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Exhibit 10.9
COMMERCIAL
LEASE AGREEMENT
SSMRT BENSENVILLE INDUSTRIAL PARK (3),INC.
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Landlord
AND
OLYMPUS PROPERTIES, INC. AN ILLINOIS CORPORATION
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Tenant
2
STANDARD INDUSTRIAL LEASE AGREEMENT 000 Xxxxxxx Xxxxx
XXXXXXXXXX 00 Xxxxxxxxxxx, Xxxxxxxx
NET ESCROW BIP #6
XXXXXXXX XXXX COMPANY Drafted August 29, 1994
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between, SSMRT Bensenville
Industrial Park (3), Inc.
or its assigns, hereinafter referred to as "Landlord", and Olympus Properties,
Inc.
hereinafter referred to as "Tenant";
WITNESSETH:
1. PREMISES AND TERM, In consideration of the mutual obligations of
Landlord and Tenant set forth herein, Landlord leases to Tenant, and Tenant
hereby takes from Landlord the Premises situated within the County of DuPage,
State of Illinois, more particularly described on EXHIBIT "A", commonly known as
000 Xxxxxxx Xxxxx and outlined in red attached hereto and incorporated herein by
reference, (the "Premises"), to have and to hold, subject to the terms,
covenants and conditions in this Lease. The term of this Lease shall commence on
the commencement date hereinafter set forth and shall end on the last day of the
month that is twenty-four (24) months after the commencement date.
A. EXISTING BUILDING. If no improvements are to be constructed to the
Premises, the commencement date shall be October 15, 1994, Tenant acknowledges
that (i) it has inspected and accepts the Premises, (ii) the buildings and
improvements comprising the same are suitable for the purpose for which the
Premises are leased, (iii) the Premises are in good and satisfactory condition,
and (iv) no representations as to the repair of the Premises, nor promises to
alter, remodel or improve the Premises have been made by Landlord (unless
otherwise expressly set forth in this Lease). If this lease is executed before
the Premises become vacant or otherwise available and ready for occupancy, or if
any present Tenant or occupant of the Premises holds over, and Landlord cannot,
using good faith efforts, acquire possession of the Premises prior to the date
above recited as the commencement date of this lease, Landlord shall not be
deemed to be in default hereunder nor in any way liable to Tenant because of
such failure, and Tenant agrees to accept possession of the Premises at such
time as Landlord is able to tender the same, which date shall thenceforth be
deemed to be the "commencement date"; and the term of this lease automatically
shall be extended so as to include the full number of months hereinbefore
provided for, except that if the commencement date is other than the first day
of a calendar month such term also shall be extended for the remainder of the
calendar month in which possession is tendered. Landlord hereby waives payment
of rent covering any period prior to such tendering of possession. After the
commencement date, Tenant shall, upon demand, execute and deliver to Landlord a
letter of acceptance of delivery of the Premises.
Notwithstanding anything contained in Xxxxxxxxx 0.X, Xxxxxxxx will
diligently pursue the substantial completion of the following improvements to
the Premises on behalf of Tenant prior to October 15, 1994:
*Enlarge three (3) overhead dock doors to a 9' wide x 10' high.
*Clean carpet in the office and clean washroom area.
*Deliver heating, ventilation, and air conditioning, and all
mechanicals in good working condition.
*Power scrub warehouse floor.
*Provide two (2) 24' wide x 24' high sized openings in the existing
demising wall that separates the warehouses.
B. [BUILDING TO BE CONSTRUCTED OR SHELL SPACE. If the Premises or part
thereof are to be constructed, the commencement date shall be deemed to be the
date upon which the Premises and other improvements to be erected in accordance
with the plans and specifications described on Exhibit "B" attached hereto and
incorporated herein by reference (the "Plans") have been substantially
completed.] As used herein, the term "substantially completed" shall mean, the
date on which the City of Bensenville issues a temporary or permanent
certificate of occupancy for the premises, [that in the opinion of the
architect or space planner that prepared the Plans, such improvements have been
completed in accordance with the Plans] and the Premises are in good and
satisfactory condition, subject only to completion of minor punch list items. As
soon as such improvements have been substantially completed, Landlord shall
notify Tenant in writing that the commencement date has occurred. Within ten
(10) days thereafter, Tenant shall submit to Landlord in writing a punch list of
items needing completion or correction. Landlord shall use its best efforts to
complete such items within thirty (30) days after the receipt of such notice. In
the event Tenant, its employees agents or contractors cause construction of such
improvements to be delayed, the commencement date shall be deemed to be the date
that, in the opinion of the architect or space planner that prepared the Plans,
substantial completion would have occurred if such delays had not taken place.
2. BASE RENT, SECURITY DEPOSIT AND ESCROW PAYMENTS.
A. Tenant agrees to pay to Landlord rent for the Premises, in advance,
without demand, deduction or set off, at the rate of Twenty Five Thousand
Seventy-Nine and 00/100 Dollars ($25,079) per month during the term hereof. One
such monthly installment, plus the other monthly charges set forth in Paragraph
2C below shall be due and payable on the date hereof and a like monthly
installment shall be due and payable on or before the first day of each calendar
month succeeding the commencement date, except that all payments due hereunder
for any fractional calendar month shall be prorated.
B. In addition, Tenant agrees to deposit with Landlord on the date
hereof the sum of Thirty Two Thousand Seven Hundred Fifty-Nine and 00/100
Dollars ($ 32,579.00) which shall be held by Landlord, without obligation for
interest, as security for the performance of Tenant's obligations under this
lease, it being expressly understood and agreed that this deposit is not an
advance rental deposit or a measure of Landlord's damages in case of Tenant's
default. Upon each occurrence of an event of default, Landlord may use all or
pant of the deposit to pay past due rent or other payments due Landlord under
this Lease, and the cost of any other damage, injury, expense or liability
caused by such event of default without prejudice to any other remedy provided
herein or provided by law. On demand, Tenant shall pay Landlord the amount that
will restore the security deposit to its original amount. The security deposit
shall be deemed the property of Landlord, but any remaining balance of such
deposit shall be returned by Landlord to Tenant when Tenant's obligations under
this Lease have been fulfilled.
Landlord
Tenant
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C. Tenant agrees to pay its proportionate share (as defined in
Paragraph 22K below) of (i) Taxes (hereinafter defined) payable by Landlord
pursuant to paragraph 3A below, (ii) the cost of utilities payable pursuant to
paragraph 8 below, (iii) the cost of administering and maintaining any insurance
pursuant to paragraph 9 below and (iv) the cost of any common area charges
payable by Tenant in accordance with paragraph 4C. below. During each month of
the term of this Lease, on the same day that rent is due hereunder, Tenant shall
escrow with Landlord an amount equal to 1/2 of the estimated annual cost of its
proportionate share of such items. Tenant authorizes Landlord to use the funds
deposited with Landlord under this Xxxxxxxxx 0X to pay such costs. The initial
monthly escrow payments are based upon the estimated amounts for the year in
question, and shall be increased or decreased annually to reflect the projected
actual cost of all such items. If the Tenant's total escrow payments are less
than Tenant's actual proportionate share of all such items, Tenant shall pay the
difference to Landlord within ten (10) days after demand. If the total escrow
payments of Tenant are more than Tenant's actual proportionate share of all such
items, Landlord shall retain such excess and credit it against Tenant's next
annual escrow payments. The amount of the monthly rental and the initial monthly
escrow payments are as follows:
(1) Base Rent as set forth in Paragraph 2A ........... $ 25,079.00
(2) Tax Escrow Payment ............................... $ 5,956.00
(3) Insurance Escrow Payment ......................... $ 392.00
(4) Utility Charge ................................... $ 0
(5) Common Area Charge ............................... $ 1,332.00
(6) Other ............................................ $
Monthly Payment Total .............................. $ 32,759.00
[D. In the event that the Consumer Price Index for the Base Year (the term "Base
Year" herein means the calendar year of the commencement date of the term of
this lease) shall be less than the Consumer Price Index for any Comparison Year
(the term "Comparison Year" means each calendar year after the Base Year through
and including the year in which the term of this lease expires), Tenant shall
pay Landlord upon demand, as additional rent for each such Comparison Year, the
annual base rent multiplied by the percentage of increase by which the Consumer
Price Index in such Comparison Year exceeds the Consumer Price Index in the Base
Year. For the purposes of this Lease, the term "Consumer Price Index" means the
Consumer Price Index -- United States All Items for All Urban Consumers for the
SMSA in which the Premises are located published by the Bureau of Labor
Statistics of the Department of Labor (Base Year - 1982 - 1984). The Consumer
Price Index for the Base Year or any Comparison Year shall be determined by
averaging the monthly indices for that year.]
3. TAXES.
A. Landlord agrees to pay all taxes, assessments and governmental
charges of any kind and nature (collectively referred to herein as "Taxes") that
accrue against the Premises, and/or the land and/or improvements of which the
Premises are a part. If at any time during the term of this Lease, there shall
be levied, assessed or imposed on Landlord a capital levy or other tax directly
on the rents received therefrom and/or a franchise tax assessment, levy or
charge measured by or based, in whole or in part, upon such rents from the
Premises and/or the land and improvements of which the Premises are a part, then
all such taxes, assessments, levies or charges, or the part, thereof so measured
or based, shall be deemed to be included within the term "Taxes" for the
purposes hereof. The Landlord shall have the right to employ a tax consulting
firm to attempt to assure a fair tax burden on the building and grounds within
the applicable taxing jurisdiction. Tenant agrees to pay its proportionate share
of the cost of such consultant.
B. Tenant shall be liable for all taxes levied or assessed against any
personal property or fixtures placed in the Premises. If any such taxes are
levied or assessed against Landlord or Landlord's property and (i) Landlord pays
the same or (ii) the assessed value of Landlord's property is increased by
inclusion of such personal property and fixtures and Landlord pays the increased
taxes, then, upon demand Tenant shall pay to Landlord such taxes.
4. LANDLORD'S REPAIRS.
A. Landlord, at its own cost and expense, shall maintain the roof,
foundation and the structural soundness of the exterior walls of the building of
which the Premises are a part in good repair, reasonable wear and tear excluded.
The term "walls" as used herein shall not include windows, glass or plate glass,
doors, special store fronts or office entries. Tenant shall immediately give
Landlord written notice of defect or need for repairs, after which Landlord
shall have reasonable opportunity to repair same or cure such defects.
B. Landlord [reserves the right to] to shall perform the paving, [floor
slab], common area, and landscape replacement and maintenance, exterior
painting, common sewage line plumbing and any other items that are otherwise
Tenant's obligations under Paragraph 5A, in which event, Tenant shall be liable
for its proportionate share of the cost and expense of such repair, replacement,
maintenance and other such items (which cost shall include any administration
and supervision fees incurred by Landlord in connection therewith equal to
fifteen percent (15%) of the cost thereof unless a repair is necessitated by
damage caused by the act or neglect of Tenant, its agents, employees, invitees,
licensees or contractors, in which event Tenant shall bear one hundred percent
(100%) of such cost which cost shall include an administration and supervision
fee of fifteen percent 15%) of the cost thereof). The cost that the Tenant may
be charged is the cost of performing such service for this building on a stand
alone basis.
C. Tenant agrees to pay its proportionate share of the cost (i)
maintenance and/or landscaping of any property that is a part of the building
and/or project of which the Premises are a part, (ii) maintenance and/or
landscaping of any property that is maintained or landscaped by any property
owner or community owner association that is named in the restrictive covenants
or deed restrictions to which the Premises are subject, and (iii) operating and
maintaining any property, facilities or services provided for the common use of
Tenant and other lessees of any project or building of which the Premises are a
part.
D. Landlord, at Tenant's cost and expense, shall enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
for servicing all hot water, heating and air conditioning systems and equipment
within the Premises. The service contract will include all services suggested by
the equipment manufacturer in its operations/maintenance manual and an executed
copy of such contract will be provided to Tenant.
Landlord
Tenant
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5. TENANT'S REPAIRS.
A. Tenant, at its own cost and expense, shall (i) maintain all parts
and floor slab of the Premises, [landscape, and grounds surrounding the
Premises] (except those for which Landlord is expressly responsible hereunder)
in good condition, (ii) promptly make all necessary repairs and replacements,
(except those for which Landlord is expressly responsible hereunder) and (iii)
keep the parking areas sidewalks, driveways and alleys surrounding the Premises
in a clean and sanitary condition and shall remove all rubbish, [snow and ice]
from same. [and (iv) maintain any spur track servicing the Premises. Tenant
agrees to sign a joint maintenance agreement with the railroad company
servicing the Premises if requested by the railroad company. Landlord shall
have the right to coordinate all repairs and maintenance of any rail tracks
serving or intended to serve the premises and, if Tenant uses such rail tracks
Tenant shall reimburse Landlord from time to time, upon demand, for its
proportionate share of the costs of such repairs and maintenance and any other
sums specified in any agreement respecting such tracks to which Landlord is a
party.]
B. Tenant, at its own cost and expense, shall properly maintain the
surface of the floor slab, and shall use equipment and fixtures which avoid
damage to the floor slab. In addition, Tenant agrees not to overload the floor
slabs in any way so as to cause damage to the slab or the foundation.
6. ALTERATIONS. Tenant shall not make any alterations, additions or improvements
to the Premises without the prior written consent of Landlord. Tenant, at its
own cost and expense, may erect such shelves, bins machinery and trade fixtures
as it desires provided that (a) such items do not alter the basic character of
the Premises or the building and/or improvements of which the Premises are a
part, (b) such items do not overload or damage the same, (c) such items may be
removed without injury to the Premises; and (d) the construction, erection or
installation thereof complies with all applicable governmental laws, ordinances,
regulations and with Landlord's specifications and requirements. All
alterations, additions, improvements and partitions erected by Tenant shall be
and remain the property of Tenant during the term of this Lease. All shelves,
bins, machinery and trade fixtures installed by Tenant shall be removed on or
before the earlier to occur of the date of termination of this Lease or vacating
the Premises, at which time Tenant shall restore the Premises to their original
condition. All alterations, installations, removals and restoration shall be
performed in a good and workmanlike manner so as not to damage or alter the
primary structure or structural qualities of the buildings and other
improvements situated on the Premises or of which the Premises are a part.
7. SIGNS. Tenant shall not install any signs upon the Premises without
the prior written consent of Landlord. Any signs shall be removed at Tenant's
cost upon termination or expiration of this Lease. Tenant shall repair, paint,
and/or replace the building facia surface to which its signs are attached upon
vacation of the Premises, or the removal or alteration of its signage. Tenant
shall not, (i) make any changes to the exterior of the Premises, (ii) install
any exterior lights, decorations, balloons, flags, pennants, banners or
painting, or (iii) erect or install any signs, windows or door lettering,
placards, decorations or advertising media of any type which can be viewed from
the exterior of the Premises, without Landlord's prior written consent. All
signs, decorations, advertising media, blinds, draperies and other window
treatment or bars or other security installations visible from outside the
Premises shall conform in all respects to the criteria established by Landlord.
8. UTILITIES. Landlord agrees to provide normal water service to the
Premises. Tenant shall pay for all water, gas, heat, light, power, telephone,
sewer, sprinkler charges and other utilities and services used on or at the
Premises, together with any taxes, penalties, surcharges or the like pertaining
to the Tenant's use of the Premises, and any maintenance charges for utilities.
Landlord shall have the right to cause any of said services to be separately
metered to Tenant, at Tenant's expense. Tenant shall pay its pro rata share, as
reasonably determined by Landlord, of all charges for jointly metered utilities.
Landlord shall not be liable for any interruption or failure of utility service
on the Premises.
9. INSURANCE.
A. Landlord shall maintain insurance covering the buildings situated on
the Premises or of which the Premises are a part in an amount not less than
eighty percent (80%) of the "replacement cost" thereof insuring against the
perils of Fire, Lightning, Extended Coverage Vandalism and Malicious Mischief
Liability and Rental Interruption and such other insurance as Landlord shall
deem necessary.
B. Tenant, at its own expense, shall maintain during the term of this
Lease a policy or policies of worker's compensation and comprehensive general
liability insurance, including personal injury and property damage, with
contractual liability endorsement, in the amount of Five Hundred Thousand
Dollars ($500,000.00) for property damage and Two Million Dollars ($2,000,000)
per occurrence for personal injuries or deaths of persons occurring in or about
the Premises. Tenant, at its own expense, also shall maintain during the term of
this Lease, fire and extended coverage insurance covering the replacement cost
of (i) all alterations, additions, partitions and improvements installed or
placed on the Premises by Tenant or by Landlord on behalf of Tenant and (ii) all
of Tenant's personal property contained within the Premises, and business
interruption insurance insuring loss of profits in the event of an insured peril
damaging the Premises. Said policies shall (i) name Landlord as an additional
insured (except for the worker's compensation policy, which instead shall
include waiver of subrogation endorsement in favor of Landlord), (ii) be issued
by an insurance company which is acceptable to Landlord, and (iii) provide that
said insurance shall not be canceled unless thirty (30) days prior written
notice shall have been given to Landlord. Said policies shall provide primary
coverage to Landlord or name Landlord as additional insured; when any policy
issued to Landlord is similar or duplicate in coverage, Landlord's policy shall
be excess over Tenant's policies. Said policy or policies, or certificates
thereof shall be delivered to Landlord by Tenant upon commencement of the term
of the Lease and upon each renewal of said insurance.
C. Tenant will not permit the Premises to be used for any purpose or in
any manner that would (i) void the insurance thereon (ii) increase the insurance
risk, or (iii) cause the disallowance of any sprinkler credits, including
without limitation, use of the Premises for the receipt, storage or handling of
any product, material or merchandise that is explosive or highly inflammable. If
any increase in the cost of any insurance on the Premises or the building of
which the Promises are a part is caused by Tenant's use of the Premises, or
because Tenant vacates the Premises, then Tenant shall pay the amount of such
increase to Landlord.
10. FIRE AND CASUALTY DAMAGE.
A. If the Premises or the building of which the Premises are a part
should be damaged or destroyed by fire or other peril, Tenant immediately shall
give written notice to Landlord. If the buildings situated upon the Premises or
of which the Premises are a part should be totally destroyed by any peril
covered by the insurance to be provided by Landlord under Paragraph 9A above, or
if they should be so damaged thereby that, in Landlord's estimation, rebuilding
or repairs cannot be completed within one hundred eighty (180) days after the
date of such damage, this Lease shall terminate and the rent shall be abated
during the unexpired portion of this Lease effective upon the date of the
occurrence of such damage.
B. If the buildings situated upon the Premises or of which the Premises
are a part, should be damaged by any peril covered by the insurance to be
provided by Landlord under Paragraph 9A above, and in Landlord's estimation,
rebuilding or repairs can be substantially completed within one hundred eighty
(180) days after the date of such damage, this Lease shall not terminate, and
Landlord shall restore the Premises to
Landlord
Tenant
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substantially its previous condition, except that Landlord shall not be required
to rebuild, repair or replace any part of the partitions, fixtures, additions
and other improvements that may have been constructed, erected or installed in,
or about the Premises or for the benefit of; or by or for Tenant. If such
repairs and rebuilding have not been substantially completed within one hundred
eighty (180) days after the date of such damage (subject to delays outside of
Landlord's control), Tenant, as Tenant's exclusive remedy, may terminate this
Lease by delivering written notice of termination to Landlord in which event the
rights and obligations hereunder shall cease and terminate. In the event of any
insurance claim, Tenant shall be liable for payment of any deductible under any
of Landlord's insurance policies with respect to the premises.
C. Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Premises requires that the insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this Lease by delivering written
notice of termination to Tenant within fifteen (15) days after such requirement
is made known by any such holder, whereupon all rights and obligations hereunder
shall cease and terminate.
D. Anything in this Lease to the contrary notwithstanding, Landlord and
Tenant hereby waive and release each other of and from any and all rights of
recovery, claim, action or cause of action, against each other, their agents,
officers and employees, for any loss or damage that may occur to the Premises,
improvements to the building of which the Premises are a part, or personal
property (building contents) within the building and/or Premises, for any reason
regardless of cause or origin. Each party to this Lease agrees immediately after
execution of this Lease to give each insurance company, which has issued to it
policies of fire and extended coverage insurance, written notice of the terms of
the mutual waivers contained in this subparagraph, and if necessary, to have the
insurance policies properly endorsed.
E. If the Premises are damaged by any peril not covered by the
insurance to be provided by Landlord under paragraph 9A above and the cost to
repair such damage exceeds any amount Tenant may elect to contribute, Landlord
may elect either to commence to repair and restore the Premises, in which event
this Lease shall remain in full force and effect, or not to repair and restore
the Premises, in which event this Lease shall terminate.
11. LIABILITY AND INDEMNIFICATION. Tenant shall hold Landlord harmless
from and defend Landlord against any and all claims or liability for any injury
or damage (i) to any person or property whatsoever occurring in, on or about the
Premises or any part thereof and/or of the building of which the Premises are a
part, including without limitation elevators, stairways, passageways or
hallways, the use of which Tenant may have in accordance with this Lease, when
such injury or damage shall be caused by the act neglect, fault of, or omission
of any duty with respect to the same by Tenant, its agents, servants, employees,
or invitees (ii) arising from the conduct of management of any work done by the
Tenant in or about the Premises, (iii) arising from transactions of the Tenant,
and (iv) all costs, counsel fees, expenses and liabilities incurred in
connection with any such claim or action or proceeding brought thereon. The
provisions of this Paragraph 11 shall survive the expiration or termination of
this Lease with respect to any claims or liability occurring prior to such
expiration or termination.
12. USE. The Premises shall be used only for the purpose of receiving,
storing, shipping and selling (other than retail) products, materials and
merchandise made and/or distributed by Tenant and for such other lawful purposes
as may be incidental thereto. Outside storage, including without limitation,
storage of trucks and other vehicles, is prohibited without Landlord's prior
written consent except that overnight parking of trucks and other vehicles shall
be permitted so long as it complies with all applicable laws, ordinances and
restrictions. Tenant shall have the non-exclusive right to use, in common with
other Tenants of the building of which the Premises are a part, the parking
provided and designated as such by Landlord. Tenant shall comply with all
governmental laws, ordinances and regulations applicable to the use of the
Premises, and promptly shall comply with all governmental orders and directives
for the correction, prevention and abatement of nuisances in or upon, or
connected with, the Premises, all at Tenant's sole expense. Tenant shall not
permit any objectionable or unpleasant odors, smoke, dust, gas, noise or
vibrations to emanate from the Premises, nor take any other action that would
constitute a nuisance or would disturb, unreasonably interfere with, or endanger
Landlord or any other lessees of the building in which the Premises are a part.
Tenant shall pay the cost of any modifications to the Premises, the building in
which the Premises are located and the common areas required as a result of
Tenant's particular use of the Premises.
13. INSPECTION. Landlord and Landlord's agents and representatives
shall have the right to enter the Premises at any reasonable time during
business hours, to inspect the Premises and to make such repairs as may be
required or permitted pursuant to this Lease. During the period that is six (6)
months prior to the end of the Lease term, upon telephonic notice to Tenant,
Landlord and Landlord's representatives may enter the Premises during business
hours for the purpose of showing the Premises. In addition, Landlord shall have
the right to erect a suitable sign on the Premises stating the Premises are
available. Tenant shall notify Landlord in writing at least thirty (30) days
prior to vacating the Premises and shall arrange to meet with Landlord for
a joint inspection of the Premises prior to vacating. If Tenant fails to give
such notice or to arrange for such inspection, then Landlord's inspection of the
Premises shall be deemed correct for the purpose of determining Tenant's
responsibility for repairs and restoration of the Premises.
14. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not have the right to assign, sublet, transfer or
encumber this Lease, or any interest therein without the prior written consent
of Landlord. Any attempted assignment, subletting, transfer or encumbrance by
Tenant in violation of the terms and covenants of this Paragraph shall be void.
In the event Tenant desires to sublet the Premises, or any portion thereof, or
assign this Lease, Tenant shall give written notice thereof to Landlord within a
reasonable time prior to the proposed commencement date of such subletting or
assignment which notice shall set forth the name of the proposed sublessee or
assignee, the relevant terms of any sublease and copies of financial reports and
other relevant financial information of the proposed sublessee or assignee.
B. In addition to, but not in limitation of, Landlord's right to
approve of any sublessee or assignee, Landlord shall have the option, in its
sole discretion, in the event of any proposed subletting or assignment, to
terminate this Lease, or in case of a proposed subletting of less than the
entire Premises, to recapture the portion of the Premises to be sublet, as of
the date the subletting or assignment is to be effective. The option shall be
exercised if at all, by Landlord giving Tenant written notice thereof within
sixty (60) days following Landlord's receipt of Tenant's written notice as
required above. If this lease shall be terminated with respect to the entire
demised Premises, pursuant to this Paragraph, the term of this lease shall end
on the date stated in Tenant's notice as the effective date of the sublease or
assignment as if that date had been originally fixed in this lease for the
expiration of the term hereof, provided, however, that effective on such date
Tenant shall pay Landlord all amounts, as estimated by Landlord, payable by
Tenant to such date with respect to taxes, insurance, repairs, maintenance,
restoration and other obligations, costs or charges which are the responsibility
of Tenant hereunder. Further, upon any such cancellation Landlord and Tenant
shall have no further obligations or liabilities to each other under this lease,
except with respect to obligations or liabilities which accrued hereunder as of
such cancellation date (in the same manner as if such cancellation date were the
date originally fixed in this lease of the expiration of the term hereof). If
Landlord recaptures under this Paragraph only a portion of the Premises, the
rent during the unexpired term hereof shall xxxxx proportionately based on the
rent per square foot contained in this lease as of the date immediately prior to
such recapture. Tenant shall, at Tenant's own cost and expense, discharge in
full any outstanding commission obligation on the part of Landlord with respect
to this lease, and any commissions which may be due and owing as a result of any
proposed assignment or subletting, whether or not the Premises are recaptured
pursuant thereto and rented by Landlord to the proposed Tenant or any other
tenant.
Landlord
Tenant
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C. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et. seq., (the
"Bankruptcy Code"), any and all monies or other consideration payable or
otherwise to be delivered in connection with such assignment shall be paid or
delivered to Landlord, shall be and remain the exclusive property of Landlord
and shall not constitute property of Tenant or of the estate of Tenant within
the meaning of the Bankruptcy Code. Any and all monies or other considerations
constituting Landlord's property under the preceding sentence not paid or
delivered to Landlord shall be held in trust for the benefit of Landlord and be
promptly paid or delivered to Landlord. Any person or entity to which this Lease
is assigned pursuant to the provisions of the Bankruptcy Code, shall be deemed,
without further act or deed, to have assumed all of the obligations arising
under this Lease on and after the date of such assignment. Any such assignee
shall upon demand execute and deliver to Landlord an instrument confirming such
assumption.
D. Notwithstanding the foregoing, Tenant shall have the right to assign
this Lease to any affiliate (as such term is defined in the Securities Act of
1933) provided that such assignment is in form satisfactory to Landlord. Any
assignee, sublessee or transferee of Tenant's interest in this Lease (all such
assignees, sublessees and transferees being hereinafter referred to as
"Transferees"), by assuming Tenant's obligations hereunder, shall assume
liability to Landlord for all amounts paid to persons other than Landlord by
such Transferees in contravention of this Paragraph. No assignment, subletting
or other transfer, whether consented to by Landlord or not or permitted
hereunder shall relieve Tenant of its liability hereunder. If an event of
default occurs while the Premises or any part thereof are assigned or sublet,
then Landlord, in addition to any other remedies herein provided, or provided by
law, may collect directly from such Transferee all rents payable to the Tenant
and apply such rent against any sums due Landlord hereunder. No such collection
shall be construed to constitute a novation or a release of Tenant from the
further performance of Tenant's obligations hereunder. Notwithstanding the
foregoing, Landlord hereby approves the assignment of this Lease by Tenant to
its affiliate, Xxxxxx Co., provided that Xxxxxx Co. expressly agrees to assume
all of the obligations of Tenant under this Lease and the terms and provisions
of this Lease shall otherwise remain in full force and effect and applicable to
Tenant and its assignee.
15. CONDEMNATION. If more than eighty percent (80%) of the Premises are
taken for any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof and the taking prevents or materially interferes with the use of the
Premises for the purpose for which they were leased to Tenant, this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease, effective on the date of such taking. If less than eighty percent (80%)
of the Premises are taken for any public or quasi-public use under any
governmental law, ordinance or regulation, or by right of eminent domain, or by
private purchase in lieu thereof, this Lease shall not terminate, but the rent
payable hereunder during the unexpired portion of this Lease shall be reduced to
such extent as may be fair and reasonable under all of the circumstances. All
compensation awarded in connection with or as a result of any of the foregoing
proceedings shall be the property of Landlord and Tenant hereby assigns any
interest in any such award to Landlord; provided, however, Landlord shall have
no interest in any award made to Tenant for the taking of Tenant's fixtures and
improvements, if a separate award for such items is made to Tenant.
16. HOLDING OVER. At the termination of this Lease by its expiration or
otherwise, Tenant immediately shall deliver possession to Landlord with all
repairs and maintenance required herein to be performed by Tenant completed. If,
for any reason, Tenant retains possession of the Premises or any part thereof
after such termination, then Landlord may, at its option, serve written notice
upon Tenant that such holding over constitutes either (i) renewal of this lease
for one year, and from year to year thereafter, (ii) creation of a month to
month tenancy, upon the terms and conditions set forth in this lease, or (iii)
creation of a tenancy at sufferance, in any case upon the terms and conditions
set forth in this lease; provided, however, that the monthly rental or daily
rental under (iii) shall, in addition to all other sums which are to be paid by
Tenant hereunder whether or not as additional rent, be equal to [double] 150% of
the rental being paid monthly to Landlord under this lease immediately prior to
such termination (prorated in the case of (iii) on the basis of a 365 day year
for each day Tenant remains in possession). If no such notice is served then a
tenancy at sufferance shall be deemed to be created at the rent in the preceding
sentence. Tenant shall also pay to Landlord all damages sustained by Landlord
resulting from retention of possession by Tenant, including the loss of any
proposed subsequent tenant for any portion of the Premises. The provisions of
this Paragraph shall not constitute a waiver by Landlord of any right of
re-entry as herein set forth; nor shall receipt of any rent or any other act in
apparent affirmance of the tenancy operate as a waiver of the right to terminate
this Lease for a breach of any of the terms, covenants, or obligations herein on
Tenant's part to be performed. No holding over by Tenant, whether with or
without consent of Landlord shall operate to extend this Lease except as
otherwise expressly provided. The preceding provisions of this Paragraph 16
shall not be construed as consent for Tenant to retain possession of the
Premises in the absence of written consent thereto by Landlord.
17. QUIET ENJOYMENT. Landlord covenants that on or before the
commencement date it will have good title to the Premises, free and clear of all
liens and encumbrances, excepting only the lien for current taxes not yet due,
such mortgage or mortgages as are permitted by the terms of this Lease, zoning
ordinances and other building and fire ordinances and governmental regulations
relating to the use of such property, and easements restrictions and other
conditions of record. If this Lease is a sublease then Tenant agrees to take the
Premises subject to the provisions of the prior Leases. Landlord represents that
it has the authority to enter into this Lease and that so long as Tenant pays
all amounts due hereunder and performs all other covenants and agreements herein
set forth, Tenant shall peaceably and quietly have, hold and enjoy the Premises
for the term hereof without hindrance or molestation from Landlord, subject to
the terms and provisions of this Lease.
18. EVENTS OF DEFAULT. The following events (herein individually
referred to as "event of default") each shall be deemed to be events of
nonperformance by Tenant under this Lease:
A. Tenant shall fail to pay any installment of the rent herein reserved
when due, or any other payment or reimbursement to Landlord required herein when
due, and such failure shall continue for a period of five (5) days from the date
such payment was due.
B. The Tenant or any guarantor of the Tenant's obligations hereunder
shall (i) become insolvent, (ii) admit in writing its inability to pay its
debts; (iii) make a general assignment for the benefit of creditors, (iv)
commence any case, proceeding or other action seeking to have an order for
relief entered on its behalf as a debtor or to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or of any substantial part of its property, or (v) take any action to
authorize or in contemplation of any of the actions set forth above in this
Paragraph.
C. Any case, proceeding or other action against the Tenant or any
guarantor of the Tenant's obligations hereunder shall be commenced seeking (i)
to have an order for relief entered against it as debtor or to adjudicate it a
bankrupt or insolvent; (ii) reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts under any law
relating to bankruptcy, insolvency, reorganization or relief of debtors; (iii)
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its property, and such case, proceeding or
other action (a) results in the entry of an order for relief against it which it
is not fully stayed within thirty (30) business days after the entry thereof or
(b) shall remain undismissed for a period of [forty-five] sixty (60) days.
D. Tenant shall (i) vacate all or a substantial portion of the Premises
or (ii) fail to continuously operate its business at the Premises for the
permitted use set forth herein, whether or not Tenant is in default of the
rental payments due under this Lease.
Landlord
Tenant
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E. Tenant shall fail to discharge or bond over any lien placed upon the
Premises in violation of Paragraph 21 hereof within twenty (20) days after any
such lien or encumbrance is filed against the Premises.
F. Tenant shall fail to comply with any term, provision or covenant of this
Lease (other than those listed in this Paragraph 18), and shall not cure such
failure within twenty (20) days after written notice thereof to Tenant. Tenant
shall not be in default, however, if the failure is not capable of cure within
such twenty (20) day period, but Tenant is diligently and in good faith
prosecuting such cure. Tenant shall not be in default hereunder so long as such
failure is cured within thirty (30) additional days.
G. Tenant shall fail to comply with the terms and provisions of Paragraph 24
hereunder.
H. Tenant shall fail to deliver the estoppel certificate within the time
provided in Paragraph 22D.
19. REMEDIES.
A. Upon each occurrence of an event of default, Landlord shall have the
option to pursue any one or more of the following remedies without any notice or
demand:
(1) Terminate this Lease; and/or
(2) Enter upon and take possession of the Premises without terminating
this Lease; and/or
(3) Alter all locks and other security devices at the Premises with or
without terminating this Lease, and pursue, at Landlord's option, one or more
remedies pursuant to this Lease, Tenant hereby specifically waiving any state or
federal law to the contrary; and in any such event Tenant immediately shall
surrender the Premises to Landlord, and if Tenant fails so to do Landlord,
without waiving any other remedy it may have, may enter upon and take possession
of the Premises and expel or remove Tenant and any other person who may be
occupying such Premises or any part thereof, without being liable for
prosecution or any claim of damages therefor and/or
(4) Maintain Tenant's right to possession in which case this Lease
shall continue in effect whether or not Tenant shall have abandoned the
Premises. In such event Landlord shall be entitled to enforce all of Landlord's
rights and remedies under this Lease, including the right to recover rent as it
becomes due.
B. If Landlord terminates this Lease, at Landlord's option, Tenant
shall be liable for and shall pay to Landlord, the sum of all rental and other
payments owed to Landlord hereunder accrued to the date of such termination,
plus, as liquidated damages, an amount equal to (1) the present value of the
total rental and other payments owed hereunder for the remaining portion of the
Lease term, calculated as if such term expired on the date set forth in
Paragraph 1, less (2) all amounts received by landlord through reletting the
Premises during such remaining term (but only to the extent of the rent herein
reserved). An action to collect amounts due by Tenant to Landlord under this
Subparagraph may be brought following termination of the Lease without the
necessity of Landlord's waiting until the expiration of the Lease Term.
C. If Landlord repossesses the Premises without terminating the Lease,
Tenant, at Landlord's option, shall be liable for and shall pay Landlord on
demand all rental and other payments owed to Landlord hereunder, accrued to the
date of such repossession, plus all amounts required to be paid by Tenant to
Landlord until the date of expiration of the term as stated in Paragraph 1,
diminished by all amounts received by Landlord through reletting the Premises
during such remaining term (but only to the extent of the rent herein reserved).
Actions to collect amounts due by Tenant to Landlord under this Subparagraph may
be brought from time to time, on one or more occasions, without the necessity of
Landlord's waiting until expiration of the Lease term.
D. Upon an event of default, in addition to any sum provided to be paid
herein, Tenant also shall be liable for and shall pay to Landlord (i) brokers'
fees incurred by Landlord in connection with reletting the whole or any part of
the Premises; (ii) the costs of removing and storing Tenant's or other
occupant's property; (iii) the costs of repairing, altering, remodeling or
otherwise putting the Premises into condition acceptable to a new tenant or
tenants and (iv) all reasonable expenses incurred in marketing the Premises and
(v) all reasonable expenses incurred by Landlord in enforcing or defending
Landlord's rights and/or remedies. If either party hereto institute any action
or proceeding to enforce any provision hereof by reason of any alleged breach of
any provision of this Lease, the prevailing party shall be entitled to receive
from the losing party all reasonable attorneys' fees and all court costs in
connection with such proceeding.
E. In the event Tenant fails to make any payment due hereunder when
payment is due, to help defray the additional cost to Landlord for processing
such late payments, Tenant shall pay to Landlord on demand a late charge in an
amount equal to five percent (5%) of such installment; and the failure to pay
such amount within ten (10) days after demand therefor shall be an additional
event of default hereunder. The provision for such late charge shall be in
addition to all of Landlord's other rights and remedies hereunder or at law and
shall not be construed as liquidated damages or as limiting Landlord's remedies
in any manner.
F. Exercise by Landlord of any one or more remedies hereunder granted
or otherwise available shall not be deemed to be an acceptance of surrender of
the Premises by Landlord, whether by agreement or by operation of law, it being
understood that such surrender can be effected only by the written agreement of
Landlord and Tenant. Tenant and Landlord further agree that forbearance by
Landlord to enforce its rights pursuant to the Lease at law or in equity, shall
not be a waiver of Landlord's right to enforce one or more of its rights in
connection with any subsequent default.
G. In the event of termination and/or repossession of the Premises for
an event of default, Landlord shall use reasonable efforts to relet the Premises
and to collect rental after reletting, provided, that, Tenant shall not be
entitled to credit or reimbursement of any proceeds in excess of the rental owed
hereunder. Landlord may relet the whole or any portion of the Premises for any
period, to any Tenant and for any use and purpose.
H. If Landlord fails to perform any of its obligations hereunder within
thirty (30) days after written notice from Tenant specifying such failure,
Tenant's exclusive remedy shall be an action for damages. Notwithstanding the
foregoing, if the nature of Landlord's obligation is such that more than thirty
(30) days is reasonably required to cure such failure, then Landlord shall have
such time as is reasonably required provided Landlord commences such performance
within thirty (30) days after written notice from Tenant and thereafter
diligently prosecutes the same to completion. Unless and until Landlord fails to
so cure any default after such notice, Tenant shall not have any remedy or cause
of action by reason thereof. All obligations of Landlord hereunder will be
construed as covenants, not conditions; and all such obligations will be binding
upon Landlord only during the period of its possession of the Premises and not
thereafter. The term "Landlord" shall mean only the owner, for the time being of
the Premises, and in the event of the transfer by such owner of its interest in
the Premises, such owner shall thereupon be released and discharged from all
covenants and obligations of the Landlord thereafter accruing, but such
covenants and obligations shall be binding during: the Lease term upon each new
owner for the duration of such owner's ownership. Notwithstanding any other
provision hereof, Landlord shall not have any personal liability hereunder. In
the event of any breach or default by Landlord in any term or provision of this
Lease, Tenant agrees to look solely to the equity or interest then owned by
Landlord in the Premises or of the
Landlord
Tenant
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building of which the Premises are a part; however, in no event, shall any
deficiency judgment or any money judgment of any kind be sought or obtained
against any Landlord.
I. If Landlord repossesses the Premises pursuant to the authority
herein granted, then Landlord shall have the right to (i) keep in place and use
or (ii) remove and store all of the furniture, fixtures and equipment at the
Premises including that which is owned by or leased to Tenant at all times prior
to any foreclosure thereon by Landlord or repossession thereof by any Landlord
thereof or third party having a lien thereon. Landlord also shall have the right
to relinquish possession of all or any portion of such furniture, fixtures,
equipment and other property to any person ("Claimant") who presents to Landlord
a copy of any instrument represented by Claimant to have been executed by Tenant
(or any predecessor of Tenant) granting Claimant the right under various
circumstances to take possession of such furniture, fixtures, equipment or other
property, without the necessity on the part of Landlord to inquire into the
authenticity or legality of said instrument. The rights of Landlord herein
stated shall be in addition to any and all other rights that Landlord has or may
hereafter have at law or in equity; and Tenant stipulates and agrees that the
rights herein granted Landlord are commercially reasonable.
J. Notwithstanding anything in this Lease to the contrary, all amounts
payable by Tenant to or on behalf of Landlord under this Lease, whether or not
expressly denominated as rent, shall constitute rent.
K. This is a contract under which applicable law excuses Landlord from
accepting performance from (or rendering performance to) any person or entity
other than Tenant.
20. MORTGAGES. Tenant accepts this Lease subject and subordinate to any
mortgages and/or deeds of trust now or at any time hereafter constituting a lien
or charge upon the Premises or the improvements situated thereon or the building
of which the Premises are a part, provided, however, that if the mortgagee,
trustee, or holder of any such mortgage or deed of trust elects to have Tenant's
interest in this Lease superior to any such instrument, then by notice to Tenant
from such mortgagee, trustee or holder, this Lease shall be deemed superior to
such lien, whether this Lease was executed before or after said mortgage or deed
of trust. Tenant, at any time hereafter on demand, shall execute any
instruments, releases or other documents that may be required by any mortgagee
for the purpose of subjecting and subordinating this Lease to the lien of any
such mortgage.
21. MECHANIC'S LIENS. Tenant has no authority, express or implied, to
create or place any lien or encumbrance of any kind or nature whatsoever upon,
or in any manner to bind the interest of Landlord or Tenant in the Premises or
to charge the rentals payable hereunder for any claim in favor of any person
dealing with Tenant, including those who may furnish materials or perform labor
for any construction or repairs. Tenant covenants and agrees that it will pay or
cause to be paid all sums legally due and payable by it on account of any labor
performed or materials furnished in connection with any work performed on the
Premises and that it will save and hold Landlord harmless from any and all loss,
cost or expense based on or arising out of asserted claims or liens against the
leasehold estate or against the right, title and interest of the Landlord in the
Premises or under the terms of this Lease. Tenant agrees to give Landlord
immediate written notice of the placing of any lien or encumbrance against the
Premises.
22. MISCELLANEOUS.
A. Words of any gender used in this Lease shall be held and construed
to include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires. The captions inserted
in this Lease are for convenience only and in no way define, limit or otherwise
describe the scope or intent of this Lease, or any provision hereof, or in any
way affect the interpretation of this Lease.
B. The terms, provisions and covenants and conditions contained in this
Lease shall run with the land and shall apply to, inure to the benefit of, and
be binding upon, the parties hereto and upon their respective heirs, executors,
personal representatives, legal representatives, successors and assigns, except
as otherwise herein expressly provided. Landlord shall have the right to
transfer and assign, in whole or in part, its rights and obligations in the
building and property that are the subject of this Lease. Each party agrees to
furnish to the other, promptly upon demand, a corporate resolution, proof of due
authorization by partners, or other appropriate documentation evidencing the due
authorization of such party to enter into this Lease.
C. Landlord shall not be held responsible for delays in the performance
of its obligations hereunder when caused by material shortages, weather, acts of
God or labor disputes.
D. Tenant agrees, from time to time, within ten (10) days after request
by Landlord, to deliver to Landlord or Landlord's designee, [a certificate of
occupancy], a credit references and credit information acceptable to Landlord,
[current financial statements prepared in accordance with GAAP], and an estoppel
certificate stating that this Lease is in full force and effect, the date to
which rent is paid and such other factual matters pertaining to this lease as
may be requested by Landlord. Tenant hereby irrevocably appoints Landlord as
attorney-in-fact for the Tenant with full power and authority to execute and
deliver in the name of Tenant such estoppel certificate if Tenant fails to
deliver the same within such ten (10) day period and such certificate as signed
by Landlord or Landlord's beneficiary, as the case may be, shall be fully
binding on Tenant, if Tenant fails to deliver a contrary certificate within five
(5) days after receipt by Tenant of a copy of the certificate executed by
Landlord or Landlord's beneficiary, as the case may be, on behalf of Tenant.
E. This Lease constitutes the entire understanding and agreement of the
Landlord and Tenant with respect to the subject matter of this Lease, and
contains all of the covenants and agreements of Landlord and Tenant with respect
thereto. Landlord and Tenant each acknowledge that no representations,
inducements, promises or agreements oral or written, have been made by Landlord
or Tenant, or anyone acting on behalf of Landlord or Tenant, which are not
contained herein, and any prior agreements, promises, negotiations, or
representations not expressly set forth in this Lease are of no force or effect.
This Lease may not be altered, changed or amended except by an instrument in
writing signed by both parties hereto.
F. All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this Lease shall survive the
expiration or earlier termination of the term hereof, including without
limitation, all payment obligations with respect to taxes and insurance and all
obligations concerning the condition and repair of the Premises. Upon the
expiration or earlier termination of the term hereof, and prior to Tenant
vacating the Premises, Tenant shall pay to Landlord any amount reasonably
estimated by Landlord as necessary to put the Premises, including without
limitation, all heating and air conditioning systems and equipment therein, in
good condition and repair, reasonable wear and tear excluded. Tenant shall also,
prior to vacating the Premises, pay to Landlord the amount, as estimated by
Landlord, of Tenant's obligation hereunder for real estate taxes and insurance
premiums for the year in which the Lease expires or terminates. All such amounts
shall be used and held by Landlord for payment of such obligations of Tenant
hereunder, with Tenant being liable for any additional costs therefor upon
demand by Landlord, or with any excess to be returned to Tenant after all such
obligations have been determined and satisfied as the case may be. Any security
deposit held by Landlord shall be credited against the amount due from Tenant
under this Paragraph 22F.
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Tenant
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G. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added, as a
part of this Lease, a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable.
H. All references in this Lease to "the date hereof or similar
references shall be deemed to refer to the last date, in point of time, on which
all parties hereto have executed this Lease.
I. Tenant represents and warrants that it has dealt with no broker,
except for Xx. Xxxx Xxxxxxx, Real Estate Consultants, Inc., agent or other
person in connection with this transaction or that no broker, except for Xx.
Xxxx Xxxxxxx, Real Estate Consultants, Inc., agent or other person brought about
this transaction, other than as may be referenced in a separate written
agreement executed by Tenant, and delivered to Landlord, and Tenant agrees to
indemnify and hold Landlord harmless from and against any claims by any other
broker, except for Xx. Xxxx Xxxxxxx, Real Estate Consultants, Inc., agent or
other person claiming a commission or other form of compensation by virtue of
having dealt with Tenant with regard to this leasing transaction.
J. If and when included within the term "Landlord", as used in this
instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address for the receipt of notices
and payments to Landlord. If and when included within the term "Tenant", as used
in this instrument, there is more than one person, firm or corporation, all
shall jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices and payments to Tenant. All parties
included within the terms "Landlord" and "Tenant", respectively shall be bound
by notices given in accordance with the provisions of Paragraph 25 hereof to the
same effect as if each had received such notice.
K. In the event the Premises constitute a portion of a multiple
occupancy building, Tenant's "proportionate share", as used in this Lease, shall
mean a fraction, the numerator of which is 94,048 and the denominator of which
is 202.759 equaling 46.4%.
L. Submission of this Lease shall not be deemed to be a reservation of
the Premises. Landlord shall not be bound hereby until its delivery to Tenant of
an executed copy hereof signed by Landlord, already having been signed by
Tenant, and until such delivery Landlord reserves the right to exhibit and lease
the Premises to other prospective tenants. Notwithstanding anything contained
herein to the contrary Landlord may withhold delivery of possession of the
Premises from Tenant until such time as Tenant has paid to Landlord the security
deposit required by subparagraph 2B hereof and one month's rent as set forth in
Subparagraph 2A hereof.
23. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances regulations and other requirements with reference
to the sending, mailing or delivering of notice or the making of any payment by
Landlord to Tenant or with reference to the sending, mailing or delivering of
any notice or the making of any payment by Tenant to Landlord shall be deemed to
be complied with when and if the following steps are taken:
(a) All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address for Landlord set
forth below or at such other address as Landlord may specify from time to time
by written notice delivered in accordance herewith. Tenant's obligation to pay
rent and any other amounts to Landlord under the terms of this Lease shall not
be deemed satisfied until such rent and other amounts have been actually
received by Landlord. In addition to base rental due hereunder, all sums of
money and all payments due Landlord hereunder shall be deemed to be additional
rental owed to Landlord.
(b) All payments required to be made by Landlord to Tenant hereunder
shall be payable to Tenant at the address set forth below, or at such other
address within the continental United States as Tenant may specify from time to
time by written notice delivered in accordance herewith.
(c) Any written notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered whether actually received or
not when deposited in the United States Mail, postage prepaid, Certified Mail,
addressed to the parties hereto at the respective addresses set out below, or at
such other address as they have theretofore specified by written notice
delivered in accordance herewith.
24. HAZARDOUS WASTE. The term "Hazardous Substances", as used in this
Lease shall mean pollutants, contaminants, toxic or hazardous materials or
wastes, petroleum products or any other substances, the removal of which is
required or the use of which is restricted prohibited or penalized by any
"Environmental Law", which terms shall mean any and all federal, state or local
laws including statutes, regulations, ordinances, codes, rules and other
governmental restrictions and requirements relating to the environment,
hazardous substances, or petroleum products including, but not limited to, the
Federal Solid Waste Disposal Act, the Federal Clean Air Act, the Federal Clean
Water Act, the Federal Resource Conservation and Recovery Act of 1976, the
Federal Comprehensive Environmental Responsibility, Cleanup and Liability Act of
1980, regulations of the Environmental Protection Agency, regulations of the
nuclear Regulatory Agency, regulations or laws administered by OSHA and
regulations of any state department of natural resources or state environmental
protection agency now or at any time hereinafter in effect. Tenant hereby agrees
that (i) no activity will be conducted on the Premises that shall produce any
Hazardous Substance, except for such activities that are part of the ordinary
course of Tenant's business (the "Permitted Activities") provided said Permitted
Activities are conducted in accordance with all Environmental Laws, are fully
and completely disclosed to Landlord, and are expressly approved in advance in
writing by Landlord; (ii) the Premises shall not be used in any manner for the
storage of those Hazardous Substances, except for such storage that is in the
ordinary course of Tenant's business in amounts appropriate for such use (the
"Permitted Material") provided such Permitted Materials are properly stored in a
manner and location meeting all Environmental Laws, are fully and completely
disclosed to Landlord, and are expressly approved in advance in writing by
Landlord; (iii) no portion of the Premises shall be used as a landfill or a
dump; (iv) Tenant shall not install any underground tanks of any type; (v)
Tenant shall not allow any surface or subsurface conditions to exist or come
into existence that constitute, or with the passage of time may constitute, a
public or private nuisance; (vi) Tenant shall not permit any Hazardous
Substances to be brought onto the Premises, except for the Permitted Materials,
and if so brought or found located thereon, the same shall be immediately
removed, with proper disposal, and all required removal and cleanup procedures
shall be diligently undertaken pursuant to all Environmental Laws. Tenant shall
immediately give Landlord written notice as soon as Tenant becomes aware of any
suspected breach of this Paragraph, or any condition or circumstance which makes
the environmental warranties contained in this Lease incomplete, inaccurate or
misleading, upon learning of the presence or any release of any Hazardous
Substances, or upon receiving any correspondence, notice, pleading, citation,
indictment, complaint, order, decree, or other document from any source
asserting or alleging a circumstance or condition which requires or may require
a cleanup, removal, remedial action, or other response by, or on the part of the
Tenant under Environmental Laws, or which seeks criminal or punitive penalties
from Tenant for an alleged violation of Environmental Laws, or otherwise
pertaining to Hazardous Substances which may affect the Premises, together with
a copy thereof. In the event of any such circumstance, Tenant agrees, at its
expense and at the request of Landlord, to permit an environmental audit solely
for the benefit of the Landlord, to be conducted by the Landlord or an
independent agent selected by the Landlord and which may not be relied upon by
the Tenant for any purpose. This provision shall not relieve the Tenant from
conducting its own environmental
Landlord
Tenant
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audits or taking any other steps necessary to comply with Environmental Laws.
Landlord, in the event it is named as a party, shall have the right, but not the
obligation, to join and participate in any legal proceedings or actions
initiated in connection with any matters related to Environmental Laws and to
have its attorneys' fees in connection therewith paid by Tenant. Tenant shall,
at Landlord's request, defend all suits, actions or proceedings commenced
against Landlord with counsel approved by Landlord, in Landlord's sole
discretion, and Tenant shall pay all costs and judgments associated therewith.
Tenant shall be solely responsible and shall indemnify, defend and hold
Landlord, and any property manager of the Premises, their directors, officers,
employees, agents, successors and assigns, harmless from and against all claims,
demands, actions, losses, liabilities, costs, expenses, damages and obligations
of any nature (including, without limitation, diminution in value of the
Premises; all consequential damages; the cost of any required or necessary
repair, cleanup or detoxification of the Premises; the preparation and
implementation of any closure, remedial or other required plans; damages for the
loss or restriction on use of rentable or usable space or of any amenity of the
Premises; damages arising from any adverse impact on marketing of space; damages
to adjacent property; costs of restoring the Premises, and sums paid in
settlement of claims, attorneys' fees, court costs, consultant fees, and expert
fees) incurred by or asserted against Landlord and directly or indirectly as a
result of, arising from, connected with, or attributable to Tenant's use of the
Premises, or the generation, storage, release, threatened release, discharge,
disposal, removal or presence of any Hazardous Substances, or relating to any
activity, act or omission involving Hazardous Substances or noncompliance with
any Environmental Law by Tenant. The foregoing indemnification shall survive the
termination or expiration of the Lease. Notwithstanding anything to the contrary
contained in this Lease, any default under the terms of this Paragraph shall be
a material default under this Lease enabling Landlord, at Landlord's option, to
immediately exercise any of the remedies set forth in this Lease, in addition to
any other remedies available to Landlord, without notice to Tenant and without
obligation to provide any grace or cure period to Tenant. Notwithstanding
anything to the contrary contained herein, Landlord's approval of any activity
or storage relating to any Hazardous Substance is not intended to, and shall
not, be deemed an undertaking by Landlord to determine whether or not such
activity or storage is in compliance with Environmental Laws and Landlord
assumes no responsibility with respect thereto.
25. ADDITIONAL PROVISIONS. See _________________________ attached hereto and
incorporated by reference herein.
26. [LANDLORD'S LIEN. in Addition to any statutory lien for rent in Landlord's
favor, Landlord shall have and Tenant hereby grants to Landlord a continuing
security interest for all rentals and other sums of money become due hereunder
from Tenant, upon all goods, wares, equipment, fixtures, furniture, inventory,
and other personal property of Tenant now or hereafter situated at the
Premises, and such property shall not be removed therefrom without the consent
of Landlord until all arrearages in rent as well as any and all other sums of
money then due to Landlord hereunder shall first have been paid and discharged.
In the event any of the foregoing described property is removed from the
Premises in violation of the covenant in the preceding sentence, the security
interest shall continue in such property and all proceeds and products,
reguardless of location. Upon a default hereunder by Tenant in addition to all
other rights and remedies, Landlord shall have all rights and remedies under
the Uniform Commercial Code including without limitation, the right to sell the
property described in this Paragraph at public or private sale upon five (5)
days notice by Landlord. Tenant hereby agrees to execute such other
instruments, necessary or desirable under applicable law to perfect the
security interest hereby created. Landloard and Tenant agree that this Lease
and security agreement serves as a financing statement and that a copy,
photographic or other reproduction of this portion of this Lease may be filed of
record by Landlord and have the same force and effect as the original. This
security agreement and financing statement also covers fixtures located at the
Premises subject to this Lease and legally described in Exhibit "A" attached
hereto and incorporated herein by reference and is to be filed for record in
the real estate records. the record owner of this property is ______________.]
27. Provided that this Lease is in full force and effect and the Tenant shall
not be in default hereunder at the time it exercises this option to extend or at
the time the extension term commences, Tenant may extend this Lease one time for
two (2) years from the expiration of the Initial term hereof by notice in
writing delivered to Landlord not less than) ninety (90) days prior to the
expiration date of the then current term of this Lease, as extended. All of the
covenants, conditions and provisions of this Lease shall thereupon be applicable
during said additional two (2) year term, except that the amount of rental to
be paid by the Tenant to Landlord shall be adjusted to reflect a 6% increase in
the base rent as referenced in Paragraph 2.A.
Landlord
Tenant
--------------
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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28. Provided that this Lease is in full force and effect and the Tenant shall
not be in default hereunder at the time it exercises this option to transfer,
Tenant may transfer to another unit at least 30% larger than the current space
after the 12th month of the Lease, upon not less than ninety (90) days written
notice delivered to Landlord, provided that such a unit is available in
Landlord's current portfolio and such new term is at least 36 months in
additional length and such new Lease is at a market rental rate.
EXECUTED BY LANDLORD, this 22 day of September, 1994.
Attest /Witness
--------------------------- SSMRT BENSENVILLE INDUSTRIAL PARK (3),
INC
By: /s/ ? ? ?
--------------------------- ----------------------------------------
Title: Title: Special Assistant
--------------------- -------------------------------------
Corporate Secretary
ADDRESS:
000 Xxxxxxxxxx Xxxxxx
-------------------------------------------
Xxx Xxxxxxxxx, XX 00000
-------------------------------------------
-------------------------------------------
EXECUTED BY TENANT, this 14th day of September, 1994_.
Attest/Witness
/s/ Xxxxxxx X. Xxxxxx
--------------------------- OLYMPUS PROPERTIES, INC. AN ILLINOIS
CORPORATION
Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Title: Assistant Secretary Title: President
---------------------
ADDRESS:
00000 X. Xxxxxxx Xxxxxx
---------------------------------------------
Xxxxxxxx Xxxx, XX 00000-0000
---------------------------------------------
---------------------------------------------
---------------------------------------------
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Tenant
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EXHIBIT "A"
Lot 5 (except the West 250.0 feet, as measured at right angles to the West line
thereof) in Thorndale Distribution Park in Bensenville, Unit No. 2, being a
subdivision of part of the South 1/2 of Xxxxxxx 0, Xxxxxxxx 00 Xxxxx, Xxxxx 00,
Xxxx of the Third Principal Meridian, according to the Plat thereof recorded
November 7, 1977 as Document No. R77-102030 and consent to contents and
recordation of Plat recorded January 31, 1978 as Document No. R78-08789, in
DuPage County, Illinois containing a 202,759 square foot building commonly
known as 000 Xxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000.
13
[Map of Xxxxxxxx Xxxx Company]
* 24' Clear Height
*200 Car Parking
*Fully Sprinklered
*32'x 40' Bays
NORTH SECTION (600 Supreme)
*129,423 Sq. Ft. Total Area
*17,170 Sq. Ft. Office
*12 Exterior Docks
*4 Interior Docks
South Section (608 Supreme)
*73,336 Sq. Ft. Total Area
*5,632 Sq. Ft. Office
*11 Exterior Docks
*1 Drive-in Door
Xxxxxxxx Xxxx Company
Contact: Xxxxx Xxxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxxxxx
14
EXTENSION AGREEMENT to be attached to and form a part of lease (which together
with any amendments, modifications and extensions thereof is hereinafter called
the "Lease"), made of 22nd of September, 1994.
Between
Bensenville Associates, Ltd. later revised to
SSMRT Bensenville Industrial Park (3), Inc.
as Landlord
and
Olympus Properties, Inc.
as Tenant
covering the premises known as
000 Xxxxxxx Xxxxx
Xxxxxxxxxxx, XX
WITNESSETH that the Lease is hereby renewed and extended for a further term of
24 months to commence on November 1, 1996, and to end on October 31, 1998, on
the condition that Landlord and Tenant comply with all the provisions of the
covenants and agreements contained in the Lease, except that the monthly base
rent as described in Paragraph 2A of the Lease during said period shall be
$26,584.00.
IN WITNESS WHEREOF, the parties hereto have signed and sealed this extension
agreement this 31st day of July, 1996
WITNESS: SSMRT Bensenville Industrial Park (3), Inc.
WITNESS:
Bensenville Associates, Ltd. later revised to
SSMRT Bensenville Industrial Park (3), Inc.
/s/ X. Xxxxxx By: /s/ ? ? ?
---------------------------- ---------------------------------------------
WITNESS:
Olympus Properties, Inc
/s/ Xxxxxxx Xxxxxxxxx By: /s/ ? ? ?
---------------------------- ---------------------------------------------
