time to redeem the Premises or to
have a continuance of this Lease after termination by Landlord, unless such
right or privilege shall have been specifically set forth in this Lease, (ii)
the benefits of any Applicable Law in effect from time to time to the extent it
exempts the Premises from liability for debt or for distress for rent or affects
or regulates or attempts to affect or regulate the Rent or permits Tenant or any
subtenant to remain in possession of the Premises beyond the date of termination
of this Lease or of its sublease, as the case may be and (iii) any right or
privilege which it or any of them may have under Applicable Law in effect from
time to time to raise any defenses to a deed in lieu of foreclosure from
Landlord to the Qualified Fee Mortgagee.
(f) The failure of Landlord to insist at any time upon the strict
performance or observance of any covenant or condition or to exercise any right,
power or remedy under this Lease shall not be construed as a waiver or
relinquishment thereof for the future.
(g) No receipt of monies by Landlord from Tenant after termination
of this Lease or re-entry by Landlord shall reinstate or continue the Term or
affect any notice theretofore given to Tenant, or operate as a waiver of the
right of Landlord to enforce the payment of Rent then or thereafter due, or
operate as a waiver of the right of Landlord to recover possession of the
Premises by proper remedy. Before or after such termination or re-entry,
Landlord may demand and receive any monies due without in any manner affecting
such termination or re-entry or any notice or proceeding in connection
therewith, and all such monies received shall be deemed payments on account of
the use and occupation of the Premises or, at the election of Landlord, on
account of Tenant's liability hereunder. The receipt by Landlord of any Rent
under this Lease with knowledge of the breach of any covenant or condition in
this Lease shall not be deemed a waiver of such breach. Any amounts paid by
Tenant to Landlord may be applied by Landlord, in its sole discretion, to any
items then owing by Tenant to Landlord under this Lease, and receipt of a
partial payment shall not be deemed to be an accord and satisfaction or waiver
of the failure to make full payment.
(h) Tenant shall be liable for all attorneys' fees and other costs
(including breakage fees, funding losses and "make whole" fees) imposed upon
Landlord under the Basic Term Loan Documents or Extended Term Loan Documents, as
applicable, by reason of the occurrence of any Event of Default (unless such
default is due solely to acts or omissions of Landlord or its Affiliates) or the
exercise of remedies with respect thereto and for all costs incurred in
connection with the return of the Premises to the condition required by and
otherwise in accordance with Section 9, as if the Premises were being returned
at the end of the Term. If Landlord,
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without fault on its part, is made a party to any litigation commenced against
Tenant and if Tenant does not provide Landlord with counsel satisfactory to
Landlord, Tenant shall pay all attorneys' fees and costs incurred or paid by
Landlord in connection with such litigation.
(i) Landlord shall not be limited in the proof of any damages
which Landlord may claim against Tenant arising out of Tenant's failure to
provide and keep insurance in force as provided in this Lease to the amount of
the insurance premium or premiums not paid, but Landlord also shall be entitled
to recover, as damages for such breach, the uninsured amount of any loss and
Landlord's costs, including attorneys' fees, suffered or incurred by reason of
damage to or destruction of the Premises.
Section 30. QUIET ENJOYMENT.
(a) Landlord covenants that so long as Tenant shall pay the Rent
and shall perform and observe all material covenants and conditions to be
performed or observed by Tenant under this Lease, and subject to the condition
of the Premises and matters of title existing on the date of this Lease, all
Liens and the Qualified Fee Mortgage and all Applicable Laws, Governmental
Actions and Insurance Requirements now or hereafter in effect (subject to the
right to contest the same pursuant to Section 27), Tenant shall and may
peaceably and quietly have, hold and enjoy the Premises for the term free of
interference from Landlord or those claiming through or under Landlord.
(b) This Lease is intended to be recorded after, and in all cases
shall be subject and subordinate to, the Qualified Fee Mortgage
Section 31. CERTIFICATES.
(a) Each party shall, from time to time upon not less than 20
days' prior request by the other party, deliver to the requesting party or any
prospective transferee or mortgagee of the requesting party a certificate,
executed and acknowledged by an authorized partner or officer of the certifying
party and dated currently, with respect to the following items: (i) the amount
of the rent due, if any, (ii) whether or not this Lease is unmodified and in
full force and effect (or if there have been modifications, whether or not the
same are in full force and effect as modified and identifying the
modifications), (iii) whether or not, the certifying party's actual knowledge,
the requesting party is in default and specifying the nature of any such default
and (iv) such other matters as the requesting party may have reasonably
requested.
(b) Any provision of this Lease which requires the certification
of the existence or nonexistence of any particular fact implies as a condition
the existence or nonexistence, as the case may be, of such fact, and Landlord or
Tenant, upon receipt of any such certification from the other, shall be free to
establish to its satisfaction the existence or nonexistence of any such fact.
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Section 32. CONSENTS, APPROVALS, ETC.
(a) Subject to any provision to the contrary in this Lease,
whenever the consent or approval of a party to this Lease is required under any
provision of this Lease or a matter is subject to the satisfaction, judgment or
determination of a party under any provision of this Lease, such party shall not
unreasonably withhold such consent or approval and shall not be unreasonable in
deciding whether such matter is satisfactory or in making such judgment or
determination, provided that if the consent, approval, satisfaction, judgment or
determination of Landlord is called for at a time when an Event of Default of
the type described in Section 28(a), (b), or (c) has occurred and is continuing,
Landlord shall have no obligation to act on the matter in question until the
Event of Default has been remedied. Notwithstanding anything to the contrary
contained in this Lease, in no event shall Landlord be obligated to give any
consent, approval, satisfaction, judgment or determination unless and until the
Qualified Fee Mortgagee shall have given such consent, approval, satisfaction,
judgment or determination, to the extent required under the Basic Term Loan
Documents or the Extended Term Loan Documents, as applicable.
(b) If, pursuant to Section 32(a), Landlord is prohibited from
being unreasonable in connection with any consent, approval, satisfaction,
judgment or determination and Landlord is found to have been unreasonable, such
consent, approval, satisfaction, judgment or determination shall be deemed given
or made and Tenant shall have no other remedy against Landlord in connection
therewith.
Section 33. NOTICES, DEMANDS, ETC.
(a) All notices, demands, certificates, consents, approvals and
other communications required or permitted to be given pursuant to this Lease
shall be in writing and shall be deemed given or received when delivered in
person, by courier or by confirmed facsimile transmission or five days after
mailing by registered or certified United States mail, postage prepaid, and
return receipt requested, addressed as follows:
If to Landlord:
ALX of Paramus LLC
c/o Vornado Realty Trust
000 Xxxxx 0 Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Vice President, Real Estate
with copies to:
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx, Esq.
Svenska Handelsbanken AB (publ)
000 Xxxx 00xx Xxxxxx
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00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx
Xxxxxxx Xxxxxx Xxxx Xxxxxx & Xxxx, LLP
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
If to Tenant:
IKEA Property, Inc.
000 Xxxx Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: President
Marvin, Larsson, Xxxxxx & Xxxxxxxxxxx
0000 Xxxxxx Xxxxxx, Xxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
(b) Either party may, from time to time, by 10 days' prior notice
to the other party, change any of its addresses or addressees.
(c) Tenant shall give prompt notice to the Qualified Fee Mortgagee
(in the manner set forth in the Basic Term Loan Documents or the Extended Term
Loan Documents, as applicable) and Landlord of any defaults pursuant to this
Lease by Landlord.
Section 34. Limitation on Landlord's Liability.
Tenant shall look solely to Landlord's interest in the Premises,
including Rents, amounts held by or through the Depositary, Taking awards, for
the recovery of any judgment against Landlord, and if Landlord is a partnership,
its partners, whether general or limited, or if Landlord is a corporation, its
directors, officers and shareholders, shall not be personally liable for any
such judgment. The foregoing shall not limit any right of Tenant to obtain
injunctive relief against Landlord or to maintain any suit for specific
performance or other equitable relief.
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Section 35. NO MERGER OF TITLE.
There shall be no merger of the leasehold estate hereby created with
any other estate in the Premises, without the prior consent of all persons
owning, or holding a security interest in, each such estate.
Section 36. Relationship of Parties.
Landlord does not, by entering into this Lease, become a partner or
joint venturer of Tenant or a member of a joint enterprise with Tenant.
Section 37. SEPARABILITY.
Each covenant in this Lease shall be construed to be a separate and
independent covenant, and the breach of any such covenant by one party shall not
discharge or relieve the other from the obligation to perform its covenants. If
any provision of this Lease or any application thereof is invalid or
unenforceable, the remainder of this Lease and any other application of such
provision shall not be affected thereby. To the extent permitted by Applicable
Law, Tenant hereby waives any provision of law that renders any provision hereof
prohibited or unenforceable in any respect.
Section 38. BROKERS.
Each party represents to the other that it has dealt with no broker,
agent or finder in connection with the transactions contemplated by this Lease
other than Staubach Retail Services and Fidelity Commercial Real Estate
Alliance, Inc., for whose fees Tenant shall be responsible, and Xxxxxx/Xxxxxx
LLC, for whose fees Landlord shall be responsible. Each party shall pay or
indemnify, hold harmless and defend the other from and against all loss,
liability, damage, litigation, sums paid in settlement of any of the foregoing
and cost (including attorneys' fees) arising from any claim by any person that
he acted on behalf of the indemnitor in connection with such transactions.
Section 39. ENTIRE AGREEMENT.
This Lease constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes any prior oral or written
agreement.
Section 40. AMENDMENTS.
Neither this Lease nor any of the terms hereof may be amended, modified
or waived, nor may consent be given orally, but only by an instrument in writing
signed by the party against which enforcement of the amendment, modification,
waiver or consent is sought.
Section 41. RECORDING OF LEASE.
Promptly after the execution of this Lease, Landlord shall record this
Lease and the Guaranty in the land records of Bergen County, New Jersey.
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Section 42. RULES OF USAGE.
The following rules of usage shall apply to this Lease unless otherwise
required by the context:
(a) Singular words include the plural and vice versa. All pronouns
shall be deemed to refer to the masculine, feminine, neuter, singular or plural
as the identity of the person(s) referred to may require.
(b) References to articles, sections, exhibits or schedules are
references to articles, sections, exhibits or schedules of this Lease. The
words "herein", "hereof" and "hereunder" and words of similar import shall be
construed to refer to this Lease as a whole and not to any particular article,
section , paragraph or subpart thereof unless expressly so stated.
(c) The headings, subheadings and table of contents used in this
Lease are solely for convenience of reference and shall not constitute a part of
this Lease nor shall they affect their meaning, construction or effect.
(d) References to any person shall include such person and its
successors and permitted assigns and in the case of an individual, his or her
heirs and legal representatives.
(e) Each of the parties and their counsel have reviewed and
revised, or requested revisions to, this Lease, and the usual rule of
construction that any ambiguities are to be resolved against the drafting party
shall be inapplicable in the construction and interpretation of this Lease.
(f) Unless the contrary is required by an express provision or the
context, each reference to "the Premises" shall be deemed a reference to "the
Premises or any part thereof", each reference to "the Land" shall be deemed a
reference to "the Land or any part thereof" and each reference to "the
Improvements" shall be deemed a reference to "the Improvements or any part
thereof".
(g) Any term defined by reference to an agreement, instrument or
other document shall have the meaning so assigned to it whether or not such
agreement, instrument or document is in effect.
(h) The words "include", "including" and "such as" shall each be
construed as if followed by the phrase "without limitation".
(i) Any reference to Landlord's attorneys' fees shall mean
Landlord's reasonable attorneys' fees, disbursements and other expenses incurred
by Landlord, including those incurred in connection with any appellate
proceedings.
(j) All references in this Lease to "licensed professional
engineer" or "registered architect" mean a professional engineer or architect
who is duly licensed or registered, as the case may be, by the state in which
the Premises are located.
(k) The word "re-enter" as used herein is not restricted to its
technical legal meaning.
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(l) From and after the time that Svenska Handelsbanken (AB) publ
is no longer the Qualified Fee Mortgagee, any references to the consent or
approval of the Qualified Fee Mortgagee, or the conformity of acts or covenants
with the terms of the Basic Term Loan Documents or the Extended Term Loan
Documents shall be deemed deleted to the extent that such consent or approval,
or conformity of acts or covenants is not required pursuant to any
then-applicable Basic Term Loan Documents or Extended Term Loan Documents.
Section 43. GOVERNING LAW.
This Lease shall be governed by and construed in accordance with laws
of the State of New Jersey.
Section 44. COUNTERPART EXECUTION.
This Lease may be executed in two or more counterparts, each of which
shall be deemed an original, and it shall not be necessary in making proof of
this Lease to produce or account for more than one such counterpart.
Section 45. ENVIRONMENTAL MATTERS.
(a) Tenant will obtain all approvals required under applicable
Environmental Laws for its construction of improvements on, and use of, the
Premises during the Term.
(b) Tenant shall cause the Premises to comply with all applicable
Environmental Laws at all times during the Term.
(c) Tenant shall not accept, treat, transport, handle, store,
dispose or remove any Contaminant except in compliance with all Environmental
Laws, and Tenant shall not suffer, permit, or cause the Release or threatened
Release of any Contaminant at, on, under, to, or from the Premises during the
Term.
(d) Tenant shall not suffer, permit or cause the attachment of any
environmental lien on the Premises, nor shall Tenant suffer, permit, allow, or
cause the imposition of any engineering or institutional controls, including
without limitation capping, deed notice, declaration of environmental
restriction or other institutional control notice, without the prior written
consent of Landlord.
(e) Tenant shall not cause, suffer or permit any of the following
to be placed, stored, used or disposed of at the Premises: asbestos, materials
containing asbestos, urea/formaldehyde, mono-or poly-chlorinated biphenyls or
transformers, capacitors, ballasts or other equipment which contain dielectric
fluid containing mono-or poly-chlorinated biphenyls, or paint or coating
containing lead or mercury.
(f) Tenant shall be solely responsible for and shall comply with
all requirements of all Environmental Laws and the requirements relating to
Environmental Laws, hazardous materials and other environmental matters set
forth in the Basic Term Loan Documents or the Extended Term Loan Documents, as
applicable, including any and all requirements that would, but for the agreement
of Landlord and Tenant, apply to Landlord as owner and/or operator of the
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Premises. If Tenant's operations or the operations of any subtenant, invitee,
representative or agent or any other act, omission, event or condition on the
Premises during the Term constitute an "Industrial Establishment" and subject
the Premises to the requirements of ISRA, then in connection with (i) Tenant's
closing operations or transferring ownership or operations of Tenant at the
Premises (as defined under ISRA), (ii) the expiration or sooner termination of
this Lease or any assignment of this Lease, (iii) any subletting of any portion
of the Premises or (iv) or any other ISRA triggering event, Tenant shall, at its
sole expense, comply with any and all applicable requirements of ISRA. Without
limiting the foregoing two sentences, it is expressly understood and agreed that
Tenant shall be solely responsible and liable for, and shall defend, indemnify
and hold harmless Landlord and the Qualified Fee Mortgagee with respect to,
compliance with any and all requirements under ISRA and any and all
Environmental Laws arising out of or in connection with Tenant's purchase of the
Premises or its exercise of the Purchase Option, or the planned or actual
closing of, or transfer of operations at or from, the Premises, including but
not limited to the submission of all necessary applications, reports, studies,
and other filings, the investigation, assessment, and monitoring of operations
and environmental conditions in, on, under or about the Premises or its
environs, the planning and implementation of remedial actions and other
cleanups, and payment of any and all costs in connection therewith, including
but not limited to fees and costs of attorneys, consultants, contractors,
laboratories, and doctors, governmental fees and costs of oversight, response,
and enforcement, and penalties or fines. In addition, Tenant shall defend,
indemnify and hold harmless Landlord for any loss, cost or expense incurred by
Landlord pursuant to any indemnity regarding Environmental Laws, hazardous
materials or environmental matters contained in the Basic Term Loan Documents or
the Extended Term Loan Documents, including the Environmental Indemnity
Agreement dated as of the date hereof between Landlord and Svenska Handelsbanken
AB (publ). Tenant shall notify Landlord in advance of all meetings scheduled
between Tenant or Tenant's representatives and NJDEP regarding Tenant's
effort(s) to comply with ISRA, and Landlord and Landlord's representative shall
have the right, without the obligation, to attend and participate in all such
meetings.
(g) Within five business days after receiving actual or
constructive notice thereof, Tenant shall notify Landlord of (i) any violation
or alleged violation of any Environmental Law applicable to the Premises, (ii)
any Release or threatened or suspected Release of any Contaminant, (iii) the
use, generation, treatment, storage, transport or disposal of any Contaminant
at, on, under, to or from the Premises in violation of Applicable Laws, (iv) any
injury or threatened injury to human health or safety or the environment by
reason of the matters set forth in clauses (i), (ii) or (iii) of this Section
45(g), (v) any revocation, expiration, termination or failure to obtain or renew
any approval required under any Environmental Laws applicable to or required for
the Premises or (vi) the closing or transfer of operations at, or the sale or
transfer of the Premises which triggers any requirement or liability under ISRA.
If Tenant receives any notice in connection with matters described in this
Section 45(g) or if Landlord receives a request from a Qualified Fee Mortgagee
for an environmental audit or investigation, Tenant shall immediately initiate,
or cause to be initiated at No Cost to Landlord, such actions as may be
necessary to comply in all respects with all applicable Environmental Laws and
to alleviate any unreasonable risk to human health or the environment if the
same arises from a condition on or in respect of the Premises or any part
thereof, whether existing prior to, on or after the date of this Lease. Once
Tenant commences such actions, Tenant shall thereafter diligently and
expeditiously
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proceed to comply materially and in a timely manner with all Environmental Laws
and to eliminate any unreasonable risk to human health or the environment and
shall, at the request of Landlord during the Term, give periodic progress
reports on its compliance efforts and actions. If Tenant receives any notice in
connection with matters described in this Section 45(g) or if Landlord receives
a request from a Qualified Fee Mortgagee for an environmental audit or
investigation, Landlord may require Tenant, at Tenant's sole expense, to cause
an environmental audit or investigation of the Premises to be conducted by an
environmental consultant satisfactory to Landlord and, if applicable, the
Qualified Fee Mortgagee.
Section 46. PURCHASE OPTION.
(a) Provided that (i) Tenant shall not then be in continuing
default in any of its covenants to be performed during the Basic Term past
applicable notice and grace periods, (ii) Tenant shall cure any such defaults
before, by means of or simultaneously with the closing of title pursuant to the
Purchase Option or (iii) if such default(s) are not capable of cure before, by
means of or simultaneously with such closing of title because they are not for a
liquidated sum but Tenant provides Landlord with security acceptable to Landlord
and the Qualified Fee Mortgagee, for the full payment and performance of the
obligation(s) in default, Tenant shall have the option (the "Purchase Option")
to buy the Premises by paying a the Purchase Option Price. The "Purchase Option
Price" shall be equal to (i) $75,000,000 plus (ii) all interest, late charges,
fees, costs and expenses due and owing then due and owing under the Basic Term
Loan Documents or the Extended Term Loan Documents, as applicable, less (iii)
any reductions of the principal amount of the Basic Term Loan or the Extended
Term Loan, as applicable, in connection with a condemnation or casualty, which
purchase price shall be paid to or at the direction of Landlord. For so long as
Svenska Handelsbanken AB (publ) is the Qualified Fee Mortgagee, Landlord hereby
directs Tenant to pay the Purchase Option Price as follows: (A) the Loan
Retirement Amount to the Qualified Fee Mortgagee and (B) $7,000,000 to Landlord.
Landlord shall promptly reimburse Tenant for any late fees, default interest or
other charges paid by Tenant which resulted solely from the acts or omissions of
Landlord, Manager or Landlord's Affiliates.
(b) The Purchase Option may be exercised by notice to Landlord at
any time after October 3, 2020 but before September 4, 2021. The closing of the
Purchase Option shall occur on October 4, 2021. Time shall be of the essence
with respect to the dates set forth in this Section 46(b).
(c) If Landlord is unable or refuses to transfer the Premises in
accordance with this Section 46, then Tenant shall have all rights and remedies
available at law or in equity, including but not limited to the remedy of
specific performance.
(d) At the closing of the Purchase Option, (i) the Premises shall
be conveyed by Landlord to Tenant by an instrument in substantially the form of
Exhibit A attached hereto, (ii) Landlord shall pay all realty transfer fees and
taxes on the conveyance of the Premises and (iii) Tenant shall pay all title
charges and premiums and the fees for recording the deed of the Premises. Title
to the Premises shall be conveyed subject to such Permitted Liens as remain
valid and effective and all other matters affecting title which shall have been
agreed to or suffered through the acts or omissions of Tenant.
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(e) If Tenant does not exercise the Purchase Option in accordance
with this Section 46 or, having elected to exercise the Purchase Option, if
Tenant fails to consummate the closing thereof pursuant to the terms and
provisions hereof, the Purchase Option shall for all purposes be deemed
cancelled and terminated.
Section 47. SPE COVENANTS. LANDLORD AGREES:
(a) That debt to the holder of the Qualified Fee Mortgagee is not
enforceable personally against Landlord or Alexander's, Inc. ("Parent"), but
only in rem as more fully set forth therein and in the note secured by the
Qualified Fee Mortgage;
(b) That as of the date hereof, Landlord has no other debt (and no
guaranty or inter-company obligation); that Parent has none with respect to
Landlord and that there will be none after Closing;
(c) That Landlord has not and will not have any business activity
other than its passive ownership of the Premises and will not own any other
property;
(d) That Landlord will not merge with another entity or acquire
any interest in other entities;
(e) That Landlord will not convey, pledge or enter into other
agreements to share any beneficial interest in the Premises or its rents (other
than pursuant to the Basic Term Loan or the Extended Term Loan);
(f) That Landlord will keep separate books and records, stationery
and bank accounts;
(g) That the shares in Landlord shall be made non-transferable and
not subject to any pledge; and that the certificates will be held by an escrow
agent, with proxy and irrevocable voting powers (to the escrow holder or
independent director) to vote same against any changes in the provisions of this
Section 47 and to vote against filing any bankruptcy petition or insolvency
proceeding hereafter for Landlord, and against dissolution, liquidation,
consolidation or merger;
(h) That the provisions of this Section 47 have been incorporated
into, and thereafter will be maintained in, the Operating Agreement for
Landlord, with requisite authorization by Parent for same, and requiring
unanimity/action of the escrow holder or independent director for any
bankruptcy, dissolution, liquidation, merger, consolidation or change in the
provisions set forth in this Section 47;
(i) That Landlord shall have no contracts other than arms-length
agreements with unaffiliated providers of professional services;
(j) That Landlord shall not co-mingle assets with its Affiliates,
and shall not use assets or proceeds to pay or guaranty any debts of Parent or
Affiliates;
(k) That all Fixed Rent payable to Landlord be sent to a lockbox
or Escrow Agent as the Qualified Fee Mortgagee shall specify in written
direction or agreement with Landlord, from
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which debt service shall be paid to Qualified Fee Mortgagee with the balance
thereafter to Landlord to be used (i) to pay outstanding tax liabilities and
professional fees of Landlord and (ii) thereafter either retained by Landlord or
distributed as dividend to Parent; and
(l) The covenants contained in this Section 47 shall survive until
one year after the earlier of the end of Term or exercise of the Purchase
Option.
Section 48. Confidentiality. (a) Landlord acknowledges and agrees, for
itself and its Affiliates, and its and their respective officers, employees,
agents and professionals, that except as set forth in this Section 48, they will
keep confidential all information regarding Tenant's interest in the Premises,
its development plans and the specific terms of this Lease and related
agreements, including Tenant's identity as IKEA Property, Inc. and its
affiliation with other IKEA entities and operations. This confidentiality
provision is a material inducement for Tenant to enter into this Lease.
Disclosure by Landlord shall be limited to: (i) disclosures to Landlord's
Affiliates, officers, employees, accountants, attorneys, lenders and auditors,
provided that the parties receiving such disclosure shall be given a copy of and
be bound by these confidentiality provisions; (ii) disclosures consented to in
writing by Tenant or deemed consented to pursuant to Section 48(c); (iii)
disclosures pursuant to demands under the authority of a government agency or
court or otherwise required by Applicable Laws; (iv) disclosures required by
securities laws; provided, however, that if this Lease transaction is required
to be disclosed under securities laws, unless Applicable Laws shall require
otherwise, such disclosure shall not identify Tenant by name and shall instead
describe it as "a major retail tenant"; and (v) the recording contemplated by
Section 41.
(a) Notwithstanding the provisions of Section 48(a), Tenant's
identity may be disclosed and will be deemed to be public knowledge when Tenant
has publicly announced its plans for the Premises or made a publicly-filed
application for any development approvals relating to or at the Premises with
the Borough of Paramus which identifies Tenant by name, or the recording
contemplated by Section 41 occurs.
(b) Landlord (and Affiliates if applicable) shall give Tenant
three business days' prior notice and a copy of any proposed public announcement
or disclosure, provided that (i) Tenant shall not withhold its consent if such
announcement or disclosure is in compliance with this Agreement; (ii) the
provisions of this Section 48(c) shall not be applicable to any disclosure
required by Applicable Laws; and (iii) if Tenant does not respond to any request
for consent made pursuant to this Section 48(c) within three business days after
receipt of Landlord's request therefor, Tenant shall be deemed to have consented
thereto.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this instrument
as of the date first set forth above.
ALX OF PARAMUS LLC
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice-President -
Finance and Administration
IKEA PROPERTY, INC.
By: /s/ Xxxxxxx XxXxxxxx
------------------------------
Name: Xxxxxxx XxXxxxxx
Title: President
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STATE OF NEW JERSEY)
) ss.:
COUNTY OF BERGEN)
I certify that on October 3, 2001, Xxxxxx Xxxxxx personally came before
me and acknowledged under oath, to my satisfaction, that he signed,
sealed and delivered the attached document as the Executive
Vice-President - Finance and Administration of ALX OF PARAMUS LLC named
in this document, and this document was signed and made by the limited
liability company as its voluntary act and deed by virtue of authority
from its members.
----------------------------------
Notary Public
-00-
XXXXXXXXXXXX XX XXXXXXXXXXXX )
) ss.:
COUNTY OF XXXXXXXXXX )
I certify that on October __, 2001, ___________ personally came before
me and acknowledged under oath, to my satisfaction, that he signed,
sealed and delivered the attached document as the ____________ of
_____________________ named in this document, and this document was
signed and made by the corporation as its voluntary act and deed by
virtue of authority from its board of directors.
--------------------------------------------
Notary Public
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Schedule A
Description of Land
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Exhibit A
Form of Deed
RECORD AND RETURN TO:
PREPARED BY:
-------------------------
DEED
This Deed is made as of _________________, 20__ between ALX OF PARAMUS LLC, a
Delaware limited liability company having an office at c/o Vornado Realty Trust,
000 Xxxxx 0 Xxxx, Xxxxxxx, Xxx Xxxxxx 00000, referred to as the Grantor, and
IKEA PROPERTY, INC., a Delaware corporation, having an office at 000 Xxxx
Xxxxxxxxxx Xxxx, Xxxxxxxx Meeting, Pennsylvania 19462, referred to as the
Grantee.
1. TRANSFER OF OWNERSHIP. The Grantor grants and conveys (transfers
ownership of) the property (called the "Property") described below to Grantee.
This transfer is made for the sum of SEVENTY-FIVE MILLION AND 00/100
($75,000,000) Dollars. The Grantor acknowledges receipt of this money.
2. TAX MAP REFERENCE. (N.J.S.A. 46:15-1.1) Borough of Xxxxxxx, Xxxxx 0000,
Xxx 0 xxx Xxxxx 1101, Lot 3.
[ ] No property tax identification number is available on the date of
this Deed. (Check box if applicable.)
3. PROPERTY. The Property consists of the land conveyed in fee simple,
subject to provisions below, and all the buildings and structures on the land in
the Borough of Paramus, County of Bergen and State of New Jersey. The legal
description is more particularly described by metes and bounds on Schedule A
annexed hereto and made a part hereof.
The street address of the Property is: Xxxxx 0 xxx Xxxxx 00, Xxxxxxx, Xxx
Xxxxxx.
PROMISES BY GRANTOR. The Grantor covenants that the Grantor has
not done or suffered anything whereby the said premises have
been encumbered in any way whatsoever, except as aforesaid.
This promise is called a "covenant as to grantor's acts"
(N.J.S.A. 46:4-6).
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IN WITNESS WHEREOF the Grantor has duly executed this Deed the day and
year first above written.
ALX OF PARAMUS LLC
By:
-----------------------------------
Name:
Title:
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STATE OF ___________ )
) ss.
COUNTY OF _________ )
I CERTIFY that on ____________, 20__, ________________ personally came
before me and stated to my satisfaction that this person (or if more than one,
each person):
(a) was the maker of the attached Deed;
(b) was authorized to and did execute this Deed as
_________________ of ALX of Paramus LLC, the entity named in
this Deed;
(c) made this Deed for $75,000,000 as the full and actual
consideration paid or to be paid for the transfer of title
(such consideration is defined in N.J.S.A. 46:15-5); and
(d) executed this Deed as the act of the entity.
Signed and sworn to before me
on _______________, 20__:
__________________________
Notary Public
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DEED Dated: ________________, 20__
ALX OF PARAMUS LLC Record and return to:
Grantor
TO
IKEA PROPERTY, INC. Grantee
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SCHEDULE A
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