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EXHIBIT 10.16
FIRST AMENDMENT TO A LEASE OF THE
REAL ESTATE LOCATED AT
0000 XXXX XXXXXXX XXXXXX, XXXXXXXXX, XXXXXXXX
BETWEEN
PACKAGING RESOURCES INCORPORATED, LESSOR
AND
TAMOR PLASTICS CORP., LESSEE,
SAID LEASE BEING DATED FEBRUARY 2, 1995
AND RECORDED WITH THE PIKE COUNTY RECORDER'S OFFICE
ON MARCH 29, 1995 AT BOOK 324, PAGE 2447
NOW THEREFORE, in consideration of the following mutual covenants, the
parties hereto agree to add the following Article XXV to the aforementioned
lease:
ARTICLE XXV
OPTION TO PURCHASE
25.1 Option to Purchase Demised Premises.
Tenant shall have the option to purchase the Demised Premises (the
"Option") as hereinafter provided, subject to the conditions and limitations
contained in this Paragraph 25:
(a) Option Period and Option Price. The option period shall commence on
March 1, 1997 ("Commencement Date") and will continue for a period
of eighteen (18) months ("Option Period"). Tenant shall have the
option to purchase the Demised Premises at an option price ("Option
Price") equal to One Million Five Hundred Thousand and 00/100
Dollars ($1,500,000.00), subject to the following reductions, if
any:
(i) if the Option is exercised within six (6) months of the
Commencement Date of the Option Period, then the Option Price
shall be reduced by thirty (30%) percent of the total amount of
all Basic Rent actually paid by Tenant to Landlord from the
Commencement Date of the option period to the date of Closing;
(ii) if the Option is exercised after six (6) months of the
Commencement Date of the Option Period, but before one (1) year
from the Commencement Date of the Option Period, then the
Option Price shall be reduced by ten (10%) percent of the
total amount of all Basic Rent actually paid by Tenant to
Landlord from the Commencement Date of the option period to
the date of Closing; and
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(iii) if the Option is exercised more than one (1) year after the
Commencement Date of the Option Period, then there shall be no
reduction to the Option Price.
(b) Tenant may only exercise the Option during the Option Period if this
Lease Agreement is in full force and effect at the time Tenant
notifies Landlord of the exercise of the Option and at the time set
for closing of the Option. Tenant may only exercise the Option and
proceed to close the same strictly in accordance with the terms and
conditions hereof, and said purchase shall be at the Option Price, as
applicable, and in accordance with the terms and conditions herein
contained.
(c) Tenant shall exercise the Option, if at all, by delivering to Landlord
written notice sixty (60) days prior to the date Tenant wishes to
close upon the Option (the "Notice"), accompanied by its certified or
cashier's check in the sum of One Hundred Thousand and 00/100
($100,000.00) Dollars ("Xxxxxxx Money"). Except as expressly provided
in Paragraphs 25(d) and (n) hereof, the Xxxxxxx Money shall be
non-refundable in all events whether or not the closing of the Option
shall have occurred.
(d) Landlord shall, within thirty (30) days after receipt of the Xxxxxxx
Money, furnish to Tenant a commitment for an owner's policy of title
insurance (the "Commitment") issued by a title insurance company
selected by Landlord (the "Title Insurer") showing title to the
Demised Premises in Landlord, subject only to the exceptions described
in subparagraph (e) in this Paragraph 25 hereof (the "Permitted
Exceptions"). Tenant shall pay all costs of issuance of the Commitment
and any policy issued in connection therewith. Tenant shall be
allowed ten (10) days after receipt of the Commitment and all
underlying title documents for examination and the making of
objections to any title matter that is not a Permitted Except (the
"Unpermitted Exceptions"). Said objections shall be made in writing
or deemed to be waived. If any objections are so made, Landlord shall
be allowed thirty (30) days to cause the Title Insurer to remove or
endorse over any Unpermitted Exception.
If any Unpermitted Exceptions are not removed or endorsed over with
thirty (30) days from the date of written objection thereto, as above
provided, any agreement of purchase resulting from the exercise of the
Option shall, at the written election of the Tenant, be null and
void. In such event neither party shall be liable for damages to the
other party, Landlord shall return to Tenant the Xxxxxxx Money, and
this Lease Agreement shall continue in full force and effect for the
balance of the Term, if any shall remain. Tenant shall exercise such
election by declaring any such resulting purchase agreement null and
void by delivering to Landlord a written notice to such effect within
three (3) days after the expiration of the aforesaid thirty (30) day
period. Failure by Tenant to deliver to Landlord, in
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writing, the aforesaid election to declare the resulting purchase agreement
null and void within the time period prescribed herein shall constitute an
election by Tenant to take title to the Demised Premises as it then is
(with the right to deduct from the Option Price liens and encumbrances of a
definite and ascertainable amount if created by Landlord or any party
claiming by, through or under Landlord, other than Tenant).
If the title to the Demised Premises is without objections, or be so made
within thirty (30) days after the date of written objection thereto, and
Tenant shall thereafter default in its obligation to close the Option and
pay the balance of the Option Price, then Landlord may terminate the
exercise of the Option and any resulting purchase agreement, and retain all
monies paid on the exercise of the Option, including, without limitation,
the Xxxxxxx Money, but this provision shall not deprive Landlord the right
of claim for damages or enforcing specific performance and, at Landlord's
election, such default shall constitute an event of default under this
Lease Agreement.
(e) Subject to the performance by Tenant, Landlord agrees to execute and
deliver a Special Warranty Deed, conveying title to the Demised Premises to
Tenant or as Tenant may designate, subject only to the following
exceptions:
(i) Buildings, zoning and subdivision laws, ordinances and other local,
State and Federal laws, rules, ordinances and regulations, so long
as they do not materially interfere with the current use of the
premises;
(ii) Covenants, conditions and restrictions of record; private, public
and utility easements and streets, road and highway rights of ways,
if any; party wall agreements, if any; special taxes or assessments
for improvements not yet completed; installments not due at the date
hereof of any special tax or assessment for improvements heretofore
completed; and general taxes not yet due and payable; so long as
they do not materially interfere with the current use of the
premises;
(iii) Rights of Tenant, assignees of Tenant, subtenants of Tenant, and
their successors and assigns, if any;
(iv) Annual installments of special assessments levied subsequent to
closing of the Option;
(v) Matters created or caused by Tenant;
(vi) Other taxes and charges which are the obligation of Tenant under
this Lease Agreement;
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(vii) Such other reasonable easements and restrictions as may be
placed by Landlord upon the Demised Premises in connection with
the ownership or development of the Demised Premises or
reasonably requested by local governmental agencies and
divisions thereof, so long as they do not materially interfere
with the current use of the premises;
(viii) Such other easements, restrictions or such other title matters
and exceptions, as may be consented to by Tenant in a separate
writing;
(ix) Any mortgage assumed by Tenant or which Tenant shall take title
subject to, by consent; and
Tenant shall be required to assume any obligation of Landlord (as owner
of Demised Premises) under those matters listed in (i) through (ix)
above and, with respect to any mortgage so assumed, Tenant shall
indemnify and hold harmless Landlord from and against any further
liability in respect to such mortgage or collateral mortgage documents
by assumption agreement satisfactory to Landlord.
If Tenant shall have performed its obligations hereunder and Landlord
shall default in its obligations to convey the Demised Premises to
Tenant, Tenant shall be entitled to enforce specific performance of the
Option, as its sole and exclusive remedy.
(f) Closing of the Option shall occur within forty-five (45) days from
receipt by Landlord of the Xxxxxxx Money or such other date as
may be mutually agreed upon in writing by Landlord and Tenant,
or as such date may be extended by reason of delays occasioned by
operation of Paragraph 25(d) hereof. All rents and other charges payable
by Tenant in respect to the Demised Premises and all other obligations
of Tenant hereunder accruing prior to closing obligations of Tenant
hereunder accruing prior to closing of the Option shall be paid,
performed and complied with until such time as closing of the Option
shall occur and the full Option Price has been paid to Landlord.
Notwithstanding any provision to the contrary herein contained, if the
date of closing of the Option shall extend beyond the term of the Lease,
the Lease and all rights and obligations as therein contained shall be
extended to the date of closing of the Option on the same terms as set
forth in the Lease.
(g) At the Option Closing, Landlord shall deliver or cause to be delivered
to Tenant the following items, duly executed and acknowledged where
necessary.
(i) Special Warranty Deed. A special warranty deed conveying to
Tenant fee simple title to the Demised Premises, subject only
to the Permitted Exceptions (defined in numbered subparagraph
(e) herein);
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(ii) Affidavit of Title. An affidavit of title of Landlord, in
customary form, dated as of the date of Closing, subject only to
the Permitted Exceptions, certifying that since the date of the
title commitment Landlord has not done or suffered to be done
anything that could in any way affect the title to the Demised
Premises other than by, through or under Tenant, and no
proceedings have been filed by or against Landlord which would
affect the Landlord's title to the Demised Premises;
(iii) Xxxx of Sale. A xxxx of sale and assignment with a special
warranty of title conveying all of Landlord's right, title and
interest in and to all the fixtures attached or appurtenant to
or used in connection with the Demised Premises, including
without limitation, all plumbing, lighting, electrical,
sprinkler, heating, ventilating and air conditioning systems,
free and clear of all liens and encumbrances except the
Permitted Exceptions, and listed in Exhibits B & C attached
hereto and incorporated as a part of this Lease and Amendment.
(iv) Additional Documents. Such additional documents as may be
reasonably required by Tenant to consummate the sale of the
Demised Premises to Tenant.
(h) At the Option Closing, Tenant shall deliver to Landlord the Option
Price required under subparagraph 25(a) hereof, any unpaid Basic Rent,
or Additional Rent or other charges due under this Lease Agreement, and
such additional documents as may be reasonably required by Landlord to
consummate the sale of the Demised Premises.
Closing shall occur through an escrow with the escrow department of the
Title Company ("Escrowee"), in accordance with the general provisions of the
Escrowee's usual form of deed and money escrow agreement, with special
provisions inserted in the escrow agreement as may be required to conform to
this Paragraph 25 in this Lease Agreement, subject to the terms of a separate
money lender's escrow, if any. The escrow agreement shall provide that Tenant
shall not be required to deposit funds in the escrow until the Escrowee is
prepared to disburse such funds and insure Tenant's title as required herein.
The attorneys for both Landlord and Tenant are authorized to sign the escrow
agreement. Upon the creation of such escrow, payment of the applicable Purchase
Price and delivery of the deed shall be made through the escrow. The cost of
the deed and money escrow shall be divided equally between Landlord and Tenant.
The terms and provisions of this Paragraph 25 of this Lease Agreement shall not
be merged into nor in any manner superseded by the escrow agreement.
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The Option Price shall be paid to Landlord by Tenant by wire transfer
of "good funds" on the date of closing of the Option, subject to a
credit in the amount of the Xxxxxxx Money.
The parties agree that any adjustments for rent shall be made as of the
date of closing of the Option. The parties further agree that all
closing costs and other costs arising from or related to Tenant's
exercise of the Option including, without limitation, title and survey
charges, charges for the state, county and local transfer taxes,
recording fees, any lender consent or related transfer or prepayment
fees, and Tenant's attorneys' fees shall be paid by Tenant.
(i) Time shall be of the essence in the performance of the terms and
conditions of the Option. The Option is appurtenant to Tenant's interest
in this Lease Agreement and may not be assigned separately therefrom.
Tenant's rights to the Option shall lapse upon the termination of the
Lease Agreement without further act of the parties. In the event of such
lapse, Landlord shall be entitled to execute and record an instrument
with the Office of the Recorder of Deeds of Pike County, Missouri,
evidencing the Option termination.
(j) In the event of a condemnation subsequent to exercise of the Option,
the Option shall terminate and all awards resulting from any
condemnation proceedings shall be the property of Landlord. Tenant
hereby assigning its interest thereon to the Landlord and Tenant hereby
waiving any right Tenant has now or may have under present or future
applicable laws.
(k) At closing of the Option, Tenant shall deliver to Landlord and Landlord
shall deliver to Tenant an agreement cancelling and terminating this
Lease Agreement and releasing each party from its obligations to the
other party under this Lease accruing subsequent to Closing. Further, at
Closing, Tenant shall deliver to Landlord the cash sums required in this
Paragraph 25 and such other documents and agreements, in recordable
form if required, and otherwise in form and content acceptable to
Landlord, as may be required for closing of the Option.
(l) Tenant shall indemnify, defend and hold Landlord harmless from the
claim of any broker or agent claiming by, through or under Tenant
arising out of exercise of the Option. Landlord shall indemnify, defend
and hold Tenant harmless from the claim of any broker or agent claiming
by, through or under Landlord arising out of exercise of the Option.
(m) Tenant's, purchase of the Demised Premises shall be "as-is, where-is",
Tenant acknowledging that it has thoroughly inspected and examined the
Demised Premises and upon closing of the Option will purchase the
Demised Premises "as-is, where-is", entirely on the basis of Tenant's
own evaluation and knowledge and
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not based upon any written or oral representations, warranties,
understandings, promises or agreements, expressed or implied,
of Landlord or its employees, representatives or agents.
(n) Anything herein to the contrary notwithstanding, the Option
shall be subject to and contingent upon (i) Landlord obtaining
from its lender(s) a release of the lien of any mortgage, trust
deed or similar debt instrument encumbering the Demised
Premises, and (ii) such additional or modified terms and
conditions as Landlord's lender may request. In the event
Landlord shall not receive such release and consent, Landlord
shall so notify Tenant and any resulting purchase agreement
shall be null and void. In such event neither party shall be
liable for damage to the other party, Landlord shall return
the Xxxxxxx Money to Tenant, and the Lease Agreement shall
continue in full force and effect for the remaining portion of
the Lease Term; provided, however, should Landlord not obtain
said Release of Lien, it alone shall be fully responsible for
its own cost and Tenant's connected with the attempted
exercise of this Option.
This Agreement and its Amendments contains the following exhibits:
Exhibit B - Items to be included as "fixtures" in the
Louisiana, MO plant
Exhibit C - Equipment and items left for lease to
Tamor In Louisiana, MO plant
IN WITNESS WHEREOF, each of the parties hereto have caused this First
Amendment to a Lease of the Real Estate Located at 0000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx, between Packaging Resources Incorporation, Lessor, and
Tamor Plastics Corp., Lessee, (said lease being dated February 2, 1995 and
recorded with the Pike County Recorder's Office on March 29, 1995 at Book 324,
Page 2447), to be executed this ____ day of Nov., 1996.
LANDLORD: TENANT:
PACKAGING RESOURCES INCORPORATED, TAMOR PLASTICS CORP.,
a Delaware corporation a Massachusetts Corporation
By: /s/ By: /s/
----------------------------- -----------------------------
Its: Vice President Its: President
------------------------ ------------------------
By: /s/ By:
----------------------------- ------------------------------
Its: Its: Treasurer
------------------------- --------------------------
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STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
The foregoing instrument was acknowledged before me this 1st day
of November, 1996, by Xxxxx X. Xxxxxxxxx and by ---------- of PACKAGING
RESOURCES INCORPORATED, a Delaware corporation, on behalf of the corporation and
for the uses and purposes therein contained.
-------------------------------
Xxxxxxx X. Xxxxx
"OFFICIAL SEAL" ------------------------------
XXXXXXX X. XXXXX Notary Public
NOTARY PUBLIC, STATE OF ILLINOIS My commission expires: 4-20-98
MY COMMISSION EXPIRES 4/20/98
-------------------------------
STATE OF MASSACHUSETTS )
) SS
COUNTY OF WORCESTER )
The foregoing instrument was acknowledged before me this 1st day
of November, 1996 by Xxxxxx Xxxxxxx, President and Xxxxxxx X. Xxxxx, Treasurer
of TAMOR PLASTICS CORP., a Massachusetts corporation, on behalf of the
corporation and for the uses and purposes therein contained.
Xxxx X. Xxxxxxx
---------------------------------
Notary Public - Xxxx X. Xxxxxxx
My commission expires: 10-24-97
[NOTARY PUBLIC SEAL]
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---------
PACKAGING
---------
RESOURCES EXHIBIT B
--------- ---------
Items to be included as "fixtures" in the Louisiana, MO
plant offering.
ASSET NO. DESCRIPTION
--------- -----------
2646 Xxxxxxxx Vac. Pump
2647 Xxxxxxxx Vac. Pump
2769 German Vac. Pump
2778 Xxxxxxxx Vac. Pump/Surge Bin
2786 Xxxxxxxx Vac. Pump
2788 Xxxxxxxx Vac. Pump
2789 Xxxxxxxx Vac. Pump
2790 Xxxxxx Vac. Pump
2791 Xxxxxxxx Vac. Pump
2792 Xxxxxxxx Surge Pump
2793 Xxxxxxxx Surge Pump
2809 Vac. Pump
2857 GD Air Compressor
0000 XX Xxx Xxxxxxxxxx
0000 Xxxxxxxxx Air Dryer
2961 Carrier Chiller
2962 Carrier Chiller
2963 Chill Water System
2964 Carrier Chiller
2965 Carrier Chiller
2966 210,000# Silo
2967 210,000# Silo
2968 210,000# Silo
2969 210,000# Silo
2970 210,000# Silo
2971 210,000# Silo
2972 210,000# Silo
2973 IMCS Silo
2974 IMCS Silo
2975 IMCS Silo
2976 IMCS Silo
2977 Transformer
2978 Transformer
2979 Transformer
4-Small Silos for Surge Bins
2-15HP Pumps
5-7 1/2HP Pumps
2627 Air Conditioner
2618 A/C
2639 A/C
2640 A/C
2641 A/C
2642 A/C
2643 A/C
2644 A/C
2645 Air Conditioner
2716 Xxxx Xxxx
2717 Transformer
2718 Transformer
2778 Transfer Tubing
2814 Chiller
2815 Chiller
2816 Chiller
2817 Air Compressor
2818 Air Compressor
2819 Chiller
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EXHIBIT B
---------
-Page 2-
FIXTURES
Continued
2840 Air Conditioner
2841 Air Conditioner
2842 Air Conditioner
2843 Air Conditioner
2844 Air Conditioner
2845 Chiller
2887 Air Conditioner
2898 Phone System (in place)
2948 Air Compressor/Dryer
2949 Air Compressor/Dryer
2987 Air Conditioner
Extinguishers/Hoses
Converyor Bolts to floor in Holding/Printing
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2/19/96 Exhibit C
EQUIPMENT AND ITEMS LEFT FOR LEASE TO TAMOR IN XXXXXXXXX, XX
00000 MODULAR DESK XXXX XXXXX XXXXXX
00000 MODULAR DESK XXXX XXXXX XXXXXX
00000 MODULAR DESK UNIT PLANNING OFFICE
02551 MODULAR DESK UNIT PLANNING OFFICE
02684 ANTIQUE CONFERENCE TABLE/CHAIRS/CREDENZA/END TABLE FRONT OFFICE
02806 WW REFRIGERATOR
02810 XXXXX FORKLIFT SER#TM247-0828-755FB
02918 CATERPILLAR FORKLIFT SER#SD81335
02923 XXXXX FORKLIFT SER#TM247-0128-0020FA
02925 CATERPILLAR FORKLIFT SER#SD81827
02927 XXXXX FORKLIFT SER#TM247-0351-6990FD
02945 BATTERY CHARGER ??? MODEL ?????-????? SER#87D1483
02946 BATTERY CHARGER . . . SER#89B1089
02947 BATTERY CHARGER . . . SER#89B1087
02812 BATTERY CHARGER . . . SER#89B1091
02514 BATTERY CHARGER . . . SER#89B1088
02615 SPREADER BAR FOR BATTERY LFT.
02616 HYDRAULIC PALLET XXXX
02622 DOOR RAMPS 70'/72'
02623 LANTECH PALLET WRAPPER
02624 STEEL DOCK RAMP
02632 WORK PLATFORM
02851 PALLET XXXX ATLAS SER#P?????
02676 INJECTION MOLDING MACHINE IMPCO MDL350-R50 SER#Z-118 79
02677 INJECTION MOLDING MACHINE IMPCO MDL350-R50 SER#Z-118 79
03113 INJECTION MOLDING MACHINE IMP?? MDL350-R50 SER#P-0180
02787 IMCS STORAGE BIN
02814 CHILLER W/ COMPRESSORS CARRIER MDL???????? SER#Y217?03
02??? CHILLER CARRIER MDL30HKD40-630 SER#3890???
02??? CHILLER APPL. ENGINEERING SER#??????
02817 AIR COMPRESSOR XXXXXXX DENVER MDLSKBL SER#629938
02??? TANK APPROX. 38'x72'
02819 CHILL WATER SYSTEM
02849 DRILL PRESS ENCO MDL 126-2220 MNFT.#96375
02955 OIL RECLAIM SERFILCO MDL 50R83-????
02960 SAND FILTER AMERICAN MD.#657000 NT0691
02782 SCALE/SCALE HEAD PENNSYLVANIA SER#189?94
*EQUIPMENT AND ITEMS LEFT FOR LEASE BUT NOT ON THE ASSET LIST
AIR COMPRESSOR 100HP XXXXXXX/XXXXXX XXX#X00000
AIR DRYER XXXXXXXXX MDLA12-HH-POO SER#01-10-89-8?41
AIR COMPRESSOR 60HP XXXXXXX/DENVER
AIR DRYER XXXXXXXXX MDLA13-HH-POO SER#08-18-86-0974
AIR COND COMP/CARRIER MDL SPLIT SYSTEM 38AD-024-820 SER#P?82848
AIR CONDITIONING BLOWER
STATE OF MISSOURI)
) ss. IN THE RECORDER'S OFFICE.
COUNTY OF PIKE )
I, Xxxxxx XxXxxxx, Circuit Clerk and Ex-Officio Recorder of said County, do
hereby certify that the within instrument of writing was on the 26th day of
--
November A.D. 1996 at 11 o'clock 35 minutes A.M., duly filed for record in this
-------- -- -- -- -
office and is Recorded in the Records of this office in Book 324, Page 7323.
--- ----
IN WITNESS WHEREOF I have hereunto set my hand
and affixed my official seal at Bowling
Green, Missouri this 26th day of November, 1996.
-- -------- --
Xxxxxx XxXxxxx Circuit Clerk &
Ex Officio Recorder
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EXHIBIT 10.16
LEASE AGREEMENT
THIS LEASE AGREEMENT made this 7th day of February, 1995, by and
between PACKAGING RESOURCES INCORPORATED, a Delaware corporation ("Landlord")
and TAMOR PLASTICS CORP., a Massachusetts corporation ("Tenant").
W I T N E S S E T H:
Landlord, for and in consideration of the rents, covenants and
agreements hereinafter reserved, mentioned and contained on the part of Tenant,
its successors and assigns, to be paid, kept, observed and performed, has
leased, rented, let and demised, and by these presents does lease, rent, let
and demise unto Tenant, and Tenant does hereby take and hire, upon and subject
to the conditions and limitations hereinafter expressed, all that parcel of
land situated in the City of Louisiana, county of Pike and State of Missouri,
described in Exhibit A attached hereto and made a part hereof (containing
approximately 13.57 acres), together with any and all appurtenant easements
relating thereto (hereinafter called the "Land"), together with all
improvements located thereon. All improvements, building equipment and fixtures
of Landlord (except Tenant's trade fixtures), installed or located thereon,
together with all additions, alterations and replacements thereof are
hereinafter referred to as the "Improvements", including those items of
equipment and all fixtures listed and scheduled on Exhibit B attached hereto
and incorporated herein. All structures located upon the being a part of the
Land and Improvements which are constructed for human occupancy or for storage
of goods, merchandise, equipment, or other personal property are collectively
called the "Building". The Land, the Improvements, and the Building are
sometimes hereinafter collectively referred to as the "Demised Premises".
ARTICLE I
TERM OF LEASE
1.1 The initial term of this Lease Agreement shall commence on
March 1, 1995 (the "Commencement Date") and shall continue for a term of two
(2) years thereafter ending on the date immediately preceding the two (2) year
anniversary date of the Commencement Date. The initial term, together with the
renewal terms described in Paragraph 1.2 below, if applicable, are sometimes
hereinafter generally referred to as the "Term."
1.2 Tenant is hereby granted two options to renew (the "renewal
terms") this Lease Agreement each for an additional term of three (3) years on
the same terms and conditions contained herein except for the rent to be paid
hereunder. Each option is
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granted upon the condition that [i] written notice of the exercise of the
option shall be given by Tenant to Landlord not less than one hundred eighty
(180) days prior to the end of the initial term or first option term, as the
case may be, of this Lease Agreement, and [ii] at the time of the giving of
such notice and at the expiration of the initial term or first option term, as
the case may be, there are no defaults in the covenants, agreements, terms and
conditions on the part of Tenant to be kept and performed hereunder and all
Basic Rent and Additional Rent has been fully paid. If exercised, the first
renewal term shall commence on the day following the end of the initial term of
this Lease Agreement, and if exercised, the second renewal term shall commence
on the day following the end of the first renewal term of this Lease Agreement.
Notwithstanding clause [i] noted in this Paragraph 1.2, Landlord and Tenant
agree that Tenant's exercise of each option to renew shall be automatic, unless
Tenant does not meet the conditions of clause [ii] noted in this paragraph 1.2,
or Tenant gives Landlord one hundred eighty (180) days prior written notice that
it will not exercise such renewal option.
ARTICLE II
AS-IS, WHERE-IS; COMPLIANCE
2.1 Except as provided in Paragraph 2.2 below, Tenant acknowledges
that it has thoroughly inspected and examined the Demised Premises and has
executed this lease Agreement and upon occupancy accepts the Demised Premises
"as-is, where-is," entirely on the basis of Tenant's own evaluation and
knowledge and not based upon any written or oral representations, warranties,
understandings, promises or agreements, express or implied, of Landlord or its
employees, representatives or agents including any real estate broker as
described in Article XXI of this lease Agreement. Upon the execution of this
Lease Agreement and upon occupancy of the Demised Premises, Tenant shall be
conclusively deemed to have leased the Demised Premises "as-is, where is," and
Landlord shall have no obligation to make repairs, replacements, alterations
or improvements.
2.2 Landlord hereby represents to Tenant that (as of the
Commencement Date) (i) to the best of Landlord's knowledge, the Demised
Premises are in substantial compliance with all applicable building code
requirements; (ii) Landlord has not received any notification from any
governmental agency, entity or individual, and otherwise has no knowledge, that
its signage is in violation of governmental laws, ordinances, rules or
regulations; (iii) to the best of Landlord's knowledge (a) there are no
"Hazardous Substances" or "Hazardous Materials" on the Demised Premises which
are in violation of any environmental statutes, ordinances or regulations, and
(b) there are no conditions existing with respect to the Demised Premises which
are in violation of any environmental statutes, ordinances or regulations.
Landlord further represents to Tenant that it has no knowledge of any
environmental conditions
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existing at the Demised Premises, other than those conditions contained in an
Environmental Phase I Audit performed by XXXXX. Tenant hereby acknowledges and
accepts the findings contained in the XXXXX Phase I Audit. Landlord agrees that
promptly after Tenant's execution of this Lease Agreement, Landlord shall
engage XXXXX at its sole cost and expense to conduct a Phase II Audit of the
Demised Premises, and Landlord further agrees that in the event that the XXXXX
Phase II Audit indicates that further remediation at the Demised Premises is
required, Landlord agrees that it shall perform the required remediation at its
sole cost and expense, as well as all remediation indicated by the XXXXX Phase
I Audit, again at Landlord's sole cost and expense.
ARTICLE III
RENT
3.1 In consideration of the leasing of the Demised Premises, Tenant
covenants to pay Landlord, without previous demand therefor and without any
right of setoff or deduction whatsoever, at the office of Landlord at:
Packaging Resources Incorporated
One Xxxxxx Park
000 Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxxxx, Vice President
or at such other place as Landlord may from time to time designate in writing,
an annual rental for each year of the initial term Two Hundred Seventy-Three
Thousand Six Hundred Ninety-Four and 56/100 Dollars ($273,694.56), payable in
advance, in equal monthly installments of Twenty-Two Thousand Eight Hundred
Seven and 88/100 Dollars ($22,807.88), commencing on the Commencement Date as
set forth in Paragraph 1.1 and continuing on the first day of each month
thereafter. The rent provided for in this Paragraph 3.1 and in Paragraph 3.4
with respect to the initial term is hereinafter called the "Basic Rent." The
parties hereto agree that the Basic Rent is based upon a rental rate equal to
$1.50 per square foot of the Buildings located on the Demised Premises, and the
parties hereto further acknowledge and agree that the Buildings located on the
Demised Premises contain approximately 182,463 square feet.
Notwithstanding anything contained in this Section 3.1 to the contrary,
Landlord and Tenant each hereby agree that if for any reason whatsoever
Landlord is unable to complete the environmental remediation work, described
under Section 2.2 above, on or before March 1, 1995 and as a result of such
failure Tenant is unable to use any Building or part or portion thereof, then
this Lease Agreement shall remain in full force and effect, except as Tenant's
sole and exclusive remedy for its inability to use such Building or part or
portion thereof, Tenant shall be entitled to a reduction in
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Tenant's Basic Rent obligation on a per diem basis, equal to the amount
obtained as follows: $1.50 per square foot per year multiplied by the affected
square footage, multiplied by the number of days such affected square footage
is unavailable for Tenant's occupancy and use, divided by 365 days per year.
(For example: if approximately 500 square feet of the Demised Premises is
unavailable for Tenant's use and occupancy for a period of 30 days, then Tenant
shall be entitled to a reduction in its Basic Rent obligation which is equal to
$61.64).
3.2 The Basic Rent shall be absolutely net to Landlord so that this
Lease Agreement shall yield, net to Landlord, the Basic Rent specified in
Paragraph 3.1 and 3.4, as applicable, in each year of the Term and that all
impositions, taxes, insurance premiums, utility charges, maintenance, repair
and replacement expenses, all expenses relating to compliance with laws, and
all other costs, fees, charges, expenses, reimbursements and obligations of
every kind and nature whatsoever, relating to the Demised Premises (excepting
only Landlord's portion of the proration of real estate taxes and special
assessments for those periods contained within the term of this Lease Agreement
as referred to in Paragraph 5.1 and certain taxes of Landlord referred to in
the last sentence of Paragraph 5.3 of this Lease Agreement) which may arise or
become due during the Term or by reason of events occurring during the term of
this Lease Agreement shall be paid or discharged by Tenant as additional rent
(all such items being sometimes hereinafter collectively referred to as
"Additional Rent"), and Tenant hereby agrees to indemnify, defend and save
Landlord harmless from and against such impositions, taxes, insurance premiums,
utility charges, maintenance, repair and replacement expenses, all expenses
relating to compliance with laws, and all other costs, fees, charges, expenses,
reimbursements and obligations referred to above.
3.3 All payments of Basic Rent and Additional Rent shall be payable
without previous demand therefor and without any right of setoff or deduction
whatsoever, and in case of nonpayment of any item of Additional Rent by Tenant
when the same is due, Landlord shall have, in addition to all its other rights
and remedies, all provisions of this Lease Agreement or by law in the case of
nonpayment of Basic Rent. The performance and observance by Tenant of all the
terms, covenants, conditions and agreements to be performed or observed by
Tenant hereunder shall be performed and observed by Tenant at Tenant's sole
cost and expense. Any installment of Basic Rent or Additional Rent or any other
charges payable by Tenant under the provisions hereof which shall not be paid
when due shall bear interest at an annual rate equal to two percentage points
per annum in excess of the published prime rate of interest announced from time
to time by The First National Bank of Chicago (the "Prime Rate") (or similar
institution if said bank shall cease to exist or to publish such Prime Rate)
from the date
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when the same is due hereunder until the same shall be paid, but in no event in
excess of the maximum lawful rate permitted to be charged by Landlord against
Tenant. Said rate of interest is sometimes hereinafter referred to as the
"Maximum Rate of Interest."
3.4 Tenant agrees that its Basic Rent obligation payable under this
Lease Agreement for each lease year during each of the renewal terms shall
increase on an annual basis as follows; Tenant's Basic Rent obligation under
this Lease Agreement shall be the amount which is equal to the total (or
annual) Basic Rent payable by Tenant for the immediately preceding lease, plus
an amount which is equal to the greater of (a) a percentage of the total Basic
Rent for the immediately preceding lease year equal to the percentage increase,
if any, in the revised Consumer Price Index ("CPI") for all Urban Consumers,
U.S. City Average, All Items (1982 84-100), published by the U.S. Bureau of
Labor Statistics for the last month of the immediately preceding lease year
over the CPI for the first month of the immediately preceding lease year (if
the publication of the CPI is discontinued, such other index or indices
mutually acceptable to Tenant and Landlord which reflect the then broad range
of economic factors represented by the CPI shall be used), or (b) 3% of the
Basic Rent payable by Tenant to Landlord for the immediately preceding lease
year. Basic Rent payable by Tenant to Landlord for each lease year during each
renewal term shall also be payable in equal monthly installments, commencing on
the first day of each month during such lease year and otherwise in accordance
and in the same manner as indicated under Paragraph 3.1 above.
ARTICLE IV
USE OF DEMISED PREMISES
4.1 The Demised Premises including all buildings or other
improvements hereafter erected upon the same shall be used for such activities
as may be lawfully carried on in and about the Demised Premises. Tenant shall
not use or occupy the same, or permit them to be used or occupied, contrary to
any statute, rule, order, ordinance, requirement or regulation applicable
thereto, or in any manner which would violate any certificate of occupancy
affecting the same, or which would make void or voidable any insurance then in
force with respect thereto or which would make it impossible to obtain fire or
other insurance thereon required to be furnished hereunder by Tenant, or which
would cause structural injury to the improvements or cause the value or
usefulness of the Demised Premises, or any portion thereof, substantially to
diminish (reasonable wear and tear excepted), or which would constitute a
public or private nuisance or waste, and Tenant agrees that it will promptly,
upon discovery of any such use, take all necessary steps to compel the
discontinuance of such use. Further, Tenant shall not use, store, or dispose of
any so-called "hazardous wastes" or
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"hazardous substances" as defined by federal, state or local environmental laws
(including, so-called "Superfund Laws") on the Demised Premises, except as
provided in Paragraph 23.2 of this Lease Agreement.
4.2 Tenant shall not use, suffer, or permit the Demised Premises, or
any portion thereof, to be used by Tenant, any third party or the public, as
such, without restriction or in such manner as might reasonably tend to impair
Landlord's title to the Demised Premises, or any portion thereof, or in such
manner as might reasonably make possible a claim or claims of adverse usage or
adverse possession by the public, as such, or third persons, or of implied
dedication of the Demised Premises, or any portion thereof. Nothing in this
Lease Agreement contained and no action or inaction by Landlord shall be deemed
or construed to mean that Landlord has granted to Tenant any right, power or
permission to do any act or make any agreement that may create, or give rise to
or be the foundation for any such right, title, interest, lien, charge or other
encumbrance upon the estate of Landlord in the Demised Premises.
ARTICLE V
PAYMENT OF TAXES, ASSESSMENTS, ETC.
5.1 Tenant shall pay or cause to be paid, as Additional Rent, all
real estate taxes, special assessments and all other public or governmental
charges of any nature (all of which are sometimes referred to herein as the
"Impositions"), now or hereafter imposed, assessed, levied or becoming a charge
or lien upon the Demised Premises or now or hereafter arising in respect of the
occupancy, use or possession of, or any activity conducted on the Demised
Premises, at any and all times during the Term of this Lease Agreement. Tenant
shall pay all real estate taxes, whether heretofore or hereafter levied or
assessed upon the Demised Premises, or any portion thereof, which are due and
payable during the term of this Lease Agreement and relating to any period
contained within the Term of this Lease Agreement.
5.2 Tenant shall have the right at its own expense to contest the
amount or validity, in whole or in part, of any Imposition by appropriate
proceedings diligently conducted in good faith, but only after payment of such
Imposition, or if available by local law, after posting such collateral as may
be authorized in lieu of payment, or by such other procedure to which Landlord
may consent.
5.3 If, at any time during the Term of this Lease Agreement, under
the laws of the State of Missouri or any political subdivision thereof, a tax
or excise on rents or upon the renting or leasing provided for herein or
contemplated hereby, or other tax, however described, is levied or assessed by
the State of
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Missouri or any political subdivision thereof against Landlord on account of,
or measured by the amount of the rents expressly reserved hereunder, and
provided such tax is in lieu of or as a substitute for, in whole or in part,
real estate taxes or other ad valorem taxes, Tenant shall pay and discharge
such tax or excise on rents or other tax, but only to the extent of the amount
thereof which is lawfully assessed or imposed upon Landlord and which was so
assessed or imposed as a direct result of Landlord's ownership of the land or
of this Lease Agreement or of the rentals or amount or rentals accruing under
this Lease Agreement. Nothing contained in this Lease Agreement shall require
Tenant to pay any Municipal, State or Federal net income or excess profits
taxes assessed against Landlord, or any Municipal, State or Federal net income
or excess profits taxes assessed against Landlord, or any Municipal, State or
Federal capital levy, estate, succession, inheritance or transfer taxes of
Landlord, or corporation franchise taxes imposed upon any corporate owner of the
fee of the Demised Premises.
5.4 All payments to be made by Tenant pursuant to the provisions
hereof shall be made before the same become delinquent, and upon demand Tenant
shall furnish Landlord, within fifteen (15) days after the date when the same
are payable as herein provided, official receipts or other evidence
satisfactory to Landlord that such payments have been made.
5.5 At Landlord's written demand or at the request of any mortgagee
of the Demised Premises, Tenant shall pay to Landlord or such mortgagee, as the
case may be, the known or estimated yearly real estate taxes and assessments
payable with respect to the Demised Premises in monthly payments equal to
one-twelfth (1/12) of the known or estimated yearly real estate taxes and
assessments next payable with respect to the Demised Premises.
ARTICLE VI
INSURANCE
6.1 Throughout the Term of this Lease Agreement, Tenant shall at its
sole cost and expense maintain: (i) fire and extended coverage insurance with
respect to the Demised Premises, including the Building and the Improvements,
which coverage shall include vandalism coverage, and which at all times shall
be in an amount equal to one hundred percent (100%) of the then full
replacement cost of the Building and Improvements; and (ii) comprehensive
general liability and property damage insurance against claims for personal
injury or death, and for personal property damage occurring in, upon or about
the Demised Premises, or attributed to any act or alleged defective or improper
condition of the Demised Premises, with limits of not less than [Two Million
Dollars ($2,000,000.00)] single limit coverage on an occurrence basis.
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6.2 All insurance maintained by Tenant pursuant to this Article shall
(i) name Landlord and Tenant, as their respective interests may appear; (ii) be
in such form and contain such coverage as Landlord may reasonably request;
(iii) provide that no cancellation thereof shall be effective until at least
thirty (30) days after receipt by Landlord of written notice thereof, such
notice to be given in the manner provided in this Lease Agreement; (iv) be
obtained and maintained from and with a reputable and financially sound
insurance company authorized to issue insurance in the state in which the
Demised Premises are located; and (v) shall specifically insure (by contractual
liability endorsement) Tenant's obligations under Paragraph 20.3 of this Lease
Agreement.
6.3 Tenant shall deliver to Landlord the original or a duplicate
original of each such policy or policies or renewals thereof, with evidence of
the payment of the premiums thereon, and shall procure renewals thereof from
time to time at least twenty (20) days before the expiration of any similar
policy then existing, and in default of such delivery Landlord may procure any
such insurance for such periods as Landlord shall elect, and Tenant shall, on
demand, reimburse Landlord for all expenditures made by Landlord for such
insurance as and for Additional Rent as set forth in Paragraph 3.3 hereof.
Tenant shall neither do nor suffer anything to be done whereby any of the
insurance required by the provisions of this Article shall or may be
invalidated in whole or part.
6.4 Tenant shall maintain insurance coverage (including loss of use and
business interruption coverage) upon Tenant's business and upon all personal
property of Tenant or the personal property of others kept, stored or
maintained on the Demised Premises against loss or damage by fire, windstorm or
other casualties or causes for such amount as Tenant may desire, and Tenant
agrees that such policies shall contain a waiver of subrogation clause as to
Landlord. Tenant hereby waives, releases, discharges and agrees to indemnify
and defend Landlord, its agents and employees from and against all claims
whatsoever arising out of loss, claim, expense or damage to or destruction of
any such personal property or to Tenant's business notwithstanding that such
loss, claim, expense or damage may have been caused by Landlord, its agents or
employees, and Tenant agrees to look to the insurance coverage only in the
event of such loss.
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ARTICLE VII
UTILITIES
7.1 During the Term of this Lease Agreement, Tenant will pay, when due,
all charges of every nature, kind or description for utilities furnished to the
Demised Premises or chargeable against the Demised Premises, including without
limitation all charges for water, sewage, heat, gas, light, garbage,
electricity, telephone, steam, power, or other public or private utility
services.
7.2 In the event that any charge or fee is required by the state in
which the Demised Premises is located, or by any agency, subdivision, or
instrumentality thereof, or by any utility company furnishing services or
utilities to the Demised Premises, as a condition precedent to furnishing or
continuing to furnish utilities or services to the Demised Premises, such
charge or fee shall be deemed to be a utility charge payable by Tenant;
provided, however, Landlord agrees that Tenant shall be responsible for the
payment of assessments relating to capital improvements to utilities which are
amortized and payable during the Term hereof. The provisions of this Paragraph
7.2 shall include, but not be limited to, any charges or fees for present or
future water or sewer capacity to serve the Demised Premises, any charges for
the underground installation of gas or other utilities or services, and other
charges relating to the extension of or change in the facilities necessary to
provide the Demised Premises with adequate utility services. In the event that
Landlord has paid any such charge or fee after the date hereof, Tenant shall
reimburse Landlord for such utility charge.
ARTICLE VIII
REPAIRS
8.1 Tenant, at its sole cost and expense, throughout the Term of this
Lease Agreement, shall take good care of the Demised Premises (including any
improvements hereafter erected or installed on the Land), and shall keep the
same in good order and condition, and shall make and perform all routine
maintenance thereof and all necessary repairs thereto, interior and exterior,
structural and nonstructural, ordinary and extraordinary, foreseen and
unforeseen, of every nature, kind and description. When used in this Article
VIII, "repairs" shall include all necessary replacements, renewals,
alterations, additions and betterments, subject to the notice provisions to
Landlord contained within Article XIX. All repairs made by Tenant shall be at
least equal in quality to the original work and shall be made by Tenant in
accordance with all laws, ordinances and regulations whether heretofore or
hereafter enacted. The necessity for or adequacy of maintenance and repairs
shall be measured by the standards which are appropriate for improvements of
similar construction and class, provided that Tenant shall in any
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event make all repairs necessary to avoid any structural damage or other damage
or injury to the Improvements.
8.2 Tenant, at its sole cost and expense, shall take good care of,
repair and maintain any and all driveways, pathways, roadways, sidewalks,
curbs, spur tracks, parking areas, loading areas, landscaped areas, entrances
and passageways on or appurtenant to the Demised Premises, in good order and
repair and shall promptly remove all accumulated snow, ice and debris from any
and all driveways, pathways, roadways, sidewalks, curbs, parking areas, loading
areas, entrances and passageways, and keep all portions of the Demised
Premises, including areas appurtenant thereto, in a clean and orderly condition
free of snow, ice, dirt, rubbish, debris and unlawful obstructions.
8.3 Except as may be otherwise specifically set forth in this Lease
Agreement, Landlord shall not be required to furnish any services or facilities
or to make any repairs or alterations in, about or to the Demised Premises or
any improvements hereafter erected thereon. Tenant hereby assumes the full and
sole responsibility for the condition, operation, repair, replacement,
maintenance and management of the Demised Premises and all improvements
hereafter erected thereon, and Tenant hereby waives any rights created by any
law now or hereafter in force to make repairs to the Demised Premises or
improvements hereafter erected thereon at Landlord's expense.
8.4 Tenant shall not cause or suffer any waste or damage,
disfigurement or injury to the Demised Premises, or any improvements hereafter
erected thereon, or to the fixtures or equipment therein, or permit or suffer
any overloading of the floors or other use of the Improvements that would place
an undue stress on the same or any portion thereof beyond that for which the
same was designed.
ARTICLE IX
COMPLIANCE WITH LAWS AND ORDINANCES
9.1 Tenant shall, throughout the term of this Lease Agreement, and
at Tenant's sole cost and expense, promptly comply or cause compliance with or
remove or cure any violation of any and all present and future laws,
ordinances, orders, rules, regulations and requirements of all Federal, State,
Municipal and other governmental bodies having jurisdiction over the Demised
Premises and the appropriate departments, commissions, boards and officers
thereof, and the orders, rules and regulations of the Board of Fire
Underwriters where the Demised Premises are situated, or any other body now or
hereafter constituted exercising lawful or valid authority over the Demised
Premises, or any portion thereof, or the sidewalks, curbs, roadways, alleys,
entrances or railroad track facilities adjacent or appurtenant thereto, or
exercising authority
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with respect to the use or manner of use of the Demised Premises, or such
adjacent or appurtenant facilities, and whether the compliance, curing or
removal of any such violation and the costs and expenses necessitated thereby
shall have been foreseen or unforeseen, ordinary or extraordinary, and whether
or not the same shall be presently within the contemplation of Landlord and
Tenant or shall involve any change of government policy, or require structural
or extraordinary repairs, alterations or additions by Tenant and irrespective
of the costs thereof.
9.2 Tenant, at its sole cost and expense, shall comply with all
agreements, contracts, easements, restrictions, reservations or covenants,
which are of record or which Tenant may otherwise become aware of, it any,
affecting the Demised Premises. Tenant shall also comply with, observe and
perform all provisions and requirements of all policies of insurance at any
time in force with respect to the Demised Premises and required to be obtained
and maintained under the terms of Article VI hereof and shall comply with all
development permits issued by governmental authorities issued in connection
with development of the Demised Premises, if any.
9.3 Notwithstanding that it may be usual and customary for Landlord
to assume responsibility and performance of any or all of the obligations set
forth in this Article IX, and notwithstanding any order, rule or regulation
directed to Landlord to perform, Tenant hereby assumes such obligations
because, by nature of this Lease Agreement, the rents and income derived from
this Lease Agreement by Landlord are net rentals not to be diminished by any
expense incident to the ownership, occupancy, use, leasing, or possession of
the Demised Premises or any portion thereof.
9.4 Upon the prior written consent of Landlord, which consent shall
not be unreasonably withheld or delayed, Tenant, at its sole cost and expense
and without cost or expense to Landlord, shall have the right to contest the
validity or application of any law or ordinance referred to in this Article IX
in the name of Tenant or Landlord, or both, by appropriate legal proceedings
diligently conducted but only if by the terms of any such law or ordinance,
pending the prosecution of any such proceeding, compliance therewith may
legally be delayed without the incurrence of any lien, charge or liability of
any kind against the Demised Premises, or any portion thereof, and without
subjecting Landlord or Tenant to any liability, civil or criminal, for failure
so to comply therewith until the final determination of such proceeding;
provided, however, if any lien, charge or civil liability would be incurred by
reason of any such delay, Tenant nevertheless, on the prior written consent of
Landlord, may contest as aforesaid and delay as aforesaid, provided that such
delay would not subject Tenant or Landlord to criminal liability and Tenant
(i) furnishes Landlord security, reasonably satisfactory to Landlord, against
any
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loss or injury by reason of any such contest or delay, (ii) prosecutes the
contest with due diligence and in good faith, and (iii) agrees to indemnify,
defend and hold harmless Landlord and the Demised Premises from any charge,
liability, or expense whatsoever. The security furnished to Landlord by Tenant
shall be in the form of a cash deposit or a Certificate of Deposit issued by a
national bank or Federal savings and loan association payable to Landlord. Said
deposit shall be held, administered and distributed as Landlord may reasonably
direct.
If necessary or proper to permit Tenant so to contest the validity or
application of any such law or ordinance, Landlord shall, at Tenant's sole cost
and expense, including reasonable attorneys' fees incurred by Landlord, execute
and deliver any appropriate papers or other documents; provided, Landlord shall
not be required to execute any document or consent to any proceeding which
would result in the imposition of any cost, charge, expense or penalty on
Landlord or the Demised Premises.
ARTICLE X
MECHANIC'S LIENS AND OTHER LIENS
10.1 Tenant shall not suffer or permit any mechanic's lien or other
lien to be filed against the Demised Premises, or any portion thereof, by
reason of work, labor, skill, services, equipment or materials supplied or
claimed to have been supplied to the Demised Premises at the request of Tenant,
or anyone holding the Demised Premises, or any portion thereof, through or
under Tenant. If any such mechanic's lien or other lien shall at any time be
filed against the Demised Premises, or any portion thereof, Tenant shall cause
the same to be discharged of record, or handled in an alternative manner
available under local law which meets with Landlord's reasonable approval,
within thirty (30) days after the date of filing the same. If Tenant shall fail
to discharge such mechanic's lien or liens or other lien or liens within such
period, or otherwise dispose of same as herein provided, then, in addition to
any other right or remedy of Landlord, Landlord may, but shall not be obligated
to, discharge the same by paying to the claimant the amount claimed to be due
or by procuring the discharge of such lien as to the Demised Premises by
deposit in the court having jurisdiction of such lien, the foreclosure thereof
or other proceeding with respect thereto, of a cash sum sufficient to secure
the discharge of the same, or by the deposit of a bond or other security with
such court sufficient in form, content and amount to procure the discharge of
such lien, or in such other manner as is now or may in the future be provided
by present or future law for the discharge of such lien as a lien against the
Demised Premises. Any amount paid by Landlord, or the value of any deposit so
made by Landlord, together with all costs, fees and expenses in connection
therewith (including reasonable attorneys' fees of Landlord), together with
interest thereon at the Maximum Rate of Interest set
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forth in Paragraph 3.4 hereof, shall be repaid by Tenant to Landlord on demand
by Landlord and if unpaid may be treated as Additional Rent. Tenant shall
indemnify and defend Landlord against and save Landlord and the Demised
Premises, and any portion thereof, harmless from all losses, costs, damages,
expenses, liabilities, suits, penalties, claims, demands and obligations,
including, without limitation, reasonable attorneys' fees resulting from the
assertion, filing, foreclosure or other legal proceeding with respect to any
such mechanic's lien or other lien.
All materialmen, contractors, artisans, mechanics, laborers and any
other person now or hereafter furnishing any labor, services, materials,
supplies or equipment to Tenant with respect to the Demised Premises, or any
portion thereof, are hereby charged with notice that they must look
exclusively to Tenant to obtain payment for the same. Notice is hereby given
that Landlord shall not be liable for any labor, services, materials, supplies,
skill, machinery, fixtures or equipment furnished or to be furnished to Tenant
upon credit, and that no mechanic's lien or other lien for any such labor,
services, materials, supplies, machinery, fixtures or equipment shall attach to
or affect the estate or interest of Landlord in and to the Demised Premises, or
any portion thereof.
10.2 Tenant shall not create, permit or suffer, and shall promptly
discharge and satisfy of record, any other lien, encumbrance, charge, security
interest, or other right or interest which shall be or become a lien,
encumbrance, charge or security interest upon the Demised Premises, or any
portion thereof, or the income therefrom, or on the interest of Landlord or
Tenant in the Demised Premises, or any portion thereof, save and except for
those liens, encumbrances, charges, security interests, or other rights or
interests consented to, in writing, by Landlord, or those mortgages,
assigments of rents assignments of leases and other mortgage documentation
placed thereon by Landlord in financing or refinancing the Demised Premises.
ARTICLE XI
INTENT OF PARTIES
11.1 Landlord and Tenant do each state and represent that it is their
respective intention that this Lease Agreement be interpreted and construed as
an absolute net lease and all Basic Rent and Additional Rent shall be paid by
Tenant to Landlord without abatement, deduction, diminution deferment,
suspension, reduction, setoff, defense or counterclaim with respect to the
same; and the obligations of Tenant shall not be affected by reason of damage to
or destruction of the Demised Premises from whatever cause (except as provided
for in Article XIII hereof); nor shall the obligations of Tenant be affected by
reason of any condemnation, eminent domain or like proceedings (except as
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provided in Article XIV hereof); nor shall the obligations of Tenant be
affected by reason of any other cause whether similar or dissimilar to the
foregoing or by any laws or customs to the contrary. It is the further express
intent of Landlord and Tenant that (i) the obligations of Landlord and Tenant
hereunder shall be separate and independent covenants and agreements and that
Basic Rent and Additional Rent, and all other charges and sums payable by
Tenant hereunder, shall commence at the times provided herein and shall
continue to be payable in all events unless the obligations to pay the same
shall be terminated pursuant to an express provision in this Lease Agreement;
(ii) all costs or expenses of whatsoever character or kind, general or special,
ordinary or extraordinary, foreseen or unforeseen, and of every kind and nature
whatsoever that may be necessary or required in and about the Demised Premises,
or any portion thereof, and Tenant's possession or authorized use thereof
during the term of this Lease Agreement, shall be paid by Tenant and all
provisions of this Lease Agreement are to be interpreted and construed in light
of the intention expressed in this Paragraph 11.1; (iii) the Basic Rent
specified in Article III shall be absolutely net to Landlord so that this Lease
Agreement shall yield net to Landlord the Basic Rent specified in Article III
in each year during the term of this Lease Agreement; (iv) all Impositions,
insurance premiums, utility expense, repair and maintenance expense, and all
other costs, fees, interest, charges, expenses, reimbursements and obligations
of every kind and nature whatsoever relating to the Demised Premises, or any
portion thereof, which may arise or become due during the term of this Lease
Agreement, or any extension or renewal thereof, shall be paid or discharged by
Tenant as Additional Rent; and (v) Tenant hereby agrees to indemnify, defend
and save Landlord harmless from and against such costs, fees, charges,
expenses, reimbursements and obligations, and any interest thereon.
11.2 If Tenant shall at any time fail to pay any Imposition pursuant to
the provisions of Article V, or to take out, pay for, maintain and deliver any
of the insurance policies or certificates of insurance provided for in Article
VI, or shall fail to make any other payment or perform any other act on its
part to be made or performed, then Landlord, after ten (10) days prior
written notice to Tenant (or without notice in case of emergency), and without
waiving or releasing Tenant from any obligation of Tenant contained in this
Lease Agreement, may, but shall be under no obligation to do so, (i) pay any
Imposition payable by Tenant pursuant to the provisions of Article V; (ii) take
out, pay for and maintain any of the insurance policies provided for in Article
VI; or (iii) make any other payment or perform any other act on Tenant's part
to be paid or performed as provided in this Lease Agreement, and Landlord may
enter upon the Demised Premises for any such purpose and take all such action
therein or thereon as may be necessary therefor. Nothing herein contained shall
be deemed a waiver or release of Tenant from any obligation of Tenant in this
Lease Agreement.
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11.3 All sums so paid by Landlord and all costs and expenses, including
reasonable attorneys' fees, incurred by Landlord in connection with the
performance of any such act, together with interest thereon at the Maximum Rate
of Interest provided for in Paragraph 3.3 hereof, from the respective dates of
Landlord's making of each payment of such cost and expense, including
reasonable attorneys' fees, shall be paid by Tenant to Landlord on demand.
Landlord shall not be limited in the proof of any damages which Landlord may
claim against Tenant, arising out of or by reason of Tenant's failure to
provide and keep in force insurance as aforesaid, to the amount of the
insurance premium or premiums not paid or not incurred by Tenant and which
would have been payable upon such insurance, but Landlord shall also be
entitled to recover as damages for such breach the uninsured amount of any loss
(to the extent of any deficiency between the dollar limits of insurance
required by the provisions of this Lease Agreement and the dollar limits of the
insurance actually carried by Tenant), damages, costs and expenses of suit,
including reasonable attorneys' fees, suffered or incurred by reason of damage
to or destruction of the Demised Premises, or any portion thereof or other
damage or loss which Tenant is required to insure against hereunder, occurring
during any period when Tenant shall have failed or neglected to provide
insurance as aforesaid. If Tenant shall fail to perform any act required of it,
Landlord may perform the same, but shall not be required to do so, in such
manner and to such extent as Landlord may deem reasonably necessary, and in
exercising any such right to employ counsel and to pay necessary and incidental
costs and expenses, including reasonable attorneys' fees. All sums so paid by
Landlord and all necessary and incidental costs and expenses in connection with
the performance of any such act by landlord, together with interest thereon at
the Maximum Rate of Interest provided for in Paragraph 3.4 hereof from the date
of making such expenditure by Landlord, shall be deemed Additional Rent
hereunder and, except as is otherwise expressly provided herein, shall be
payable to Landlord on demand or, at the option of Landlord, may be added to
any monthly rental then due or thereafter becoming due under this Lease
Agreement, and Tenant covenants to pay any such sum or sums, with interest as
aforesaid, and Landlord shall have, in addition to any other right or remedy of
Landlord, the same rights and remedies in the event of nonpayment thereof by
Tenant as in the case of default by Tenant in the payment of monthly Basic
Rent.
ARTICLE XII
DEFAULTS OF TENANT
12.1 If any one or more of the following events (in this Article
sometimes called "Events of Default") shall happen:
(a) If default shall be made in the due and punctual payment of
any Basic Rent or Additional Rent
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payable under this Lease Agreement or in the payment of any
obligations to be paid by Tenant, when and as the same shall become due and
payable, and such default shall continue for a period of five (5) business
days after written notice thereof given by Landlord to Tenant;
(b) If default shall be made by Tenant in keeping, observing or
performing any of the terms contained in this Lease Agreement, other than
those referred to in Subparagraphs (a) and (c) of this Paragraph 12.1,
which does not expose Landlord to criminal liability (it being intended
that no cure period shall be provided with respect to any default which
might expose Landlord to criminal liability), and such default shall
continue for a period of ten (10) days after written notice thereof given
by Landlord to Tenant or in the case of such a default or contingency which
cannot with due diligence and in good faith be cured within ten (10) days,
and Tenant fails to proceed promptly and with due diligence and in good
faith, to cure the same and thereafter to prosecute the curing of such
default with due diligence and in good faith, it being intended that in
connection with a default which does not expose Landlord to criminal
liability, not susceptible of being cured with due diligence and in good
faith within ten (10) days, that the time allowed Tenant within which to
cure the same shall be extended for such period as may be necessary for
the curing thereof promptly with due diligence and in good faith, but in
no event shall such additional cure period exceed twenty (20) days from
and after the expiration of the original ten (10) day cure period;
(c) If default shall be made by Tenant, by operation of law or
otherwise, under the provisions of Article XV hereof relating to
assignment, sublease, mortgage or other transfer of Tenant's interest in
this Lease Agreement or in the Demised Premises or in the income arising
therefrom; and
(d) If default shall be made by Tenant in keeping, observing or
performing any of the terms contained in this Lease Agreement, other than
those referred to in Subparagraphs (a), (b) and (c) of this Paragraph 12.1,
and which exposes Landlord to criminal liability, and such default shall
continue after written notice thereof given by Landlord to Tenant, and
Tenant fails to proceed timely and promptly with all due diligence and in
good faith to cure the same and thereafter to prosecute the curing of such
default with all due diligence, it being intended that in connection with a
default which exposes Landlord to criminal liability that Tenant shall
proceed
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immediately to cure or correct such condition with continuity and with all
due diligence and in good faith;
then, and in any such event, Landlord, at any time thereafter during the
continuance of any such Event of Default, may give written notice to Tenant
specifying such Event of Default or Events of Default and stating that this
Lease Agreement and the terms hereby demised shall expire and terminate on the
date specified in such notice, and upon the date specified in such notice this
Lease Agreement and the terms hereby demised, and all rights of Tenant under
this Lease Agreement, including all options to purchase contained therein,
whether exercised or not, may, at Landlord's option terminate, or in the
alternative or in addition to the foregoing remedy, Landlord may assert and have
the benefit of any other remedy allowed herein, at law, or in equity, including
the right to regain possession of the Demised Premises.
12.2 Upon any expiration or termination of this Lease Agreement, Tenant
shall quit and peaceably surrender the Demised Premises, and all portions
thereof, to Landlord, and Landlord, upon or at any time after any such
expiration or termination, may, without further notice, enter upon and reenter
the Demised Premises, and all portions thereof, and possess and repossess itself
thereof, by force, summary proceeding, ejectment or otherwise, and may
dispossess Tenant and remove Tenant and all other persons and property from the
Demised Premises, and all portions thereof, and may have, hold and enjoy the
Demised Premises and the right to receive all rental and other income of and
from the same.
12.3 At any time, or from time to time after any such expiration or
termination, Landlord may relet the Demised Premises, or any portion thereof, in
the name of Landlord or otherwise, for such term or terms (which may be greater
or less than the period which would otherwise have constituted the balance of
the term of this Lease Agreement) and on such conditions (which may include
concessions or free rent) as Landlord, in its sole discretion, may determine and
may collect and receive the rents therefor. Landlord shall in no way be
responsible or liable for any failure to relet the Demised Premises, or any part
thereof, or for any failure to collect any rent due upon any such reletting.
Nothing herein contained shall be deemed to excuse Landlord from mitigating its
damages as may be required by law.
12.4 No such expiration or termination of this Lease Agreement or retaking
of possession shall relieve Tenant of its liabilities and obligations under this
Lease Agreement (as if this Lease Agreement had not been so terminated), and
such liabilities and obligations shall survive any such expiration or
termination. In the event of any such termination, whether or not the Demised
Premises, or any portion thereof, shall have been relet, Tenant shall pay to
Landlord a sum equal to the Basic Rent, and the
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Additional Rent and any other charges required to be paid by Tenant, up to the
time of such expiration or termination of this Lease Agreement or retaking of
possession by Landlord, and thereafter Tenant, until the end of what would have
been the term of this Lease Agreement in the absence of such expiration or
termination, shall be liable to Landlord for, and shall pay to Landlord, as and
for agreed current damages for Tenant's default:
(a) The equivalent of the amount of the Basic Rent and Additional
Rent which would be payable under this Lease Agreement by Tenant if
this Lease Agreement were still in effect, less
(b) The net proceeds of any reletting effected pursuant to the
provisions of Paragraph 12.3 hereof after deducting all of Landlord's
expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage commissions, legal
expenses, reasonable attorneys' fees, alterations costs, and expenses
of preparation of the Demised Premises, or any portion thereof, for
such reletting.
Tenant shall pay such current damages in the amount determined in accordance
with the terms of this Paragraph 12.4, as set forth in a written statement
thereof from Landlord to Tenant (hereinafter called the "Deficiency"), to
Landlord in monthly installments on the days on which the Basic Rent would
have been payable under this Lease Agreement is this Lease Agreement were still
in effect, and Landlord shall be entitled to recover from Tenant each monthly
installment of the Deficiency as the same shall arise.
12.5 At any time after any such termination or retaking of
possession, whether or not Landlord shall have collected any monthly
Deficiencies as set forth in Paragraph 12.4, Landlord shall be entitled to
recover from Tenant, and Tenant shall pay to Landlord, on demand, as and for
damages for Tenant's default, an amount equal to the excess, if any, of the
then present worth of the aggregate of the Basic Rent and Additional Rent and
any other charges to be paid by Tenant hereunder for the unexpired portion of
the term of this Lease Agreement (assuming this Lease Agreement had not been so
terminated), and the then present worth of the then aggregate fair and
reasonable fair market rent of the Demised Premises for the same period. In the
computation of present worth, a discount at the rate of six percent (6%) per
annum shall be employed. If the Demised Premises, or any portion thereof, be
relet by Landlord for the unexpired term of this Lease Agreement, or any part
thereof, before presentation of proof of such damages to any court, commission
or tribunal, the amount of rent reserved upon such reletting shall, prima
facie, be the fair and reasonable fair market rent for the part or the whole of
the Demised Premises so relet during the term of the reletting. Nothing herein
contained or contained in Paragraph 12.4 shall limit or prejudice
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the right of Landlord to prove for and obtain, as damages by reason of such
expiration or termination, an amount equal to the maximum allowed by any
statute or rule of law in effect at the time when, and governing the
proceedings in which, such damages are to be proved, whether or not such amount
be greater, equal to or less than the amount of the difference referred to
above.
12.6 No failure by Landlord to insist upon the performance of any of
the terms of this Lease Agreement or to exercise any right or remedy consequent
upon a breach thereof, and no acceptance by Landlord of full or partial rent
from Tenant or any third party during the continuance of any such breach, shall
constitute a waiver of any such breach or of any of the terms of this lease
Agreement. None of the terms of this Lease Agreement to be kept, observed or
performed by Landlord or by Tenant, and no breach thereof, shall be waived,
altered or modified except by a written instrument executed by Landlord and/or
by Tenant, as the case may be. No waiver of any breach shall affect or alter
this Lease Agreement, but each of the terms of this Lease Agreement shall
continue in full force and effect with respect to any other then existing or
subsequent breach of this Lease Agreement. No waiver of any default of Tenant
herein shall be implied from any omission by Landlord to take any action on
account of such default, if such default persists or is repeated and no express
waiver shall affect any default other than the default specified in the express
waiver and that only for the time and to the extent therein stated. One or more
waivers by Landlord shall not be construed as a waiver of a subsequent breach
of the same covenant, term or condition.
12.7 In the event of any breach or threatened breach by Tenant of
any of the terms contained in this lease Agreement, Landlord shall be entitled
to enjoin such breach or threatened breach and shall have the right to invoke
any right or remedy allowed at law or in equity or by statute or otherwise as
though entry, reentry, summary proceedings and other remedies were not provided
for in this Lease Agreement. Each remedy or right of Landlord provided for in
this Lease Agreement shall be cumulative and shall be in addition to every
other right or remedy provided for in this lease Agreement, or now or hereafter
existing at law or in equity or by statute or otherwise, and the exercise or
the beginning of the exercise by Landlord of any one or more of such rights or
remedies shall not preclude the simultaneous or later exercise by Landlord of
any or all other rights or remedies.
12.8 If, during the term of this Lease Agreement, (i) Tenant shall
make an assignment for the benefit of creditors, (ii) a voluntary petition be
filed by Tenant under any law having for its purpose the adjudication of Tenant
a bankrupt, or Tenant be adjudged a bankrupt pursuant to an involuntary
petition in bankruptcy, (iii) a receiver be appointed for the property of
Tenant, or (iv) any department of the State or Federal government, or any
officer thereof duly authorized, shall take possession of
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the business or property of Tenant, the occurrence of any such contingency
shall be deemed a breach of the Lease Agreement and this Lease Agreement shall,
IPSO FACTO upon the happening of any of said contingencies, be terminated and
the same shall expire as fully and completely as if the day of the happening of
such contingency were the date herein specifically fixed for the expiration of
the term, and Tenant will then quit and surrender the Demised Premises, but
Tenant shall remain liable as hereinafter provided. Notwithstanding other
provisions of this Lease Agreement, or any present or future law, Landlord
shall be entitled to recover from Tenant or Tenant's estate (in lieu of the
equivalent of the amount of all rent and other charges unpaid at the date of
such termination) as damages for loss of the bargain and not as a penalty, an
aggregate sum which at the time of such termination represents the difference
between the then present worth of the aggregate of the Basic Rent and
Additional Rent and any other charges payable to Tenant hereunder that would
have accrued for the balance of the term of this Lease Agreement (assuming this
Lease Agreement had not been so terminated), over the then present worth of the
aggregate fair market rent of the Demised Premises for the balance of such
period, unless any statute or rule of law covering the proceedings in which
such damages are to be proved shall limit the amount of such claim capable of
being so proved, in which case Landlord shall be entitled to prove as and for
liquidated damages by reason of such breach and termination of this Lease
Agreement the maximum amount which may be allowed by or under such statute or
rule of law. In the computation of present worth, a discount rate of six
percent (6%) per annum shall be employed. Nothing contained herein shall limit
or prejudice Landlord's right to prove and obtain as liquidated damages arising
out of such breach and termination the maximum amount allowed by any such
statute or rule of law which may govern the proceedings in which such damages
are to be proved, whether or not such amount be greater, equal to, or less than
the amount of the excess of the present value of the rent and other charges
required herein over the present value of the fair market rents referred to
above. Specified remedies to which Landlord may resort under the terms of this
Paragraph 12.8 are cumulative and are not intended to be exclusive of any other
remedies or means of redress to which Landlord may be lawfully entitled.
12.9 Tenant hereby expressly waives, so far as permitted by law, any
and all right of redemption or reentry or repossession or to revive the
validity and existence of this Lease Agreement in the event that Tenant shall
be dispossessed by a judgment or by order of any court having jurisdiction over
the Demised Premises or the interpretation of this Lease Agreement or in case
of entry, reentry or repossession by Landlord or in case of any expiration or
termination of this Lease Agreement.
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ARTICLE XIII
DESTRUCTION AND RESTORATION
13.1 In case of any damage or loss to the Demised Premises by reason of
fire or other casualty, Tenant shall give immediate notice thereof to Landlord.
If the Demised Premises shall at any time be damaged or destroyed by fire or
other casualty, Lessee shall promptly cause to be repaired, rebuilt or restored
(hereinafter the "Restoration") the same at Tenant's expense, so as to make the
Demised Premises at least equal in value to the Demised Premises existing
immediately prior to such occurrence and as nearly similar in character as
shall be practicable and reasonable. Landlord shall apply and make available to
Tenant the net proceeds of any fire or other casualty insurance paid to
Landlord, after deduction of any reasonable costs of collection, including
attorneys' fees, for such Restoration as the same progresses.
13.2 Notwithstanding any provision to the contrary herein contained,
the Restoration as set forth in Paragraph 13.1 shall be governed, coordinated
and implemented by Landlord, whose discretion therewith shall control, it being
intended that Tenants involvement therein shall be limited to those economic
matters set forth in Paragraph 13.1. Landlord shall fulfill its Restoration
responsibilities in the manner which it deems reasonable.
13.3 Except as provided for in Paragraph 13.4, no destruction of or
damage to the Demised Premises, or any portion thereof, by fire, casualty or
otherwise shall permit Tenant to surrender this Lease Agreement or shall
relieve Tenant from its liability to pay to Landlord the Basic Rent and
Additional Rent, payable under this Lease Agreement or from any of its other
obligations under this Lease Agreement, and Tenant waives any rights now or
hereafter conferred upon Tenant by present or future law or otherwise to quit
or surrender this Lease Agreement or the Demised Premises, or any portion
thereof, to Landlord or to any suspension, diminution, abatement or reduction
of rent on account of such damage or destruction.
13.4 If at any time during the Term of this Lease Agreement the Demised
Premises shall be so damaged by fire or other casualty that the cost of
Restoration shall exceed fifty percent (50%) of the replacement value thereof,
exclusive of foundations, immediately prior to such damage, Landlord may,
within sixty (60) days after such damage, give notice to Tenant of its election
to terminate this Lease Agreement and this Lease Agreement shall cease and come
to an end as of the date of the damage as aforesaid, with the same force and
effect as if such date were the date hereinbefore fixed for the expiration of
the Term, and Basic Rent and Additional Rent shall thereafter be apportioned
and paid to the time of such termination. In such event Tenant shall have no
obligation to undertake the Restoration and the entire insurance
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proceeds resultant therefrom shall be and remain the property of Lessor.
ARTICLE XIV
CONDEMNATION
14.1 If by the exercise of the power of eminent domain the Demised
Premises shall be taken, or a portion thereof shall be taken and such taking
prevents the full economic use of the Demised Premises for the purposes
described herein, the Term of this Lease Agreement and the Term and estate
hereby granted shall terminate on the date when the possession of the part so
taken shall be required for such use or purpose. Tenant shall have no right to
share in any condemnation award except as set forth in Paragraph 14.3 hereof,
but Basic Rent, Additional Rent, and other amounts payable hereunder shall be
apportioned as of the date of such termination.
14.2 If by the exercise of the power of eminent domain a portion of the
Demised Premises is taken, but such taking does not prevent the full economic
use of the Demised Premises for the purposes described herein, the Lease
Agreement shall terminate as of the date of taking as to the part which is
taken, and shall continue in force as to the remainder of the Demised Premises.
Tenant shall have no right to share in the condemnation award for such taking,
except as put forth in Paragraph 14.3 hereof, but Basic Rent, Additional Rent,
and other amounts payable hereunder shall be apportioned as of the date of such
termination.
14.3 In any taking of the Demised Premises, or any portion thereof,
whether or not this Lease Agreement is terminated as in this Article provided,
Tenant shall not be entitled to any portion of the award for the taking of the
Demised Premises or damage to the Building or the Improvements, or for the
estate or interest of Tenant therein, all such award, damages, consequential
damages and compensation being hereby assigned to Landlord, and Tenant hereby
waives any right it now has or may have under present or future law to receive
any separate award of damages for its interest in the Demised Premises, or any
portion thereof, or its interest in this Lease Agreement, except that Tenant
shall have, nevertheless, the limited right to prove in any such proceeding and
to receive any separate award which may be made for damages to or condemnation
of Tenant's movable trade fixtures and equipment and for moving expenses so
long as such claims by Tenant do not reduce Landlord's award below what it would
be absent such claim.
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ARTICLE XV
ASSIGNMENT, SUBLETTING, ETC.
15.1 Tenant shall not sublet the Demised Premises, or any portion
thereof, nor assign, mortgage, pledge, transfer or otherwise encumber or
dispose of this Lease Agreement, or any interest therein, or in any manner
assign, mortgage, pledge, transfer or otherwise encumber or dispose of its
interest or estate in the Demised Premises, or any portion thereof, without
obtaining Landlord's prior written express consent in each and every instance,
which consent, however, to an assignment of this Lease Agreement or subletting
of the Demised Premises shall not be unreasonably withheld or delayed, provided
the following conditions are complied with:
(a) Any assignment of this Lease Agreement shall transfer to
the assignee all of Tenant's right, title and interest in this Lease
Agreement and all of Tenant's estate or interest in the Demised
Premises.
(b) At the time of any assignment or subletting, and at the
time when Tenant requests Landlord's written consent thereto, this Lease
Agreement must be in full force and effect, without any breach or
default thereunder on the part of Tenant.
(c) Any such assignee shall assume, by written recordable
instrument in form and content satisfactory to Landlord, the due
performance of all of Tenant's obligations under this Lease Agreement,
including any accrued obligations at the time of the effective date of
the assignment, and such assumption agreement shall state that the
same is made by the assignee for the express benefit of Landlord as a
third party beneficiary thereof. A copy of the assignment and
assumption agreement, both in form and content satisfactory to
Landlord, fully executed and acknowledged by assignee, together with
related documents and agreements and a certified copy of a properly
executed corporate resolution (if the assignee be a corporation)
authorizing the execution and delivery of such assumption agreement,
shall be sent to Landlord ten (10) days prior to the effective date of
such assignment, and in any event within ten (10) days after execution
thereof.
(d) In the case of a subletting, a copy of any sublease
fully executed and acknowledged by Tenant and sublessee shall be mailed
to Landlord ten (10) days prior to the effective date of such
subletting, and in any event within ten (10) days after execution there
of.
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(e) Such assignment or subletting shall be subject to all the
provisions, terms, convenants and conditions of this Lease Agreement,
and Tenant-Assignor and the assignee or assignees shall continue to be
and reamin liable under the Lease Agreement, as it may be amended from
time to time.
(f) Each sublease permitted under this Paragraph 15.1 shall
contain provisions to the effect that (i) such sublease is only for
actual use and occupancy by the sublesee; (ii) such sublease is
subject and subordinate to all of the terms, covenants and conditions
of this Lease Agreement and to all of the rights of Landlord
thereunder; and (iii) in the event this Lease Agreement shall
terminate before the expiration of such sublease, the sublessee
thereunder will, at Landlord's option, attorn to Landlord and waive any
rights the sublessee may have to terminate the sublease or to surrender
possession thereunder, as a result of the termination of this Lease
Agreement. Further, no subtenant or occupant of the Demised Premises
shall have any greater rights in respect to Landlord than such party
would have if such party had assumed the obligations of and limitation
of rights of Tenant hereunder at the time such party becamse a subtenant
or occupant, and Tenant shall cause each subtenant and occupant to so
agree.
(g) Tenant agrees to pay on behalf of Landlord any and all
costs of Landlord, including reasonable attorneys' fees, occasioned by
such assignment or subletting.
(h) If any modification to the Lease Agreement is proposed to
be made after such assignment or sublease, then, at Landlord's option,
all prior assignors and sublessors, and all such obligated
parties, shall be required to confirm in writing their approval of such
modification, and that their obligations continue as to the Lease
Agreement as so modified.
(i) The use to which the assignee or sublessee may put the
Demised Premises shall not involve the use of so-called "hazardous
materials," except as provided in Paragraph 23.2 of this lease
Agreement, or constitute a use which will materially increase the
physical depreciation over the use to which the assignor is using such
Demised Premises.
15.2 Notwithstanding anything contained in this Lease Agreement to the
contrary and notwithstanding any consent by Landlord to any sublease of the
Demised Premises, or any portion thereof, or to any assignment of this Lease
Agreement or of
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Tenant's Interest or estate in the Demised Premises, no sublease shall assign
its sublease nor further sublease the Demised Premises, or any portion thereof,
and no assignee shall further assign its interest in this Lease Agreement or
its interest or estate in the Demised Premises, or any portion thereof, nor
sublease the Demised Premises, or any portion thereof, without Landlord's prior
written consent in each and every instance. No such assignment or subleasing
shall relieve Tenant (or any assignor of Tenant's interest) from any of
Tenant's obligations in this Lease Agreement contained.
15.3 Notwithstanding anything contained in this Lease Agreement to
the contrary, should Tenant desire to assign this Lease Agreement, or its
interest or estate in the Demised Premises, or sublet the Demised Premises, or
any portion thereof, it shall give written notice of its intention to do so to
Landlord sixty (60) days or more before the effective date of such proposed
assignment or subletting and Landlord may, at any time within thirty (30) days
after the receipt of such notice from Tenant, cancel this Lease Agreement by
giving Tenant written notice of its intention to do so, in which event such
cancellation shall become effective upon the date specified by Landlord, but
not less than thirty (30) days nor more than ninety (90) days after its receipt
by Tenant, with the same force and effect as if said cancellation date were the
date originally set forth as the expiration date of the Term of this Lease
Agreement. Landlord may enter into a direct lease with the proposed sublessee
or assignee or with any other persons as Landlord may desire without obligation
or liability to Tenant, its assignees, sublessees or their respective
successors, assigns, agents or brokers.
15.4 Tenant's failure to comply with all of the foregoing provisions
and conditions of Article XV shall (whether or not Landlord's consent is
required under this Article), at Landlord's option, render any purported
assignment or subletting null and void and of no force and effect.
15.5 Landlord acknowledges that, in connection with Tenant's
operations at the Demised Premises, Tenant shall require in-house tool and die
services/operations, and that in connection with such required
services/operations Tenant desires to sublease a portion of the Demised
Premises to a tool and die specialist, exclusively for the purpose of serving
Tenant's tool and die needs for Tenant's operations at the Demised Premises.
Tenant hereby acknowledges and agrees that any such subletting that Tenant
shall require for such purpose, shall require Landlord's prior written consent,
and Tenant shall be required by Landlord to comply with each of the above terms
and conditions pertaining to subleases proposed for any part or portion of the
Demised Premises. Landlord hereby agrees that it shall not act unreasonably in
determining whether to withhold or grant its consent for any such sublease.
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ARTICLE XVI
SUBORDINATION; NONDISTURBANCE;
NOTICE TO MORTGAGEE AND ATTORNMENT
16.1 This Lease Agreement and all rights of Tenant therein, and all
interest or estate of Tenant in the Demised Premises, or any portion thereof,
shall be subject and subordinate to the lien of any mortgage, deed of trust,
security instrument or other document of like nature, hereinafter referred to
as "Mortgage," which may be in existence as of the Commencement Date or which
may hereafter at any time be placed upon the Demised Premises, or any portion
thereof, by Landlord, and to any replacements, renewals, amendments,
modifications, extensions or refinancing thereof, and to each and every advance
made under any Mortgage. Tenant agrees at any time hereafter, and from time to
time on demand of Landlord, to execute and deliver to Landlord any instruments,
releases or other documents that may be reasonably required for the purpose of
evidencing the subjecting and subordinating of this Lease Agreement to the lien
of any such Mortgage. It is agreed, however, that so long as Tenant shall not
be in default in the payment of Basic Rent and Additional Rent and the
performance and observance of all covenants, conditions, provisions, terms and
agreements to be performed and observed by Tenant under this Lease Agreement,
(i) such subordination agreement or other instrument, release or document shall
contain and (ii) Tenant on its own request may seek and Landlord will use its
best efforts (excluding however any obligation by Landlord to pay fees or
charges imposed by any such mortgagee in connection therewith) to obtain from
any such Mortgagee (including the mortgagee in place as of the Commencement
Date), a so-called "Nondisturbance Agreement" in reasonable form, providing
that if Tenant shall not be in default as provided above, then Tenant's right
to quiet enjoyment under this Lease Agreement, its right to continue to occupy
the Demised Premises, and all portions thereof, and its right to conduct its
business thereon in accordance with the covenants, conditions, provisions,
terms and agreements herein contained shall not be interfered with, hindered or
molested, and further that Tenant's interest in and to the Lease Agreement
shall remain in full force and effect, including the option to purchase under
Paragraph 18.1 hereof. The lien of any such Mortgage shall not cover Tenant's
trade fixtures or other personal property of Tenant located in or on the
Demised Premises.
16.2 In the event of any act or omission of Landlord constituting a
default by Landlord, Tenant shall not exercise any remedy until Tenant has
given Landlord and any mortgagee of the Demised Premises a prior thirty (30)
day written notice of such act or omission and until a reasonable period of
time to allow Landlord or the mortgagee to remedy such act or omission shall
have elapsed following the giving of such notice; provided, however, if such
act or omission cannot, with due diligence and in good faith, be remedied
within such thirty (30) day period, the Landlord and
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mortgagee shall be allowed such further period of time as may be reasonably
necessary provided that it commence remedying the same with due diligence and
in good faith within said thirty (30) day period, but in no event shall such
additional cure period exceed forty-five (45) days from and after the
expiration of the original thirty (30) day cure period. Nothing herein
contained shall be construed or interpreted as requiring any mortgagee to
remedy such act or omission.
16.3 Subject to the provisions for nondisturbance language as provided
in Paragraph 16.1 hereof, if any mortgagee shall succeed to the rights of
Landlord under this Lease Agreement or to ownership of the Demised Premises,
whether through possession or foreclosure or the delivery of a deed to the
Demised Premises, then, upon written request of such mortgagee so succeeding to
Landlord's rights hereunder, Tenant shall attorn to and recognize such
mortgagee as Tenant's landlord under this Lease Agreement, and shall promptly
execute and deliver any instrument that such mortgagee may reasonably request
to evidence such attornment (whether before or after making of the mortgage).
In the event of any other transfer of Landlord's interest under this Lease
Agreement, upon the written request of the transferee and Landlord, Tenant
shall attorn to and recognize such transferee as Tenant's landlord under this
Lease Agreement and shall promptly execute and deliver any instrument that such
transferee and Landlord may reasonably request to evidence such attornment.
ARTICLE XVII
SIGNS
17.1 Tenant, at Tenant's sole cost and expense, may erect signs on the
exterior or interior of the Building or on the landscaped area adjacent
thereto, provided that such sign or signs (i) do not cause any structural
damage or other damage to the Building; (ii) do not violate applicable
governmental laws, ordinances, rules or regulations; (iii) do not violate any
existing restrictions affecting the Demised Premises; (iv) are compatible with
the architecture of the Building and the landscaped area adjacent thereto; and
(v) have received the written approval of Landlord (which approval shall not be
unreasonably withheld or delayed).
ARTICLE XVIII
INTENTIONALLY DELETED
ARTICLE XIX
CHANGES AND ALTERATIONS
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19.1 During the Term of this Lease Agreement, Tenant shall not make
changes and alterations, structural or otherwise, to the Building, Improvements
and fixtures, now or hereafter erected on the Demised Premises, without
obtaining Landlord's prior written consent thereto in each and every instance,
which consent shall not be unreasonably withheld or delayed. Notwithstanding
any provision hereof appearing to the contrary, Landlord shall not be required
to grant its consent for any change or alteration which, in Landlord's
reasonable determination, diminishes the value of the Building, Improvements or
fixtures. Landlord hereby agrees that Tenant shall be permitted to raise the
roof in a certain area of the Building, affecting a portion of the Building's
roof, containing approximately 7,500 square feet; provided Tenant complies with
Section 19.2 hereinbelow, and with all other provisions contained in this Lease.
19.2 To the extent that Landlord consents to any alteration to the
Demised Premises proposed by Tenant, Tenant agrees that all changes, additions
and work to implement any such alteration shall be done completely at Tenant's
sole cost and expense, and any such alteration shall:
(a) comply with Article IX hereof and with the requirements of
all governmental or quasi-governmental authorities having jurisdiction
over building matters and zoning requirements, and with the requirements
of Landlord's insurance carriers;
(b) be made only with the prior written consent of Landlord;
(c) equal or exceed the quality of materials used for the
Building; and
(d) be carried out only by persons selected by Tenant and
approved in writing by Landlord, who shall, if required by Landlord,
deliver to Landlord before commencement of the work performance and
payment bonds as well as proof of worker's compensation and public
liability and property damage insurance coverage, with Landlord named
as an additional insured, in amounts, with companies, and in form
reasonably satisfactory to Landlord, which shall remain in effect during
the entire period in which the work will be carried out.
Tenant shall indemnify Landlord against any increase in property taxes on or
fire or casualty insurance premiums for the Building attributable to such
change, addition or improvement, any such increase to be borne by Tenant.
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ARTICLE XX
MISCELLANEOUS PROVISIONS
20.1 Tenant agrees to permit Landlord and authorized representatives of
Landlord to enter upon the Demised Premises at all reasonable times during
ordinary business hours for the purpose of inspecting the same and making any
necessary repairs to comply with any laws, ordinances, rules, regulations or
requirements of any public body, or the Board of Fire Underwriters, or any
similar body. Nothing herein contained shall imply any duty upon the part of
Landlord to do any such work which, under any provision of this Lease Agreement,
Tenant may be required to perform and the performance thereof by Landlord shall
not constitute a waiver of Tenant's default in failing to perform the same.
Landlord may, during the progress of any work, keep and store upon the Demised
Premises all necessary materials, tools and equipment. Landlord shall not in
any event be liable for inconvenience, annoyance, disturbance, loss of business
or other damage to Tenant by reason of making repairs or the performance of any
work in or about the Demised Premises, or on account of bringing material,
supplies and equipment into, upon or through the Demised Premises during the
course thereof, and the obligations of Tenant under this Lease Agreement shall
not be thereby affected in any manner whatsoever.
20.2 Landlord is hereby given the right during normal business hours at
any time during the term of this Lease Agreement to enter upon the Demised
Premises and to exhibit the same for the purpose of mortgaging or selling the
same. During the final one (1) year of the term Landlord shall be entitled to
display on the Demised Premises, in such manner as to not unreasonably
interfere with Tenant's business, signs indicating that the Demised Premises
are for rent or sale and suitably identifying Landlord or its agent. Tenant
agrees that such signs may remain unmolested upon the Demised Premises and that
Landlord may exhibit said premises to prospective tenants during said period.
20.3 To the fullest extent allowed by law, and except and to the extent
that the following may be occasioned by Landlord's negligence as a landlord
under the terms and provisions of this Lease Agreement, Tenant shall at all
times indemnify, defend and hold Landlord harmless against and from any and all
claims by or on behalf of any person or persons, firm or firms, corporation or
corporations, arising from the conduct or management, or from any work or
things whatsoever done in or about the Demised Premises, and will further
indemnify, defend and hold Landlord harmless against and from any and all
claims arising during the term of this Lease Agreement, from any condition of
the Improvements or any street, curb or sidewalk adjoining the Demised
Premises, or of any passageways or space therein or appurtenant thereto, or
arising from any breach or default on the part of Tenant in the performance of
any covenant or agreement on the part of Tenant to be performed, pursuant to
the terms of this Lease Agreement, or arising from any
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act or negligence of Tenant, its agents, servants, employees or licensees, or
arising from any accident, injury or damage whatsoever caused to any person,
firm or corporation occurring during the term of this Lease Agreement, in or
about the Demised Premises or upon the sidewalk and the land adjacent thereto,
and from and against all costs, attorneys' fees, expenses and liabilities
incurred in or about any such claim or action or proceeding brought thereon;
and in case any action or proceeding be brought against Landlord by reason of
any such claim, Tenant, upon notice from Landlord, covenants to defend such
action or proceeding by counsel reasonably satisfactory to Landlord. Tenant's
obligations under this Paragraph 20.3 shall be insured by contractual liability
endorsement on Tenant's policies of insurance required under the provisions of
Paragraph 6.2 hereof.
20.4 All notices, demands and requests which may be or are required to
be given, demanded or requested by either party to the other shall be in
writing. All notices, demands and requests shall be sent by United States
registered or certified mail, postage prepaid, addressed as follows:
If to Landlord:
Packaging Resources Incorporated
One Xxxxxx Park
000 Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxxxx, Vice President
If to Tenant:
Tamor Plastics Corp.
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, President
With a copy to:
Xxxxxxx & Xxxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx, Esq.
or at such other place as Landlord or Tenant may from time to time designate by
written notice. Notices, demands and requests which shall be served upon
Landlord by Tenant, or upon Tenant by Landlord, in the manner aforesaid, shall
be deemed to be sufficient served or given for all purposes hereunder at the
time such notice, demand or request shall be mailed.
20.5 [Intentionally Omitted.]
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20.6 Landlord covenants and agrees that Tenant, upon paying the Basic
Rent and Additional Rent, and upon observing and keeping the covenants,
agreements and conditions of this Lease Agreement on its part to be kept,
observed and performed, shall lawfully and quietly hold, occupy and enjoy the
Demised Premises (subject to the provisions of this Lease Agreement) during the
term of this Lease Agreement without hindrance or molestation by Landlord or by
any person or persons claiming under Landlord.
20.7 The term "Landlord," as used in this Lease Agreement so far as
covenants or obligations on the part of Landlord are concerned, shall be
limited to mean and include only the owner or owners at the time in question
of the fee of the Demised Premises, and in the event of any transfer or
transfers of conveyance the then grantor shall be automatically freed and
relieved from and after the date of such transfer or conveyance of all
liability as respects the performance of any covenants or obligations on the
part of Landlord contained in this Lease Agreement thereafter to be performed,
provided that any funds in the hands of such landlord or the then grantor at
the time of such transfer, in which Tenant has an interest, shall be turned
over to the grantee, and any amount then due and payable to Tenant by Landlord
or the then grantor under any provision of this Lease Agreement shall be paid
to Tenant, it being intended hereby that the covenants and obligations
contained in this Lease Agreement on the part of Landlord shall, subject to
the aforesaid, be binding on Landlord, its successors and assigns, only during
and in respect of their respective successive periods of ownership.
20.8 In the event that Tenant is a corporation, Tenant shall, without
charge to Landlord, at any time and from time to time within fifteen (15) days
after written request by Landlord, deliver to Landlord, in connection with any
proposed sale or mortgage of the Demised Premises, the following instruments
and documents:
(a) A certified copy of the resolution of the
board of directors of Tenant authorizing the execution
and delivery of the Lease Agreement.
(b) Certificate of Good Standing in the state
of incorporation of tenant and in the state in which
the Demised Premises are located issued by the
appropriate state authority and bearing a current
date.
(c) Such other certifications or statements as
Landlord may reasonably require.
20.9 If any covenant, condition, provision, term or agreement of this
Lease Agreement shall, to any extent, be held invalid or unenforceable, the
remaining covenants, conditions, provisions, terms and agreements of this Lease
Agreement shall not
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be affected thereby, but each covenant, condition, provision, term or agreement
of this Lease Agreement shall be valid and in force to the fullest extent
permitted by law. This Lease Agreement shall be construed and be enforceable in
accordance with the laws of the state in which the Demised Premises are located.
20.10 The covenants and agreements herein contained shall bind and
inure to the benefit of Landlord, its successors and assigns, and Tenant and
its permitted successors and assigns.
20.11 The caption of each article of this Lease Agreement is for
convenience of reference only, and in no way defines, limits or describes the
scope or intent of such article or of this Lease Agreement.
20.12 This Lease Agreement does not create the relationship of
principal and agent, or of partnership, joint venture, or of any association or
relationship between Landlord and Tenant, the sole relationship between
Landlord and Tenant being that of landlord and tenant.
20.13 All preliminary and contemporaneous negotiations are merged into
and incorporated in this Lease Agreement. This Lease Agreement contains the
entire agreement between the parties and shall not be modified or amended in
any manner except by an instrument in writing executed by the parties hereto.
20.14 There shall be no merger of this Lease Agreement or the leasehold
estate created by this Lease Agreement with any other estate or interest in the
Demised Premises by reason of the fact that the same person, firm, corporation
or other entity may acquire, hold or own directly or indirectly, (i) this
Lease Agreement or the leasehold interest created by this Lease Agreement or
any interest therein, and (ii) any such other estate or interest in the Demised
Premises, or any portion thereof. No such merger shall occur unless and until
all persons, firms, corporations or other entities having an interest
(including a security interest) in (1) this Lease Agreement or the leasehold
estate created thereby, and (2) any such other estate or interest in the
Demised Premises, or any portion thereof, shall join in a written instrument
expressly effecting such merger and shall duly record the same.
20.15 Tenant acknowledges that the Demised Premises are the property of
Landlord and that Tenant has no right to the property owned or paid for by
Landlord or to fixtures attached to the Demised Premises, except to possess
same in accordance with and during the term thereof.
20.16 No surrender to Landlord to this Lease Agreement or of the
Demised Premises, or any portion thereof, or any interest therein, prior to the
expiration of the Term of this Lease
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Agreement shall be valid or effective unless agreed to and accepted in writing
by Landlord and consented to in writing by all contract vendees and mortgagees,
and no act or omission by Landlord or any representative or agent of Landlord,
other than such a written acceptance by Landlord consented to by all contract
vendees and the mortgagees, as aforesaid, shall constitute an acceptance of any
such surrender.
20.17 At the expiration of the Term of this Lease Agreement or upon the
termination of this Lease Agreement for any reason whatsoever, Tenant shall
surrender the Demised Premises, together with the Building, Improvements,
fixtures and structures in the same condition as the same were in upon delivery
of possession thereto at the Commencement Date of the Term of this Lease
Agreement, reasonable wear and tear, approved alterations and improvements
(subject to Article XIX) and Tenants moveable trade fixtures and equipment
excepted, and shall surrender all keys to the Demised Premises to Landlord at
the place then fixed for the payment of Basic Rent and shall inform Landlord of
all combinations on locks, safes and vaults, if any. Tenant shall at such time
remove all of its property therefrom and all alterations and improvements
placed thereon by Tenant if so requested by Landlord. Tenant shall repair any
damage to the Demised Premises caused by such removal, and any and all such
property not so removed shall, at Landlord's option, become the exclusive
property of Landlord or be disposed of by Landlord, at Tenant's cost and
expense, without further notice to or demand upon Tenant. If the Demised
Premises be not surrendered as above set forth, Tenant shall indemnify, defend
and hold Landlord harmless against loss or liability resulting from the delay
by Tenant in so surrendering the Demised premises, including, without
limitation, any claim made by any succeeding occupant founded on such delay.
Tenant's obligation to observe or perform this covenant shall survive the
expiration or other termination of this Lease Agreement.
All property of Tenant not removed on or before the last day of the
Term of this Lease Agreement shall be deemed abandoned. Tenant hereby appoints
Landlord its agent to remove all property of Tenant from the Demised Premises
upon termination of this Lease Agreement and to cause its transportation and
storage for Tenant's benefit, all at the sole cost and risk of Tenant and
Landlord shall not be liable for damage, theft, misappropriation or loss
thereof and Landlord shall not be liable in any manner in or respect thereto.
Tenant shall pay all costs and expenses of such removal, transportation and
storage. Tenant shall reimburse Landlord upon demand for any expenses incurred
by Landlord with respect to removal or storage of abandoned property and with
respect to restoring said Demised Premises to good order, condition and repair.
20.18 All obligations (together with interest or money obligations at
the Maximum Rate of Interest) accruing prior to
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expiration of the Term of this Lease Agreement shall survive the expiration or
other termination of this Lease Agreement.
ARTICLE XXI
BROKERAGE
21.1 Tenant represents and warrants to Landlord that Tenant has not
incurred any obligation or liability, contingent or otherwise, for brokerage or
finder's fees or agent's commissions or other like payment in connection with
this Lease Agreement or the transactions contemplated hereby, and Tenant agrees
to indemnify, defend and hold Landlord harmless against and in respect of any
such obligation and liability based in any way upon agreements, arrangements or
understandings made or claimed to have been made by Tenant with any third
person. Landlord hereby agrees to indemnify and defend Tenant against any claim
for commission which is due and payable to any broker on the transaction
contemplated hereby arising out of any agreements or understandings made or
claimed to have been made by Landlord with any third party. In respect to any
claim indemnified herein, the indemnifying party shall be given prompt notice
of such claims and opportunity to defend with counsel of its selection.
Anything herein to the contrary notwithstanding, Landlord shall pay any
commission arising out of this transaction negotiated by Landlord with Listing
Broker.
ARTICLE XXII
SECURITY DEPOSIT
22.1 Landlord is currently holding the sum of Twenty Two Thousand
Eight Hundred Seven and 00/100 Dollars ($22,807.00) as a security deposit
("Security Deposit") for the full and faithful performance by Tenant of each
and every term, provision, covenant and condition of this Lease Agreement. In
the event that Tenant defaults in respect to any of the terms, provisions,
covenants and conditions of this Lease Agreement, including, but not limited
to, the payment of Basic Rent, Additional Rent, or other charges or items to be
paid or provided for by Tenant, Landlord may use, apply or retain the whole or
any part of the Security Deposit for the payment of any such amount in default
or for any other sum which Landlord may expend or be required to expend by
reason of Tenant's default, including, but not limited to, any damages or
deficiency in the reletting of the Leased Premises, whether such damages or
deficiency may accrue before or after reentry by Landlord. Tenant shall not be
entitled to any interest on the Security Deposit. It is expressly understood
and agreed that such deposit is not an advance rental deposit or a measure of
Landlord's damages in case of Tenant's default. Upon application of any part of
the Security Deposit by Lessor as provided herein, Tenant shall pay to Landlord
on demand the amount so applied in order to restore the Security Deposit to its
original amount. Any application of the Security
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Deposit by Landlord shall not be deemed to have cured Tenant's default by
reason of which the application is made.
22.2 In the event of a bona fide sale of the Building situated on the
Demised Premises, Landlord shall have the right to transfer the Security
Deposit to its vendee for the benefit of Tenant, and thereafter Landlord shall
be released of all liability for the return of such deposit and Tenant agrees
to look to said vendee for the return of its Security Deposit. It is agreed
that this provision shall apply to every transfer or assignment made of the
Security Deposit to any new landlord.
22.3 This Security Deposit shall not be assigned or encumbered by
Tenant. It is expressly understood that the reentry of the Demised Premises by
Landlord for any default on the part of Tenant prior to the expiration of the
Term of this Lease Agreement shall not be deemed a termination of this Lease
Agreement so as to entitle Tenant to recover the Security Deposit, and the
Security Deposit shall be retained and remain in the possession of Landlord
until the end of the Term of this Lease Agreement.
22.4 Actions by Landlord against Tenant for breach of this Lease shall
in no way be limited or restricted by the amount of this Security Deposit and
resort to such deposit shall not waive any other rights or constitute an
election of remedies which Landlord may have.
22.5 If Tenant shall fully and faithfully comply with all the terms,
provisions, covenants and conditions of this Lease Agreement, the Security
Deposit, or any balance thereof, shall be returned to Tenant, without interest
thereon, within thirty (30) days after the time fixed herein as the expiration
of the Term hereof and after the removal of Tenant and surrender of possession
of the Demised Premises to Landlord.
ARTICLE XXIII
ASBESTOS AND HAZARDOUS SUBSTANCES
23.1 Tenant shall not install or permit to be installed in the Demised
Premises, asbestos or any substance containing asbestos. With respect to any
such material, Tenant shall promptly remove any such material at Tenant's sole
cost and expense. If Tenant shall fail to so remove, Landlord may, after notice
to Tenant and the expiration of the earlier of (i) applicable cure period
hereunder or (ii) the cure period permitted under the applicable law, rule,
regulation or order, either declare this Lease Agreement to be in default or do
whatever is necessary to eliminate said substances from the Demised Premises or
otherwise comply with the applicable law, rule, regulation or order and the
cost thereof shall be due and payable upon demand. Tenant shall give to
Landlord and its agents and employees access to the Demised
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Premises and hereby authorizes Landlord to remove said asbestos or substances.
Tenant shall indemnify Landlord and hold Landlord harmless from and against all
loss, cost, damage and expense (including, without limitation, attorney's fees
and costs incurred in the investigation, defense and settlement of claims) that
Landlord may incur as a result of or in connection with the assertion against
Landlord of any claim relating to the presence or removal of any asbestos
substance referred to in this Paragraph 23.1, or compliance with any federal,
state or local laws, rules, regulations or orders relating thereto, provided
such claim relates to the asbestos installed by Tenant. In addition, Tenant
acknowledges that in the event asbestos located at the Demised Premises by or
through the actions of Tenant or persons claiming under or through Tenant, is
caused to be removed from the Demised Premises by Tenant or by Landlord, that
the Environmental Protection Agency number assigned to such asbestos so removed
shall be solely in the name of the Tenant, and Tenant shall assume all
liability for such removed asbestos. Tenant agrees that it shall indemnify and
hold Landlord harmless from and against any claim or claims, arising from or
relating to all environmental conditions or environmental matters, other than
the Pre-Existing Environmental Conditions (defined hereinbelow), arising from
or caused by Tenant's use, possession or occupancy of the Demised Premises, and
the use, possession or occupancy of the Demised Premises by those persons
claiming under or through Tenant. Tenant's obligations hereunder shall survive
the expiration or earlier termination of the Lease Agreement as provided
herein.
Further, Landlord agrees that it shall be solely responsible for the
remediation of all asbestos and/or asbestos containing materials and
environmental conditions (hereinafter the "Pre-existing Environmental
Conditions") located at the Demised Premises and those environmental problems,
matters or conditions, existing at the Demised Premises on a date which is
prior to Tenant's use or occupancy thereof, or those environmental problems,
conditions or matters which are noted in the XXXXX Phase I Audit or the XXXXX
Phase II Audit to be promptly completed by Landlord (so long as no such
environmental problem, condition or matter is attributable to Tenant's use or
occupancy of the Demised Premises). Any Environmental Protection Agency number
required to be issued in connection with such remediation shall be the
responsibility of Landlord and not Tenant. Landlord agrees that it shall
indemnify and hold Tenant harmless from and against any claim or claims,
arising from or related to the Pre-existing Environmental Conditions.
Landlord's obligations hereunder shall survive the expiration or earlier
termination of this Lease Agreement as provided herein.
23.2 (a) For purposes of this Paragraph 23.2, "hazardous substance"
means any matter giving rise to liability under the Resource Conservation and
Recovery Act ("RCRA"), 42 U.S.C. Section 6901 et seq., the Comprehensive
Environmental Response,
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Compensation and Liability Act ("CERCLA"), 52 U.S.C. Sections 9601 et seq.,
state, local or municipal laws, rules, regulations or orders (hereinafter
"State and Local Laws"), or any common law theory based on nuisance or strict
liability.
(b) Notwithstanding anything contained in Article XXIII to the
contrary, Tenant shall not generate, manufacture, treat, store, dispose,
release, recycle, handle, use, or otherwise manage any Hazardous Substance or
"Hazardous Material" at the Demised Premises. For purposes of this Lease
Agreement, the term "Hazardous Material" shall mean any material, chemical,
substance, or article that is or contains a Hazardous Substance,
polychlorinated biphenyls, asbestos, or radioactive matter. Notwithstanding
the foregoing, Tenant is authorized to store, handle, or use a Hazardous
Material that is or contains a Hazardous Substance provided that such Hazardous
Material is not and does not contain a "hazardous waste" (as that term is
defined in the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901,
et seq., and its implementing regulations) and provided further that during the
Term of this Lease Agreement and upon termination of the Term, such Hazardous
Substance and/or Hazardous Material will be stored, handled, used and disposed
of in strict accordance with all applicable federal, state, and local laws and
regulations. Tenant's failure to comply with the provisions of this Article
XXIII shall constitute a default under this Lease Agreement. Tenant's
obligation hereunder shall survive the termination of this Lease Agreement.
(c) If the presence, release, threat of release, placement on or in
the Demised Premises, or the generation, transportation, storage, treatment, or
disposal at the Demised Premises of any hazardous substance: (i) gives rise to
liability (including, but not limited to, a response action, remedial action,
or removal action) under RCRA, CERCLA, State and Local Laws, or any common law
theory based on nuisance or strict liability, (ii) causes a significant public
health effect, or (iii) pollutes or threatens to pollute the environment,
Tenant shall promptly take any and all remedial and removal action necessary to
clean up the Demised Premises and mitigate exposure to liability arising from
the hazardous substance, whether or not required by law.
(d) Tenant shall indemnify, defend and hold Landlord harmless from all
damages, costs, losses, expenses (including, but not limited to, actual
attorneys' fees and engineering fees) arising from or attributable to any
breach by Tenant of any of its covenants contained in this Paragraph 23.2.
Tenant's obligations hereunder shall survive the termination of this Lease
Agreement. Notwithstanding any provision herein contained, Tenant shall not be
obligated to indemnify Landlord for any "Hazardous Substances" or "Hazardous
Materials" which existed on or in the Premises prior to the Commencement Date.
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ARTICLE XXIV
COUNTERPARTS
24.1 This Lease Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute but one instrument.
This Agreement Includes the Following Exhibits
Exhibit A - Description of Land
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IN WITNESS WHEREOF, each of the parties hereto has caused this Lease
Agreement to be duly executed as of the day and year first above written.
LANDLORD: TENANT:
PACKAGING RESOURCES INCORPORATED, TAMOR PLASTICS CORP.,
a Delaware corporation a Massachusetts corporation
By: [Signature] By: Xxxxxxx X. Xxxxx
--------------------------- -----------------------------
Its: Vice President Its: President
--------------------------- -----------------------------
[Signature] [Signature]
--------------------------- -----------------------------
Vice President Treasurer
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
The foregoing instrument was acknowledged before me this 7th day of
February, 1995, by [Signature] and by [Signature] and _________________ of
PACKAGING RESOURCES INCORPORATED, a Delaware corporation, on behalf of the
corporation and for the uses and purposes therein contained.
---------------------------------
"OFFICIAL SEAL" Xxxx X. Xxxxx
XXXX X. XXXXX ------------------------------
NOTARY PUBLIC, STATE OF ILLINOIS Notary Public
MY COMMISSION EXPIRES 12/3/97
-------------------------------- My Commission Expires: 00-0-00
XXXXX XX XXXXXXXXXXXXX )
) SS
COUNTY OF WORCESTER )
The foregoing instrument was acknowledged before me this 3rd day of
February, 1995, by Xxxxxxx X. Xxxxx and by Xxxxxxx X. Xxxxx of XXXXX PLASTICS
CORP., a Massachusetts corporation, on behalf of the corporation and for the
uses and purposes therein contained.
Xxxxxxx X. Xxxxx
-----------------------------
Notary Public
My Commission Expires: 3/30/01
[NOTARY PUBLIC SEAL]
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EXHIBIT A
Legal Description
All of Xxx Xx. 000 xx Xxxxx Xx. 00, of the Original Town, now City of
Louisiana, Missouri, as shown by the recorded plat of said town, now City of
Louisiana, in Pike County, Missouri, subject to easements and restrictions of
record and zoning ordinances.
All of that part of Lot Numbered Five (5) of Xxxx Xxxxx'x Addition to
the City of Louisiana, Pike County, Missouri, described as follows: Beginning
at the northwesterly corner of said Lot Number Five (5) at the intersection of
the easterly line of the right xx xxx xx Xxxxxxx 00, thence South 37 degrees
west following the said right of way line 104.25 feet, thence south 53 degrees
east 377.12 feet, thence north 37 degrees east 104.25 feet to the east of
northeast corner of the land herein conveyed; thence north 53 degrees west
377.12 feet to the beginning, reserving and excepting from the above a strip of
ground along the southerly line thereof, 15 feet wide for a public roadway;
together with the improvements located thereon, and subject to easements and
restrictions of record and zoning ordinances.
Begin at the intersection of the westerly line of Lot 5 of Xxxx Xxxxx'x
Addition to Louisiana, Missouri and the southerly right-of-way line of Missouri
Xxxxx Xxxxxxx Xx. 00 and run southeasterly Six Hundred (600) feet along the
West line of Lot 5 and Lot 8, to the northerly right-of-way line of the Gulf,
Mobile and Ohio Railroad, thence easterly along said right-of-way Four Hundred
Seventeen (417) feet to the westerly line of 30th Street, run thence
northwesterly along the said 00xx Xxxxxx line One Hundred Forty (140) feet, run
thence Southwesterly and parallel to said Xxxxxxx Xx. 00 Two Hundred Eight
(208) feet, thence northwesterly and parallel to 00xx Xxxxxx One Hundred
Twenty-three (123) feet, thence southwesterly and parallel to said Highway 54
One Hundred Four (104) ft. thence northwesterly and parallel to 00xx Xxxxxx
Three Hundred Seventy-seven (377) feet to the southerly right-of-way line of
the Highway, then westerly with the Highway right-of-way One Hundred Four (104)
feet to the point of beginning. The above described property being the westerly
half and forty (40) feet off the south end of the easterly half of Lot No. 5 of
Xxxx Xxxxx'x Addition to Louisiana, Missouri, and that part of Lots 8 and 9 of
Xxxx Xxxxx'x Addition to Louisiana, Missouri, lying north of the Gulf, Mobile
and Ohio Railroad right-of-way except a plat Two Hundred Eight (208) feet in
depth measured parallel to Xxxxxxx Xx. 00 and Eighty (80) feet measured along
the westerly line of 00xx Xxxxxx of the Northerly part of Lot 9 which has been
leased to the Garment Factory, Together with all improvements thereon; and
further subject to easements and restrictions of record and zoning ordinances.
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A strip of ground Fifteen (15) feet wide and being the Western Fifteen (15)
feet of the East one-half (1/2) of Lot Number Five (5) of Xxxx Xxxxx'x Addition
to the City of Louisiana, Missouri, except Forty (40) feet on the South end of
said lot, as described and retained and dedicated for a public highway, and set
forth in Warranty Deed from Xxxxxx X. Xxxxxxxx and Xxxxxxxx X. Xxxxxxxx to
Xxxxxxx Xxxxxxx, et al, Directors of School District Xx. 0, Xxxxxxxx 00, Xxxxx
0 Xxxx, Xxxx Xxxxxx, Xxxxxxxx which deed is recorded in Book 113 at Page 383 of
the Deed Records of Pike County, Missouri. This fifteen (15) foot strip of land
has been also described as lying along the southerly part of the said East
one-half of Lot Number Five (5) of Xxxx Xxxxx'x Addition , but it is the same
fifteen (15) foot strip of ground.
BEING all of Lots 6 and 15 and all that part of Lots 7 and 16 which lie north
of the north right-of-way line of the Illinois-Central-Gulf Railroad and being
a part of the XX 0/0 Xxxxxxx 00, Xxxxxxxx 00 Xxxxx of the Base Line, Range 2
West of the Fifth Principal Meridian, and being more particularly described by
metes and bounds as follows:
BEGINNING at an iron rod at the northeast corner of Lot 6 of Xxxx Xxxxx'x
Addition to Louisiana, according to the plat thereof filed in Vol. 1, Page 44,
Plat Records of Pike County;
THENCE S 52 degrees 23' E 595.75' with the east line of Lots 6 and 7 to an iron
rod on the north line of the Illinois-Central-Gulf Railroad;
THENCE S 43 degrees 35' 20" W 654.77' with the north line of said railroad to
an iron rod on the west line of Lot 16 of Xxxx Xxxxx'x Addition;
THENCE N 31 degrees 39' 20" W 563.16' with the westerly line of Lots 15 and 16
to an angle iron at the northwest corner of Lot 15;
THENCE N 37 degrees 30' E 451.90' with the north line of Lots ___ and 15 and
along the south line of Georgia Street to the place of beginning containing
7.18 acres of land, subject to easements, conditions or restrictions of record,
if any.
All of Lots Seven (7), Eight (8), and Nine (9) in Block Two (2) of Xxxxx
Subdivision of the Xxxx Xxxxx'x Addition to the City of Louisiana, Pike County,
Missouri.
ALSO, a part of Lot Nine (9) of Xxxx Xxxxx'x Addition to the City of Louisiana,
Pike County, Missouri described by metes and bounds as follows to wit:
Beginning at an iron rod marking the most Northerly Corner of above mentioned
Block Two (2); thence in a Southeasterly direction on and along the Westerly
line of 00xx Xxxxxx one hundred ninety-nine and seven tenths (199.7) feet to an
iron pipe, one hundred Forty (140) feet Northwesterly as measured along the
Westerly side of said 00xx Xxxxxx from the Northerly right-of-way of the G.M.
and O. right-of-way; thence Westerly-Southwesterly parallel to South Xxxxxxxx
Street two hundred and eight (208) feet to an iron rod; thence Northwesterly
parallel to 00xx Xxxxxx one hundred ninety-nine and
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seven tenths (199.7) feet to an iron rod marking the Northwesterly Corner of
said Block Two (2); thence on and along the Northerly side of said Block Two
(2) in a Northeasterly direction two hundred and eight (208) feet to the point
of beginning; as per survey #68-0104 by Xxxxx X. Xxxxxxx, Registered land
Surveyor #177, Missouri.
Any right, title and interest that the Party of the First Part might have to a
tract lying adjacent to and to the Northwest of Lots Seven (7), Eight (8), and
Nine (9) in Xxxxx'x Subdivision of Xxxx Xxxxx'x Addition, to the City of
Louisiana, Missouri, said tract being approximately sixty-five (65) feet wide
along 00xx Xxxxxx and being Two Hundred and Eight (208) feet in depth along
said lots, and said tract would be an extension of South Carolina Street if it
were extended.
All of Lots Numbered Two (2) and Five (5) in Block One (1) in Xxxxx'x
Subdivision of Xxxx Xxxxx'x Addition to the City of Louisiana, Missouri.
All that part of Xxxxx Xxxxxxxx Xxxxxx lying Southwest of 00xx Xxxxxx of Xxxxx
Addition to the City of Louisiana which reverted to Grantors herein by reason
of City of Louisiana Ordinance No. 6380, vacating that portion of said Street,
said Ordinance being recorded in the Deed Records of Pike County, Missouri in
Book 322, at Page 3694.
Lots numbered One (1) and Six (6), in Block Numbered One (1), in Xxxxx'x
Subdivision of Xxxx Xxxxx'x Addition to the City of Louisiana, MO.
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EXHIBIT B
Items to be included as "fixtures" in the Louisiana, MO plant offering:
ASSET NO. DESCRIPTION
--------- -----------
2646 Xxxxxxxx Vac. Pump
2647 Xxxxxxxx Vac. Pump
2769 German Vac. Pump
2778 Xxxxxxxx Vac. Pump/Surge Bin
2786 Xxxxxxxx Vac. Pump
2788 Xxxxxxxx Vac. Pump
2789 Xxxxxxxx Vac. Pump
2790 Xxxxxx Vac. Pump
2791 Xxxxxxxx Vac. Pump
2792 Xxxxxxxx Surge Bin
2793 Xxxxxxxx Surge Bin
2809 Vac. Pump
2957 GD Air Compressor
0000 XX Xxx Xxxxxxxxxx
0000 Xxxxxxxxx Air Dryer
2961 Carrier Chiller
2962 Carrier Chiller
2963 Chill Water System
2964 Carrier Chiller
2965 Carrier Chiller
2966 210,000# Silo
2967 210,000# Silo
2968 210,000# Silo
2969 210,000# Silo
2970 210,000# Silo
2971 210,000# Silo
2972 210,000# Silo
2973 IMCS Silo
2974 IMCS Silo
2975 IMCS Silo
2976 IMCS Silo
2977 Transformer
2978 Transformer
2979 Transformer
4-Small Silos for Surge Bins
2-15HP Pumps
5-7 1/2HP Pumps
C:\docs\kas\hph\louisiana\lease.
