Exhibit 10(v)
10/31/01 MTIN
Revised 7/03
LEASE
RREEF AMERICA REIT CORP.J,
Landlord,
and
XXXXXXX INDUSTRIES, INC.,
Tenant
TABLE OF CONTENTS
Page
1. USE AND RESTRICTIONS ON USE................................................1
2. TERM.......................................................................1
3. RENT.......................................................................2
4. RENT ADJUSTMENTS...........................................................2
5. SECURITY DEPOSIT...........................................................5
6. ALTERATIONS................................................................5
7. REPAIR.....................................................................6
8. LIENS......................................................................7
9. ASSIGNMENT AND SUBLETTING..................................................7
10. INDEMNIFICATION............................................................8
11. INSURANCE..................................................................9
12. WAIVER OF SUBROGATION.....................................................10
13. SERVICES AND UTILITIES....................................................10
14. HOLDING OVER..............................................................10
15. SUBORDINATION.............................................................10
16. RULES AND REGULATIONS.....................................................10
17. REENTRY BY LANDLORD.......................................................10
18. DEFAULT...................................................................11
19. REMEDIES..................................................................12
20. TENANT'S BANKRUPTCY OR INSOLVENCY.........................................14
21. QUIET ENJOYMENT...........................................................15
22. CASUALTY..................................................................15
23. EMINENT DOMAIN............................................................16
24. SALE BY LANDLORD..........................................................16
25. ESTOPPEL CERTIFICATES.....................................................16
26. SURRENDER OF PREMISES.....................................................17
27. NOTICES...................................................................17
28. TAXES PAYABLE BY TENANT...................................................17
29. RELOCATION OF TENANT......................................................18
30. DEFINED TERMS AND HEADINGS................................................18
31. TENANT'S AUTHORITY........................................................18
32. FINANCIAL STATEMENTS AND CREDIT REPORTS...................................18
33. COMMISSIONS...............................................................18
34. TIME AND APPLICABLE LAW...................................................19
35. SUCCESSORS AND ASSIGNS....................................................19
TABLE OF CONTENTS
(continued)
Page
36. ENTIRE AGREEMENT..........................................................19
37. EXAMINATION NOT OPTION....................................................19
38. RECORDATION...............................................................19
39. LIMITATION OF LANDLORD'S LIABILITY........................................19
EXHIBIT A - FLOOR PLAN DEPICTING THE PREMISES
EXHIBIT A-1 - SITE PLAN
EXHIBIT B - INITIAL ALTERATIONS
EXHIBIT C - INTENTIONALLY OMITTED
EXHIBIT D - RULES AND REGULATIONS
MULTI-TENANT INDUSTRIAL NET LEASE
REFERENCE PAGES
BUILDING: Freeport Center
LANDLORD: RREEF AMERICA REIT CORP.J,
a Maryland corporation
LANDLORD'S ADDRESS: c/o RREEF Management Company
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000X
Xxxxxxx, Xxxxxxx 00000
Attention: District Manager
WIRE INSTRUCTIONS AND/OR ADDRESS FOR RENT PAYMENT: RREEF America REIT Corp.J
Department 0243
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
LEASE REFERENCE DATE: August 24, 2004
TENANT: XXXXXXX INDUSTRIES, INC.,
an Indiana corporation
TENANT'S NOTICE ADDRESS: 0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
PREMISES ADDRESS: 000 Xxxxx 00xx Xxxxxx, Xxxxx Xxxxxx 000
Xxxxxxx, Xxxxxxx 00000
PREMISES RENTABLE AREA: Approximately 44,544 sq. ft. (for outline of Premises see Exhibit A)
---------
USE: Lamination and distribution of vinyl and related building products and
materials
COMMENCEMENT DATE: September 1, 2004
TERM OF LEASE: Approximately three (3) years, zero (0) months and zero (0) days
beginning on the Commencement Date and ending on the Termination Date.
TERMINATION DATE: August 31, 2007
ANNUAL RENT and MONTHLY INSTALLMENT OF
RENT(Article 3):
Period Rentable Square Monthly Rent Monthly Installment of
Footage Per Square Foot Rent
From through
9/1/2004 2/28/2006 44,544 $0.28 $12,472.32
$13,363.20
3/1/2006 8/31/2007 44,544 $0.30
INITIAL ESTIMATED MONTHLY INSTALLMENT OF EXPENSES $1,649.79
(Article 4):
INITIAL ESTIMATED MONTHLY NSTALLMENT $3,165.82
OF TAXES (Article 4):
TENANT'S PROPORTIONATE SHARE: 32.58% (based on the ratio of 44,544 square feet
of Premises to 136,704 square feet of Building)
SECURITY DEPOSIT: $13,363.20
ASSIGNMENT/SUBLETTING FEE $500.00
REAL ESTATE BROKER DUE COMMISSION: RREEF Management Company; Xxxxx & Xxxxx
TENANT'S SIC CODE: 5271
AMORTIZATION RATE: 12%
The Reference Pages information is incorporated into and made a part of the
Lease. In the event of any conflict between any Reference Pages information and
the Lease, the Lease shall control. This Lease includes Exhibits A through D,
all of which are made a part of this Lease.
LANDLORD: TENANT:
RREEF AMERICA REIT CORP.J, a Maryland corporation XXXXXXX INDUSTRIES, INC., an Indiana corporation
By: RREEF Management Company, a Delaware corporation By:___________________________________
Its: Managing Agent Xxxx X. Xxxxxxx
Its: President
By:______________________________
Xxxxx Xxxxx
Its: District Manager Dated: August 25, 2004
Dated: August ______, 2004
LEASE
By this Lease Landlord leases to Tenant and Tenant leases from Landlord the
Premises in the Building as set forth and described on the Reference Pages. The
Premises are depicted on the floor plan attached hereto as Exhibit A, and the
Building is depicted on the site plan attached hereto as Exhibit A-1. The
Reference Pages, including all terms defined thereon, are incorporated as part
of this Lease.
1. USE AND RESTRICTIONS ON USE.
1.1 The Premises are to be used solely for the purposes set forth on the
Reference Pages. Tenant shall not do or permit anything to be done in or about
the Premises which will in any way obstruct or interfere with the rights of
other tenants or occupants of the Building or injure, annoy, or disturb them, or
allow the Premises to be used for any improper, immoral, unlawful, or
objectionable purpose, or commit any waste. Tenant shall not do, permit or
suffer in, on, or about the Premises the sale of any alcoholic liquor without
the written consent of Landlord first obtained. Tenant shall comply with all
governmental laws, ordinances and regulations applicable to the use of the
Premises and its occupancy and shall promptly comply with all governmental
orders and directions for the correction, prevention and abatement of any
violations in the Building or appurtenant land, caused or permitted by, or
resulting from the specific use of the Premises by, Tenant, all at Tenant's sole
expense. Tenant shall not do or permit anything to be done on or about the
Premises or bring or keep anything into the Premises which will in any way
increase the rate of, invalidate or prevent the procuring of any insurance
protecting against loss or damage to the Building or any of its contents by fire
or other casualty or against liability for damage to property or injury to
persons in or about the Building or any part thereof.
1.2 Tenant shall not, and shall not direct, suffer or permit any of its
agents, contractors, employees, licensees or invitees (collectively, the "Tenant
Entities") to at any time handle, use, manufacture, store or dispose of in or
about the Premises or the Building any (collectively "Hazardous Materials")
flammables, explosives, radioactive materials, hazardous wastes or materials,
toxic wastes or materials, or other similar substances, petroleum products or
derivatives or any substance subject to regulation by or under any federal,
state and local laws and ordinances relating to the protection of the
environment or the keeping, use or disposition of environmentally hazardous
materials, substances, or wastes, presently in effect or hereafter adopted, all
amendments to any of them, and all rules and regulations issued pursuant to any
of such laws or ordinances (collectively "Environmental Laws"), nor shall Tenant
suffer or permit any Hazardous Materials to be used in any manner not fully in
compliance with all Environmental Laws, in the Premises or the Building and
appurtenant land or allow the environment to become contaminated with any
Hazardous Materials. Notwithstanding the foregoing, Tenant may handle, store,
use or dispose of products containing small quantities of Hazardous Materials
(such as aerosol cans containing insecticides, toner for copiers, paints, paint
remover and the like) to the extent customary and necessary for the use of the
Premises for general office purposes; provided that Tenant shall always handle,
store, use, and dispose of any such Hazardous Materials in a safe and lawful
manner and never allow such Hazardous Materials to contaminate the Premises,
Building and appurtenant land or the environment. Tenant shall protect, defend,
indemnify and hold each and all of the Landlord Entities (as defined in Article
30) harmless from and against any and all loss, claims, liability or costs
(including court costs and attorney's fees) incurred by reason of any actual or
asserted failure of Tenant to fully comply with all applicable Environmental
Laws, or the presence, handling, use or disposition in or from the Premises of
any Hazardous Materials by Tenant or any Tenant Entity (even though permissible
under all applicable Environmental Laws or the provisions of this Lease), or by
reason of any actual or asserted failure of Tenant to keep, observe, or perform
any provision of this Section 1.2.
1.3 Tenant and the Tenant Entities will be entitled to the non-exclusive
use of the common areas of the Building as they exist from time to time during
the Term, including the parking facilities, subject to Landlord's rules and
regulations regarding such use. However, in no event will Tenant or the Tenant
Entities park more vehicles in the parking facilities than Tenant's
Proportionate Share of the total parking spaces available for common use. The
foregoing shall not be deemed to provide Tenant with an exclusive right to any
parking spaces or any guaranty of the availability of any particular parking
spaces or any specific number of parking spaces.
2. TERM.
2.1 The Term of this Lease shall begin on September 1, 2004 ("Commencement
Date"), and shall terminate on the date of August 31, 2007, as shown on the
Reference Pages ("Termination Date"), unless sooner terminated by the provisions
of this Lease. Landlord shall tender possession of the Premises with all the
work, if any, to be performed by Landlord pursuant to Exhibit B to this Lease
substantially completed. Tenant shall deliver a punch list of items not
completed within thirty (30) days after Landlord tenders possession of the
Premises and Landlord agrees to proceed with due diligence to perform its
obligations regarding such items.
2.2 Tenant agrees that in the event of the inability of Landlord to deliver
possession of the Premises on the Commencement Date for any reason, Landlord
shall not be liable for any damage resulting from such inability, but Tenant
shall not be liable for any rent until the time when Landlord can, after notice
to Tenant, deliver possession of the Premises to Tenant. No such failure to give
possession on the Commencement Date shall affect the other obligations of Tenant
under this Lease, except that if Landlord is unable to deliver possession of the
Premises within one hundred twenty (120) days after the Commencement Date (other
than as a result of strikes, shortages of materials, holdover tenancies or
similar matters beyond the reasonable control of Landlord and Tenant is notified
by Landlord in writing as to such delay), Tenant shall have the option to
terminate this Lease unless said delay is as a result of: (a) Tenant's failure
to agree to plans and specifications and/or construction cost estimates or bids;
(b) Tenant's request for materials, finishes or installations other than
Landlord's standard except those, if any, that Landlord shall have expressly
agreed to furnish without extension of time agreed by Landlord; (c) Tenant's
change in any plans or specifications; or, (d) performance or completion by a
party employed by Tenant (each of the foregoing, a "Tenant Delay"). If any delay
is the result of a Tenant Delay, the Commencement Date and the payment of rent
under this Lease shall be accelerated by the number of days of such Tenant
Delay.
2.3 In the event Landlord permits Tenant, or any agent, employee or
contractor of Tenant, to enter, use or occupy the Premises prior to the
Commencement Date, such entry, use or occupancy shall be subject to all the
provisions of this Lease other than the payment of rent, including, without
limitation, Tenant's compliance with the insurance requirements of Article 11.
Said early possession shall not advance the Termination Date.
3. RENT.
3.1 Tenant agrees to pay to Landlord the Annual Rent in effect from time to
time by paying the Monthly Installment of Rent then in effect on or before the
first day of each full calendar month during the Term, except that the first
full month's rent shall be paid upon the execution of this Lease. Rent for any
period during the Term which is less than a full month shall be a prorated
portion of the Monthly Installment of Rent based upon the number of days in such
month. Said rent shall be paid to Landlord, without deduction or offset and
without notice or demand, at the Rent Payment Address, as set forth on the
Reference Pages, or to such other person or at such other place as Landlord may
from time to time designate in writing. If an Event of Default occurs, Landlord
may require by notice to Tenant that all subsequent rent payments be made by an
automatic payment from Tenant's bank account to Landlord's account, without cost
to Landlord. Tenant must implement such automatic payment system prior to the
next scheduled rent payment or within ten (10) days after Landlord's notice,
whichever is later. Unless specified in this Lease to the contrary, all amounts
and sums payable by Tenant to Landlord pursuant to this Lease shall be deemed
additional rent.
3.2 Tenant recognizes that late payment of any rent or other sum due under
this Lease will result in administrative expense to Landlord, the extent of
which additional expense is extremely difficult and economically impractical to
ascertain. Tenant therefore agrees that if rent or any other sum is not paid
when due and payable pursuant to this Lease, a late charge shall be imposed in
an amount equal to the greater of: (a) Fifty Dollars ($50.00), or (b) six
percent (6%) of the unpaid rent or other payment. The amount of the late charge
to be paid by Tenant shall be reassessed and added to Tenant's obligation for
each successive month until paid. The provisions of this Section 3.2 in no way
relieve Tenant of the obligation to pay rent or other payments on or before the
date on which they are due, nor do the terms of this Section 3.2 in any way
affect Landlord's remedies pursuant to Article 19 of this Lease in the event
said rent or other payment is unpaid after date due.
4. RENT ADJUSTMENTS.
4.1 For the purpose of this Article 4, the following terms are defined as
follows:
4.1.1 Lease Year: Each fiscal year (as determined by Landlord from
time to time) falling partly or wholly within the Term.
4.1.2 Expenses: All costs of operation, maintenance, repair,
replacement and management of the Building, as determined in accordance with
generally accepted accounting principles, including the following costs by way
of illustration, but not limitation: water and sewer charges; insurance charges
of or relating to all insurance policies and endorsements deemed by Landlord to
be reasonably necessary or desirable and relating in any manner to the
protection, preservation, or operation of the Building or any part thereof;
utility costs, including, but not limited to, the cost of heat, light, power,
steam, gas; waste disposal; the cost of janitorial services; the cost of
security and alarm services (including any central station signaling system);
costs of cleaning, repairing, replacing and maintaining the common areas,
including parking and landscaping, window cleaning costs; labor costs; costs and
expenses of managing the Building including management and/or administrative
fees (not to exceed five percent [5%] of the gross revenues of the Building for
the fiscal year); air conditioning maintenance costs; elevator maintenance fees
and supplies; material costs; equipment costs including the cost of maintenance,
repair and service agreements and rental and leasing costs; purchase costs of
equipment; current rental and leasing costs of items which would be capital
items if purchased; tool costs; licenses, permits and inspection fees; wages,
salaries, employee benefits and payroll taxes for all on-site personnel
rendering services to the Building and, on a pro rata basis, all off-site
personnel rendering significant services for the Building (but specifically
excluding all personnel operating at Landlord's administrative offices and
performing solely administrative functions); accounting fees; any sales, use or
service taxes incurred in connection therewith. In addition, Landlord shall be
entitled to recover, as additional rent (which, along with any other capital
expenditures constituting Expenses, Landlord may either include in Expenses or
cause to be billed to Tenant along with Expenses and Taxes but as a separate
item), Tenant's Proportionate Share of: (i) an allocable portion of the cost of
capital improvement items which are reasonably calculated to reduce operating
expenses; (ii) the cost of fire sprinklers and suppression systems and other
life safety systems; and (iii) other capital expenses which are required under
any governmental laws, regulations or ordinances which were not applicable to
the Building at the time it was constructed; but the costs described in this
sentence shall be amortized over the reasonable life of such expenditures in
accordance with such reasonable life and amortization schedules as shall be
determined by Landlord in accordance with generally accepted accounting
principles, with interest on the unamortized amount at one percent (1%) in
excess of the Wall Street Journal prime lending rate announced from time to
time. Expenses shall not include depreciation or amortization of the Building or
equipment in the Building except as provided herein, loan principal payments,
costs of alterations of tenants' premises, leasing commissions, interest
expenses on long-term borrowings or advertising costs. Expenses also shall not
include any of the following:
(a) except as provided above, any capital expenditure to the extent
not amortized over the reasonably anticipated useful life of the improvement,
replacement, repair or equipment related to such expenditure;
(b) interest, points and fees on debt or amortization on any mortgage
or mortgages encumbering the Building;
(c) any costs of improvements and alterations for Tenant or any other
tenant or tenants or occupant or occupants of the Building;
(d) any costs of services or other benefits which are not available to
Tenant but which are available to any other tenant or tenants or occupant or
occupants or other user or users of the Building;
(e) any costs for which Landlord is reimbursed by any other tenants,
occupants or users of the Building other than by payment of its pro rata share
of Expenses by any such tenant, occupant or user of the Building;
(f) any leasing commissions, attorneys' fees or any other expenses
(including without limitation advertising and other promotional expenses)
incurred in connection with leasing or subleasing space in the Building or
enforcing any such leases or subleases or buying, selling or financing the
Building;
(g) any depreciation or amortization, other than as specifically
enumerated above and except on materials, tools, supplies and vendor-type
equipment purchased by Landlord to enable Landlord to supply services Landlord
might otherwise contract for with a third party where such depreciation and
amortization would otherwise have been included in the charge for such third
party's services and when depreciation or amortization is permitted or required,
the item shall be amortized over its reasonably anticipated useful life;
(h) any fines, penalties or other costs incurred due to Landlord's or
any other occupant's violation of any governmental regulations;
(i) any expense representing an amount paid to a corporation or entity
affiliated with Landlord that is in excess of the amount that would be paid in
the absence of such affiliation;
(j) Landlord's corporate overhead and general administration expenses;
(k) costs, including permit, license and inspection costs, incurred
with respect to the installation of tenant improvements made for tenants in the
Building or incurred in renovating or otherwise improving, decorating, painting
or redecorating vacant space for tenants of the Building;
(l) any costs for which Tenant or any other tenants or occupants of
the Building are charged directly (that is, other than as an Expense);
(m) costs incurred by Landlord for the repair of damage to the
Building caused by fire, other casualty or condemnation to the extent covered by
insurance or condemnation proceeds;
(n) any cost for which Landlord is reimbursed by insurance or
otherwise compensated by persons or entities other than tenants of the Building;
or
(o) any costs incurred because Landlord violated the terms of any
lease, sublease or other agreement.
4.1.3 Taxes: Real estate taxes and any other taxes, charges and
assessments which are levied with respect to the Building or the land
appurtenant to the Building, or with respect to any improvements, fixtures and
equipment or other property of Landlord, real or personal, located in the
Building and used in connection with the operation of the Building and said
land, any payments to any ground lessor in reimbursement of tax payments made by
such lessor; and all fees, expenses and costs incurred by Landlord in
investigating, protesting, contesting or in any way seeking to reduce or avoid
increase in any assessments, levies or the tax rate pertaining to any Taxes to
be paid by Landlord in any Lease Year. Taxes shall not include any corporate
franchise, or estate, inheritance or net income tax, or tax imposed upon any
transfer by Landlord of its interest in this Lease or the Building or any taxes
to be paid by Tenant pursuant to Article 28.
4.2 Tenant shall pay as additional rent for each Lease Year Tenant's
Proportionate Share of Expenses and Taxes incurred for such Lease Year.
4.3 The annual determination of Expenses shall be made by Landlord and
shall be binding upon Landlord and Tenant, subject to the provisions of this
Section 4.3. During the Term, Tenant may review, at Tenant's sole cost and
expense, the books and records supporting such determination in an office of
Landlord, or Landlord's agent, during normal business hours, upon giving
Landlord five (5) days advance written notice within sixty (60) days after
receipt of such determination, but in no event more often than once in any one
(1) year period, subject to execution of a confidentiality agreement acceptable
to Landlord, and provided that if Tenant utilizes an independent accountant to
perform such review it shall be one of national standing which is reasonably
acceptable to Landlord, is not compensated on a contingency basis and is also
subject to such confidentiality agreement. If Tenant fails to object to
Landlord's determination of Expenses within ninety (90) days after receipt, or
if any such objection fails to state with specificity the reason for the
objection, Tenant shall be deemed to have approved such determination and shall
have no further right to object to or contest such determination.
4.4 Prior to the actual determination thereof for a Lease Year, Landlord
may from time to time in good faith estimate Tenant's liability for Expenses
and/or Taxes under Section 4.2, Article 6 and Article 28 for the Lease Year or
portion thereof. Landlord will give Tenant written notification of the amount of
such estimate and Tenant agrees that it will pay, by increase of its Monthly
Installments of Rent due in such Lease Year, additional rent in the amount of
such estimate. Any such increased rate of Monthly Installments of Rent pursuant
to this Section 4.4 shall remain in effect until further written notification to
Tenant pursuant hereto.
4.5 When the above mentioned actual determination of Tenant's liability for
Expenses and/or Taxes is made for any Lease Year, Landlord shall so notify
Tenant in writing. Landlord agrees to use reasonable efforts to notify Tenant of
such determination no later than October 31 of such fiscal year. and When Tenant
is so notified in writing, then:
4.5.1 If the total additional rent Tenant actually paid pursuant to
Section 4.3 on account of Expenses and/or Taxes for the Lease Year is less than
Tenant's liability for Expenses and/or Taxes, then Tenant shall pay such
deficiency to Landlord as additional rent in one lump sum within thirty (30)
days of receipt of Landlord's xxxx therefor; and
4.5.2 If the total additional rent Tenant actually paid pursuant to
Section 4.3 on account of Expenses and/or Taxes for the Lease Year is more than
Tenant's liability for Expenses and/or Taxes, then Landlord shall credit the
difference against the then next due payments to be made by Tenant under this
Article 4, or, if the Lease has terminated or if such refund exceeds the
aggregate payments to be due under this Article 4, refund the difference or such
excess amount, as the case may be, in cash.
4.6 If the Commencement Date is other than January 1 or if the Termination
Date is other than December 31, Tenant's liability for Expenses and Taxes for
the Lease Year in which said Date occurs shall be prorated based upon a three
hundred sixty-five (365) day year.
5. SECURITY DEPOSIT. Tenant shall deposit the Security Deposit with Landlord
upon the execution of this Lease. Said sum shall be held by Landlord as security
for the faithful performance by Tenant of all the terms, covenants and
conditions of this Lease to be kept and performed by Tenant and not as an
advance rental deposit or as a measure of Landlord's damage in case of Tenant's
default. If Tenant defaults with respect to any provision of this Lease,
Landlord may use any part of the Security Deposit for the payment of any rent or
any other sum in default, or for the payment of any amount which Landlord may
spend or become obligated to spend by reason of Tenant's default, or to
compensate Landlord for any other loss or damage which Landlord may suffer by
reason of Tenant's default. If any portion is so used, Tenant shall within five
(5) days after written demand therefor, deposit with Landlord an amount
sufficient to restore the Security Deposit to its original amount and Tenant's
failure to do so shall be a material breach of this Lease. Except to such
extent, if any, as shall be required by law, Landlord shall not be required to
keep the Security Deposit separate from its general funds, and Tenant shall not
be entitled to interest on such deposit. If Tenant shall fully and faithfully
perform every provision of this Lease to be performed by it, the Security
Deposit or any balance thereof shall be returned to Tenant at such time after
termination of this Lease when Landlord shall have determined that all of
Tenant's obligations under this Lease have been fulfilled.
6. ALTERATIONS.
6.1 Except for those, if any, specifically provided for in Exhibit B to
this Lease, Tenant shall not make or suffer to be made any alterations,
additions, or improvements, including, but not limited to, the attachment of any
fixtures or equipment in, on, or to the Premises or any part thereof or the
making of any improvements as required by Article 7, without the prior written
consent of Landlord. When applying for such consent, Tenant shall, if requested
by Landlord, furnish complete plans and specifications for such alterations,
additions and improvements. Landlord's consent shall not be unreasonably
withheld with respect to alterations which (i) are not structural in nature,
(ii) are not visible from the exterior of the Building, (iii) do not affect or
require modification of the Building's electrical, mechanical, plumbing, HVAC or
other systems, and (iv) in aggregate do not cost more than $5.00 per rentable
square foot of that portion of the Premises affected by the alterations in
question.
6.2 In the event Landlord consents to the making of any such alteration,
addition or improvement by Tenant, the same shall be made by using either
Landlord's contractor or a contractor reasonably approved by Landlord, in either
event at Tenant's sole cost and expense. If Tenant shall employ any contractor
other than Landlord's contractor and such other contractor or any subcontractor
of such other contractor shall employ any non-union labor or supplier, Tenant
shall be responsible for and hold Landlord harmless from any and all delays,
damages and extra costs suffered by Landlord as a result of any dispute with any
labor unions concerning the wage, hours, terms or conditions of the employment
of any such labor. In any event where Landlord's contractor is employed,
Landlord may charge Tenant a construction management fee not to exceed five
percent (5%) of the cost of such work to cover its overhead as it relates to
such proposed work, plus third-party costs actually incurred by Landlord in
connection with the proposed work and the design thereof, with all such amounts
being due five (5) days after Landlord's demand.
6.3 All alterations, additions or improvements proposed by Tenant shall be
constructed in accordance with all government laws, ordinances, rules and
regulations, using Building standard materials where applicable, and Tenant
shall, prior to construction, provide the additional insurance required under
Article 11 in such case, and also all such assurances to Landlord as Landlord
shall reasonably require to assure payment of the costs thereof, including but
not limited to, notices of non-responsibility, waivers of lien, surety company
performance bonds and funded construction escrows and to protect Landlord and
the Building and appurtenant land against any loss from any mechanic's,
materialmen's or other liens. Tenant shall pay in addition to any sums due
pursuant to Article 4, any increase in real estate taxes attributable to any
such alteration, addition or improvement for so long, during the Term, as such
increase is ascertainable; at Landlord's election said sums shall be paid in the
same way as sums due under Article 4. In the event Tenant's financial ability is
not in good faith considered satisfactory by Landlord, Landlord may, as a
condition to its consent to any particular alterations or improvements, require
Tenant to deposit with Landlord the amount reasonably estimated by Landlord as
sufficient to cover the cost of removing such alterations or improvements and
restoring the Premises, to the extent required under Section 26.2
7 REPAIR.
7.1 Landlord shall have no obligation to alter, remodel, improve, repair,
decorate or paint the Premises, except as specified in Exhibit B if attached to
this Lease and except that Landlord shall repair and maintain the structural
portions of the roof (including roof replacement if necessary), foundation and
walls of the Building. By taking possession of the Premises, Tenant accepts them
as being in good order, condition and repair and in the condition in which
Landlord is obligated to deliver them, except as set forth in the punch list to
be delivered pursuant to Section 2.1. It is hereby understood and agreed that no
representations respecting the condition of the Premises or the Building have
been made by Landlord to Tenant, except as specifically set forth in this Lease.
Landlord shall not be liable for any failure to make any repairs or to perform
any maintenance unless such failure shall persist for an unreasonable time not
to exceed thirty (30) days after written notice of the need of such repairs or
maintenance is given to Landlord by Tenant (or such longer period of time as may
be reasonably required to make any such repair or perform any such maintenance
which, due to its nature, cannot reasonably be made or performed within thirty
(30) days). Notwithstanding anything to the contrary provided above, Landlord
warrants the HVAC system serving the Premises for a period of twelve (12) months
from the Commencement Date for major replacements (except to the extent caused
by the acts or omissions of Tenant, its agents, employees or contractors, or
Tenant's failure to keep in full force the required HVAC maintenance/service
contract provided below). If Tenant has not notified Landlord in writing by the
expiration of such twelve (12) month period of any alleged major replacements
which Tenant claims to be necessary, Landlord shall have no further duty
pursuant to this paragraph, except as may be otherwise specifically required by
this Lease.
7.2 Tenant shall at its own cost and expense keep and maintain all parts of
the Premises and such portion of the Building and improvements as are within the
exclusive control of Tenant in good condition, promptly making all necessary
repairs and replacements, whether ordinary or extraordinary, with materials and
workmanship of the same character, kind and quality as the original (including,
but not limited to, repair and replacement of all fixtures installed by Tenant,
water heaters serving the Premises, windows, glass and plate glass, doors,
exterior stairs, skylights, any special office entries, interior walls and
finish work, floors and floor coverings, heating and air conditioning systems
serving the Premises, electrical systems and fixtures, sprinkler systems, dock
boards, truck doors, dock bumpers, plumbing work and fixtures, and performance
of regular removal of trash and debris). Tenant as part of its obligations
hereunder shall keep the Premises in a clean and sanitary condition. Tenant
will, as far as possible keep all such parts of the Premises from deterioration
due to ordinary wear and from falling temporarily out of repair, and upon
termination of this Lease in any way Tenant will yield up the Premises to
Landlord in good condition and repair, loss by fire or other casualty excepted
(but not excepting any damage to glass). Subject to the provisions of Article
12, Tenant shall, at its own cost and expense, repair any damage to the Premises
or the Building resulting from and/or caused in whole or in part by the
negligence or misconduct of Tenant, its agents, employees, contractors,
invitees, or any other person entering upon the Premises as a result of Tenant's
business activities or caused by Tenant's default hereunder.
7.3 Except as provided in Article 22, there shall be no abatement of rent
and no liability of Landlord by reason of any injury to or interference with
Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or to
fixtures, appurtenances and equipment in the Building. Except to the extent, if
any, prohibited by law, Tenant waives the right to make repairs at Landlord's
expense under any law, statute or ordinance now or hereafter in effect.
7.4 Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
approved by Landlord for servicing all heating and air conditioning systems and
equipment serving the Premises (and a copy thereof shall be furnished to
Landlord). The service contract must include all services suggested by the
equipment manufacturer in the operation/maintenance manual and must become
effective within thirty (30) days of the date Tenant takes possession of the
Premises. Should Tenant fail to do so, Landlord may, upon notice to Tenant,
enter into such a maintenance/ service contract on behalf of Tenant or perform
the work and in either case, charge Tenant the cost thereof along with a
reasonable amount for Landlord's overhead.
7.5 Landlord shall coordinate any repairs and other maintenance of any
railroad tracks serving the Building and, if Tenant uses such rail tracks,
Tenant shall reimburse Landlord or the railroad company from time to time upon
demand, as additional rent, for its share of the costs of such repair and
maintenance and for any other sums specified in any agreement to which Landlord
or Tenant is a party respecting such tracks, such costs to be borne
proportionately by all tenants in the Building using such rail tracks, based
upon the actual number of rail cars shipped and received by such tenant during
each calendar year during the Term.
8. LIENS. Tenant shall keep the Premises, the Building and appurtenant land and
Tenant's leasehold interest in the Premises free from any liens arising out of
any services, work or materials performed, furnished, or contracted for by
Tenant, or obligations incurred by Tenant. In the event that Tenant fails,
within fifteen (15) ten (10) days following the imposition of any such lien, to
either cause the same to be released of record or provide Landlord with
insurance against the same issued by a major title insurance company or such
other protection against the same as Landlord shall accept (such failure to
constitute an Event of Default), Landlord shall have the right to cause the same
to be released by such means as it shall deem proper, including payment of the
claim giving rise to such lien. All such sums paid by Landlord and all expenses
incurred by it in connection therewith shall be payable to it by Tenant within
five (5) days Landlord's demand .
9. ASSIGNMENT AND SUBLETTING.
9.1 Tenant shall not have the right to assign or pledge this Lease or to
sublet the whole or any part of the Premises whether voluntarily or by operation
of law, or permit the use or occupancy of the Premises by anyone other than
Tenant, and shall not make, suffer or permit such assignment, subleasing or
occupancy without the prior written consent of Landlord, such consent not to be
unreasonably withheld, and said restrictions shall be binding upon any and all
assignees of this Lease and subtenants of the Premises. In the event Tenant
desires to sublet, or permit such occupancy of, the Premises, or any portion
thereof, or assign this Lease, Tenant shall give written notice thereof to
Landlord at least sixty (60) days but no more than one hundred twenty (120) days
prior to the proposed commencement date of such subletting or assignment, which
notice shall set forth the name of the proposed subtenant or assignee, the
relevant terms of any sublease or assignment and copies of financial reports and
other relevant financial information of the proposed subtenant or assignee.
9.2 Notwithstanding any assignment or subletting, permitted or otherwise,
Tenant shall at all times remain directly, primarily and fully responsible and
liable for the payment of the rent specified in this Lease and for compliance
with all of its other obligations under the terms, provisions and covenants of
this Lease. Upon the occurrence of an Event of Default, if the Premises or any
part of them are then assigned or sublet, Landlord, in addition to any other
remedies provided in this Lease or provided by law, may, at its option, collect
directly from such assignee or subtenant all rents due and becoming due to
Tenant under such assignment or sublease and apply such rent against any sums
due to Landlord from Tenant under this Lease, and no such collection shall be
construed to constitute a novation or release of Tenant from the further
performance of Tenant's obligations under this Lease.
9.3 In addition to Landlord's right to approve of any subtenant or
assignee, Landlord shall have the option, in its sole discretion, in the event
of any proposed subletting or assignment, to terminate this Lease, or in the
case of a proposed subletting of less than the entire Premises, to recapture the
portion of the Premises to be sublet, as of the date the subletting or
assignment is to be effective. The option shall be exercised, if at all, by
Landlord giving Tenant written notice given by Landlord to Tenant within thirty
(30) days following Landlord's receipt of Tenant's written notice as required
above. However, if Tenant notifies Landlord, within five (5) days after receipt
of Landlord's termination notice, that Tenant is rescinding its proposed
assignment or sublease, the termination notice shall be void and this Lease
shall continue in full force and effect. If this Lease shall be terminated with
respect to the entire Premises pursuant to this Section, the Term of this Lease
shall end on the date stated in Tenant's notice as the effective date of the
sublease or assignment as if that date had been originally fixed in this Lease
for the expiration of the Term. If Landlord recaptures under this Section only a
portion of the Premises, the rent to be paid from time to time during the
unexpired Term shall xxxxx proportionately based on the proportion by which the
approximate square footage of the remaining portion of the Premises shall be
less than that of the Premises as of the date immediately prior to such
recapture. Tenant shall, at Tenant's own cost and expense, discharge in full any
outstanding commission obligation which may be due and owing as a result of any
proposed assignment or subletting, whether or not the Premises are recaptured
pursuant to this Section 9.3 and rented by Landlord to the proposed tenant or
any other tenant.
9.4 In the event that Tenant sells, sublets, assigns or transfers this
Lease, Tenant shall pay to Landlord as additional rent an amount equal to one
hundred percent (100%) of any Increased Rent (as defined below), less the Costs
Component (as defined below), when and as such Increased Rent is received by
Tenant. As used in this Section, "Increased Rent" shall mean the excess of (i)
all rent and other consideration which Tenant is entitled to receive by reason
of any sale, sublease, assignment or other transfer of this Lease, over (ii) the
rent otherwise payable by Tenant under this Lease at such time. For purposes of
the foregoing, any consideration received by Tenant in form other than cash
shall be valued at its fair market value as determined by Landlord in good
faith. The "Costs Component" is that amount which, if paid monthly, would fully
amortize on a straight-line basis, over the entire period for which Tenant is to
receive Increased Rent, the reasonable costs incurred by Tenant for leasing
commissions and tenant improvements in connection with such sublease, assignment
or other transfer.
9.5 Notwithstanding any other provision hereof, it shall be considered
reasonable for Landlord to withhold its consent to any assignment of this Lease
or sublease of any portion of the Premises if at the time of either Tenant's
notice of the proposed assignment or sublease or the proposed commencement date
thereof, there shall exist any uncured default of Tenant or matter which will
become a default of Tenant with passage of time unless cured, or if the proposed
assignee or sublessee is an entity: (a) with which Landlord is already in
negotiation; (b) is already an occupant of the Building unless Landlord is
unable to provide the amount of space required by such occupant; (c) is a
governmental agency; (d) is incompatible with the character of occupancy of the
Building; (e) with which the payment for the sublease or assignment is
determined in whole or in part based upon its net income or profits; or (f)
would subject the Premises to a use which would: (i) involve increased personnel
or wear upon the Building; (ii) violate any exclusive right granted to another
tenant of the Building; (iii) require any addition to or modification of the
Premises or the Building in order to comply with building code or other
governmental requirements; or, (iv) involve a violation of Section 1.2. Tenant
expressly agrees that for the purposes of any statutory or other requirement of
reasonableness on the part of Landlord, Landlord's refusal to consent to any
assignment or sublease for any of the reasons described in this Section 9.5,
shall be conclusively deemed to be reasonable.
9.6 Upon any request to assign or sublet, Tenant will pay to Landlord the
Assignment/Subletting Fee plus, on demand, a sum equal to all of Landlord's
costs, including reasonable attorney's fees, incurred in investigating and
considering any proposed or purported assignment or pledge of this Lease or
sublease of any of the Premises, regardless of whether Landlord shall consent
to, refuse consent, or determine that Landlord's consent is not required for,
such assignment, pledge or sublease. Any purported sale, assignment, mortgage,
transfer of this Lease or subletting which does not comply with the provisions
of this Article 9 shall be void.
9.7 If Tenant is a corporation, the capital stock of which is not publicly
traded on a recognized national stock exchange, limited liability company,
partnership or trust, any transfer or transfers of or change or changes within
any twelve (12) month period in the number of the outstanding voting shares of
the corporation or limited liability company, the general partnership interests
in the partnership or the identity of the persons or entities controlling the
activities of such partnership or trust resulting in the persons or entities
owning or controlling a majority of such shares, partnership interests or
activities of such partnership or trust at the beginning of such period no
longer having such ownership or control shall be regarded as equivalent to an
assignment of this Lease to the persons or entities acquiring such ownership or
control and shall be subject to all the provisions of this Article 9 to the same
extent and for all intents and purposes as though such an assignment.
10. INDEMNIFICATION. None of the Landlord Entities shall be liable and Tenant
hereby waives all claims against them for any damage to any property or any
injury to any person in or about the Premises or the Building by or from any
cause whatsoever (including without limiting the foregoing, rain or water
leakage of any character from the roof, windows, walls, basement, pipes,
plumbing works or appliances, the Building not being in good condition or
repair, gas, fire, oil, electricity or theft), except to the extent caused by or
arising from the gross negligence or willful misconduct of Landlord or its
agents, employees or contractors. Tenant shall protect, indemnify and hold the
Landlord Entities harmless from and against any and all loss, claims, liability
or costs (including court costs and attorney's fees) incurred by reason of (a)
any damage to any property (including but not limited to property of any
Landlord Entity) or any injury (including but not limited to death) to any
person occurring in, on or about the Premises or the Building to the extent that
such injury or damage shall be caused by or arise from any actual or alleged
act, neglect, fault, or omission by or of Tenant or any Tenant Entity to meet
any standards imposed by any duty with respect to the injury or damage; (b) the
conduct or management of any work or thing whatsoever done by the Tenant in or
about the Premises or from transactions of the Tenant concerning the Premises;
(c) Tenant's failure to comply with any and all governmental laws, ordinances
and regulations applicable to the condition or use of the Premises or its
occupancy; or (d) any breach or default on the part of Tenant in the performance
of any covenant or agreement on the part of the Tenant to be performed pursuant
to this Lease. Except for the negligence or willful misconduct of Tenant, its
employees, agents, contractors, subtenants and assigns, or a breach of this
Lease by Tenant or Tenant's employees, agents, contractors, subtenants and
assigns, Landlord hereby indemnifies and agrees to hold Tenant harmless from and
against any and all loss, claims, liability or costs (including court costs and
attorneys' fees) incurred by reason of any damage to property or injury to any
person arising from any negligence or willful misconduct of Landlord in
connection with the common areas of the Building. The provisions of this Article
shall survive the termination of this Lease with respect to any claims or
liability accruing prior to such termination.
11. INSURANCE.
11.1 Tenant shall keep in force throughout the Term: (a) a Commercial
General Liability insurance policy or policies to protect the Landlord Entities
against any liability to the public or to any invitee of Tenant or a Landlord
Entity incidental to the use of or resulting from any accident occurring in or
upon the Premises with a limit of not less than $1,000,000 per occurrence and
not less than $2,000,000 in the annual aggregate, or such larger amount as
Landlord may prudently require from time to time, covering bodily injury and
property damage liability; (b) Business Auto Liability covering owned, non-owned
and hired vehicles with a limit of not less than $1,000,000 per accident; (c)
insurance protecting against liability under Worker's Compensation Laws with
limits at least as required by statute; and (d) All Risk or Special Form
coverage protecting Tenant against loss of or damage to Tenant's alterations,
additions, improvements, carpeting, floor coverings, panelings, decorations,
fixtures, inventory and other business personal property situated in or about
the Premises to the full replacement value of the property so insured.
11.2 The aforesaid policies shall (a) be provided at Tenant's expense; (b)
name the Landlord Entities as additional insureds (General Liability) and loss
payee (Property--Special Form); (c) be issued by an insurance company with a
minimum Best's rating of "A:VII" during the Term; and (d) provide that said
insurance shall not be canceled unless thirty (30) days prior written notice
(ten days for non-payment of premium) shall have been given to Landlord; a
certificate of Liability insurance on XXXXX Form 25 and a certificate of
Property insurance on XXXXX Form 27 shall be delivered to Landlord by Tenant
upon the Commencement Date and at least thirty (30) days prior to each renewal
of said insurance.
11.3 Whenever Tenant shall undertake any alterations, additions or
improvements in, to or about the Premises ("Work") the aforesaid insurance
protection must extend to and include injuries to persons and damage to property
arising in connection with such Work, without limitation including liability
under any applicable structural work act, and such other insurance as Landlord
shall require; and the policies of or certificates evidencing such insurance
must be delivered to Landlord prior to the commencement of any such Work.
11.4 Landlord shall, at all times from and after the Commencement Date, as
a component of Expenses, maintain in effect a policy or policies of insurance
covering the Building, in an amount not less than eighty percent (80%) of full
replacement cost (exclusive of the cost of excavations, foundations and
footings) from time to time during the Term or the amount of such insurance
Landlord's lender may require Landlord to maintain, whichever is the greater,
providing protection against any peril generally included in the classification
"Causes of Loss-Special Form" (including flood and earthquake damage coverage if
so elected by Landlord), together with insurance against sprinkler damage,
vandalism and malicious mischief and if deemed necessary by Landlord, the
following endorsements: boiler and machinery, difference in conditions, business
income and extra expense (with extended period of indemnity), service
interruption, building ordinance or law and excess rental value. In addition,
Landlord shall maintain, as a component of Expenses, commercial general
liability insurance with a combined single limit of not less than One Million
and No/100 Dollars ($1,000,000.00), per occurrence, insuring against any and all
liability of Landlord with respect to the operation and use of the Building, and
if deemed necessary by Landlord, fidelity and owned or rented automobile
coverage. Landlord's obligation to carry the insurance required in this Section
11.4 may be brought within the coverage of any so-called blanket policy or
policies of insurance carried and maintained by Landlord, provided that the
coverage afforded will not be reduced or diminished by reason of the of such
blanket policy of insurance.
12. WAIVER OF SUBROGATION. Tenant and Landlord hereby mutually waive their
respective rights of recovery against each other for any loss insured by fire,
extended coverage, All Risks or other insurance now or hereafter existing for
the benefit of the respective party. Each party shall obtain any special
endorsements required by their insurer to evidence compliance with the
aforementioned waiver.
13. SERVICES AND UTILITIES. Tenant shall pay for all water, gas, heat, light,
power, telephone, sewer, sprinkler system charges and other utilities and
services used on or from the Premises, together with any taxes, penalties, and
surcharges or the like pertaining thereto and any maintenance charges for
utilities. Tenant shall furnish all electric light bulbs, tubes and ballasts,
battery packs for emergency lighting and fire extinguishers. If any such
services are not separately metered to Tenant, Tenant shall pay such proportion
of all charges jointly metered with other premises as determined by Landlord, in
its sole discretion, to be reasonable. Any such charges paid by Landlord and
assessed against Tenant shall be immediately payable to Landlord on demand and
shall be additional rent hereunder. Tenant will not, without the written consent
of Landlord, which consent shall not be unreasonably withheld, contract with a
utility provider to service the Premises with any utility, including, but not
limited to, telecommunications, electricity, water, sewer or gas, which is not
previously providing such service to other tenants in the Building. Landlord
shall in no event be liable for any interruption or failure of utility services
on or to the Premises. Notwithstanding the foregoing, in the event that
essential utility services to the Premises are interrupted for a consecutive
period of three (3) or more business days as a result of the negligence or
willful misconduct of Landlord or its agents, and such interruption
substantially interferes with Tenant's use of all or a substantial portion of
the Premises for the conduct of its business, then, as its sole and exclusive
remedy, Tenant's obligation to pay the Monthly Installment of Rent to Landlord
under this Lease shall be abated or reduced from the date Tenant delivers
written notice to Landlord of such circumstance (which shall be at least three
(3) business days after the commencement of such circumstance) until sufficient
utility services are restored in the proportion that the floor area of the
Premises that Tenant is prevented from using and does not use bears to the total
floor area of the Premises.
14. HOLDING OVER. Tenant shall pay Landlord for each day Tenant retains
possession of the Premises or part of them after termination of this Lease by
lapse of time or otherwise at the rate ("Holdover Rate") which shall be Two
Hundred Percent (200%) of the greater of (a) the amount of the Annual Rent for
the last period prior to the date of such termination plus all Rent Adjustments
under Article 4; and (b) the then market rental value of the Premises as
determined by Landlord assuming a new lease of the Premises of the then usual
duration and other terms, in either case, prorated on a daily basis, and also
pay all damages sustained by Landlord by reason of such retention. If Landlord
gives notice to Tenant of Landlord's election to such effect, such holding over
shall constitute renewal of this Lease for a period from month to month or one
(1) year, whichever shall be specified in such notice, in either case at the
Holdover Rate, but if the Landlord does not so elect, no such renewal shall
result notwithstanding acceptance by Landlord of any sums due hereunder after
such termination; and instead, a tenancy at sufferance at the Holdover Rate
shall be deemed to have been created. In any event, no provision of this Article
14 shall be deemed to waive Landlord's right of reentry or any other right under
this Lease or at law.
15. SUBORDINATION. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, this Lease
shall be subject and subordinate at all times to ground or underlying leases and
to the lien of any mortgages or deeds of trust now or hereafter placed on,
against or affecting the Building, Landlord's interest or estate in the
Building, or any ground or underlying lease; provided, however, that if the
lessor, mortgagee, trustee, or holder of any such mortgage or deed of trust
elects to have Tenant's interest in this Lease be superior to any such
instrument, then, by notice to Tenant, this Lease shall be deemed superior,
whether this Lease was executed before or after said instrument. Notwithstanding
the foregoing, Tenant covenants and agrees to execute and deliver within ten
(10) days of Landlord's request such further instruments evidencing such
subordination or superiority of this Lease as may be reasonably required by
Landlord.
16. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with all
the rules and regulations as set forth in Exhibit D to this Lease and all
reasonable and non-discriminatory modifications of and additions to them from
time to time put into effect by Landlord. Landlord shall not be responsible to
Tenant for the non-performance by any other tenant or occupant of the Building
of any such rules and regulations.
17. REENTRY BY LANDLORD.
17.1 Landlord reserves and shall at all times have the right to re-enter
the Premises to inspect the same, to show said Premises to prospective
purchasers, mortgagees or tenants, and to alter, improve or repair the Premises
and any portion of the Building, without abatement of rent, and may for that
purpose erect, use and maintain scaffolding, pipes, conduits and other necessary
structures and open any wall, ceiling or floor in and through the Building and
Premises where reasonably required by the character of the work to be performed,
provided entrance to the Premises shall not be blocked thereby, and further
provided that the business of Tenant shall not be interfered with unreasonably.
Landlord shall have the right at any time to change the arrangement and/or
locations of entrances, or passageways, doors and doorways, and corridors,
windows, elevators, stairs, toilets or other public parts of the Building and to
change the name, number or designation by which the Building is commonly known.
In the event that Landlord damages any portion of any wall or wall covering,
ceiling, or floor or floor covering within the Premises, Landlord shall repair
or replace the damaged portion to match the original as nearly as commercially
reasonable but shall not be required to repair or replace more than the portion
actually damaged. Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss occasioned by any action
of Landlord authorized by this Article 17.
17.2 Landlord shall have the right to use any and all means which Landlord
may deem proper to open all doors in the Premises in an emergency to obtain
entry to any portion of the Premises and the cost of repairing any damage
occurring in doing so shall be borne by Tenant and paid to Landlord within five
(5) days of Landlord's demand.
18. DEFAULT.
18.1 Except as otherwise provided in Article 20, the following events shall
be deemed to be Events of Default under this Lease:
18.1.1 Tenant shall fail to pay when due any sum of money becoming due
to be paid to Landlord under this Lease, whether such sum be any installment of
the rent reserved by this Lease, any other amount treated as additional rent
under this Lease, or any other payment or reimbursement to Landlord required by
this Lease, whether or not treated as additional rent under this Lease, and such
failure shall continue for a period of five (5) days after written notice that
such payment was not made when due, but if any such notice shall be given, for
the twelve (12) month period commencing with the date of such notice, the
failure to pay within five (5) days after due any additional sum of money
becoming due to be paid to Landlord under this Lease during such period shall be
an Event of Default, without notice.
18.1.2 Tenant shall fail to comply with any term, provision or
covenant of this Lease which is not provided for in another Section of this
Article and shall not cure such failure within twenty (20) days (forthwith, if
the failure involves a hazardous condition) after written notice of such failure
to Tenant provided, however, that such failure shall not be an event of default
if such failure could not reasonably be cured during such twenty (20) day
period, Tenant has commenced the cure within such twenty (20) day period and
thereafter is diligently pursuing such cure to completion, but the total
aggregate cure period shall not exceed ninety (90) days.
18.1.3 Tenant shall fail to vacate the Premises immediately upon
termination of this Lease, by lapse of time or otherwise, or upon termination of
Tenant's right to possession only.
18.1.4 Tenant shall become insolvent, admit in writing its inability
to pay its debts generally as they become due, file a petition in bankruptcy or
a petition to take advantage of any insolvency statute, make an assignment for
the benefit of creditors, make a transfer in fraud of creditors, apply for or
consent to the appointment of a receiver of itself or of the whole or any
substantial part of its property, or file a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws, as now in
effect or hereafter amended, or any other applicable law or statute of the
United States or any state thereof.
18.1.5 A court of competent jurisdiction shall enter an order,
judgment or decree adjudicating Tenant bankrupt, or appointing a receiver of
Tenant, or of the whole or any substantial part of its property, without the
consent of Tenant, or approving a petition filed against Tenant seeking
reorganization or arrangement of Tenant under the bankruptcy laws of the United
States, as now in effect or hereafter amended, or any state thereof, and such
order, judgment or decree shall not be vacated or set aside or stayed within
sixty (60) days from the date of entry thereof.
19. REMEDIES.
19.1 Except as otherwise provided in Article 20, upon the occurrence of any
of the Events of Default described or referred to in Article 18, Landlord shall
have the option to pursue any one or more of the following remedies without any
notice or demand whatsoever, concurrently or consecutively and not
alternatively:
19.1.1 Landlord may, at its election, terminate this Lease or
terminate Tenant's right to possession only, without terminating this Lease.
19.1.2 Upon any termination of this Lease, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of this Lease, Tenant shall surrender possession and vacate the
Premises immediately, and deliver possession thereof to Landlord, and Tenant
hereby grants to Landlord full and free license to enter into and upon the
Premises in such event and to repossess Landlord of the Premises as of
Landlord's former estate and to expel or remove Tenant and any others who may be
occupying or be within the Premises and to remove Tenant's signs and other
evidence of tenancy and all other property of Tenant therefrom without being
deemed in any manner guilty of trespass, eviction or forcible entry or detainer,
and without incurring any liability for any damage resulting therefrom, Tenant
waiving any right to claim damages for such re-entry and expulsion, and without
relinquishing Landlord's right to rent or any other right given to Landlord
under this Lease or by operation of law.
19.1.3 Upon any termination of this Lease, whether by lapse of time or
otherwise, Landlord shall be entitled to recover as damages, all rent, including
any amounts treated as additional rent under this Lease, and other sums due and
payable by Tenant on the date of termination, plus as liquidated damages and not
as a penalty, an amount equal to the sum of: (a) an amount equal to the then
present value of the rent reserved in this Lease for the residue of the stated
Term of this Lease including any amounts treated as additional rent under this
Lease and all other sums provided in this Lease to be paid by Tenant, minus the
fair rental value of the Premises for such residue; (b) the value of the time
and expense necessary to obtain a replacement tenant or tenants, and the
estimated expenses described in Section 19.1.4 relating to recovery of the
Premises, preparation for reletting and for reletting itself; and (c) the cost
of performing any other covenants which would have otherwise been performed by
Tenant.
19.1.4 Upon any termination of Tenant's right to possession only
without termination of this Lease:
19.1.4.1 Neither such termination of Tenant's right to possession
nor Landlord's taking and holding possession thereof as provided in Section
19.1.2 shall terminate this Lease or release Tenant, in whole or in part, from
any obligation, including Tenant's obligation to pay the rent, including any
amounts treated as additional rent, under this Lease for the full Term, and if
Landlord so elects Tenant shall continue to pay to Landlord the entire amount of
the rent as and when it becomes due, including any amounts treated as additional
rent under this Lease, for the remainder of the Term plus any other sums
provided in this Lease to be paid by Tenant for the remainder of the Term.
19.1.4.2 Landlord shall use commercially reasonable efforts to
relet the Premises or portions thereof to the extent required by applicable law.
Landlord and Tenant agree that nevertheless Landlord shall at most be required
to use only the same efforts Landlord then uses to lease premises in the
Building generally and that in any case that Landlord shall not be required to
give any preference or priority to the showing or leasing of the Premises or
portions thereof over any other space that Landlord may be leasing or have
available and may place a suitable prospective tenant in any such other space
regardless of when such other space becomes available and that Landlord shall
have the right to relet the Premises for a greater or lesser term than that
remaining under this Lease, the right to relet only a portion of the Premises,
or a portion of the Premises or the entire Premises as a part of a larger area,
and the right to change the character or use of the Premises. In connection with
or in preparation for any reletting, Landlord may, but shall not be required to,
make repairs, alterations and additions in or to the Premises and redecorate the
same to the extent Landlord deems necessary or desirable, and Tenant shall pay
the cost thereof, together with Landlord's expenses of reletting, including,
without limitation, any commission incurred by Landlord, within five (5) days of
Landlord's demand. Landlord shall not be required to observe any instruction
given by Tenant about any reletting or accept any tenant offered by Tenant
unless such offered tenant has a credit-worthiness acceptable to Landlord and
leases the entire Premises upon terms and conditions including a rate of rent
(after giving effect to all expenditures by Landlord for tenant improvements,
broker's commissions and other leasing costs) all no less favorable to Landlord
than as called for in this Lease, nor shall Landlord be required to make or
permit any assignment or sublease for more than the current term or which
Landlord would not be required to permit under the provisions of Article 9.
19.1.4.3 Until such time as Landlord shall elect to terminate
this Lease and shall thereupon be entitled to recover the amounts specified in
such case in Section 19.1.3, Tenant shall pay to Landlord upon demand the full
amount of all rent, including any amounts treated as additional rent under this
Lease and other sums reserved in this Lease for the remaining Term, together
with the costs of repairs, alterations, additions, redecorating and Landlord's
expenses of reletting and the collection of the rent accruing therefrom
(including reasonable attorney's fees and broker's commissions), as the same
shall then be due or become due from time to time, less only such consideration
as Landlord may have received from any reletting of the Premises; and Tenant
agrees that Landlord may file suits from time to time to recover any sums
falling due under this Article 19 as they become due. Any proceeds of reletting
by Landlord in excess of the amount then owed by Tenant to Landlord from time to
time shall be credited against Tenant's future obligations under this Lease but
shall not otherwise be refunded to Tenant or inure to Tenant's benefit.
19.2 Upon the occurrence of an Event of Default, Landlord may (but shall
not be obligated to) cure such default at Tenant's sole expense. Without
limiting the generality of the foregoing, Landlord may, at Landlord's option,
enter into and upon the Premises if Landlord determines in its sole discretion
that Tenant is not acting within a commercially reasonable time to maintain,
repair or replace anything for which Tenant is responsible under this Lease or
to otherwise effect compliance with its obligations under this Lease and correct
the same, without being deemed in any manner guilty of trespass, eviction or
forcible entry and detainer and without incurring any liability for any damage
or interruption of Tenant's business resulting therefrom and Tenant agrees to
reimburse Landlord within five (5) days of Landlord's demand as additional rent,
for any expenses which Landlord may incur in thus effecting compliance with
Tenant's obligations under this Lease, plus interest from the date of
expenditure by Landlord at the Wall Street Journal prime rate.
19.3 Tenant understands and agrees that in entering into this Lease,
Landlord is relying upon receipt of all the Annual and Monthly Installments of
Rent to become due with respect to all the Premises originally leased hereunder
over the full Initial Term of this Lease for amortization, including interest at
the Amortization Rate. For purposes hereof, the "Concession Amount" shall be
defined as the aggregate of all amounts forgone or expended by Landlord as free
rent under this Lease, under Exhibit B hereof for construction allowances
(excluding therefrom any amounts expended by Landlord for Landlord's Work, as
defined in Exhibit B), and for brokers' commissions payable by reason of this
Lease. Accordingly, Tenant agrees that if this Lease or Tenant's right to
possession of the Premises leased hereunder shall be terminated as of any date
("Default Termination Date") prior to the expiration of the full Initial Term
hereof by reason of a default of Tenant, there shall be due and owing to
Landlord as of the day prior to the Default Termination Date, as rent in
addition to all other amounts owed by Tenant as of such Date, the amount
("Unamortized Amount") of the Concession Amount determined as set forth below;
provided, however, that in the event that such amounts are recovered by Landlord
pursuant to any other provision of this Article 19, Landlord agrees that it
shall not attempt to recover such amounts pursuant to this Paragraph 19.3. For
the purposes hereof, the Unamortized Amount shall be determined in the same
manner as the remaining principal balance of a mortgage with interest at the
Amortization Rate payable in level payments over the same length of time as from
the effectuation of the Concession concerned to the end of the full Initial Term
of this Lease would be determined. The foregoing provisions shall also apply to
and upon any reduction of space in the Premises, as though such reduction were a
termination for Tenant's default, except that (i) the Unamortized Amount shall
be reduced by any amounts paid by Tenant to Landlord to effectuate such
reduction and (ii) the manner of application shall be that the Unamortized
Amount shall first be determined as though for a full termination as of the
Effective Date of the elimination of the portion, but then the amount so
determined shall be multiplied by the fraction of which the numerator is the
rentable square footage of the eliminated portion and the denominator is the
rentable square footage of the Premises originally leased hereunder; and the
amount thus obtained shall be the Unamortized Amount.
19.4 If, on account of any breach or default by Tenant in Tenant's
obligations under the terms and conditions of this Lease, it shall become
necessary or appropriate for Landlord to employ or consult with an attorney or
collection agency concerning or to enforce or defend any of Landlord's rights or
remedies arising under this Lease or to collect any sums due from Tenant, Tenant
agrees to pay all reasonable costs and fees so incurred by Landlord, including,
without limitation, reasonable attorneys' fees and costs. TENANT EXPRESSLY
WAIVES ANY RIGHT TO: (A) TRIAL BY JURY; AND (B) SERVICE OF ANY NOTICE REQUIRED
BY ANY PRESENT OR FUTURE LAW OR ORDINANCE APPLICABLE TO LANDLORDS OR TENANTS BUT
NOT REQUIRED BY THE TERMS OF THIS LEASE (EXCLUDING SERVICE OF PROCESS AS
REQUIRED BY 16 A.R.S. RULES OF CIVIL PROCEDURE, RULE 4).
19.5 Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies provided in this Lease or any other remedies provided
by law (all such remedies being cumulative), nor shall pursuit of any remedy
provided in this Lease constitute a forfeiture or waiver of any rent due to
Landlord under this Lease or of any damages accruing to Landlord by reason of
the violation of any of the terms, provisions and covenants contained in this
Lease.
19.6 No act or thing done by Landlord or its agents during the Term shall
be deemed a termination of this Lease or an acceptance of the surrender of the
Premises, and no agreement to terminate this Lease or accept a surrender of said
Premises shall be valid, unless in writing signed by Landlord. No waiver by
Landlord of any violation or breach of any of the terms, provisions and
covenants contained in this Lease shall be deemed or construed to constitute a
waiver of any other violation or breach of any of the terms, provisions and
covenants contained in this Lease. Landlord's acceptance of the payment of
rental or other payments after the occurrence of an Event of Default shall not
be construed as a waiver of such Default, unless Landlord so notifies Tenant in
writing. Forbearance by Landlord in enforcing one or more of the remedies
provided in this Lease upon an Event of Default shall not be deemed or construed
to constitute a waiver of such Default or of Landlord's right to enforce any
such remedies with respect to such Default or any subsequent Default.
19.7 To secure the payment of all rentals and other sums of money becoming
due from Tenant under this Lease, Landlord shall have and Tenant grants to
Landlord a first lien upon the leasehold interest of Tenant under this Lease,
which lien may be enforced in equity.
19.8 Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of this Lease or of law, to which Tenant is
or may be entitled, may be handled, removed and/or stored, as the case may be,
by or at the direction of Landlord but at the risk, cost and expense of Tenant,
and Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under Landlord's
control. Any such property of Tenant not retaken by Tenant from storage within
thirty (30) days after removal from the Premises shall, at Landlord's option, be
deemed conveyed by Tenant to Landlord under this Lease as by a xxxx of sale
without further payment or credit by Landlord to Tenant.
19.9 If more than one (1) Event of Default occurs during the Term or any
renewal thereof, Tenant's renewal options, expansion options, purchase options
and rights of first offer and/or refusal, if any are provided for in this Lease,
shall be null and void.
20. TENANT'S BANKRUPTCY OR INSOLVENCY.
20.1 If at any time and for so long as Tenant shall be subjected to the
provisions of the United States Bankruptcy Code or other law of the United
States or any state thereof for the protection of debtors as in effect at such
time (each a "Debtor's Law"):
20.1.1 Tenant, Tenant as debtor-in-possession, and any trustee or
receiver of Tenant's assets (each a "Tenant's Representative") shall have no
greater right to assume or assign this Lease or any interest in this Lease, or
to sublease any of the Premises than accorded to Tenant in Article 9, except to
the extent Landlord shall be required to permit such assumption, assignment or
sublease by the provisions of such Debtor's Law. Without limitation of the
generality of the foregoing, any right of any Tenant's Representative to assume
or assign this Lease or to sublease any of the Premises shall be subject to the
conditions that:
20.1.1.1 Such Debtor's Law shall provide to Tenant's
Representative a right of assumption of this Lease which Tenant's Representative
shall have timely exercised and Tenant's Representative shall have fully cured
any default of Tenant under this Lease.
20.1.1.2 Tenant's Representative or the proposed assignee, as the
case shall be, shall have deposited with Landlord as security for the timely
payment of rent an amount equal to the larger of: (a) three (3) months' rent and
other monetary charges accruing under this Lease; and (b) any sum specified in
Article 5; and shall have provided Landlord with adequate other assurance of the
future performance of the obligations of the Tenant under this Lease. Without
limitation, such assurances shall include, at least, in the case of assumption
of this Lease, demonstration to the satisfaction of the Landlord that Tenant's
Representative has and will continue to have sufficient unencumbered assets
after the payment of all secured obligations and administrative expenses to
assure Landlord that Tenant's Representative will have sufficient funds to
fulfill the obligations of Tenant under this Lease; and, in the case of
assignment, submission of current financial statements of the proposed assignee,
audited by an independent certified public accountant reasonably acceptable to
Landlord and showing a net worth and working capital in amounts determined by
Landlord to be sufficient to assure the future performance by such assignee of
all of the Tenant's obligations under this Lease.
20.1.1.3 The assumption or any contemplated assignment of this
Lease or subleasing any part of the Premises, as shall be the case, will not
breach any provision in any other lease, mortgage, financing agreement or other
agreement by which Landlord is bound.
20.1.1.4 Landlord shall have, or would have had absent the
Debtor's Law, no right under Article 9 to refuse consent to the proposed
assignment or sublease by reason of the identity or nature of the proposed
assignee or sublessee or the proposed use of the Premises concerned.
21. QUIET ENJOYMENT. Landlord represents and warrants that it has full right and
authority to enter into this Lease and that Tenant, while paying the rental and
performing its other covenants and agreements contained in this Lease, shall
peaceably and quietly have, hold and enjoy the Premises for the Term without
hindrance or molestation from Landlord subject to the terms and provisions of
this Lease. Landlord shall not be liable for any interference or disturbance by
other tenants or third persons, nor shall Tenant be released from any of the
obligations of this Lease because of such interference or disturbance.
22. CASUALTY.
22.1 In the event the Premises or the Building are damaged by fire or other
cause and in Landlord's reasonable estimation such damage can be materially
restored within one hundred fifty (150) days, Landlord shall forthwith repair
the same and this Lease shall remain in full force and effect, except that
Tenant shall be entitled to a proportionate abatement in rent from the date of
such damage. Such abatement of rent shall be made pro rata in accordance with
the extent to which the damage and the making of such repairs shall interfere
with the use and occupancy by Tenant of the Premises from time to time. Within
forty-five (45) days from the date of such damage, Landlord shall notify Tenant,
in writing, of Landlord's reasonable estimation of the length of time within
which material restoration can be made, and Landlord's determination shall be
binding on Tenant. For purposes of this Lease, the Building or Premises shall be
deemed "materially restored" if they are in such condition as would not prevent
or materially interfere with Tenant's use of the Premises for the purpose for
which it was being used immediately before such damage.
22.2 If such repairs cannot, in Landlord's reasonable estimation, be made
within one hundred fifty (150) days or in the event of substantial destruction
of the Premises (i.e., a destruction to an extent of at least fifty percent
[50%] of the then full replacement cost of the Premises as of the date of
destruction) during the last two (2) years of the Term, Landlord and Tenant
shall each have the option of giving the other, at any time within ninety (90)
days after such damage, notice terminating this Lease as of the date of such
damage. In the event of the giving of such notice, this Lease shall expire and
all interest of the Tenant in the Premises shall terminate as of the date of
such damage as if such date had been originally fixed in this Lease for the
expiration of the Term. In the event that neither Landlord nor Tenant exercises
its option to terminate this Lease, then Landlord shall repair or restore such
damage, this Lease continuing in full force and effect, and the rent hereunder
shall be proportionately abated as provided in Section 22.1.
22.3 Landlord shall not be required to repair or replace any damage or loss
by or from fire or other cause to any panelings, decorations, partitions,
additions, railings, ceilings, floor coverings, office fixtures or any other
property or improvements installed on the Premises by, or belonging to, Tenant.
Any insurance which may be carried by Landlord or Tenant against loss or damage
to the Building or Premises shall be for the sole benefit of the party carrying
such insurance and under its sole control.
22.4 In the event that Landlord should fail to complete such repairs and
material restoration within sixty (60) days after the date estimated by Landlord
therefor as extended by this Section 22.4, Tenant may at its option and as its
sole remedy terminate this Lease by delivering written notice to Landlord,
within fifteen (15) days after the expiration of said period of time, whereupon
this Lease shall end on the date of such notice or such later date fixed in such
notice as if the date of such notice was the date originally fixed in this Lease
for the expiration of the Term; provided, however, that if construction is
delayed because of changes, deletions or additions in construction requested by
Tenant, strikes, lockouts, casualties, Acts of God, war, material or labor
shortages, government regulation or control or other causes beyond the
reasonable control of Landlord, the period for restoration, repair or rebuilding
shall be extended for the amount of time Landlord is so delayed.
22.5 Notwithstanding anything to the contrary contained in this Article:
(a) Landlord shall not have any obligation whatsoever to repair, reconstruct, or
restore the Premises when the damages resulting from any casualty covered by the
provisions of this Article 22 occur during the last twelve (12) months of the
Term or any extension thereof, but if Landlord determines not to repair such
damages Landlord shall notify Tenant and if such damages shall render any
material portion of the Premises untenantable Tenant shall have the right to
terminate this Lease by notice to Landlord within fifteen (15) days after
receipt of Landlord's notice; and (b) in the event the holder of any
indebtedness secured by a mortgage or deed of trust covering the Premises or
Building requires that any insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this Lease by delivering written
notice of termination to Tenant within fifteen (15) days after such requirement
is made by any such holder, whereupon this Lease shall end on the date of such
damage as if the date of such damage were the date originally fixed in this
Lease for the expiration of the Term.
22.6 In the event of any damage or destruction to the Building or Premises
by any peril covered by the provisions of this Article 22, it shall be Tenant's
responsibility to properly secure the Premises and upon notice from Landlord to
remove forthwith, at its sole cost and expense, such portion of all of the
property belonging to Tenant or its licensees from such portion or all of the
Building or Premises as Landlord shall request.
23. EMINENT DOMAIN. If all or any substantial part of the Premises shall be
taken or appropriated by any public or quasi-public authority under the power of
eminent domain, or conveyance in lieu of such appropriation, either party to
this Lease shall have the right, at its option, of giving the other, at any time
within thirty (30) days after such taking, notice terminating this Lease, except
that Tenant may only terminate this Lease by reason of taking or appropriation,
if such taking or appropriation shall be so substantial as to materially
interfere with Tenant's use and occupancy of the Premises. If neither party to
this Lease shall so elect to terminate this Lease, the rental thereafter to be
paid shall be adjusted on a fair and equitable basis under the circumstances. In
addition to the rights of Landlord above, if any substantial part of the
Building shall be taken or appropriated by any public or quasi-public authority
under the power of eminent domain or conveyance in lieu thereof, and regardless
of whether the Premises or any part thereof are so taken or appropriated,
Landlord shall have the right, at its sole option, to terminate this Lease.
Landlord shall be entitled to any and all income, rent, award, or any interest
whatsoever in or upon any such sum, which may be paid or made in connection with
any such public or quasi-public use or purpose, and Tenant hereby assigns to
Landlord any interest it may have in or claim to all or any part of such sums,
other than any separate award which may be made with respect to Tenant's trade
fixtures and moving expenses; Tenant shall make no claim for the value of any
unexpired Term.
24. SALE BY LANDLORD. In event of a sale or conveyance by Landlord of the
Building, provided that Landlord's successor in interest assumes, in writing,
the liabilities, covenants and obligations of Landlord under this Lease, the
same shall operate to release Landlord from any future liability upon any of the
covenants or conditions, expressed or implied, contained in this Lease in favor
of Tenant, and in such event Tenant agrees to look solely to the responsibility
of the successor in interest of Landlord in and to this Lease. Except as set
forth in this Article 24, this Lease shall not be affected by any such sale and
Tenant agrees to attorn to the purchaser or assignee. If any security has been
given by Tenant to secure the faithful performance of any of the covenants of
this Lease, Landlord shall may transfer or deliver said security, as such, to
Landlord's successor in interest and thereupon Landlord shall be discharged from
any further liability with regard to said security.
25. ESTOPPEL CERTIFICATES. Within fifteen (15) days following any written
request which Landlord may make from time to time, Tenant shall execute and
deliver to Landlord or mortgagee or prospective mortgagee a sworn statement
certifying: (a) the date of commencement of this Lease; (b) the fact that this
Lease is unmodified and in full force and effect (or, if there have been
modifications to this Lease, that this lease is in full force and effect, as
modified, and stating the date and nature of such modifications); (c) the date
to which the rent and other sums payable under this Lease have been paid; (d)
the fact that there are no current defaults under this Lease by either Landlord
or Tenant except as specified in Tenant's statement; and (e) such other matters
as may be reasonably requested by Landlord. Landlord and Tenant intend that any
statement delivered pursuant to this Article 25 may be relied upon by any
mortgagee, beneficiary or purchaser, and Tenant shall be liable for all loss,
cost or expense resulting from the failure of any sale or funding of any loan
caused by any material misstatement contained in such estoppel certificate.
Tenant irrevocably agrees that if Tenant fails to execute and deliver such
certificate within such fifteen (15) ten (10) day period Landlord or Landlord's
beneficiary or agent may execute and deliver such certificate on Tenant's
behalf, and that such certificate shall be fully binding on Tenant.
26. SURRENDER OF PREMISES.
26.1 Tenant shall arrange to meet Landlord for two (2) joint inspections of
the Premises, the first to occur at least thirty (30) days (but no more than
sixty (60) days) before the last day of the Term, and the second to occur not
later than forty-eight (48) hours after Tenant has vacated the Premises. In the
event of Tenant's failure to arrange such joint inspections and/or participate
in either such inspection, Landlord's inspection at or after Tenant's vacating
the Premises shall be conclusively deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration.
26.2 All alterations, additions, and improvements in, on, or to the
Premises made or installed by or for Tenant, including carpeting (collectively,
"Alterations"), shall be and remain the property of Tenant during the Term. Upon
the expiration or sooner termination of the Term, all Alterations shall become a
part of the realty and shall belong to Landlord without compensation, and title
shall pass to Landlord under this Lease as by a xxxx of sale. At the end of the
Term or any renewal of the Term or other sooner termination of this Lease,
Tenant will peaceably deliver up to Landlord possession of the Premises,
together with all Alterations by whomsoever made, in the same conditions
received or first installed, broom clean and free of all debris, excepting only
ordinary wear and tear and damage by fire or other casualty. Notwithstanding the
foregoing, if Landlord elects by notice given to Tenant at least ten (10) days
prior to expiration of the Term, Tenant shall, at Tenant's sole cost, remove any
Alterations, including carpeting, so designated by Landlord's notice, and repair
any damage caused by such removal. Tenant must, at Tenant's sole cost, remove
upon termination of this Lease, any and all of Tenant's furniture, furnishings,
movable partitions of less than full height from floor to ceiling and other
trade fixtures and personal property (collectively, "Personalty"). Personalty
not so removed shall be deemed abandoned by the Tenant and title to the same
shall thereupon pass to Landlord under this Lease as by a xxxx of sale, but
Tenant shall remain responsible for the cost of removal and disposal of such
Personalty, as well as any damage caused by such removal. In lieu of requiring
Tenant to remove Alterations and Personalty and repair the Premises as
aforesaid, Landlord may, by written notice to Tenant delivered at least thirty
(30) days before the Termination Date, require Tenant to pay to Landlord, as
additional rent hereunder, the cost of such removal and repair in an amount
reasonably estimated by Landlord.
26.3 All obligations of Tenant under this Lease not fully performed as of
the expiration or earlier termination of the Term shall survive the expiration
or earlier termination of the Term Upon the expiration or earlier termination of
the Term, Tenant shall pay to Landlord the amount, as estimated by Landlord,
necessary to repair and restore the Premises as provided in this Lease and/or to
discharge Tenant's obligation for unpaid amounts due or to become due to
Landlord. All such amounts shall be used and held by Landlord for payment of
such obligations of Tenant, with Tenant being liable for any additional costs
upon demand by Landlord, or with any excess to be returned to Tenant after all
such obligations have been determined and satisfied. Any otherwise unused
Security Deposit shall be credited against the amount payable by Tenant under
this Lease.
27. NOTICES. Any notice or document required or permitted to be delivered under
this Lease shall be addressed to the intended recipient, by fully prepaid
registered or certified United States Mail return receipt requested, or by
reputable national overnight delivery service furnishing a written record of
attempted or actual delivery, and shall be deemed to be delivered when tendered
for delivery to the addressee at its address set forth on the Reference Pages,
or at such other address as it has then last specified by written notice
delivered in accordance with this Article 27, or if to Tenant at either its
aforesaid address or its last known registered office or home of a general
partner or individual owner, whether or not actually accepted or received by the
addressee. Any such notice or document may also be personally delivered if a
receipt is signed by and received from, the individual, if any, named in
Tenant's Notice Address.
28. TAXES PAYABLE BY TENANT. In addition to rent and other charges to be paid by
Tenant under this Lease, Tenant shall reimburse to Landlord, upon demand, any
and all taxes payable by Landlord (other than net income taxes) whether or not
now customary or within the contemplation of the parties to this Lease: (a)
upon, allocable to, or measured by or on the gross or net rent payable under
this Lease, including without limitation any gross income tax or excise tax
levied by the State, any political subdivision thereof, or the Federal
Government with respect to the receipt of such rent; (b) upon or with respect to
the possession, leasing, operation, management, maintenance, alteration, repair,
use or occupancy of the Premises or any portion thereof, including any sales,
use or service tax imposed as a result thereof; (c) upon or measured by the
Tenant's gross receipts or payroll or the value of Tenant's equipment,
furniture, fixtures and other personal property of Tenant or leasehold
improvements, alterations or additions located in the Premises; or (d) upon this
transaction or any document to which Tenant is a party creating or transferring
any interest of Tenant in this Lease or the Premises. In addition to the
foregoing, Tenant agrees to pay, before delinquency, any and all taxes levied or
assessed against Tenant and which become payable during the term hereof upon
Tenant's equipment, furniture, fixtures and other personal property of Tenant
located in the Premises.
29. RESERVED
30. DEFINED TERMS AND HEADINGS. The Article headings shown in this Lease are for
convenience of reference and shall in no way define, increase, limit or describe
the scope or intent of any provision of this Lease. Any indemnification or
insurance of Landlord shall apply to and inure to the benefit of all the
following "Landlord Entities", being Landlord, Landlord's investment manager,
and the trustees, boards of directors, officers, general partners,
beneficiaries, stockholders, employees and agents of each of them. Any option
granted to Landlord shall also include or be exercisable by Landlord's trustee,
beneficiary, agents and employees, as the case may be. In any case where this
Lease is signed by more than one person, the obligations under this Lease shall
be joint and several. The terms "Tenant" and "Landlord" or any pronoun used in
place thereof shall indicate and include the masculine or feminine, the singular
or plural number, individuals, firms or corporations, and their and each of
their respective successors, executors, administrators and permitted assigns,
according to the context hereof. The term "rentable area" shall mean the
rentable area of the Premises or the Building as calculated by the Landlord on
the basis of the plans and specifications of the Building. Tenant hereby accepts
and agrees to be bound by the figures for the rentable square footage of the
Premises and Tenant's Proportionate Share shown on the Reference Pages; however,
Landlord may adjust either or both figures if there is manifest error, addition
or subtraction to the Building or any business park or complex of which the
Building is a part, remeasurement or other circumstance reasonably justifying
adjustment. The term "Building" refers to the structure in which the Premises
are located and the common areas (parking lots, sidewalks, landscaping, etc.)
appurtenant thereto. If the Building is part of a larger complex of structures,
the term "Building" may include the entire complex, where appropriate (such as
shared Expenses or Taxes) and subject to Landlord's reasonable discretion.
31. TENANT'S AUTHORITY. If Tenant signs as a corporation, partnership, trust or
other legal entity each of the persons executing this Lease on behalf of Tenant
represents and warrants that Tenant has been and is qualified to do business in
the state in which the Building is located, that the entity has full right and
authority to enter into this Lease, and that all persons signing on behalf of
the entity were authorized to do so by appropriate actions. If requested by
Landlord, Tenant agrees to deliver to Landlord, simultaneously with the delivery
of this Lease, a corporate resolution, proof of due authorization by partners,
opinion of counsel or other appropriate documentation reasonably acceptable to
Landlord evidencing the due authorization of Tenant to enter into this Lease.
32. CREDIT REPORTS. Tenant hereby authorizes Landlord to obtain one or more
credit reports on Tenant at any time, and shall execute such further
authorizations as Landlord may reasonably require in order to obtain a credit
report.
33. COMMISSIONS. Each of the parties represents and warrants to the other that
it has not dealt with any broker or finder in connection with this Lease, except
as described on the Reference Pages.
34. TIME AND APPLICABLE LAW. Time is of the essence of this Lease and all of its
provisions. This Lease shall in all respects be governed by the laws of the
state in which the Building is located.
35. SUCCESSORS AND ASSIGNS. Subject to the provisions of Article 9, the terms,
covenants and conditions contained in this Lease shall be binding upon and inure
to the benefit of the heirs, successors, executors, administrators and assigns
of the parties to this Lease.
36. ENTIRE AGREEMENT. This Lease, together with its exhibits, contains all
agreements of the parties to this Lease and supersedes any previous
negotiations. There have been no representations made by the Landlord or any of
its representatives or understandings made between the parties other than those
set forth in this Lease and its exhibits. This Lease may not be modified except
by a written instrument duly executed by the parties to this Lease.
37. EXAMINATION NOT OPTION. Submission of this Lease shall not be deemed to be a
reservation of the Premises. Landlord shall not be bound by this Lease until it
has received a copy of this Lease duly executed by Tenant and has delivered to
Tenant a copy of this Lease duly executed by Landlord, and until such delivery
Landlord reserves the right to exhibit and lease the Premises to other
prospective tenants. Notwithstanding anything contained in this Lease to the
contrary, Landlord may withhold delivery of possession of the Premises from
Tenant until such time as Tenant has paid to Landlord any security deposit
required by Article 5, the first month's rent as set forth in Article 3 and any
sum owed pursuant to this Lease.
38. RECORDATION. Tenant shall not record or register this Lease or a short form
memorandum hereof without the prior written consent of Landlord, and then shall
pay all charges and taxes incident such recording or registration.
39. LIMITATION OF LANDLORD'S LIABILITY. Redress for any claim against Landlord
under this Lease shall be limited to and enforceable only against and to the
extent of Landlord's interest in the Building. The obligations of Landlord under
this Lease are not intended to be and shall not be personally binding on, nor
shall any resort be had to the private properties of, any of its or its
investment manager's trustees, directors, officers, partners, beneficiaries,
members, stockholders, employees, or agents, and in no case shall Landlord be
liable to Tenant hereunder for any lost profits, damage to business, or any form
of special, indirect or consequential damages.
LANDLORD: TENANT:
RREEF AMERICA REIT CORP.J, a Maryland corporation XXXXXXX INDUSTRIES, INC., an Indiana corporation
By: RREEF Management Company, a Delaware corporation By:___________________________________
Its: Managing Agent Xxxx X. Xxxxxxx
Its: President
By:______________________________
Xxxxx Xxxxx
Its: District Manager Dated: August ______, 2004
Dated: August ______, 2004
EXHIBIT A - FLOOR PLAN DEPICTING THE PREMISES
attached to and made a part of Lease bearing the
Lease Reference Date of August 24, 0000, xxxxxxx
XXXXX XXXXXXX REIT CORP.J, a Maryland corporation, as Landlord, and
XXXXXXX INDUSTRIES, INC., an Indiana corporation, as Tenant
Exhibit A is intended only to show the general layout of the Premises as of the
beginning of the Term of this Lease. It does not in any way supersede any of
Landlord's rights set forth in Article 17 with respect to arrangements and/or
locations of public parts of the Building and changes in such arrangements
and/or locations. It is not to be scaled; any measurements or distances shown
should be taken as approximate.
EXHIBIT A-1 - SITE PLAN
attached to and made a part of Lease bearing the
Lease Reference Date of August 24, 0000, xxxxxxx
XXXXX XXXXXXX REIT CORP.J, a Maryland corporation, as Landlord, and
XXXXXXX INDUSTRIES, INC., an Indiana corporation, as Tenant
Exhibit A-1 is intended only to show the general layout of the Premises as of
the beginning of the Term of this Lease. It does not in any way supersede any of
Landlord's rights set forth in Article 17 with respect to arrangements and/or
locations of public parts of the Building and changes in such arrangements
and/or locations. It is not to be scaled; any measurements or distances shown
should be taken as approximate.
EXHIBIT B -- INITIAL ALTERATIONS
attached to and made a part of Lease bearing the
Lease Reference Date of August 24, 0000, xxxxxxx
XXXXX XXXXXXX REIT CORP.J, a Maryland corporation, as Landlord, and
XXXXXXX INDUSTRIES, INC., an Indiana corporation, as Tenant
1. Landlord shall apply to Union Pacific for rail service to the Premises
and shall pay the application fee in connection therewith, in the amount of Five
Hundred Dollars ($500.00). Upon approval of the application by Union Pacific,
Landlord and Tenant shall enter into a three-party agreement with Union Pacific
for the rail service. Tenant shall be responsible for any and all costs in
excess of the application fees in connection with obtaining the rail service,
including, without limitation, any additional cost incurred to expedite the
application if so requested by Tenant.
2. Landlord shall, at Landlord's sole cost and expense, using Building
standard materials and specifications, complete the following tenant
improvements in connection with Tenant's initial occupancy of the Premises: (i)
expand two (2) roll up doors (one on the east side and one on the west side of
the warehouse) to approximately sixteen feet (16'); and (ii) install a grade
level loading ramp on the west side of the Premises in the Dock High loading
area.
3. Except as provided in Paragraphs 1 and 2 above, Tenant acknowledges and
agrees that the Premises are being leased to Tenant in an "AS IS" condition,
without representation, warranty or covenant of or from Landlord and without any
obligation of Landlord to construct or pay for any other tenant improvements of
any kind or character whatsoever. Tenant acknowledges that Landlord has made no
representations or warranties, express or implied, concerning the tenant
improvements presently existing at, or the condition of, the Premises, and
Tenant further acknowledges that it has had adequate opportunity to inspect and
approve, and has adequately inspected and approved, the tenant improvements
presently existing at, and the condition of, the Premises.
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EXHIBIT C - COMMENCEMENT DATE MEMORANDUM
attached to and made a part of Lease bearing the
Lease Reference Date of August 24, 0000, xxxxxxx
XXXXX XXXXXXX REIT CORP.J, a Maryland corporation, as Landlord, and
XXXXXXX INDUSTRIES, INC., an Indiana corporation, as Tenant
INTENTIONALLY OMITTED
EXHIBIT D - RULES AND REGULATIONS
attached to and made a part of Lease bearing the
Lease Reference Date of August 24, 0000, xxxxxxx
XXXXX XXXXXXX REIT CORP.J, a Maryland corporation, as Landlord, and
XXXXXXX INDUSTRIES, INC., an Indiana corporation, as Tenant
1. No sign, placard, picture, advertisement, name or notice (collectively
referred to as "Signs") shall be installed or displayed on any part of the
outside of the Building without the prior written consent of the Landlord which
consent shall in Landlord's sole discretion. All approved Signs shall be
printed, painted, affixed or inscribed at Tenant's expense by a person or vendor
approved by Landlord and shall be removed by Tenant at Tenant's expense upon
vacating the Premises. Landlord shall have the right to remove any Sign
installed or displayed in violation of this rule at Tenant's expense and without
notice.
2. If Landlord objects in writing to any curtains, blinds, shades or
screens attached to or hung in or used in connection with any window or door of
the Premises or Building, Tenant shall immediately discontinue such use. No
awning shall be permitted on any part of the Premises. Tenant shall not place
anything or allow anything to be placed against or near any glass partitions or
doors or windows which may appear unsightly, in the opinion of Landlord, from
outside the Premises.
3. Tenant shall not alter any lock or other access device or install a new
or additional lock or access device or bolt on any door of its Premises without
the prior written consent of Landlord. Tenant, upon the termination of its
tenancy, shall deliver to Landlord the keys or other means of access to all
doors.
4. If Tenant requires telephone, data, burglar alarm or similar service,
the cost of purchasing, installing and maintaining such service shall be borne
solely by Tenant. No boring or cutting for wires will be allowed without the
prior written consent of Landlord. Landlord shall direct electricians as to
where and how telephone, data, and electrical wires are to be introduced or
installed. The location of burglar alarms, telephones, call boxes or other
office equipment affixed to the Premises shall be subject to the prior written
approval of Landlord.
5. Tenant shall not place a load upon any floor of its Premises, including
mezzanine area, if any, which exceeds the load per square foot that such floor
was designed to carry and that is allowed by law. Heavy objects shall stand on
such platforms as determined by Landlord to be necessary to properly distribute
the weight. Landlord will not be responsible for loss of or damage to any such
equipment or other property from any cause, and all damage done to the Building
by maintaining or moving such equipment or other property shall be repaired at
the expense of Tenant.
6. Tenant shall not install any radio or television antenna, satellite
dish, loudspeaker or other device on the roof or exterior walls of the Building
without Landlord's prior written consent which consent shall be in Landlord's
sole discretion.
7. Tenant shall not xxxx, drive nails, screw or drill into the partitions,
woodwork, plaster or drywall (except for pictures and general office uses) or in
any way deface the Premises or any part thereof. Tenant shall not affix any
floor covering to the floor of the Premises or paint or seal any floors in any
manner except as approved by Landlord. Tenant shall repair any damage resulting
from noncompliance with this rule.
8. No cooking shall be done or permitted on the Premises, except that
Underwriters' Laboratory approved microwave ovens or equipment for brewing
coffee, tea, hot chocolate and similar beverages shall be permitted, provided
that such equipment and use is in accordance with all applicable federal, state
and city laws, codes, ordinances, rules and regulations.
9. Tenant shall not use any hand trucks except those equipped with the
rubber tires and side guards, and may use such other material-handling equipment
as Landlord may approve. Tenant shall not bring any other vehicles of any kind
into the Building. Forklifts which operate on asphalt areas shall only use tires
that do not damage the asphalt.
10. Tenant shall not use the name of the Building or any photograph or
other likeness of the Building in connection with or in promoting or advertising
Tenant's business except that Tenant may include the Building name in Tenant's
address. Landlord shall have the right, exercisable without notice and without
liability to any tenant, to change the name and address of the Building.
11. All trash and refuse shall be contained in suitable receptacles at
locations approved by Landlord. Tenant shall not place in the trash receptacles
any personal trash or material that cannot be disposed of in the ordinary and
customary manner of removing such trash without violation of any law or
ordinance governing such disposal.
12. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governing authority.
13. Tenant assumes all responsibility for securing and protecting its
Premises and its contents including keeping doors locked and other means of
entry to the Premises closed.
14. Tenant shall not use any method of heating or air conditioning other
than that supplied by Landlord without Landlord's prior written consent.
15. No person shall go on the roof without Landlord's permission.
16. Tenant shall not permit any animals, other than seeing-eye dogs, to be
brought or kept in or about the Premises or any common area of the property.
17. Tenant shall not permit any motor vehicles to be washed or mechanical
work or maintenance of motor vehicles to be performed on any portion of the
Premises or parking lot.
18. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of any premises in the
Building. Landlord may waive any one or more of these Rules and Regulations for
the benefit of any tenant or tenants, and any such waiver by Landlord shall not
be construed as a waiver of such Rules and Regulations for any or all tenants.
19. Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for safety and
security, for care and cleanliness of the Building and for the preservation of
good order in and about the Building. Tenant agrees to abide by all such rules
and regulations herein stated and any additional rules and regulations which are
adopted. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and guests.
20. Any toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown into
them. The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose employees or
invitees, shall have caused it.
21. Tenant shall not permit smoking or carrying of lighted cigarettes or
cigars in areas reasonably designated by Landlord or any applicable governmental
agencies as non-smoking areas.
22. Reserved.
23. Canvassing, soliciting, distribution of handbills or any other written
material in the Building or Project Area is prohibited and each tenant shall
cooperate to prevent the same. No tenant shall solicit business from other
tenants or permit the sale of any goods or merchandise in the Building or
Project Area without the written consent of Landlord.
24. Any equipment belonging to Tenant which causes noise or vibration that
may be transmitted to the structure of the Building or to any space therein to
such a degree as to be objectionable to Landlord or to any tenants in the
Building shall be placed and maintained by Tenant, at Tenant's expense, on
vibration eliminators or other devices sufficient to eliminate the noise or
vibration.
25. Driveways, sidewalks, halls, passages, exits, entrances and stairways
("Access Areas") shall not be obstructed by tenants or used by tenants for any
purpose other than for ingress to and egress from their respective premises.
Access areas are not for the use of the general public and Landlord shall in all
cases retain the right to control and prevent access thereto by all persons
whose presence, in the judgement of Landlord, shall be prejudicial to the
safety, character, reputation and interests of the Building or its tenants.
26. Landlord reserves the right to designate the use of parking areas and
spaces. Tenant shall not park in visitor, reserved, or unauthorized parking
areas. Tenant and Tenant's guests shall park between designated parking lines
only and shall not park motor vehicles in those areas designated by Landlord for
loading and unloading. Vehicles in violation of the above shall be subject to
being towed at the vehicle owner's expense. Vehicles parked overnight without
prior written consent of the Landlord shall be deemed abandoned and shall be
subject to being towed at vehicle owner's expense. Tenant will from time to
time, upon the request of Landlord, supply Landlord with a list of license plate
numbers of vehicles owned or operated by its employees or agents.
27. No trucks, tractors or similar vehicles can be parked anywhere other
than in Tenant's own truck dock area. Tractor-trailers which must be unhooked or
parked with dolly wheels beyond the concrete loading areas must use steel plates
or wood blocks under the dolly wheels to prevent damage to the asphalt paving
surfaces. No parking or storing of such trailers will be permitted in the
parking areas or on streets adjacent thereto.
28. During periods of loading and unloading, Tenant shall not unreasonably
interfere with traffic flow and loading and unloading areas of other tenants.
All products, materials or goods must be stored within the Tenant's Premises and
not in any exterior areas, including, but not limited to, exterior dock
platforms, against the exterior of the Building, parking areas and driveway
areas. Tenant agrees to keep the exterior of the Premises clean and free of
nails, wood, pallets, packing materials, barrels and any other debris produced
from their operation.
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ADDENDUM TO LEASE
This is an Addendum to the Lease between TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA, for the benefit of its Separate Real Estate Account
("TIAA") (as "Landlord"), and XXXXXXX INDUSTRIES, INC., an Indiana corporation
(as "Tenant"). The basic Lease was originally negotiated between RREEF America
REIT CORP. J and Xxxxxxx Industries, Inc. The basic Lease has been executed by
Tenant but not Landlord. The Premises was sold and title thereto conveyed to
TIAA after execution by Tenant but prior to execution of the basic Lease by
Landlord. The terms of this Addendum shall be incorporated by referenced and
made a part of the Lease as a condition to TIAA executing the basic Lease. In
the event that terms of this Addendum modify the basic Lease or are in conflict
with the terms of the basic Lease, the terms of this Addendum shall amend,
supercede and prevail over the terms of the basic Lease.
Accordingly, the following provisions shall be incorporated into the basic
Lease:
a. The name TIAA shall be deemed to replace the name RREEF America REIT
CORP. J in each instance throughout the basic Lease. The term "Landlord" shall
mean and refer to TIAA.
b. With regard to Section 2 (captioned "Term") and Reference Pages of the
basic Lease, the "Commencement Date" of the Lease shall be:
On or about December 1, 2004.
The "Termination Date" shall be:
The date which is the last day of the thirty-sixth (36th) month
after the Commencement Date; provided, however, that if the
Commencement Date is a date other than the first day of a month,
the Expiration Date shall be the last day of the month which is
thirty-six (36) months after the month in which the Commencement
Date falls, unless extended or earlier terminated pursuant to
this Lease.
c. With regard to the Reference Pages of the basic Lease, the Landlord's
Address shall be:
TIAA - CREF Mortgage & Real Estate Division
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: TIAA Real Estate Account
and
CB Xxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxxxxxx Xxxx, #000
Xxxxxxx, Xxxxxxx 00000
Attention: Property Manager
d. With regard to the Reference Pages of the basic Lease, the Wire
Instructions and/or Address for Payment of Rent shall be:
TIAA-CREF
c/o CB Xxxxxxx Xxxxx, Inc.
X.X. Xxx 00000
Xxxxxxx, Xxxxxxxx 00000-0000
e. With regard to the Reference Pages and Section 3 of the basic Lease, the
Annual Rent and Monthly Installment of Rent shall be as follows:
Rentable Square Monthly Rent Monthly Installment
Period Footage Per Square Foot of Rent
Months 1 through 18 44,544 $0.28 $12,472.32
Months 19 through 36 44,544 $0.30 $13,363.20
f. Section 12 of the basic Lease captioned "Waiver of Subrogation" is
amended to read as follows: Tenant agrees to waive its right of recovery, and to
waive its right of subrogation against Landlord. Tenant, on its behalf and on
behalf of its insurers, further waives its right of recovery for loss of its
owned or leased property or property under its care, custody and control.
Tenant's commercial, general liability insurance shall be primary with respect
to any commercial, general liability insurance carried by Landlord.
g. Notices. Any notice required or permitted to be given hereunder shall be
in writing and may be given by personal service evidenced by a signed receipt or
sent by registered or certified mail, return receipt requested, addressed to
Tenant at the Premises or to Landlord at:
TIAA-CREF Mortgage and Real Estate Division
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: TIAA Real Estate Account
and:
CB Xxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxxxxxx Xxxx, #000
Xxxxxxx, Xxxxxxx 00000
Attention: Biltmore Commerce Center
Property Manager
or Landlord's then-current on-site property manager or at the address from time
to time established by Landlord and which shall be effective upon proof of
delivery. Either party may by notice to the other specify a different address
for notice purposes except that, upon Tenant's taking possession of the
Premises, the Premises shall constitute Tenant's address for notice purposes. A
copy of all notices to be given to Landlord hereunder shall be concurrently
transmitted by Tenant to such party hereafter designated by notice from Landlord
to Tenant. Any notices sent by Landlord regarding or relating to eviction
procedures, including without limitation three day notices, may be sent by
regular mail. Until further written notice from Landlord, Landlord's address for
remittance of rent shall be:
TIAA
c/o CB Xxxxxxx Xxxxx, Inc.
X.X. Xxx 00000
Xxxxxxx, Xxxxxxxx 00000-0000
With regard to the Reference Pages and Section 33 of the Lease, the Real Estate
Brokerage Commission shall be paid to CB Xxxxxxx Xxxxx, Inc. and Xxxxxx & Xxxxx.
h. Section 31 of the basic Lease captioned "Tenant's Authority" shall be
deleted in its entirety and the following shall be deemed inserted in its place:
31. Signing Authority. If Tenant is a corporation, partnership or limited
liability company, each individual executing this Lease on behalf of said entity
represents and warrants that he or she is duly authorized to execute and deliver
this Lease on behalf of said entity in accordance with: (i) if Tenant is a
corporation, a duly adopted resolution of the Board of Directors of said
corporation or in accordance with the by-laws of said corporation, (ii) if
Tenant is a partnership, the terms of the partnership agreement, and (iii) if
Tenant is a limited liability company, the terms of its operating agreement, and
that this Lease is binding upon said entity in accordance with its terms.
Concurrently with Tenant's execution of this Lease, Tenant shall provide to
Landlord a copy of: (i) if Tenant is a corporation, such resolution of the Board
of Directors or Bylaws authorizing the execution of this Lease on behalf of such
corporation, which copy of resolution shall be duly certified by the secretary
or an assistant secretary of the corporation to be a true copy of a resolution
or Bylaws duly adopted by the Board of Directors of said corporation in a form
reasonably acceptable to Landlord, (ii) if Tenant is a partnership, a copy of
the provisions of the partnership agreement granting the requisite authority to
each individual executing this Lease on behalf of said partnership, and (iii) if
Tenant is a limited liability company, a copy of the provisions of its operating
agreement granting the requisite authority to each individual executing this
Lease on behalf of said limited liability company. In the event Tenant fails to
comply with the requirements set forth in this Section g, then each individual
executing this Lease shall be personally liable for all of Tenant's obligations
in this Lease.
i. Identification of Tenant.
(i) If Tenant constitutes more than one person or entity, (A) each of
them shall be jointly and severally liable for the keeping, observing and
performing of all of the terms, covenants, conditions and provisions of this
Lease to be kept, observed and performed by Tenant, (B) the term "Tenant" as
used in this Lease shall mean and include each of them jointly and severally,
and (C) the act of or notice from, or notice or refund to, or the signature of,
any one or more of them, with respect to the tenancy of this Lease, including,
but not limited to, any renewal, extension, expiration, termination or
modification, of this Lease, shall be binding upon each and all of the persons
or entities executing this Lease as Tenant with the same force and effect as if
each and all of them had so acted or so given or received such notice or refund
or so signed.
(ii) If Tenant is a partnership (or is comprised of two or more
persons, individually and as co-partners of a partnership) or if Tenant's
interest in this Lease shall be assigned to a partnership (or to two or more
persons, individually and as co-partners of a partnership) pursuant to Section j
hereof (any such partnership and such persons hereinafter referred to in this
Section h as "Partnership Tenant"), the following provisions of this Lease shall
apply to such Partnership Tenant:
(A) The liability of each of the parties comprising Partnership
Tenant shall be joint and several.
(B) Each of the parties comprising Partnership Tenant hereby
consents in advance to, and agrees to be bound by, any written instrument
which may hereafter be executed, changing, modifying or discharging this
Lease, in whole or in part, or surrendering all or any part of the Premises
to the Landlord, and by notices, demands, requests or other communication
which may hereafter be given, by the individual or individuals authorized
to execute this Lease on behalf of Partnership Tenant under Section g
above.
(C) Any bills, statements, notices, demands, requests or other
communications given or rendered to Partnership Tenant or to any of the
parties comprising Partnership Tenant shall be deemed given or rendered to
Partnership Tenant and to all such parties and shall be binding upon
Partnership Tenant and all such parties.
(D) If Partnership Tenant admits new partners, all of such new
partners shall, by their admission to Partnership Tenant, be deemed to have
assumed performance of all of the terms, covenants and conditions of this
Lease on Tenant's part to be observed and performed.
(E) Partnership Tenant shall give prompt notice to Landlord of
the admission of any such new partners, and, upon demand of Landlord, shall
cause each such new partner to execute and deliver to Landlord an agreement
in form satisfactory to Landlord, wherein each such new partner shall
assume performance of all of the terms, covenants and conditions of this
Lease on Partnership Tenant's part to be observed and performed (but
neither Landlord's failure to request any such agreement nor the failure of
any such new partner to execute or deliver any such agreement to Landlord
shall terminate the provisions of clause (D) of this Section h or relieve
any such new partner of its obligations thereunder).
j. Tenant Representation. Tenant represents and warrants to Landlord that:
(i) Tenant does not directly or indirectly control Teachers Insurance and
Annuity Association of America ("TIAA") or TIAA Realty, Inc. ("TIAA Realty") and
is not directly or indirectly controlled by or under common control with TIAA or
TIAA Realty; (ii) neither Tenant nor any principal of Tenant is an officer,
director or employee of TIAA or TIAA Realty, or any subsidiary or affiliate
thereof; and (iii) Tenant is not a partnership in which TIAA or TIAA Realty, or
any subsidiary or affiliate thereof, is a ten percent (10%) or more (directly or
indirectly in capital or profits) partner.
k. Unrelated Business Income.
(i) Landlord shall have the right at any time and from time to time to
unilaterally amend the provisions of this Lease, if Landlord is advised by its
counsel that all or any portion of the monies paid by Tenant to Landlord
hereunder are, or may be deemed to be, unrelated business income within the
meaning of the United States Internal Revenue Code or regulations issued
thereunder, and Tenant agrees that it will execute all documents or instruments
necessary to effect such amendment or amendments, provided that no such
amendment shall result in Tenant having to pay in the aggregate more money on
account of its occupancy of the Premises under the terms of this Lease, as so
amended, and provided further than no such amendment shall result in Tenant
receiving less services than it is presently entitled to receive under this
Lease, or services of a lesser quality.
(ii) Any services which Landlord is required to furnish pursuant to
the provisions of this Lease may, at Landlord's option, be furnished from time
to time, in whole or in part, by employees of Landlord or Property Manager or
its employees or by one or more third persons hired by Landlord or the Property
Manager. Tenant agrees that upon Landlord's written request it will enter into
direct agreements with the Property Manager or other parties designated by
Landlord for the furnishing of any such services required to be furnished by
Landlord hereunder, in form and content approved by Landlord, provided however
that no such contract shall result in Tenant having to pay in the aggregate more
money on account of its occupancy of the Premises under the terms of this Lease,
and provided further that no such contract shall result in Tenant receiving less
services than it is presently entitled to receive under this Lease, or services
of a lesser quality.
l. Exculpatory Provisions. It is expressly understood and agreed by and
between the parties hereto, anything herein to the contrary notwithstanding,
that each and all of the representations, warranties, covenants, undertakings
and agreements herein made on the part of any Landlord while in form purporting
to be the representations, warranties, covenants, undertakings and agreements of
such Landlord are nevertheless each and every one of them made and intended, not
as personal representations, warranties, covenants, undertakings and agreements
by such Landlord, or for the purpose or with the intention of binding such
Landlord personally, but are made and intended for the purpose only of
subjecting such Landlord's interest in the Premises and the Project to the terms
of this Lease and for no other purpose whatsoever, and in case of default
hereunder by such Landlord (or default through, under or by any of the
representatives, servants, employees or representatives of such Landlord),
Tenant shall look solely to the interests of such Landlord in the Premises and
the Project; that no Landlord shall have any personal liability to pay any
indebtedness accruing hereunder or to perform any covenant, either express or
implied, herein contained; that no personal liability or personal responsibility
of any sort is assumed by, nor shall at any time be asserted or enforceable
against, Landlord, or Landlord's Property Manager, employees or representatives,
on account of this Lease or on account of any representation, warranty,
covenant, undertaking or agreement of Landlord in this Lease contained, either
express or implied. All such personal liability, if any, is hereby expressly
waived and released by Tenant and by all persons claiming by, through or under
Tenant.
Tenant further acknowledges and agrees that the Project is an asset held in
Landlord's separate Real Estate Account (the "Separate Account") and that the
assets and liabilities of the Separate Account are segregated from the assets
and liabilities of Landlord's general account and all other separate accounts of
Landlord (existing either now or in the future) other than the Separate Account.
Without limiting the generality of the preceding provisions of this Section k,
Tenant agrees that the assets of Landlord's general account and the assets of
any separate account of Landlord other than the Separate Account (and then only
to the extent of Landlord's interest in the Project as described above) will not
be charged with any liabilities arising under the terms of this Lease and will
not be available in order to satisfy Landlord's obligations hereunder.
m. Railroad Track and Service. Tenant has been advised and understands that
there is no railroad service available to the Premises. In the event that Union
Pacific Railroad Company should make service available to the Premises that
Landlord will, upon Tenant's request and at Tenant's sole cost and expense,
cooperate and use reasonable efforts to enter into an Industry Track Contract
Articles of Agreement (which includes Exhibits "B" and "C" thereto) and Use
Agreement substantially in the forms attached hereto and referenced as Exhibits
"E" and "F" to the Lease in connection with the railroad tracks on and service
to the Premises. Tenant shall execute the Use Agreement. In the event such
Agreements are entered into, Tenant shall timely and diligently perform all of
the duties and obligations of Industry under the Industry Track Contract
Articles of Agreement as though Tenant was a direct party to such Agreement, and
timely and diligently perform its duties and obligations under the Use
Agreement. Tenant shall pay all costs and expenses required of Industry under
such Agreements or otherwise related to the maintenance, operation or use of the
railroad track. Tenant shall indemnify, defend and hold Landlord harmless from
all expenses, damage, loss, injury or any other liability arising out of or
related to the Industry Tract Contract Articles of Agreement, Use Agreement or
the maintenance, operation or use of the railroad track or railroad service. In
addition to the insurance required under the Lease Tenant shall satisfy all
requirements for insurance coverage under the Industry Track Contract Articles
of Agreement, Use Agreement and provide that Landlord shall be an additional
insured under such policy(ies) of insurance. A breach or default by Tenant under
the Industry Track Contract Articles of Agreement or Use Agreement shall be an
Event of Default under the Lease.
n. Truck Storage. Tenant shall not park trucks or other vehicles (excluding
forklifts, "cherry pickers" and loading equipment) in the building on the
Premises if it is prohibited under any law, ordinance, regulation or Landlord's
insurance policy or causes increases the premium charged for any of Landlord's
insurance policies.
o. Exhibit "B" captioned Initial Alterations shall include the following
additional provisions:
(i) The Freeport Center Proposal from Xxxxx Design Associates dated
September 8, 2004 is hereby incorporated by reference (Exhibit B-1). Landlord
and Tenant shall approve final plans and/or working drawings, specifications and
cost bids. Neither Landlord or Tenant shall unreasonably withhold or delay such
approvals.
(ii) Section 2 of Exhibit "B" is hereby modified to limit the amount
Landlord shall be obligated to pay toward the construction of the tenant
improvements to seventy-five thousand dollars ($75,000.00) referenced to herein
as the "Improvement Allowance". Tenant shall approve in advance and in writing
all changes or expenditures for tenant improvements exceeding the Improvement
Allowance. Tenant shall pay all costs for tenant improvements in excess of the
Improvement Allowance as additional rent within ten (10) days after Tenant's
receipt of an invoice therefore.
(iii) Landlord hereby assigns to Tenant all warranties and guaranties
by the contractor who constructs the tenant improvements or manufacturer of
devises, components or materials incorporated into the tenant improvements and
Tenant hereby waives all claims against Landlord relating to or arising out of
the construction of the tenant improvements.
(iv) Contractor shall be retained by Landlord to construct the tenant
improvements in accordance with the attached proposal and approved plans.
(v) Tenant shall cooperate with Landlord and the Contractor in
connection with the design and construction of tenant improvements.
(vi) Tenant acknowledges the "concerns and challenges" outlined on
Exhibit B-1 and that alterations in the tenant improvements may be required to
resolve or comply with government laws, ordinances and regulations and that
resolution to compliance may result in delays in Substantial Completion and
increase costs of the tenant improvements.
(vii) Substantial Completion. For purposes of this Lease, "SUBSTANTIAL
COMPLETION" of the tenant improvements in the Premises shall occur upon the
completion of construction of the tenant improvements in the Premises pursuant
to the approved plans, with the exception of any punch list items, as determined
by Landlord, in Landlord's reasonable discretion.
(a) Delay of the Substantial Completion of the Premises. Except
as provided in this Section vii(a), the Commencement Date shall occur as set
forth in the Lease. If there shall be a delay or there are delays in the
Substantial Completion of the Improvements in the Premises as a result of the
following (collectively, "TENANT DELAYS"):
(1) Tenant's failure to timely approve any matter requiring
Tenant's approval;
(2) A breach by Tenant of the Lease;
(3) Tenant's request for changes in the approved plans or
working drawings;
(4) Changes in any of the approved plans, working drawings
because the same do not comply with applicable laws;
(5) Necessary materials, components, finishes or
improvements which are not available in a commercially reasonable time given the
anticipated date of Substantial Completion of the tenant improvements;
(6) Delays attributed to the presence of Tenant, Tenant's
agents, contractors, employees or Tenant's personal property in the Premises;
(7) Changes to the base, shell and core work of the project
required by the approved plans or any changes thereto;
(8) Any other acts or omissions of Tenant, or its agents, or
employees; then, notwithstanding anything to the contrary set forth in the Lease
and regardless of the actual date of the Substantial Completion of the tenant
improvements in the Premises, the date of Substantial Completion thereof shall
be deemed to be the date that Substantial Completion would have occurred if no
Tenant Delay or Delays, as set forth above, had occurred;
(viii) Tenant's Representative. Tenant has designated _____________ as
its sole representative with respect to the matters relating to construction of
tenant improvements, who, until further notice to Landlord, shall have full
authority and responsibility to act on behalf of the Tenant relating to
construction of tenant improvements.
(ix) Initial Alterations and Improvements. Tenant understands that the
Initial Alterations and Improvements will be constructed during Tenant's
occupancy of the Premises and shall not delay the Commencement Date or date upon
which payment of Rent shall commence. Landlord shall not be liable for any
interference with Tenant's business or loss or damage to Tenant's property
caused by or arising out of the construction of the Initial Alterations and
Improvements.
(x) Paragraph 1 of Exhibit "B" relating to the railroad service shall
be deleted and Exhibit B-1 is added as attached.
"LANDLORD"
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA, for the benefit of its
Separate Real Estate Account
By: /S/Xxxxx X. Xxxx
--------------------------------------------
Xxxxx X. Xxxx, Associate Director
[Printed Name and Title]
"TENANT"
XXXXXXX INDUSTRIES, INC., an Indiana corporation
By: /S/Xxxx X. Xxxxxx
--------------------------------------------
Xxxx X. Xxxxxx, Executive VP-Finance
[Printed Name and Title]
