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EXHIBIT 10.15
LEASE
BETWEEN
RCPI OFFICE PROPERTIES, LLC, a
Texas limited liability company
Landlord
AND
MARKETING SPECIALISTS SALES COMPANY, a Texas corporation
Tenant
Dated: February 17, 2000
Premises: 744 and 000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
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INDEX
ARTICLE HEADING PAGE
------- ------- ----
ARTICLE 1 PREMISES AND TERM............................................................5
ARTICLE 2 FIXED RENT AND ADDITIONAL RENT...............................................5
ARTICLE 3 IMPOSITIONS..................................................................6
ARTICLE 4 USE AND OPERATION OF PREMISES................................................7
ARTICLE 5 CONDITION OF PREMISES, ALTERATIONS AND REPAIRS...............................8
ARTICLE 6 INSURANCE....................................................................9
ARTICLE 7 DAMAGE OR DESTRUCTION.......................................................11
ARTICLE 8 CONDEMNATION................................................................13
ARTICLE 9 ASSIGNMENT AND SUBLETTING...................................................13
ARTICLE 10 SUBORDINATION..............................................................16
ARTICLE 11 OBLIGATIONS OF TENANT......................................................18
ARTICLE 12 DEFAULT BY TENANT; REMEDIES................................................20
ARTICLE 13 NO WAIVER..................................................................24
ARTICLE 14 ESTOPPEL CERTIFICATE.......................................................24
ARTICLE 15 QUIET ENJOYMENT............................................................25
ARTICLE 16 SURRENDER..................................................................25
ARTICLE 17 ACCESS.....................................................................26
ARTICLE 18 ENVIRONMENTAL MATTERS......................................................26
ARTICLE 19 MISCELLANEOUS PROVISIONS...................................................29
ARTICLE 20 RENEWAL OPTIONS............................................................31
ARTICLE 21 LANDLORD'S ADDITIONAL TERMINATION RIGHT....................................31
ARTICLE 22 SUBORDINATION TO SENIOR DEBT...............................................31
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EXHIBITS
Exhibit "A" - Description of the Land
Exhibit "B" - Memorandum of Lease
Exhibit "C" - Renewal Options
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LEASE
THIS LEASE is made as of the 17th day of February, 2000 (the
"EFFECTIVE DATE"), between RCPI Office Properties, LLC, a Texas limited
liability company, as "LANDLORD", and MARKETING SPECIALISTS SALES COMPANY, a
Texas corporation, as "TENANT".
W I T N E S S E T H:
- - - - - - - - - -
The parties hereto, for themselves, their heirs,
distributees, executors, administrators, legal representatives, successors and
assigns, hereby covenant as follows:
ARTICLE A
CERTAIN LEASE PROVISIONS
1. Address for 744 and 000 Xxxxxx Xxxxxx
the Premises: Xxxxxx, Xxxxxxxxxx 00000
2. (a) Primary Term: Approximately four (4) years,
beginning on the Commencement Date
and ending on the Expiration Date.
As used in this Lease, the term
"TERM" shall mean the Primary Term
together with any renewal thereof.
(b) Commencement
Date: February 17, 2000.
(c) Expiration
Date: February 28, 2004, unless sooner
terminated pursuant to this Lease.
(d) Renewal
Options: Two (2) three year options.
3. Fixed Rent: Tenant agrees to pay to Landlord as
monthly rental for the Premises
(such monthly rental is herein
referred to as "FIXED RENT") in
lawful money of the United States
of America, at ___________________,
or to such other person or entity
and at such other place as Landlord
may from time to time designate in
writing, as follows:
For the Office Space:
From the Commencement Date through
the Expiration Date, Tenant shall
pay Fixed Rent in the amount of
$37,350.00 ($12.00 per rentable
square foot on an annual basis for
the Office Space) in advance on the
first day of each and every
successive calendar month during
such period of time.
For the Warehouse Space:
From the Commencement Date through
the Expiration Date, Tenant shall
pay Fixed Rent in the amount of
$5,210.00 ($6.00 per rentable
square foot on an annual basis for
the Warehouse Space) in advance on
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the first day of each and every
successive calendar month during
such period of time.
4. Use of Premises: For general office and warehouse
use and uses incidental thereto and
for no other purpose without the
prior written consent of Landlord.
5. Address for Notices:
For Landlord: RCPI Office Properties LLC.
00000 Xxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxxx
For Tenant: Marketing Specialists Sales Company
00000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Gage X. Xxxx and
Xxxxx X. Xxxxxxxxx
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ARTICLE B
CERTAIN DEFINITIONS
"ADDITIONAL RENT" is defined in Section 2.2.
"ALTERATIONS" is defined in Section 5.4.
"BANKRUPTCY CODE" means the provisions of 11 U.S.C. Section 101 et
seq. or any statute of similar purpose or nature as more particularly set forth
in Section 9.10.
"BASE BUILDING COMPONENTS" means the foundation, the roof and the
structural walls of the Building.
"BUILDING" means the buildings, building equipment and improvements
now or hereinafter erected on the Land.
"BUSINESS DAY" is every day which most commercial banks based in New
York, New York are open for the ordinary conduct of business.
"CLAIMS" is defined in Section 11.3.
"CONTRACT OF SALE" is defined in Section 21.1.
"COMMENCEMENT DATE" is set forth in Article A, Section 2(b).
"DEFAULT RATE" means three percent (3%) over the prime reference rate
announced from time to time by Citibank, N.A. in New York, New York, as such
prime reference rate may be adjusted and announced from time to time, or if
unavailable, the parties shall use the prime reference rate of any New York
regional bank selected by Landlord.
"DEFICIENCY" is defined in Section 12.3(c).
"ENVIRONMENTAL LAWS" is defined in Section 18.9.
"EVENT OF DEFAULT" is defined in Section 12.1.
"EXPIRATION DATE" is defined in Article A, Section 2(c).
"FIXED RENT" is defined in Article A, Section 3.
"FORCE MAJEURE DELAYS" is defined in Section 19.16.
"HAZARDOUS SUBSTANCES" is defined in Section 18.10.
"IMPOSITIONS" is defined in Section 3.1.
"INDEMNIFIED PARTIES" is defined in Section 11.3.
"INSURANCE COSTS" is defined in Section 7.3.
"LAND" means that certain real property described on Exhibit "A"
attached hereto and incorporated herein by this reference.
"LANDLORD" is defined in the introductory paragraph to this Lease.
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"LANDLORD PARTIES" is defined in Section 6.2.
"LANDLORD'S AWARD" is defined in Section 8.1.
"LEASE" means this lease made between Landlord, as landlord, and
Tenant, as tenant.
"MAINTENANCE AND REPAIR OBLIGATIONS" is defined in Section 5.2.
"MORTGAGE" is defined in Section 3.2.
"MORTGAGEE" is defined in Section 3.2.
"SUBORDINATION, "NON-DISTURBANCE, AND ATTORNMENT AGREEMENT" is defined
in Section 10.1.
"OFFICE SPACE" shall mean the office space portion of the Building
containing 37,350 net rentable square feet of space.
"PERMITTED TRANSFER" shall mean either (i) a Transfer after Tenant's
receipt of Landlord's prior written consent thereto, or (ii) a Permitted
Transfer Without Landlord Consent.
"PERMITTED TRANSFER WITHOUT LANDLORD CONSENT" is defined in Section
9.1 below.
"PREMISES" means the Land and the Building.
"PREMISES DELIVERY DATE" is defined in Article A, Section 2(b) above.
"PROJECT EXPENSES is defined in Section 5.7.
"REMEDIAL WORK" is defined in Section 18.7.
"RENT" is defined in Section 2.3.
"REQUIREMENTS" is defined in Section 11.1.
"SUBTENANT" is defined in Section 9.5.
"TENANT" is defined in the introductory paragraph to this Lease.
"TENANT'S EXPENSE PAYMENT" is defined in Section 5.6.
"TERM" is defined in Article A, Section 2(a).
"TRANSFER" is defined in Section 9.1.
"TRANSFEREE" means any assignee or purchaser of Tenant's interest in
this Lease or any sublessee of all or any portion of the Premises.
"UTILITIES" is defined in Section 5.2.
"WAREHOUSE SPACE" shall mean the warehouse portion of the Building
containing 10,420 net rentable square feet of space.
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ARTICLE 1
PREMISES AND TERM
Section 1.1. During the Term, Landlord, in consideration of the rents
herein reserved and of the terms, provisions, covenants and agreements on the
part of Tenant to be kept, observed and performed, does hereby lease and demise
the Premises unto Tenant, and Tenant does hereby hire and take the Premises
from Landlord, subject to each and every matter affecting title to the Premises
including, without limitation, all of the following which are in effect as of
the Commencement Date: all easements, rights of way, covenants, conditions and
restrictions, liens, encumbrances, encroachments, licenses, notices of
pendency, charges, zoning laws, ordinances, regulations, building codes and
other governmental laws, rules and orders affecting the Premises, and other
exceptions to Landlord's title, whether or not the same are of public record.
Section 1.2. Tenant shall lease the Premises for the Term, unless
sooner terminated as hereinafter provided or pursuant to law.
ARTICLE 2
FIXED RENT AND ADDITIONAL RENT
Section 2.1. Tenant shall pay to Landlord as Fixed Rent for the
Premises during the Term the amounts stated in Article A, Section 3. Fixed Rent
shall be payable in equal monthly installments in advance on the first day of
each and every month during the Term, without previous demand therefor and
without offset or deduction of any kind whatsoever. Notwithstanding the
foregoing, Tenant shall pay the partial month's installment of Fixed Rent (with
respect to the remaining days of the month in which this Lease is executed)
upon the execution of this Lease.
Section 2.2. Tenant shall also pay and discharge, as additional rent,
all other amounts, liabilities and obligations of whatsoever nature relating to
the Premises, including, without limitation, all Impositions (as defined in
Section 3.1 below), all Project Expenses (as defined in Section 5.9 below)
those arising under any common area maintenance agreements however denominated,
easements, declarations, restrictions, or other similar agreements affecting
the Premises or any adjoining property thereto, and all interest and penalties
that may accrue thereon in the event of Tenant's failure to pay such amounts
when due, and all damages, costs and expenses which Landlord may incur by
reason of any default of Tenant or failure on Tenant's part to comply with the
terms of this Lease, all of which Tenant hereby agrees to pay upon demand or as
is otherwise provided herein (all of the foregoing together with any other
amounts and charges payable by Tenant under this Lease in addition to Fixed
Rent are herein collectively called "ADDITIONAL RENT"). Upon any failure by
Tenant to pay any of the Additional Rent, Landlord shall have all legal,
equitable and contractual rights, powers and remedies provided either in this
Lease or by statute or otherwise in the case of non-payment of the Fixed Rent.
The term Additional Rent shall be deemed rent for all purposes hereunder other
than with respect to Tenant's internal accounting procedures.
Section 2.3. All Fixed Rent and Additional Rent payable hereunder
(collectively, "RENT") shall be payable when due by wire transfer of
immediately available funds to an account designated from time to time by
Landlord. At Landlord's option upon Landlord's request, Rent shall be made in
United States currency which shall be legal tender for all debts, public and
private, payable to Landlord and sent to Landlord's address set forth in
Article A, or to such other person or persons or at such other place as may be
designated by notice from Landlord to Tenant, from time to time.
Notwithstanding the foregoing, Impositions shall be payable to the parties to
whom they are due, except as otherwise provided herein.
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ARTICLE 3
IMPOSITIONS
Section 3.1. From and after the Commencement Date and throughout the
Term, Tenant shall pay and discharge not later than twenty (20) days before any
fine, penalty, interest or cost may be added thereto for the non-payment
thereof, all taxes, assessments, water rents, sewer rents and charges, duties,
impositions, license and permit fees, charges for public utilities of any kind,
payments and other charges of every kind and nature whatsoever, ordinary or
extraordinary, foreseen or unforeseen, general or special, in said categories,
together with any interest or penalties imposed upon the late payment thereof,
which, pursuant to past, present or future law, during, prior to or after (but
attributable to a period within) the Term, shall have been or shall be levied,
charged, assessed, imposed upon or grow or become due and payable out of or for
or have become a lien on the Premises or any part thereof, any improvements or
personal property in or on the Premises, the Rent and income payable by Tenant
or on account of any use of the Premises and such franchises as may be
appurtenant to the use and occupation of the Premises (all of the foregoing
being hereinafter referred to as "IMPOSITIONS"). Tenant, upon request from
Landlord, shall submit to Landlord the proper and sufficient receipts or other
evidence of payment and discharge of the same. If any Impositions are not paid
when due under this Lease, Landlord shall have the right but shall not be
obligated to pay the same following written notice to Tenant of such payment,
provided Tenant does not contest the same as herein provided. If Landlord shall
make such payment, Landlord shall thereupon be entitled to repayment by Tenant
on demand as Additional Rent hereunder.
Section 3.2. Tenant shall have the right to protest and contest any
Impositions imposed against the Premises or any part thereof, provided (i) the
same is done at Tenant's sole cost and expense, (ii) nonpayment will not
subject the Premises or any part thereof to sale or other liability by reason
of such nonpayment, (iii) such contest shall not subject Landlord or the holder
(the "MORTGAGEE") of any mortgage or deed of trust (a "MORTGAGE") encumbering
all or any part of the Premises to the risk of any criminal or civil liability,
and (iv) Tenant shall provide such security as may reasonably be required by
Landlord or any Mortgagee or under the terms of any Mortgage to ensure payment
of such contested Imposition. Landlord agrees to execute and deliver to Tenant
any and all documents reasonably required for such purpose and to cooperate
with Tenant in every reasonable respect in such contest, but without any cost
or expense to Landlord.
Section 3.3. To the extent permitted by law, Tenant shall have the
right to apply for the conversion of any Impositions to make the same payable
in annual installments over a period of years, and upon such conversion Tenant
shall pay and discharge said annual installments as they shall become due and
payable. Tenant shall pay all such deferred installments prior to the
expiration or sooner termination of the Term, notwithstanding that such
installments shall not then be due and payable; provided, however, that any
Impositions (other than one converted by Tenant so as to be payable in annual
installments as aforesaid) relating to a fiscal period of the taxing authority,
a part of which is included in a period of time after the Expiration Date,
shall (whether or not such Impositions shall be assessed, levied, confirmed,
imposed or become payable, during the Term) be adjusted between Landlord and
Tenant as of the Expiration Date, so that Landlord shall pay that portion of
such Impositions which relate to that part of such fiscal period included in
the period of time after the Expiration Date, and Tenant shall pay the
remainder thereof.
Section 3.4. If at any time during the Term, a tax or excise on Rent
or other tax, however described, is levied or assessed with respect to the Rent
or any part thereof (as opposed to the income of Landlord) or against Landlord
as a substitute in whole or in part for any Impositions theretofore payable by
Tenant, Tenant shall pay and discharge such tax or excise on Rent or other tax
before it becomes delinquent, and the same shall be deemed to be an Imposition
levied against the Premises.
Section 3.5. Except as set forth in Section 3.4 above, Tenant shall
not be obligated to pay any franchise, excise, corporate, estate, inheritance,
succession, capital, levy or transfer tax of Landlord or any income, profits or
revenue tax upon the income of Landlord.
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Section 3.6. In the event that Landlord is required pursuant to the
terms of any Mortgage to make monthly or other tax escrow payments to any
Mortgagee or if an Event of Default shall occur and be continuing, Tenant
agrees that, on demand made by Landlord, it shall: (i) deposit with Landlord or
Mortgagee, on the day of demand and on the same day of each month thereafter
until thirty (30) days prior to the date when the next installment of
Impositions is due to the authority or other person to whom the same is paid,
an amount equal to said next installment of Impositions divided by the number
of months over which such deposits are to be made; and (ii) thereafter during
the Term deposit with Landlord or Mortgagee an amount each month estimated by
Landlord or Mortgagee to be adequate to create a fund which, as each succeeding
installment of Impositions becomes due, will be sufficient, thirty (30) days
prior to such due date, to pay such installment in full. Landlord or Mortgagee
shall use reasonable efforts to cause the monthly deposits to be equal in
amount, but neither of them shall be liable in the event that such required
deposits are unequal. If at any time the amount of any Imposition is increased
or Landlord or Mortgagee believes that it will be, said monthly deposits shall
be increased upon demand by Landlord or Mortgagee so that, thirty (30) days
prior to the due date for each installment of Impositions, there will be
deposits on hand with Landlord or Mortgagee sufficient to pay such installments
in full. To the extent permitted by applicable law, Landlord or Mortgagee shall
not be required to deposit any such amounts in an interest bearing account. For
the purpose of determining whether Landlord or Mortgagee has on hand sufficient
moneys to pay any particular Imposition at least thirty (30) days prior to the
due date therefor, deposits for each category of Imposition shall be treated
separately, it being the intention that Landlord shall not be obligated to use
moneys deposited for the payment of an item not yet due and payable to the
payment of an item that is due and payable. Notwithstanding the foregoing, it
is understood and agreed that (a) to the extent permitted by applicable law,
deposits provided for hereunder may be held by Landlord or Mortgagee in a
single bank account and commingled with other funds of Landlord or Mortgagee,
and (b) Landlord or Mortgagee, may, if Tenant fails to make any deposit
required hereunder, use deposits made for any one item for the payment of the
same or any other item of Rent. If this Lease shall be terminated by reason of
any Event of Default, all deposits then held by Landlord shall be applied by
Landlord on account of any and all sums due under this Lease; if there is a
resulting deficiency, Tenant shall pay the same, and if there is a surplus,
Tenant shall be entitled to a refund of the surplus.
Section 3.7. If Landlord ceases to have any interest in the Premises,
Landlord shall transfer to the person or entity who owns or acquires such
interest in the Premises from Landlord and is the transferee of this Lease, the
deposits made pursuant to Section 3.6 hereof, subject, however, to the
provisions thereof. Upon such transfer of the Premises, the transferor shall be
deemed to be released from all liability with respect thereto and Tenant agrees
to look to the transferee solely with respect thereto, and the provisions
hereof shall apply to each successive transfer of the said deposits; provided,
however, that transferor shall not be released from liability unless Tenant
either receives said deposits or said deposits continue to be held by Mortgagee
for the benefit of transferee and Tenant.
Section 3.8. The provisions of this Article 3 shall survive the
expiration or earlier termination of this Lease.
ARTICLE 4
USE AND OPERATION OF PREMISES
Section 4.1. The Premises may be used and occupied only for the
purposes set forth in Article A, Section 4. Tenant shall not create or suffer
to exist any public or private nuisance, hazardous or illegal condition or
waste on or with respect to the Premises.
Section 4.2. Except as expressly provided in this Lease, in no event
shall Tenant use any area outside the Building other than for pedestrian and
vehicular ingress and egress to and from the Building, other than for parking
in the areas currently designated for parking, and other than to perform any of
Tenant's obligations under this Lease requiring the use of such area. Tenant
and its employees shall have access to the Premises 24 hours per day, 7 days
per week throughout the Term.
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ARTICLE 5
CONDITION OF PREMISES, ALTERATIONS AND REPAIRS
Section 5.1. Tenant has examined the Premises, is familiar with the
physical condition, expenses, operation and maintenance, zoning, status of
title and use that may be made of the Premises and every other matter or thing
affecting or related to the Premises, and is leasing the same in its "AS IS"
condition. Except as expressly provided to the contrary in this Lease, Landlord
has not made and does not make any representations or warranties whatsoever
with respect to the Premises or otherwise with respect to this Lease. Tenant
assumes all risks resulting from any defects (patent or latent) in the Premises
or from any failure of the same to comply with any governmental law or
regulation applicable to the Premises or the uses or purposes for which the
same may be occupied.
Section 5.2. Tenant shall be solely responsible for obtaining any
services and/or utilities used, consumed or provided in, furnished to or
attributable to the Premises that Landlord has not expressly agreed to provide
to Tenant pursuant to this Lease (all such services and/or utilities are
collectively referred to as "UTILITIES"). Subject to Landlord's right of
reimbursement as provided in Section 5.8 below, Landlord shall keep the
Premises clean and in good condition and repair and Landlord shall make all
repairs and replacements, structural and non-structural, ordinary and
extraordinary, foreseen and unforeseen, and shall perform all maintenance,
necessary to maintain the Premises in good condition and repair, ordinary wear
and tear and damage due to fire or other casualty excepted (the obligations of
Landlord in this sentence are herein referred to as "MAINTENANCE AND REPAIR
OBLIGATIONS").
Section 5.3. To the extent not prohibited by law, Tenant hereby waives
and releases all rights now or hereinafter conferred by statute or otherwise
which would have the effect of limiting or modifying any of the provisions of
this Article 5.
Section 5.4. Tenant shall have the right at any time and from time to
time during the Term to make, at its sole cost and expense, changes,
alterations, additions or improvements (collectively, "ALTERATIONS") in or to
the Premises provided that Tenant first obtains Landlord's written consent
thereto, which consent shall not be unreasonably withheld or delayed. Landlord
will be able to withhold its consent, in its sole and absolute discretion, with
respect to any Alterations in or to the Premises which (i) are made to or
affect (A) the structural components of the Building, or (B) the systems of the
Building, (ii) are visible from the exterior of the Building, or (iii)
adversely affect the value of the Building.
Section 5.5. All fixtures, structures and other improvements installed
in or upon the Premises at any time during the Term (excluding, in any event,
Tenant's trade fixtures, furniture, equipment and other movable personal
property) shall become the property of Landlord and shall remain upon and be
surrendered with the Premises unless Landlord, by notice to Tenant no later
than ninety (90) days prior to the Expiration Date (or if this Lease is
terminated earlier, then within thirty (30) days after the effective date of
such termination), elects to have the same removed or demolished by Tenant, in
which event, the same shall be removed from the Premises by Tenant by the
Expiration Date (or if this Lease is terminated earlier, then within thirty
(30) days after the effective date of such termination) at Tenant's expense.
Prior to the commencement of any Work, Landlord will, upon written request by
Tenant, notify Tenant in writing whether Landlord will require such Alterations
to be removed from the Premises prior to the Expiration Date or earlier
termination of this Lease. All property permitted or required to be removed by
Tenant at the end of the Term remaining in the Premises after Tenant's removal
shall be deemed abandoned and may, at the election of Landlord, either be
retained as Landlord's property or may be removed from the Premises by Landlord
at Tenant's expense. Tenant shall be responsible for, and shall reimburse
Landlord immediately after written demand therefor, any damage to the Premises
caused in whole or in part by the removal or demolition of Tenant's fixtures,
structures or other improvements which Tenant is required to remove pursuant to
this Section 5.7 or which Tenant elects under the provisions of this Lease to
remove. The provisions of this Section 5.7 shall survive the expiration or
earlier termination of the Term.
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Section 5.6. In addition to Fixed Rent, Tenant shall pay as Additional
Rent, all Project Expenses (as defined in Section 5.7 below) incurred by
Landlord during the Term. Such payment shall hereafter be referred to as
"TENANT'S EXPENSE PAYMENT". Landlord may, if it elects, either deliver to
Tenant periodic statements of Tenant's Expense Payment or Landlord may estimate
the amount of Tenant's Expense Payment payable by Tenant for any calendar year
or any portion thereof. In the event Landlord elects to estimate Tenant's
Expense Payment for any calendar year, Landlord shall provide written notice of
the estimate of Tenant's Expense Payment for the applicable calendar year and
the monthly installment due for each month during such calendar year at least
thirty (30) days prior to the date such installments become due and payable.
Tenant shall pay to Landlord, on the first day of each calendar month during
any calendar year Landlord elects to estimate Tenant's Expense Payment, the
amount of the applicable monthly installments, without demand. Landlord shall,
on or before the first day of July of each calendar year, determine the actual
Tenant's Expense Payment for the preceding calendar year and provide Tenant
with written notice thereof. If Tenant's actual payments of estimated Tenant's
Expense Payment are less than the actual Project Expenses for such year, then
Tenant shall pay to Landlord the amount of the deficiency within thirty (30)
days from the date of Landlord's notice of deficiency. Alternatively, if
Tenant's actual payments of estimated Tenant's Expense Payments are greater
than the actual Project Expenses for such year, then Landlord shall credit the
amount of the surplus against the next accruing installments of Tenant's
Expense Payment.
Section 5.7. As used in this Lease, the term "PROJECT EXPENSES" shall
mean all direct costs and expenses of ownership (excluding, however, any
Impositions which are payable by Tenant as provided in Article 3 above),
operation, security, protection, replacement, repair and maintenance of the
Premises incurred by Landlord, as determined by sound, accrual basis,
accounting principles consistently applied, and shall include all costs
incurred in connection with the ownership and operation of the parking areas;
all Insurance Costs (as defined in Section 7.3 below); accounting and legal
fees; and dues, taxes and/or assessments imposed by any applicable property
owners' association if any, excepting only those specific costs and expenses
that Landlord has specifically agreed to bear with no reimbursement from Tenant
and these costs and expenses described in the immediately following sentence.
Project Expenses do not include any of the following: (a) interest and
principal payments on loans secured by mortgages or deeds of trust covering all
or any portion of the Premises, and other debt costs, if any, and rental under
any ground lease or other underlying lease, if any, covering all or any portion
of the Premises; (b) real estate broker's commissions payable in connection
with this Lease; (c) any cost or expenditure (or portion thereof) for which
Landlord is reimbursed, whether by insurance proceeds or otherwise (Tenant's
Expense Payments are not reimbursements); (d) all costs incurred by Landlord in
connection with the satisfaction of the Maintenance and Repair Obligations; (e)
costs and expenses incurred in the management of the Premises and/or the
administration of Landlord's rights and obligations under this Lease; (f) costs
of improvements to, or alterations of, the Premises; (g) depreciation; (h) that
portion of any cost or expense which is allocated by Landlord to, or is
performed solely for the benefit of, any property owned or operated by Landlord
other than the Premises; (i) legal, accounting and similar or related costs
paid or incurred in connection with any sale, syndication, financing or
refinancing involving the Building and/or the Premises or any of Landlord's
interest therein; (j) any fees, fines, penalties and/or interest incurred by
Landlord as a result of Landlord's noncompliance with any applicable laws; (k)
any costs (including, without limitation, legal fees and expenses), fees,
fines, penalties and/or interest incurred by Landlord as a result of Landlord's
failure to pay any obligations of Landlord; (l) costs of disputes between
Landlord and any third party regarding matters not related to the Premises; (m)
costs of defending any lawsuits with Mortgagees or ground lessors of Landlord;
(n) any debt losses, rent losses or reserves for bad debt; and (o) costs or
expenses related to Landlord's cleaning, removal, remediation or compliance
required due to the existence of any hazardous or toxic materials in, on or
affecting the Building and/or Land (including, without limitation, Hazardous
Substances) unless such existence is caused by Tenant or its employees,
sublessees or contractors.
ARTICLE 6
INSURANCE
Section 6.1. Throughout the Term, Tenant shall, at its own cost and
expense, provide and keep in force, for the benefit of Landlord, Tenant and any
Mortgagee:
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(a) broad form commercial general liability insurance (including
protective liability coverage on operations of independent contractors engaged
in construction and blanket contractual liability insurance) protecting and
indemnifying Landlord, Tenant and any Mortgagee against all claims for damages
to person or property or for loss of life or of property occurring upon, in, or
about the Premises, if any, written on a per-occurrence basis with an aggregate
limit of not less than $2,000,000 and a per-occurrence limit of not less than
$1,000,000, or such greater limits as may be required from time to time by any
Mortgagee or as may be reasonably required from time to time by Landlord
consistent with insurance coverage on properties similarly constructed,
occupied and maintained. Such coverage shall contain endorsements: (i)
including employees of Tenant as additional insureds; (ii) including
cross-liability; and (iii) waiving the insurer's rights of subrogation against
Landlord for events of which Landlord is not, but Tenant is, covered;
(b) property insurance in respect of Tenant's property located at the
Premises, insuring against loss or damage by fire and such other risks as are
now or hereafter embraced by "extended coverage" policy in an amount sufficient
to prevent Landlord and Tenant from becoming co-insurers and in any event in an
amount not less than one hundred percent (100%) of the actual replacement value
thereof as reasonably determined by Tenant from time to time.
(c) worker's compensation insurance (including employers' liability
insurance) covering all persons employed at the Premises by Tenant to the
extent required by the laws of the State in which the Premises are located; and
(d) such other or further insurance, in such amounts and in such form,
as is customarily obtained by tenants at properties similarly constructed,
occupied and maintained and that is available at commercially reasonable rates,
or as otherwise reasonably required by any Mortgagee.
Section 6.2. Whenever under the terms of this Lease Tenant is required
to maintain insurance for the benefit of Landlord, (i) all Landlord Parties (as
defined below) shall be an additional insured in all such liability insurance
policies, and (ii) either Landlord or Mortgagee, as specified in Section 6.3,
shall be named as loss payee in all such casualty insurance policies. In the
event that the Premises shall be subject to a Mortgage, the commercial general
liability insurance shall name the Mortgagee (together with any trustee or
servicer therefor) as an additional insured and all other insurance provided
hereunder shall name the Mortgagee as an additional insured or, as provided in
Section 6.3, loss payee under a standard "non-contributory mortgagee"
endorsement or its equivalent. All policies of insurance shall provide that
such coverage shall be primary and that any insurance maintained separately by
Landlord or the Mortgagee shall be excess insurance only. The original
certificates and legible copies of the original policies (or binders therefor
if the policies have not yet been prepared) shall be delivered to Landlord and
any Mortgagee. All insurance shall contain endorsements to the effect that the
act or omission of Tenant or Mortgagee, any occupancy or use of the Premises
for purposes more hazardous than permitted by such policy, any foreclosure or
other proceedings relating to the Premises or any change in title to or
ownership of the Premises will not invalidate the policy as to Landlord or such
Mortgagee. As used in this Lease, the term "LANDLORD PARTIES" shall mean (i)
Landlord, (ii) any Mortgagee that has been identified to Tenant in a writing
sent by Landlord or its agent or property manager, (iii) their respective
shareholders, members, partners, affiliates and subsidiaries, and (iv) any
directors, officers, employees, agents or contractors of such persons or
entities.
Section 6.3. INTENTIONALLY DELETED.
Section 6.4. All of the above-mentioned insurance policies and/or
certificates shall be obtained by Tenant and delivered to Landlord on or prior
to the date hereof, and thereafter as provided for herein, and shall be written
by insurance companies: (i) rated B+/X or better in "Best's Insurance Guide"
(or any substitute guide acceptable to Landlord); (ii) authorized to do
business in the state where the Premises are located; and (iii) of recognized
responsibility and which are satisfactory to Landlord and any Mortgagee. Any
deductible amounts under any casualty insurance policy hereunder shall not
exceed $25,000.00 per occurrence.
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Section 6.5. At least thirty (30) days prior to the expiration of any
policy or policies of such insurance, Tenant shall renew such insurance, by
delivering to Landlord or Mortgagee, within the said period of time, the
original policies or certificates of insurance, endorsed in accordance with
Section 6.2 hereof, together with insurance binders evidencing the coverage
described in this Article 6. All coverage described in this Article 6 shall be
endorsed to provide Landlord and Mortgagee with at least thirty (30) days'
notice of change in terms and at least ten (10) days' notice of cancellation or
termination. If Tenant shall fail to procure the insurance required under this
Article 6 in a timely fashion or to deliver such policies or certificates to
Landlord, Landlord may, at its option, upon written notice to Tenant, procure
the same for the account of Tenant, and the cost thereof shall be paid to
Landlord as Additional Rent.
Section 6.6. Tenant shall not violate, or permit to be violated, any
of the conditions of any of the said policies of insurance, and Tenant shall
perform and satisfy the requirements of the companies writing such policies so
that companies of good standing, reasonably satisfactory to Landlord, shall be
willing to write and/or continue such insurance.
Section 6.7. Tenant shall not carry separate or additional insurance
affecting the coverage described in this Article 6, concurrent in form and
contributing in the event of any loss or damage to the Premises with any
insurance required to be obtained by Tenant under this Lease, unless such
separate or additional insurance shall comply with and conform to all of the
provisions and conditions of this Article. Tenant shall promptly give notice to
Landlord of such separate or additional insurance.
Section 6.8. The insurance required by this Lease, at the option of
Tenant, may be effected by blanket and/or umbrella policies issued to Tenant
covering the Premises and other properties owned or leased by Tenant, provided
that the policies otherwise comply with the provisions of this Lease and
allocate to the Premises the specified coverage, without possibility of
reduction or coinsurance by reason of, or damage to, any other premises named
therein, and if the insurance required by this Lease shall be effected by any
such blanket or umbrella policies, Tenant shall furnish to Landlord or
Mortgagee certified copies or duplicate originals of such policies in place of
the originals, with schedules thereto attached showing the amount of insurance
afforded by such policies applicable to the Premises.
ARTICLE 7
DAMAGE OR DESTRUCTION
Section 7.1. In the event the Building is damaged by fire or other
insured casualty and the insurance proceeds have been made available therefor
by the holder or holders of any mortgages or deeds of trust covering the
Building, the damage shall be repaired by and at the expense of Landlord to the
extent of such insurance proceeds available therefor, provided such repairs
can, in Landlord's sole opinion be made within one hundred eighty (180) days
after the occurrence of such damage without the payment of overtime or other
premiums. Until such repairs are completed, Fixed Rent shall be abated
effective as of the date of such fire or other casualty in proportion to the
part of the Building which is unusable by Tenant in the conduct of its
business; provided, however, if the damage is due to the fault or neglect of
Tenant or its employees, agents or invitees, there shall be no abatement of
Fixed Rent unless Landlord has received loss of rental insurance proceeds
intended to replace the Fixed Rent due hereunder. If repairs cannot, in
Landlord's sole opinion reasonably exercised, be made within one hundred eighty
(180) days after the occurrence of such damage, Landlord may, at its option,
make them within a reasonable time, and in such event, this Lease shall
continue in effect and Fixed Rent shall be abated in the manner provided in the
immediately preceding sentence. In the case of repairs which, in Landlord's
opinion reasonably exercised, cannot be made within such one hundred eighty
(180) day period, Landlord shall notify Tenant within sixty (60) days of the
date of occurrence of such damage as to whether or not Landlord will make such
repairs. If (a) Landlord elects not to make such repairs which cannot be made
within such one hundred eighty (180) day period, (b) Landlord fails to give
Tenant written notice of Landlord's intention to make or not to make such
repairs and such failure continues for ten (10) days after Landlord's receipt
of written notice of such failure, or (c) such damage occurs during the last
eighteen (18) months of the Term, then either party may, by written notice to
the other, terminate this Lease as of the date of
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the occurrence of such damage, and Landlord shall have no liability to Tenant
for failure to make such repairs except for abatement of Fixed Rent. Except as
provided in this Section 7.1, there shall be no abatement of Fixed Rent and no
liability of Landlord by reason of any injury to or interference with Tenant's
business or property arising from the making of any repairs, alterations or
improvements in or to any portion of the Building, or in or to fixtures,
appurtenances and equipment located therein, and, in any event, there shall be
no liability of Landlord should repairs require more than one hundred eighty
(180) days for completion. Tenant acknowledges and agrees that (i) Landlord
will not carry insurance of any kind on (1) Tenant's furnishings or furniture,
or (2) any fixtures or equipment removable by Tenant under the provisions of
this Lease, and (ii) Landlord shall not be required to repair any injury or
damage caused by fire or other cause, or to make any repairs or replacements to
or of improvements installed in the Building by or for Tenant, all of which
shall be the sole responsibility of Tenant.
Section 7.2. If Landlord is obligated to repair damage to the Building
pursuant to Section 7.1, Landlord shall use reasonable efforts to complete or
cause the completion of the repairs to the same on or before the expiration of
the Casualty Repair Delivery Period (as defined below in this paragraph).
Notwithstanding anything else to the contrary contained in this Lease, if
Landlord, for any reason whatsoever, cannot complete or cause the completion of
the repair of the applicable damage to the Building such that the Building is
usable by Tenant for the purposes identified in Article A, Section 4 above on
or before the last day of the Casualty Repair Delivery Period, then Landlord
shall not be liable to Tenant for any loss or damage resulting therefrom, but
Tenant shall, as its sole and exclusive remedy, have the right to terminate
this Lease by giving Landlord written notice thereof within thirty (30) days
after the expiration of the Casualty Repair Delivery Period and in any event
prior to Landlord's delivery of possession of the Building to Tenant in such a
usable condition. As used herein, the term "Casualty Repair Delivery Period"
shall mean the period of time beginning on the date the Building has been
damaged by fire or other insured casualty and ending on the last day of the
ninth (9th) calendar month following the date of such damage.
Section 7.3. Landlord covenants and agrees that throughout the Term it
will insure the Building (excluding excavation, foundation, footings and
underground flues and drains) and the machinery, boilers and equipment
contained therein owned by Landlord (excluding any property with respect to
which Tenant is obligated to insure pursuant to the provisions of Article 6
above) against damage by fire and extended perils coverage in an amount equal
to the full replacement value of such insured portions of the Building. Tenant
shall reimburse Landlord for the costs of such insurance (herein referred to as
"Insurance Costs") within thirty (30) days after Tenant's receipt of written
evidence of the amount of such costs paid by Landlord. Notwithstanding Tenant's
payment of the cost of insurance premiums as provided herein, Tenant
acknowledges that it has no right to receive any proceeds from any such
insurance policies carried by Landlord and that such insurance will be for the
sole benefit of Landlord with no coverage for Tenant for any risk against which
insurance has been obtained.
Section 7.4. All fire, extended coverage and/or damage insurance which
must be carried by Landlord and Tenant shall be endorsed with a subrogation
clause substantially as follows: "This insurance shall not be invalidated
should the insured waive in writing, prior to a loss, any or all right of
recovery against any party for loss occurring to the property described
herein." Landlord and Tenant each hereby waives any rights it may have against
the other (including, but not limited to, a direct action for damages) on
account of any loss or damage occasioned to Landlord or Tenant, as the case may
be (WHETHER OR NOT SUCH LOSS OR DAMAGE IS CAUSED BY THE FAULT, NEGLIGENCE OR
OTHER TORTIOUS CONDUCT, ACTS OR OMISSIONS OF LANDLORD OR TENANT OR THEIR
RESPECTIVE OFFICERS, PARTNERS, DIRECTORS, EMPLOYEES, SERVANTS AGENTS OR
INVITEES), to their respective property, the Premises or its contents arising
from any risk covered by any insurance required to be carried by Tenant and
Landlord, respectively, pursuant to this Lease. Without in any way limiting the
foregoing waivers and to the extent permitted by applicable law, the parties
hereto each, on behalf of their respective insurance companies insuring the
property of either Landlord or Tenant against any such loss, waive any right of
subrogation that Landlord or Tenant or their respective insurers may have
against the other party or their respective officers, directors, employees,
agents or invitees and all rights of their respective insurance companies based
upon an assignment from its insured. Each party to this Lease agrees
immediately to give to each such insurance
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company written notification of the terms of the mutual waivers contained in
this Section and to have said insurance policies properly endorsed, if
necessary, to prevent the invalidation of said insurance coverage by reason of
said waivers. The foregoing waivers shall be effective whether or not the
parties maintain the required insurance.
ARTICLE 8
CONDEMNATION
Section 8.1. If the Premises, or a substantial part thereof, shall be
lawfully taken or condemned (or conveyed under threat of such taking or
condemnation) for any public or quasi-public use or purpose, then (i) the term
of this Lease shall terminate on, and not before, the date of the taking of
possession by the condemning authority, and without apportionment of the award,
and (ii) current Rent due hereunder shall be apportioned as of the date of such
termination. In the event a taking or condemnation results in a permanent loss
of adequate parking on the Land or a permanent deprivation of access to the
Premises, then this Lease may be terminated at the election of Tenant, which
election shall be made by Tenant's delivery of written notice thereof to
Landlord within thirty (30) days after the date of such taking or condemnation.
No money or other consideration shall be payable by Landlord to Tenant for the
right of termination, and Tenant hereby waives any right Tenant may have to
share in, and assigns to Landlord Tenant's interest, if any, in, any (1)
condemnation award as a result of such taking or condemnation, (2) judgment for
damages based on such taking or condemnation, or (3) proceeds of any sale made
under any threat of condemnation or taking (the award, damages or proceeds
described in subparts (1) through (3) of this paragraph are herein collectively
referred to as "Landlord's Award").
Section 8.2. If any part of the Premises not constituting a
substantial part of the Premises shall be so taken or condemned (or conveyed
under threat of such taking or condemnation), or if the grade of any street
adjacent to the Building is changed by any competent authority and such taking
or change of grade makes it necessary or desirable to substantially remodel or
restore the Building, Landlord shall have the right to terminate this Lease
upon not less than ninety (90) days notice prior to the date of termination
designated in the notice. In the event this Lease is not terminated by Landlord
pursuant to the preceding sentence, then (a) this Lease shall continue in full
force and effect without abatement or reduction of rental due hereunder except
in the event a portion of the Premises has been taken or condemned, in which
case Fixed Rent shall be equitably adjusted, and (b) Landlord shall, within a
reasonable time and at the sole cost and expense of Landlord to the extent of
the applicable Landlord's Award, restore or remodel the Building and, if
applicable, the Premises.
Section 8.3. Except as provided in this Article 8, there shall be no
reduction of Fixed Rent and no liability of Landlord by reason of any injury
to, or interference with, Tenant's business or property arising from the making
of any repairs, alterations or improvements in or to any portion of the
Premises following a taking or condemnation of the same, or in or to fixtures,
appurtenances and equipment located therein. Notwithstanding anything to the
contrary contained herein, Tenant shall have the right to recover from any
condemning authority, through a separate award which does not reduce Landlord's
Award, any compensation as may be awarded to Tenant on account of moving and
relocation expenses and depreciation to and removal of Tenant's physical
property from the Premises.
ARTICLE 9
ASSIGNMENT AND SUBLETTING
Section 9.1. Except in strict accordance with the provisions of this
Article 9, Tenant shall not sell, assign, sublease or otherwise transfer,
directly or indirectly (each a "TRANSFER"), all or any portion of Tenant's
interest in this Lease or the Premises without Landlord's prior written
consent, which written consent shall not be unreasonably withheld or delayed.
Landlord and Tenant agree that no corporate reorganization of Tenant, or any
merger, consolidation, take-over, buy-out or other change in the corporate
structure or effective voting control of Tenant shall be deemed a prohibited
Transfer under this Section 9.1 so long as (y) Tenant has
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at least the amount of net worth immediately after the transaction as Tenant
has immediately prior to the transaction and (z) Tenant provides written notice
to Landlord describing in reasonable detail the nature of such transaction, the
name, address and state of formation of the surviving entity and the ownership
of Tenant. Any assignment or subletting permitted without Landlord's prior
written consent as provided above (a "PERMITTED TRANSFER WITHOUT LANDLORD
CONSENT") shall not release Tenant from any of its obligations under this
Lease. If the common stock of Tenant or of any corporation which controls
Tenant ever becomes the subject of a public offering, such issuance of shares
and/or subsequent trading of stock in Tenant shall not be deemed a prohibited
transfer under this Section 9.1. For purposes of this Article 9, the terms
"CONTROL" or "CONTROLS" shall mean possession, direct or indirect, of the power
to direct or to cause the direction of, the management and policies of any
person or entity, whether through the ownership of voting securities, or
partnership interest, by contract or otherwise. Without limiting in any way
Landlord's right to withhold its consent on any reasonable grounds, it is
agreed that Landlord will not be acting unreasonably in refusing to consent to
an assignment or sublease if, (a) the proposed assignment or sublease involves
a change of use of the Premises from that specified herein, (b) the proposed
assignee or subtenant is not, in Landlord's reasonable opinion, of reputable or
good character (for the purposes of this Lease, Landlord shall be conclusively
deemed to have reasonably exercised its discretion to withhold its consent to
an assignment or subletting to a person or entity that is not of the character,
quality or financial strength of a tenant to whom Landlord would generally
lease space of a comparable size and quality as the Premises), (c) a Mortgagee
does not approve such assignment or sublease after being requested to approve
the same, or (d) in the case of a subletting, the subletting shall not be
expressly subject to all of the provisions of this Lease and the obligations of
Tenant hereunder and shall not further provide that if Landlord shall recover
or come into possession of the Premises before the expiration of this Lease,
Landlord shall have the right to take over the sublease and to have it become a
direct lease with Landlord, in which case Landlord shall succeed to all of the
rights of Tenant, as sublessor, thereunder and that in such case subtenant
shall be bound to Landlord for the balance of the term of the sublease and
shall attorn to and recognize Landlord as its landlord under the sublease under
all of the then executory terms of the sublease, except that Landlord will not
(i) be liable for any previous acts or omissions of Tenant, as sublessor, (ii)
be subject to any claims of subtenant not expressly set forth in the sublease,
(iii) be bound by any modification of the sublease for which Landlord shall
have not expressly consented, or (iv) be obligated to perform any repairs or
other work beyond Landlord's obligations under this Lease. Tenant acknowledges
and agrees (again without in any way limiting Landlord's right to withhold its
consent on reasonable grounds) that Landlord may also withhold its consent to a
Transfer based on any one or more of the following: (1) Tenant's failure to
satisfy its obligations in Section 9.3 below; (2) at the time thereof an Event
of Default has occurred and is continuing; or (3) the fact that the instrument
effecting the proposed Transfer is not in form and content reasonably
satisfactory to Landlord.
Section 9.2. Notwithstanding the provisions of Section 9.1 above,
Tenant shall not be required to obtain the prior consent of Landlord for any
sublease of a part (but not all) of the Premises, which sublease is ordinary
and incidental to Tenant's business as such business has been run prior to the
inception of this Lease. In the event of a proposed sublease which is either
inconsistent with the ordinary and incidental operations of Tenant's business,
or which does not fall within the foregoing parameters of this Section 9.2,
such shall not be allowed without Landlord's prior written consent in each
instance, which consent shall not be unreasonably withheld or delayed.
Section 9.3. If Tenant shall desire Landlord's consent to a Transfer,
Landlord shall be given not less than thirty (30) days' advance written notice
of the proposed effective date of such Transfer, which notice shall be
delivered to Landlord together with (i) either an executed counterpart or, if
unavailable, a copy of the proposed instrument(s) of the Transfer and (ii) such
other documents and information as Landlord may reasonably request.
Section 9.4. Any consent by Landlord under this Article 9 shall apply
only to the specific transaction thereby authorized and shall not relieve
Tenant from the requirement of obtaining the prior written consent of Landlord
to any further Transfer of this Lease. No Transfer of all or a portion of this
Lease shall release or relieve the transferor from any obligations of Tenant
hereunder, and the transferor shall remain liable for the performance of all
obligations of Tenant hereunder.
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Section 9.5. Tenant shall cause each subtenant permitted pursuant to
this Article 9 (a "SUBTENANT") to comply with its obligations under its
respective sublease, and Tenant shall diligently enforce all of its rights as
the landlord thereunder in accordance with the terms of such sublease and this
Lease.
Section 9.6. The fact that a violation or breach of any of the terms,
provisions or conditions of this Lease results from or is caused by an act or
omission by any of the Subtenants shall not relieve Tenant of Tenant's
obligation to cure the same. Tenant shall take all necessary steps to prevent
any such violation or breach.
Section 9.7. If this Lease is assigned, or if the Premises or any part
thereof is subleased or occupied by anybody other than Tenant, Landlord may,
after the occurrence and during the continuance of an Event of Default by
Tenant, collect Rent from the assignee or Subtenants, and apply the net amount
collected to the Rent herein reserved, but no such assignment, sublease,
occupancy or collection shall be deemed a waiver of this covenant, or the
acceptance of the assignee or Subtenant as tenant, or a release of Tenant from
the further performance by Tenant of the terms, covenants, and conditions on
the part of Tenant to be observed or performed hereunder. After any assignment
or subletting, Tenant's liability hereunder shall continue notwithstanding any
subsequent modification or amendment hereof or the release of any subsequent
tenant hereunder from any liability, to all of which Tenant hereby consents in
advance. The consent by Landlord to any Transfer shall not in any way be
construed to relieve Tenant from obtaining the express written consent of
Landlord to any further Transfer.
Section 9.8. To secure the prompt and full payment by Tenant of the
Rent and the faithful performance by Tenant of all the other terms and
conditions herein contained on its part to be kept and performed, Tenant hereby
assigns, transfers and sets over unto Landlord, subject to the conditions
hereinafter set forth, all of Tenant's right, title and interest in and to all
Subleases and hereby confers upon Landlord, its agents and representatives, a
right of entry in, and sufficient possession of, the Premises to permit and
insure the collection by Landlord of the rentals and other sums payable under
the Subleases, and further agrees that the exercise of said right of entry and
qualified possession by Landlord shall not constitute an eviction of Tenant
from the Premises or any portion thereof and that should said right of entry
and possession be denied Landlord, its agent or representative, Landlord, in
the exercise of said right, may use all requisite force to gain and enjoy the
same without responsibility or liability to Tenant, its servants, employees,
guests or invitees, or any Person whomsoever; provided, however that such
assignment shall become operative and effective only if (a) an Event of Default
shall occur or (b) this Lease and the Term shall be canceled or terminated
pursuant to the terms, covenants and conditions hereof or (c) there occurs
repossession under a dispossess warrant or other re-entry or repossession by
Landlord under the provisions hereof or (d) a receiver for the Premises is
appointed, and then only as to such of the subleases that Landlord may elect to
take over and assume. At any time and from time to time upon Landlord's demand,
Tenant promptly shall deliver to Landlord a schedule of all subleases, setting
forth the names of all Subtenants, with a photostatic copy of each of the
subleases. Upon reasonable request of Landlord, Tenant shall permit Landlord
and its agents and representatives to inspect all subleases affecting the
Premises. Tenant covenants that each sublease shall provide that the Subtenant
thereunder shall be required from time to time, upon request of Landlord or
Tenant, to execute, acknowledge and deliver, to and for the benefit of
Landlord, an estoppel certificate confirming with respect to such sublease the
information set forth in Section 14.1 hereof.
Section 9.9. Tenant covenants and agrees that all subleases hereafter
entered into affecting the Premises shall provide that (a) they are subject to
this Lease, (b) the term thereof should end not less than one (1) day prior to
the Expiration Date hereof, unless Landlord shall consent otherwise, which
consent may be withheld in Landlord's sole discretion, (c) the Subtenants will
not do, authorize or execute any act, deed or thing whatsoever or fail to take
any such action which will or may cause Tenant to be in violation of any of its
obligations under this Lease, (d) the Subtenants will not pay rent or other
sums under the subleases with Tenant for more than one (1) month in advance,
(e) the Subtenants shall give to Landlord at the address and otherwise in the
manner specified in Section 19.8 hereof, a copy of any notice of default by
Tenant as the landlord under the subleases at the same time as, and whenever,
any such notice of default shall be given by the Subtenants to Tenant, and (f)
in the event of the termination or expiration of this Lease prior to the
Expiration Date hereof, any
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such Subtenant, at Landlord's election, shall be obligated to attorn to and
recognize Landlord as the lessor under such Sublease, in which event such
Sublease shall continue in full force and effect as a direct lease between
Landlord and the Subtenant upon all the terms and conditions of such Sublease,
except as hereinafter provided. Any attornment required by Landlord of such
Subtenant shall be effective and self-operative as of the date of any such
termination or expiration of this Lease without the execution of any further
instrument; provided, however, that such Subtenant shall agree, upon the
request of Landlord, to execute and deliver any such instruments in recordable
form and otherwise in form and substance satisfactory to Landlord to evidence
such attornment. With respect to any attornment required by Landlord of any
Subtenant hereunder, (i) at the option of Landlord, Landlord shall recognize
all rights of Tenant as the lessor under such sublease and the Subtenant
thereunder shall be obligated to Landlord to perform all of the obligations of
the Subtenant under such sublease and (ii) Landlord shall have no liability,
prior to its becoming lessor under such Sublease, to such Subtenant nor shall
the performance by such Subtenant of its obligations under the sublease,
whether prior to or after any such attornment, be subject to any defense,
counterclaim or setoff by reason of any default by Tenant in the performance of
any obligation to be performed by Tenant as lessor under such sublease, nor
shall Landlord be bound by any prepayment of more than one (1) month's rent
unless such prepayment shall have been expressly approved in writing by
Landlord. The provisions of this Section 9.9 shall survive the expiration or
earlier termination of the Term.
Section 9.10. If Tenant assumes this Lease and proposes to assign the
same pursuant to the provisions of Title 11 of the United States Code or any
statute of similar purpose or nature (the "BANKRUPTCY CODE") to any person or
entity who shall have made a bona fide offer to accept an assignment of this
Lease on terms acceptable to Tenant, then notice of such proposed assignment
shall be given to Landlord by Tenant no later than twenty (20) days after
receipt of such offer by Tenant, but in any event no later than ten (10) days
prior to the date that Tenant shall file any application or motion with a court
of competent jurisdiction for authority and approval to enter into such
assumption and assignment. Such notice shall set forth (a) the name and address
of the assignee, (b) all of the terms and conditions of such offer, and (c) the
proposal for providing adequate assurance of future performance by such person
under the Lease, including, without limitation, the assurance referred to in
Section 365 of the Bankruptcy Code. 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 from and after the date of such assignment. Any such assignee
shall execute and deliver to Landlord upon demand an instrument confirming such
assumption.
Section 9.11. The provisions of Sections 9.8, 9.9 and 9.10 hereof
shall survive the expiration or earlier termination of this Lease.
Section 9.12. In no event shall Tenant mortgage, encumber, pledge,
grant a security interest in, collaterally assign or conditionally transfer
this Lease or removable trade fixtures incorporated in or used in connection
with the Premises or any Subleases or any of the rents, issues and profits
therefrom, other than the grant of a security interest in Tenant's leasehold
interest.
ARTICLE 10
SUBORDINATION
Section 10.1. This Lease shall be subject and subordinate to all
Mortgages now or hereinafter in effect and to all renewals, modifications,
consolidations, replacements and extensions of any such Mortgages; provided,
however, that the Mortgagee of such Mortgage shall execute and deliver to
Tenant an agreement to the effect that, if there shall be a foreclosure of its
Mortgage, such Mortgagee will not make Tenant a party defendant to such
foreclosure, unless necessary under applicable law for the Mortgagee to
foreclose, or if there shall be a foreclosure of such Mortgage, such Mortgagee
shall not evict Tenant, disturb Tenant's leasehold estate or rights hereunder,
in all events provided that no Event of Default then exists (any such
agreement, or any agreement of similar import, from a Mortgagee being
hereinafter called a "SUBORDINATION, NON-DISTURBANCE, AND ATTORNMENT AGREEMENT"
or "SNDA"), and Tenant shall attorn to the Mortgagee or any
successor-in-interest to Landlord or the Mortgagee. This Section 10.1 shall be
self-operative and no further
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instrument of subordination other than an SNDA shall be required to make the
interest of any Mortgagee superior to the interest of Tenant hereunder.
Notwithstanding the previous sentence, however, Tenant shall, together with the
Mortgagee, execute and deliver promptly each SNDA that Landlord may request to
effect such subordination. If Tenant fails to execute and deliver to Landlord
any SNDA delivered to Tenant for Tenant's execution within ten (10) days after
Tenant's receipt of the same, (1) such failure shall constitute an Event of
Default hereunder until such time as it has been delivered to Landlord, (2)
Tenant shall be deemed to have agreed to all of the terms and provisions of
such SNDA, and (3) Tenant shall thereafter be estopped from disclaiming any of
the obligations, benefits and burdens set forth therein including, without
limitation, (i) the subordination of this Lease to any deed of trust, mortgage,
ground lease or similar instruments, (ii) any non-disturbance rights provided
to Tenant therein, and (iii) any attornment agreements of Tenant set forth
therein If, in connection with the financing of the Premises, any lending
institution or Landlord shall request reasonable modifications of this Lease
that do not increase the monetary obligations of Tenant under this Lease or
materially increase the other obligations of Tenant under this Lease or
materially and adversely affect the rights of Tenant under this Lease, Tenant
shall make such modifications. The standards (i.e., time and manner of giving
such consent and standard of reasonableness, if applicable) of a Mortgagee's
consent with respect to this Lease shall be materially consistent with those to
which Landlord is subject under this Lease. Any Non-Disturbance Agreement may
be made on the condition that neither the Mortgagee nor anyone claiming by,
through or under such Mortgagee shall be:
(a) liable for any act or omission of any prior Landlord (including,
without limitation, the then defaulting Landlord);
(b) subject to any defense or offsets which Tenant may have against
any prior Landlord (including, without limitation, the then defaulting
Landlord) which arise prior to the date such Mortgagee (or someone acquiring at
a foreclosure sale related to the Mortgagee's Mortgage) acquires title to the
Premises;
(c) bound by any payment of Rent which Tenant might have paid for more
than the current month to any prior Landlord (including, without limitation,
the then defaulting Landlord);
(d) bound by any obligation to make any payment to Tenant which was
required to be made prior to the time such Landlord succeeded to any prior
Landlord's interest;
(e) bound by any obligation to perform any work or to make
improvements to the Premises;
(f) bound by any modification, amendment or supplement to this Lease
made without the prior written consent of the Mortgagee; or
(g) bound by any security deposit for Tenant's obligations under this
Lease unless such deposit is actually received by Mortgagee.
If required by any Mortgagee, Tenant promptly shall join in any
Non-Disturbance Agreement to indicate its concurrence with the provisions
thereof and its agreement, in the event of a foreclosure of any Mortgage to
attorn to such Mortgagee, as Tenant's landlord hereunder. Tenant shall promptly
so accept, execute and deliver any Non-Disturbance Agreement proposed by any
Mortgagee which conforms with the provisions of this Section 10.1. Any
Non-Disturbance Agreement may also contain other terms and conditions as may
otherwise be required by any Mortgagee which do not increase Tenant's monetary
obligations or materially and adversely affect the rights or obligations of
Tenant under this Lease.
Section 10.2. Tenant hereby agrees to give to any Mortgagee copies of
all notices given by Tenant of default by Landlord under this Lease at the same
time and in the same manner as, and whenever, Tenant shall give any such notice
of default to Landlord. Such Mortgagee shall have the right to remedy any
default under this Lease, or to cause any default of Landlord under this Lease
to be remedied, and for such purpose Tenant hereby grants such Mortgagee such
period of time as may be reasonable to enable such
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Mortgagee to remedy, or cause to be remedied, any such default in addition to
the period given to Landlord for remedying, or causing to be remedied, any such
default which is a default. Tenant shall accept performance by such Mortgagee
of any term, covenant, condition or agreement to be performed by Landlord under
the Lease with the same force and effect as though performed by Landlord. No
default under the Lease shall exist or shall be deemed to exist (i) as long as
such Mortgagee, in good faith, shall have commenced to cure such default and
shall be prosecuting the same to completion with reasonable diligence, subject
to force majeure, or (ii) if possession of the Premises is required in order to
cure such default, or if such default is not susceptible of being cured by such
Mortgagee, as long as such Mortgagee, in good faith, shall have notified Tenant
that such Mortgagee intends to institute proceedings under the Mortgage and,
thereafter, as long as such proceedings shall have been instituted and shall
prosecute the same with reasonable diligence and, after having obtained
possession, prosecutes the cure to completion with reasonable diligence. The
Lease shall not be assigned (subject to the provisions of Article 9) by Tenant
or modified, amended or terminated without such Mortgagee's prior written
consent in each instance. In the event of the termination of the Lease by
reason of any default thereunder or for any other reason whatsoever except the
expiration thereof, upon such Mortgagee's written request, given within thirty
(30) days after any such termination, Tenant, within fifteen (15) days after
receipt of such request, shall execute and deliver to such Mortgagee or its
designee or nominee a new lease of the Premises for the remainder of the Term
of the Lease upon all of the terms, covenants and conditions of this Lease.
Neither such Mortgagee nor its designee or nominee shall become liable under
the Lease unless and until such Mortgagee or its designee or nominee becomes,
and then only for so long as such Mortgagee or its designee or nominee remains,
the fee owner of the Premises. Such Mortgagee shall have the right, without
Tenant's consent, to foreclose the Mortgage or to accept a deed in lieu of
foreclosure of such Mortgage.
ARTICLE 11
OBLIGATIONS OF TENANT
Section 11.1. Tenant shall promptly comply with all laws, ordinances,
orders, rules, regulations, and requirements of all Federal, state, municipal
or other governmental or quasi-governmental authorities or bodies then having
jurisdiction over the Premises (or any part thereof) and/or the use and
occupation thereof by Tenant, whether any of the same relate to or require (i)
structural changes to or in and about the Premises, or (ii) changes or
requirements incident to or as the result of any use or occupation thereof or
otherwise (collectively, the "REQUIREMENTS"), and subject to Article 7, Tenant
shall so perform and comply, whether or not such laws, ordinances, orders,
rules, regulations or requirements shall now exist or shall hereafter be
enacted or promulgated and whether or not the same may be said to be within the
present contemplation of the parties hereto.
Section 11.2. Tenant agrees to give Landlord notice of any law,
ordinance, rule, regulation or requirement enacted, passed, promulgated, made,
issued or adopted by any of the governmental departments or agencies or
authorities hereinbefore mentioned affecting in a material adverse manner (i)
the Premises, (ii) Tenant's use thereof or (iii) the financial condition of
Tenant, a copy of which is served upon or received by Tenant, or a copy of
which is posted on, or fastened or attached to the Premises, or otherwise
brought to the attention of Tenant, by mailing within five (5) business days
after such service, receipt, posting, fastening or attaching or after the same
otherwise comes to the attention of Tenant, a copy of each and every one
thereof to Landlord. At the same time, Tenant will inform Landlord as to the
Work which Tenant proposes to do or take in order to comply therewith.
Notwithstanding the foregoing, however, if such Work would require any
Alterations which would, in Landlord's opinion, reduce the value of the
Premises or change the general character, design or use of the Building or
other improvements thereon, and if Tenant does not desire to contest the same,
Tenant shall, if Landlord so requests, defer compliance therewith in order that
Landlord may, if Landlord wishes, contest or seek modification of or other
relief with respect to such Requirements, so long as Tenant is not put in
violation of any law, ordinance, rule, regulation or requirement enacted,
passed, promulgated, made, issued or adopted by any such governmental
departments or agencies or authorities, but nothing herein shall relieve Tenant
of the duty and obligation, at Tenant's expense, to comply with such
Requirements, or such Requirements as modified, whenever Landlord shall so
direct.
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Section 11.3. Except in the case of the gross negligence or willful
misconduct of Landlord or its agents, BUT SPECIFICALLY INCLUDING SUCH PARTY'S
NEGLIGENCE OTHER THAN GROSS NEGLIGENCE, Tenant shall defend, indemnify and save
harmless Landlord, any partners of Landlord, any partners of any partners of
Landlord and any officers, stockholders, directors or employees of any of the
foregoing (collectively, "INDEMNIFIED PARTIES"), from (a) any and all
liabilities, claims, causes of actions, suits, damages and expenses
(collectively, "CLAIMS") arising from or under this Lease or Tenant's use,
occupancy and operations of, in or about the Premises prior to or during the
Term; and (b) all costs, expenses and liabilities incurred, including actual
and customary attorney's fees and disbursements through and including appellate
proceedings, in or in connection with any of such Claims. If any action or
proceeding shall be brought against any of the Indemnified Parties by reason of
any such Claims, Tenant, upon notice from any of the Indemnified Parties, shall
resist and defend such action or proceeding, at its sole cost and expense by
counsel to be selected by Tenant but otherwise satisfactory to such Indemnified
Party in its reasonable discretion. Tenant or its counsel shall keep each
Indemnified Party fully informed at all times of the status of such defense.
Notwithstanding the foregoing, an Indemnified Party may retain its own
attorneys to defend or assist in defending any claim, action or proceeding
involving potential liability in excess of Five Million Dollars ($5,000,000),
and Tenant shall pay the actual and customary fees and disbursements of such
attorneys. The provisions of this Section 11.3 shall survive the expiration or
earlier termination of this Lease.
Section 11.4. If at any time prior to or during the Term (or within
the statutory period thereafter if attributable to Tenant), any mechanic's or
other lien or order for payment of money, which shall have been either created
by, caused (directly or indirectly) by, or suffered against Tenant, shall be
filed against the Premises or any part thereof, Tenant, at its sole cost and
expense, shall cause the same to be discharged by payment, bonding or
otherwise, within ten (10) days after the filing thereof unless such lien or
order is contested by Tenant in good faith and Tenant provides sufficient
security or evidence of financial ability, in each case to the reasonable
satisfaction of Landlord, to pay the amount of such lien or order. Tenant
shall, upon notice and request in writing by Landlord, defend for Landlord, at
Tenant's sole cost and expense, any action or proceeding which may be brought
on or for the enforcement of any such lien or order for payment of money, and
will pay any damages and satisfy and discharge any judgment entered in such
action or proceeding and save harmless Landlord from any liability, claim or
damage resulting therefrom. In default of Tenant's procuring the discharge of
any such lien as aforesaid Landlord may, without notice, and without prejudice
to its other remedies hereunder, procure the discharge thereof by bonding or
payment or otherwise, and all cost and expense which Landlord shall incur shall
be paid by Tenant to Landlord as Additional Rent forthwith.
Section 11.5. Landlord shall not under any circumstances be liable to
pay for any work, labor or services rendered or materials furnished to or for
the account of Tenant upon or in connection with the Premises, and no
mechanic's or other lien for such work, labor or services or material furnished
shall, under any circumstances, attach to or affect the reversionary interest
of Landlord in and to the Premises or any alterations, repairs, or improvements
to be erected or made thereon. Nothing contained in this Lease shall be deemed
or construed in any way as constituting the request or consent of Landlord,
either express or implied, to any contractor, subcontractor, laborer or
materialman for the performance of any labor or the furnishing of any materials
for any specific improvement, alteration to or repair of the Premises or any
part thereof, nor as giving Tenant any right, power or authority to contract
for or permit the rendering of any services or the furnishing of any materials
on behalf of Landlord that would give rise to the filing of any lien against
the Premises.
Section 11.6. Neither Landlord nor its agents shall be liable for any
loss of or damage to the property of Tenant or others by reason of casualty,
theft or otherwise, or for any injury or damage to persons or property
resulting from any cause of whatsoever nature, INCLUDING THAT WHICH IS CAUSED
BY OR ARISES BY THE NEGLIGENCE OF LANDLORD OR ITS AGENTS OTHER THAN THEIR GROSS
NEGLIGENCE, unless caused by or due to the gross negligence or willful
misconduct of Landlord, its agents, servants or employees.
Section 11.7. Landlord shall not be required to furnish to Tenant any
facilities or services of any kind whatsoever, including, but not limited to,
water, steam, heat, gas, oil, hot water, and/or electricity, all of which
Tenant represents and warrants that Tenant has obtained from the public utility
supplying the same, at
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Tenant's sole cost and expense. Upon Tenant's written request, however,
Landlord agrees to cooperate with Tenant (at no cost to Landlord) with respect
to such services.
ARTICLE 12
DEFAULT BY TENANT; REMEDIES
Section 12.1. Each of the following shall be deemed an event of
default (an "EVENT OF DEFAULT") and a breach of this Lease by Tenant:
(a) If Tenant shall fail to pay the Fixed Rent or any Tenant's Expense
Payment as and when due hereunder and such failure continues for a period of
five (5) days after written notice of such failure has been delivered to Tenant
(provided, however, that Landlord shall not be required to send more than two
(2) such notices to Tenant during any consecutive twelve (12) month period, and
thereafter it shall be an Event of Default if Tenant shall fail to pay the
Fixed Rent or any Tenant Expense payment when due).
(b) If Tenant shall fail to pay any Additional Rent required to be
paid by Tenant hereunder and such failure continues for a period of five (5)
days after written notice of such failure has been delivered to Tenant
(provided, however, that Landlord shall not be required to send more than two
(2) such notices to Tenant during any consecutive twelve (12) month period, and
thereafter it shall be an Event of Default if Tenant shall fail to pay any
Additional Rent when due).
(c) If Tenant shall default in the performance or observance of any of
the other agreements, conditions, covenants or terms herein contained, or if
such default is of such a nature that it can be remedied, then if such default
shall continue for thirty (30) days after written notice by Landlord to Tenant
(or if such default is of such a nature that it cannot be completely remedied
within said thirty (30) day period, then if Tenant does not agree in writing
within such thirty (30) day period to cure the same, commence and thereafter
diligently prosecute the cure and complete the cure within a reasonable period
of time under the circumstances after such original written notice of default
by Landlord to Tenant, but in any event prior to the time such failure would
result in a violation of applicable laws or a default by Landlord under any
Mortgage).
(d) The occurrence and continuance of a Vacation of the Premises (as
hereinafter defined) or a Material Abandonment of the Premises (as hereinafter
defined).
(e) If Tenant shall transfer all or any of its interest in this Lease
without compliance with the provisions of this Lease applicable thereto.
(f) Tenant fails or refuses to execute any subordination agreement
required pursuant to Article 10 or estoppel certificate required pursuant to
Article 14 within ten (10) business days after Tenant's receipt thereof.
(g) Tenant shall fail to maintain any insurance that this Lease
requires Tenant to maintain.
(h) Tenant shall do or permit to be done any act which results in a
lien being filed against the Premises or any improvements of part thereof if
such lien is not released, bonded or otherwise provided for by indemnification
satisfactory to Landlord within thirty (30) days after Tenant first obtains
actual knowledge of such lien.
As used in this Lease, the phrase "VACATION OF THE PREMISES" shall mean
vacating the Premises without providing a reasonable level of security to
minimize the potential for vandalism, or where the coverage of the property
insurance under either or both of Sections 6.1(a) or 6.1(b) is jeopardized as a
result thereof, and the phrase "MATERIAL ABANDONMENT OF THE PREMISES" shall
mean the abandonment by Tenant of the Premises for ten (10) business days
during any period of time in which an Event of Default has occurred and is
continuing.
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Section 12.2.
(a) If an Event of Default (i) described in Sections 12.1(c) or (e)
hereof shall occur and Landlord, at any time thereafter, at its option, gives
written notice to Tenant stating that this Lease shall terminate on the date
specified in such notice, which date shall be not less than three (3) days
after the giving of such notice, and if, on the date specified in such notice,
Tenant shall have failed to cure the default which was the basis for the Event
of Default, or (ii) described in Sections 12.1(a), (b), (d) or (f) hereof shall
occur, then all rights of Tenant under this Lease shall terminate and Tenant
immediately shall quit and surrender the Premises, which termination shall not
relieve Tenant from any liability then or thereafter accruing hereunder.
(b) If an Event of Default described in Sections 12.1(a) or (b) hereof
shall occur, or this Lease shall be terminated as provided in Section 12.2(a)
hereof, Landlord, without notice, and with or without court proceedings, (i)
may re-enter and repossess the Premises using such force for that purpose as
may be necessary without being liable to indictment, prosecution or damages
therefor or (ii) may dispossess Tenant by summary proceedings or otherwise,
which re-entry and repossession by Landlord shall not relieve Tenant from any
liability then or thereafter accruing hereunder, except that Tenant shall be
entitled to any credit for rent received from any reletting of the Premises or
the value of the Premises pursuant to Section 12.3(c) or (d).
Section 12.3. If this Lease shall be terminated as provided in Section
12.2(a) hereof and/or Tenant shall be dispossessed by summary proceedings or
otherwise as provided in Section 12.2(b) hereof:
(a) Tenant shall pay to Landlord all Rent payable under this Lease by
Tenant to Landlord to the date upon which this Lease shall have been terminated
or to the date of re-entry upon the Premises Landlord, as the case may be.
(b) Landlord may repair and alter the Premises in such manner as
Landlord may deem necessary or advisable without relieving Tenant of any
liability under this Lease or otherwise affecting any such liability, and/or
let or relet the Premises or any parts thereof for the whole or any part of the
remainder of the Term or for a longer period, in Landlord's name or as agent of
Tenant, and out of any rent and other sums collected or received as a result of
such reletting Landlord shall: (i) first, pay to itself the cost and expense of
terminating this Lease, re-entering, retaking, repossessing, repairing and/or
altering the Premises, or any part thereof, and the cost and expense of
removing all persons and property therefrom, including in such costs, market
rate brokerage commissions, actual and customary legal expenses and attorneys'
fees and disbursements, (ii) second, pay to itself the cost and expense
sustained in securing any new tenants and other occupants, including in such
costs, market rate brokerage commissions, actual and customary legal expenses
and attorneys' fees and disbursements and other expenses of preparing the
Premises for reletting, and, if Landlord shall maintain and operate the
Premises, the cost and expense of operating and maintaining the Premises, and
(iii) third, pay to itself any balance remaining on account of the liability of
Tenant to Landlord. Landlord in no way shall be responsible or liable for any
failure to relet the Premises or any part thereof, or for any failure to
collect any rent due on any such reletting, and no such failure to relet or to
collect rent shall operate to relieve Tenant of any liability under this Lease
or to otherwise affect any such liability;
(c) Tenant shall be liable for and shall pay to Landlord, as damages,
any deficiency (referred to as "DEFICIENCY"), between the Rent reserved in this
Lease for the period which otherwise would have constituted the unexpired
portion of the Term and the net amount, if any, of rents collected under any
reletting effected pursuant to the provisions of Section 12.3(b) hereof for any
part of such period, first deducting from the rents collected under any such
reletting all of the payments to Landlord described in Section 12.3(b) hereof;
any such Deficiency shall be paid in installments by Tenant on the days
specified in this Lease for payment of installments of Rent, and Landlord shall
be entitled to recover from Tenant each Deficiency installment as the same
shall arise, and no suit to collect the amount of the Deficiency for any
installment period shall prejudice Landlord's right to collect the Deficiency
for any subsequent installment period by a similar proceeding; and
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(d) whether or not Landlord shall have collected any Deficiency
installments as aforesaid, Landlord shall be entitled to recover from Tenant,
and Tenant shall pay to Landlord, on demand, in lieu of any further
Deficiencies, as and for liquidated and agreed final damages (it being agreed
that it would be impracticable or extremely difficult to fix the actual
damage), a sum equal to the amount by which the Rent reserved in this Lease for
the period which otherwise would have constituted the unexpired portion of the
Term exceeds the then fair and reasonable rent value of the Premises for the
same period, both discounted present worth at the rate of the then applicable
rate of interest on United States Treasury Securities having terms to maturity
most closely matching the unexpired portion of the Term, less the aggregate
amount of Deficiencies theretofore collected by Landlord pursuant to the
provisions of Section 12.3(c) hereof for the same period; it being agreed that
before presentation of proof of such liquidated damages to any court,
commission or tribunal, if the Premises, or any part thereof, shall have been
relet by Landlord for the period which otherwise would have constituted the
unexpired portion of the Term, or any part thereof, the amount of rent reserved
upon such reletting shall be deemed, prima facie, to be the fair and reasonable
rental value for the part or the whole of the Premises so relet during the term
of the reletting.
Section 12.4. Subject to credits pursuant to Section 12.3(c) and (d)
above, no termination of this Lease pursuant to Section 12.2(a) hereof, and no
taking possession of and/or reletting the Premises, or any part thereof,
pursuant to Sections 12.2(b) and 12.3(b) hereof, shall relieve Tenant of its
liabilities and obligations hereunder, all of which shall survive such
expiration, termination, repossession or reletting.
Section 12.5. To the extent not prohibited by law, Tenant hereby
waives and releases all rights now or hereafter conferred by statute or
otherwise which would have the effect of limiting or modifying any of the
provisions of this Article 12. Tenant shall execute, acknowledge and deliver
any instruments which Landlord may request, whether before or after the
occurrence of an Event of Default, evidencing such waiver or release.
Section 12.6. The Rent payable by Tenant hereunder and each and every
installment thereof, and all costs, actual and customary attorneys' fees and
disbursements and other expenses which may be incurred by Landlord in enforcing
the provisions of this Lease on account of any delinquency of Tenant in
carrying out the provisions of this Lease shall be and they hereby are declared
to constitute a valid lien upon the interest of Tenant in this Lease and in the
Premises.
Section 12.7. Suit or suits for the recovery of damages, or for a sum
equal to any installment or installments of Rent payable hereunder or any
Deficiencies or other sums payable by Tenant to Landlord pursuant to this
Article 12, may be brought by Landlord from time to time at Landlord's
election, and nothing herein contained shall be deemed to require Landlord to
await the date whereon this Lease or the Term would have expired by limitation
had there been no Event of Default by Tenant and termination.
Section 12.8. Nothing contained in this Article 12 shall limit or
prejudice the right of Landlord to prove and obtain as liquidated damages in
any bankruptcy, insolvency, receivership, reorganization or dissolution
proceeding an amount equal to the maximum allowed by a statute or rule of law
governing such proceeding and in effect at the time when such damages are to be
proved, whether or not such amount shall be greater than, equal to or less than
the amount of the damages referred to in any of the preceding Sections of this
Article 12.
Section 12.9. No receipt of moneys by Landlord from Tenant after
termination of this Lease, or after the giving of any notice of the termination
of this Lease shall reinstate, continue or extend the Term or affect any of the
right of Landlord to enforce the payment of Rent payable by Tenant hereunder or
thereafter falling due, or operate as a waiver of the right of Landlord to
recover possession of the Premises by proper remedy, except as herein otherwise
expressly provided, it being agreed that after the service of notice to
terminate this Lease or the commencement of any suit or summary proceedings, or
after a final order or judgment for the possession of the Premises, Landlord
may demand, receive and collect any monies due or thereafter falling due
without in any manner affecting such notice, proceedings, order, suit or
judgment, all such monies collected being deemed payments on account of
tenant's liability hereunder.
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Section 12.10. Except as otherwise expressly provided herein or as
prohibited by applicable law, Tenant hereby expressly waives the service of any
notice of intention to re-enter provided for in any statute, or of the
institution of legal proceedings to that end, and Tenant, for and on behalf of
itself and all persons claiming through or under Tenant, also waives any and
all right of redemption provided by any law or statute now in force or
hereafter enacted or otherwise, or re-entry or repossession or to restore the
operation of this Lease in case Tenant shall be dispossessed by a judgment or
by warrant of any court or judge or in case of re-entry or repossession by
Landlord or in case of any expiration or termination of this Lease, and
Landlord and Tenant waive and shall waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other on any matter whatsoever arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of
the Premises, or any claim of injury or damage.
Section 12.11. No failure by Landlord to insist upon the strict
performance of any covenant, agreement, term or condition of this Lease or to
exercise any right or remedy consequent upon a breach thereof, and no
acceptance of full or partial Rent during the continuance of any such breach,
shall constitute a waiver of any such breach or of such covenant, agreement,
term or condition. No covenant, agreement, term or condition of this Lease to
be performed or complied with by Tenant, and no breach thereof, shall be
waived, altered or modified except by a written instrument executed by
Landlord. No waiver of any breach shall affect or alter this Lease, but each
and every covenant, agreement, term and condition of this Lease shall continue
in full force and effect with respect to any other then existing or subsequent
breach thereof.
Section 12.12. In the event of any breach or threatened breach by
Tenant of any of the covenants, agreements, terms or conditions contained in
this Lease, Landlord shall be entitled to a decree compelling performance of
any of the provisions hereof, and shall have the right to invoke any rights and
remedies allowed at law or in equity or by statute or otherwise as though
re-entry, summary proceedings, and other remedies were not provided for in this
Lease.
Section 12.13. Tenant shall pay to Landlord all costs and expenses,
including, without limitation, attorneys' fees and disbursements, incurred by
Landlord in any action or proceeding to which Landlord may be made a party by
reason of any act or omission of Tenant. Tenant also shall pay to Landlord all
costs and expenses, including, without limitation, actual and customary
attorneys' fees and disbursements, incurred by Landlord in enforcing any of the
covenants and provisions of this Lease and incurred in any action brought by
Landlord against Tenant on account of the provisions hereof, and all such
costs, expenses and attorneys' fees and disbursements may be included in and
form a part of any judgment entered in any proceeding brought by Landlord
against Tenant on or under this Lease. All of the sums paid or obligations
incurred by Landlord as aforesaid, with interest and costs, shall be paid by
Tenant to Landlord on demand.
Section 12.14. If an Event of Default shall occur under this Lease and
Tenant shall fail to cure the same, Landlord may (a) perform the same for the
account of Tenant and/or (b) make any expenditure or incur any obligation for
the payment of money in connection with any obligation owed to Landlord,
including, but not limited to, reasonable attorneys' fees and disbursements in
instituting, prosecuting or defending any action or proceeding, with interest
thereon at the Default Rate and such amounts shall be deemed to be Additional
Rent hereunder and shall be paid by Tenant to Landlord immediately upon demand
therefor. Default Rate shall have the meaning ascribed to it in Article B of
this Lease; provided, however, that for purposes of this Article 12, such
Default Rate shall never exceed the maximum non-usurious rate permitted by
applicable law.
Section 12.15. If Tenant shall fail to pay any installment of Fixed
Rent when due or any Additional Rent within ten (10) days after the date when
such payment is due, Tenant shall pay to Landlord, in addition to such
installment of Fixed rent or such Additional Rent, as the case may be, interest
on the amount unpaid at the Default Rate, computed from the date such payment
was due to and including the date of payment. If an Event of Default shall
occur, Tenant agrees that Landlord shall not be liable for any damages suffered
by Tenant as a result of Landlord's exercising its remedies under Section 12.2
CAUSED BY THE NEGLIGENCE OF LANDLORD OR OTHERWISE.
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ARTICLE 13
NO WAIVER
Section 13.1. No receipt of moneys by Landlord from Tenant after the
termination or cancellation of this Lease shall reinstate, continue or extend
the term, or affect any notice theretofore given to Tenant, or operate as a
waiver of the right of Landlord to enforce the payment of Fixed Rent or
Additional Rent then due, or thereafter falling due, or operate as a waiver of
the right of Landlord to recover possession of the Premises by proper suit,
action, proceeding or remedy; it being agreed that, after the service of notice
to terminate or cancel this Lease, or the commencement of suit, action or
summary proceedings, or any other remedy, or after a final order or judgment
for the possession of the Premises, Landlord may demand, receive and collect
any moneys due, or thereafter falling due, without, in any manner whatsoever,
affecting such notice, proceeding, suit, action, order or judgment; and any and
all such moneys collected shall be deemed to be payments on account of the use
and occupation of the Premises or, at the election of Landlord, on account of
Tenant's liability hereunder.
Section 13.2. The failure of Landlord or Tenant to enforce any
agreement, condition, covenant or term, by reason of its breach by Tenant or
Landlord, as the case may be, shall not be deemed to void, waive or affect the
right of Landlord or Tenant to enforce the same agreement, condition, covenant
or term on the occasion of a subsequent default or breach.
Section 13.3. The specific remedies to which Landlord may resort under
the terms of this Lease are cumulative and are not intended to be exclusive of
any other remedies or means of redress to which Landlord may be lawfully
entitled in case of any breach or threatened breach by Tenant of any of the
terms, covenants and conditions of this Lease. The failure of Landlord or
Tenant to insist in any one or more cases upon the strict performance of any of
the terms, covenants and conditions of this Lease, or to exercise any right or
remedy herein contained, shall not be construed as a waiver or relinquishment
for the future performance of such terms, covenants and conditions. The receipt
by Landlord, or payment by Tenant, of Rent with knowledge of the breach of any
of such terms, covenants and conditions shall not be deemed a waiver of such
breach. The acceptance of any check or payment bearing or accompanied by any
endorsement, legend or statements shall not, of itself, constitute any change
in or termination of this Lease. No surrender of the Premises by Tenant (prior
to any termination of this Lease) shall be valid unless consented to in writing
by Landlord. In addition to the other remedies in this Lease provided, Landlord
or Tenant shall be entitled to the restraint by injunction of the violation or
attempted or threatened violation of any of the terms, covenants and conditions
of this Lease or to a decree compelling performance of any of such terms,
covenants and conditions.
ARTICLE 14
ESTOPPEL CERTIFICATE
Section 14.1. Tenant agrees that it shall, at any time and from time
to time upon not less than ten (10) days' prior notice by Landlord execute,
acknowledge and deliver to Landlord a statement in writing certifying that this
Lease is unmodified and in full force and effect (or if there have been any
modifications, that the Lease is in full force and effect as modified and
stating the modifications), the dates to which the Fixed Rent and Additional
Rent have been paid, and stating whether or not Landlord is in default in
keeping, observing or performing any term, covenant, agreement, provision,
condition or limitation contained in this Lease and, if in default, specifying
each such default, the Commencement Date and Expiration Date for the current
Term and any other matters reasonably requested by Landlord; it being intended
that any such statement delivered pursuant to this Article 14 may be relied
upon by Landlord or any prospective purchaser of the Premises or any Mortgagee
thereof or any assignee of any Mortgage upon the Premises.
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ARTICLE 15
QUIET ENJOYMENT
Section 15.1. Tenant, upon payment of the Rent herein reserved and
upon the due performance and observance of all the covenants, conditions and
agreements herein contained on Tenant's part to be performed and observed,
shall and may at all times during the Term peaceably and quietly have, hold and
enjoy the Premises without any manner of suit, trouble or hindrance of and from
any person claiming by, through or under Landlord, subject, nevertheless, to
the terms and provisions of this Lease. No failure by Landlord to comply with
the foregoing covenant shall give Tenant any right to cancel or terminate this
Lease or to xxxxx, reduce or make a deduction from or offset against the Fixed
Rent or any Additional Rent, or to fail to perform any other obligation of
Tenant hereunder.
ARTICLE 16
SURRENDER
Section 16.1. Tenant shall, on the last day of the Term, or upon the
sooner termination of the Term, quit and surrender to Landlord the Premises
vacant, free of all equipment, furniture and other movable personal property of
Tenant, and in the same good order and condition as on the Commencement Date,
and Tenant shall remove or demolish all of the fixtures, structures and other
improvements which Landlord shall have elected to cause Tenant to remove
pursuant to and in accordance with Section 5.7 hereof. Tenant's obligation to
observe and perform this covenant shall survive the expiration or earlier
termination of the Term.
Section 16.2. Upon the expiration of the Term, all Fixed Rent and
Additional Rent and other items payable by Tenant under this Lease shall be
apportioned to the date of termination.
Section 16.3. Tenant acknowledges that possession of the Premises must
be surrendered to Landlord at the expiration or sooner termination of the term
of this Lease. Tenant agrees to indemnify Landlord against and save Landlord
harmless from all costs, claims, loss or liability excluding consequential
damages) resulting from the failure or delay by Tenant in so surrendering the
Premises, including, without limitation, any claims made by any succeeding
tenant founded on such failure or delay. The parties recognize and agree that
the damage to Landlord resulting from any failure by Tenant to timely surrender
possession of the Premises as aforesaid will be extremely substantial, will
exceed the amount of the Fixed Rent theretofore payable hereunder, and will be
impossible to accurately measure. Tenant therefore agrees that if possession of
the Premises is not surrendered to Landlord upon the expiration or sooner
termination of the Term, then Tenant shall pay to Landlord, as liquidated
damages for each month and for each portion of any month during which Tenant
holds over in the Premises after the expiration or sooner termination of the
Term, in addition to any sums payable pursuant to the foregoing indemnity, a
sum equal to the higher of the then fair market rental value of the Premises,
taking into account the effect of all material factors reasonably relevant to
such determination, or one and one-half (1 1/2) times the aggregate of the
Fixed Rent which was payable under this Lease with respect to the last month of
the Term hereof. Nothing herein contained shall be deemed to permit Tenant to
retain possession of the Premises after the expiration or sooner termination of
the Term. If Tenant holds over in possession after the expiration or
termination of the Term, such holding over shall not be deemed to extend the
Term or renew this Lease, but the tenancy thereafter shall continue as a
tenancy from month to month upon the terms and conditions of this Lease at the
Fixed Rent as herein increased. Tenant hereby waives the benefit of any law or
statute in effect in the state where the Premises is located which would
contravene or limit the provisions set forth in this Section 16.3. This
provision shall survive the expiration or earlier termination of this Lease.
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ARTICLE 17
ACCESS
Section 17.1. Landlord shall at all times during the Term have the
right and privilege to enter the Premises at reasonable times during business
hours for the purpose of inspecting the same or for the purpose of showing the
same to prospective purchasers or Mortgagees thereof. Landlord shall also have
the right and privilege at all times during the Term to post notices of
nonresponsibility for work performed by or on behalf of Tenant.
Section 17.2. Landlord shall at all times during the Term have the
right to enter the Premises or any part thereof, following reasonable notice
from Landlord and so long as Landlord uses its reasonable best efforts to not
unduly interfere with Tenant's normal business operations, for the purpose of
making such repairs or Alterations therein as Landlord deems necessary or
advisable, but such right of access shall not be construed as obligating
Landlord to make any repairs to or replacements to the Premises or as
obligating Landlord to make any inspection or examination of the Building.
Notwithstanding the foregoing, in the event of an emergency, Landlord shall
have the right to enter the Premises or any part thereof without prior notice
to Tenant.
ARTICLE 18
ENVIRONMENTAL MATTERS
Section 18.1. Tenant will not use, generate, manufacture, produce,
store, release, discharge or dispose of on, under, from or about the Premises
or transport to or from the Premises any Hazardous Substance and will use its
best efforts not to allow or suffer any other person or entity to do so.
Section 18.2. Tenant shall keep and maintain the Premises in
compliance with, and shall use its best efforts not to cause, permit or suffer
the Premises to be in violation of any Environmental Law (as defined below).
Landlord represents and warrants to Tenant that Landlord has no knowledge, nor
has Landlord received written notice from any governmental authority since
Landlord acquired the Premises, of any existing or threatened violation of any
Environmental Laws relating to the Premises.
Section 18.3. Tenant shall give prompt written notice to Landlord of:
(a) becoming aware of any use, generation, manufacture, production,
storage, release, discharge or disposal of any Hazardous Substance on, under,
from or about the Premises or the migration thereof to or from other property;
(b) the commencement, institution or threat of any proceeding, inquiry
or action by or notice from any local, state or federal governmental authority
with respect to the use or presence of any Hazardous Substance on the Premises
or the migration thereof from or to other property;
(c) all claims made or threatened by any third party against Tenant or
the Premises relating to any damage, contribution, cost recovery, compensation,
loss or injury resulting from any Hazardous Substance;
(d) Tenant's discovery of any occurrence or condition on any real
property adjoining or in the vicinity of the Premises that could cause the
Premises or any part thereof to be subject to any restrictions on the
ownership, occupancy, transferability or use of the Premises under any
Environmental Law, or any regulation adopted in accordance therewith, or to be
otherwise subject to any restrictions on the ownership, occupancy,
transferability or use of the Premises under any Environmental Law; and
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(e) obtaining knowledge of any incurrence of expense by any
governmental authority or others in connection with the assessment, containment
or removal of any Hazardous Substance located on, under, from or about the
Premises or any property adjoining or in the vicinity of the Premises.
Section 18.4. Landlord shall have the right, but not the obligation,
to join and participate in, as a party if it so elects, any legal proceedings
or actions initiated with respect to the Premises in connection with any
Environmental Law and have its actual and customary attorneys' fees in
connection therewith paid by Tenant or be defended by Tenant from and against
any such proceedings or actions with counsel chosen by Landlord (provided that
Landlord and Tenant shall attempt, in good faith, to agree on one counsel to
represent both Landlord and Tenant, if in Landlord's good faith determination
such joint representation is feasible or appropriate under the circumstances),
and shall have the right to make inquiry of and disclose all information to
appropriate governmental authorities when advised by counsel that such
disclosure may be required under applicable law.
Section 18.5. Without Landlord's prior written consent, which consent
shall not be unreasonably withheld or delayed, Tenant shall not take any
remedial action in response to the presence of any Hazardous Substance on,
under, from or about the Premises, nor enter into any settlement, consent or
compromise which might, in Landlord's reasonable judgment, impair the value of
Landlord's interest in the Premises under this Lease; provided, however, that
Landlord's prior consent shall not be necessary if the presence of Hazardous
Substance on, under, from or about the Premises either poses an immediate
threat to the health, safety or welfare of any individual or is of such a
nature that an immediate remedial response is necessary and it is not practical
or possible to obtain Landlord's consent before taking such action. In such
event Tenant shall notify Landlord as soon as practicable of any action so
taken. Landlord agrees not to withhold its consent, where such consent is
required hereunder, if either (i) a particular remedial action is ordered by a
court or any agency of competent jurisdiction, or (ii) Tenant establishes to
the reasonable satisfaction of Landlord that there is no reasonable alternative
to such remedial action which would result in less impairment of Landlord's
security hereunder.
Section 18.6. Tenant shall protect, indemnify and hold harmless
Landlord and each Mortgagee, their respective directors, officers, partners
employees, agents, successors and assigns from and against any and all claim,
loss, damage, cost, expense, liability, fines, penalties, charges,
administrative and judicial proceedings and orders, judgments, remedial action
requirements, enforcement actions of any kind (including, without limitation,
attorneys' fees and costs) directly or indirectly arising out of or
attributable to, in whole or in part, the breach of any of the covenants,
representations and warranties of this Article 18 or the use, generation,
manufacture, production, storage, release, threatened release, discharge,
disposal, or presence of a Hazardous Substance on, under, from or about the
Premises caused by Tenant or any employees, agents, licensees, sublessees,
contractors or subcontractors of Tenant during the Term, or any other activity
carried on or undertaken on or off the Premises during the Term by Tenant, any
employees, agents, licensees, sublessees, contractors or subcontractors of
Tenant, in connection with the handling, treatment, removal, storage,
decontamination, clean-up, transport or disposal of any Hazardous Substance at
any time located or present on, under, from or about the Premises, including,
without limitation: (i) all consequential damages; (ii) the costs of any
required or necessary repair, cleanup or detoxification of the Premises and the
preparation and implementation of any closure, remedial or other required plans
including, without limitation: (A) the costs of removal or remedial action
incurred by the United States Government or the state in which the Premises are
located, or response costs incurred by any other person, or damages from injury
to, destruction of, or loss of natural resources, including the costs of
assessing such injury, destruction or loss, incurred pursuant any Environmental
Law; (B) the clean-up costs, fines, damages or penalties incurred pursuant to
the provisions of applicable state law; and (C) the cost and expenses of
abatement, correction or clean-up, fines, damages, response costs or penalties
which arise from the provisions of any other statute, state or federal; and
(iii) liability for personal injury or property damage, including damages
assessed for the maintenance of the public or private nuisance, response costs
or for the carrying on of an abnormally dangerous activity.
The foregoing indemnity shall further apply to any residual
contamination on, under, from or about the Premises, or affecting any natural
resources arising in connection with the use, generation,
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manufacturing, production, handling, storage, transport, discharge or disposal
of any such Hazardous Substance, and irrespective of whether any of such
activities were or will be undertaken in accordance with Environmental Law or
other applicable laws, regulations, codes and ordinances. This indemnity is
intended to be operable under 42 U.S.C. Section 9607(e)(1), and any successor
section thereof and shall survive expiration or earlier termination of this
Lease and any transfer of all or a portion of the Premises by Tenant.
The foregoing indemnity shall in no manner be construed to limit or
adversely affect Landlord's rights under this Article 18, including, without
limitation, Landlord's rights to approve any Remedial Work (as defined below)
or the contractors and consulting engineers retained in connection therewith.
Notwithstanding anything to the contrary contained in this Lease, in no event
will Tenant have any liability or obligation under this Lease or with respect
to the Premises for Hazardous Substances existing in, on, under or about the
Premises on the Commencement Date or any violation of Environmental Laws prior
to or existing on the Commencement Date.
Section 18.7. In the event that any investigation, site monitoring,
containment, cleanup, removal, restoration or other remedial work of any kind
or nature (the "REMEDIAL WORK") is required by any applicable local, state or
federal law or regulation, any judicial order, or by any governmental entity or
person because of, or in connection with, the current or future presence,
suspected presence, release or suspected release of a Hazardous Substance in or
into the air, soil, groundwater, surface water or soil vapor at, on, about,
under or within the Premises (or any portion thereof), Tenant shall within
thirty (30) days after written demand for performance thereof by Landlord (or
such shorter period of time as may be required under any applicable law,
regulation, order or agreement), commence to perform, or cause to be commenced,
and thereafter diligently prosecute to completion within such period of time as
may be required under any applicable law, regulation, order or agreement, all
such Remedial Work at Tenant's sole expense in accordance with the requirements
of any applicable governmental authority or Environmental Law. All Remedial
Work shall be performed by one or more contractors, approved in advance in
writing by Landlord, and under the supervision of a consulting engineer
approved in advance in writing by Landlord. All costs and expenses of such
Remedial Work shall be paid by Tenant, including, without limitation, the
charges of such contractor(s) and/or the consulting engineer, and Landlord's
actual and customary attorneys' fees and costs incurred in connection with
monitoring or review of such Remedial Work. In the event Tenant shall fail to
timely commence, or cause to be commenced, or fail to complete the Remedial
Work within the time required above, Landlord may, but shall not be required
to, cause such Remedial Work to be performed and all costs and expenses
thereof, or incurred in connection therewith shall become part of the
indebtedness secured hereby.
Section 18.8. All costs and expenses incurred by Landlord under this
Article 18 shall be immediately due and payable as Additional Rent upon demand
and shall bear interest at the Default Rate from the date of notice of such
payment by Landlord and the expiration of any grace period provided herein
until repaid.
Section 18.9. "ENVIRONMENTAL LAWS" shall mean any federal, state or
local law, statute, ordinance or regulation pertaining to health, industrial
hygiene, hazardous waste or the environmental conditions on, under, from or
about the Premises, including, without limitation, the laws listed in the
definition of Hazardous Substances below.
Section 18.10. "HAZARDOUS SUBSTANCES" shall mean any element, compound,
chemical mixture, contaminant, pollutant, material, waste or other substance
which is defined, determined or identified as a "hazardous substance",
"hazardous waste" or "hazardous material" under any federal, state or local
statute, regulation or ordinance applicable to a Real Property, as well as any
amendments and successors to such statutes and regulations, as may be enacted
and promulgated from time to time, including, without limitation, the following:
(i) the Comprehensive Environmental Response, Compensation and Liability Act of
1980 (codified in scattered sections of 26 U.S.C., 33 U.S.C., 42 U.S.C. and 42
U.S.C. Section 9601 et seq.); (ii) the Resource Conservation and Recovery Act of
1976 (42 U.S.C. Section 6901 et. seq.); (iii) the Hazardous Materials
Transportation Act (49 U.S.C. Section 1801 et. seq.); (vi) the Toxic Substances
Control Act (15 U.S.C. Section 2601 et. seq.); (v) the Clean Air Act (33 U.S.C.
Section 1251 et. seq.); (vi) the Clean Air Act (42 U.S.C. Section 7401 et.
seq.);
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(vii) the Safe Drinking Water Act (21 U.S.C. Section 349; 42 U.S.C. Section 201
and Section 300f et. seq.); (viii) the National Environmental Policy Act of
1969 (42 U.S.C. Section 3421); (ix) the Superfund Amendment and Reauthorization
Act of 1986 (codified in scattered sections of 10 U.S.C., 29 U.S.C., 33 U.S.C.
and 42 U.S.C.); and (x) Title III of the Superfund Amendment and
Reauthorization Act (40 U.S.C. Section 1101 et. seq.).
Section 18.11. All representations, warranties, covenants and
indemnities of Tenant in this Article 18 shall continue to be binding upon
Tenant, and its successors and assigns, after the expiration or earlier
termination of this Lease.
ARTICLE 19
MISCELLANEOUS PROVISIONS
Section 19.1. It is mutually agreed by and between Landlord and Tenant
that the respective parties shall and they hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Lease, Tenant's use or occupancy of the Premises, and/or
any claim of injury or damage excluding any claim for personal injury or
property damage.
Section 19.2. Tenant and the other parties occupying a part of the
Premises pursuant to a lease or license arrangement with Tenant may place a
sign on the Premises to indicate the nature of the business of Tenant and such
parties. The sign shall be lawful under applicable sign codes and subdivision
covenants.
Section 19.3.
(a) The term "LANDLORD" as used herein shall mean only the owner or
the mortgagee in possession for the time being of the Premises, so that in the
event of any sale, transfer or conveyance of the Premises Landlord shall be and
hereby is entirely freed and relieved of all agreements, covenants and
obligations of Landlord thereafter accruing hereunder, and it shall be deemed
and construed without further agreement between the parties or their successors
in interest or between the parties and the purchaser, transferee or grantee at
any such sale, transfer or conveyance that such purchaser, transferee or
grantee has assumed and agreed to carry out any and all agreements, covenants
and obligations of Landlord hereunder.
(b) The term "TENANT" as used herein shall mean the tenant named
herein, and from and after any valid assignment or transfer in whole of said
Tenant's interest under this Lease pursuant to the provisions of Article 9,
shall mean only the assignee or transferee thereof; but the foregoing shall not
release the assignor or transferor from liability under this Lease.
(c) The words "ENTER", "RE-ENTER", "ENTRY" and "RE-ENTRY" as used in
this Lease shall not be restricted to their technical legal meaning.
(d) The use herein of the neuter pronoun in any reference to Landlord
or Tenant shall be deemed to include any individual Landlord or Tenant, and the
use herein of the words "SUCCESSOR AND ASSIGNS" or "SUCCESSORS OR ASSIGNS" of
Landlord or Tenant shall be deemed to include the heirs, executors,
administrators, representatives and assigns of any individual Landlord or
Tenant.
Section 19.4. The headings herein are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
or intent of this Lease nor in any way affect this Lease.
Section 19.5. This Lease shall be governed by and construed in
accordance with the laws of the state in which the Premises are located.
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Section 19.6. This Lease contains the entire agreement between the
parties and may not be extended, renewed, terminated or otherwise modified in
any manner except by an instrument in writing executed by the party against
whom enforcement of any such modification is sought. All prior understandings
and agreements between the parties and all prior working drafts of this Lease
are merged in this Lease, which alone expresses the agreement of the parties.
The parties agree that no inferences shall be drawn from matters deleted from
any working drafts of this Lease.
Section 19.7. The agreements, terms, covenants and conditions herein
shall bind and inure to the benefit of Landlord and Tenant and their respective
heirs, personal representatives, successors and, except as is otherwise
provided herein, their assigns.
Section 19.8. Notice whenever provided for herein shall be in writing
and shall be given either by personal delivery, overnight express mail or by
certified or registered mail, return receipt requested, to Landlord and Tenant
at their respective addresses set forth in Article A above, or to such other
persons or at such other addresses as may be designated from time to time by
written notice from either party to the other. Notices shall be deemed given
(i) when delivered personally if delivered on a business day (or if the same is
not a business day, then the next business day after delivery), (ii) three (3)
business days after being sent by United States mail, registered or certified
mail, postage prepaid, return receipt requested or (iii) if delivery is made by
Federal Express or a similar, nationally recognized overnight courier service
for 9:00 a.m. delivery, then on the date of delivery (or if the same is not a
business day, then the next business day after delivery), if properly sent and
addressed in accordance with the terms of this Section 19.8.
Section 19.9. If any provision of this Lease shall be invalid or
unenforceable, the remainder of the provisions of this Lease shall not be
affected thereby and each and every provision of this Lease shall be
enforceable to the fullest extent permitted by law.
Section 19.10. Tenant represents and warrants to Landlord that Tenant
has not dealt with any real estate broker in connection with this Lease. Tenant
agrees to indemnify Landlord and save Landlord harmless from any and all claims
for brokerage commissions by any other person, firm, corporation or other
entity claiming to have brought about this Lease transaction. Landlord
represents and warrants to Tenant that Landlord has not dealt with any real
estate broker in connection with this Lease. Landlord agrees to indemnify
Tenant and save Tenant harmless from any and all claims for brokerage
commissions by any other person, firm, corporation or other entity claiming to
have brought about this Lease transaction. The provisions of this Section 19.10
shall survive the expiration or earlier termination of this Lease.
Section 19.11. Tenant is and shall be in exclusive control and
possession of the Premises, and Landlord shall not, in any event whatsoever, be
liable for any injury or damage to any property or to any person happening in,
on or about the Premises, nor for any injury or damage to any property of
Tenant, or of any other person or persons contained therein unless the same is
caused by Landlord's negligent acts or omissions. The provisions hereof,
including without limitation Article 17, permitting Landlord to enter and
inspect the Premises are made for the purpose of enabling Landlord to be
informed as to whether Tenant is complying with the agreements, terms,
covenants and conditions hereof, and if Landlord so desires, to do such acts as
Tenant shall fail to do.
Section 19.12. A memorandum of this Lease as set forth on Exhibit "B"
attached hereto and incorporated herein by this reference shall be recorded.
The memorandum of lease shall incorporate the basic terms and conditions hereof
but shall delete any statement or mention of the rental payments.
Section 19.13. The parties took equal part in drafting this Lease and
no rule of construction that would cause any of the terms hereof to be
construed against the drafter shall be applicable to the interpretation of this
Lease.
Section 19.14. In the event of a default by Tenant, following the
expiration of the applicable cure period, if any, Tenant shall and hereby does
appoint Landlord the attorney-in-fact of Tenant, irrevocably, to
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execute and deliver any documents provided for in Section 14.1 for and in the
name of Tenant, such power, being coupled with an interest, being irrevocable.
Section 19.15. Time is strictly of the essence with respect to each
and every term and provision of this Lease.
Section 19.16. The time within which either party hereto shall be
required to perform any act under this Lease, other than the payment of money,
shall be extended by a period of time equal to the number of days during which
performance of such act is delayed by strikes, lockouts, acts of God,
governmental restrictions, failure or inability to secure materials or labor by
reason of priority or similar regulation or order of any governmental or
regulatory body, enemy action, civil disturbance, fire, unavoidable causalities
or any other cause beyond the reasonable control of either party hereto (but
excluding delays due to financial inability) (all of the foregoing are herein
collectively called "FORCE MAJEURE DELAYS"). The provisions of this Section
shall not apply to nor operate to excuse Tenant from the payment of Rent
strictly in accordance with this Lease. If Landlord shall be in default under
this Lease and, if as a consequence of such default, Tenant shall recover a
money judgement against Landlord, such judgment shall be satisfied only out of
right, title and interest of Landlord in the Premises as the same may then be
encumbered and neither Landlord nor any person or entity comprising Landlord
shall be liable for any deficiency. In no event shall Tenant have the right to
levy execution against any property of Landlord nor any person or entity
comprising Landlord other than its interests in the Premises as herein
expressly provided. Notwithstanding anything to the contrary contained herein,
in no event shall Landlord be liable for consequential or special damages for a
breach of or default under this Lease.
ARTICLE 20
RENEWAL OPTIONS
Section 20.1. Section 20.1. Subject to and upon terms and conditions
set forth herein, Landlord hereby grants to Tenant two (2) consecutive options
(the "RENEWAL OPTIONS") to extend the Primary Term and the Expiration Date for
a period (the "RENEWAL TERM") of three (3) years per option, each such period
commencing upon the then current Expiration Date upon the same terms and
conditions set forth in this Lease except for the amount of Fixed Rent payable
under this Lease (which amount shall be computed based on the FMV Renewal Rate
[as defined in Exhibit "C" attached hereto]). The provisions of the Renewal
Options are more particularly set forth in the Exhibit "C" attached hereto.
ARTICLE 21
LANDLORD'S ADDITIONAL TERMINATION RIGHT
Section 21.1. If, during the Term, Landlord intends to sell the
Premises to third party that will occupy the Building after the closing of such
sale, Landlord may terminate this Lease by giving Tenant at least six (6)
months advanced written notice thereof (the "TERMINATION NOTICE"). In the
Termination Notice, Landlord shall identify the date on which this Lease shall
terminate, and such date shall become the Expiration Date. After any
termination of this Lease by Landlord pursuant to this Section 21.1, the
parties hereto shall have no further rights or obligations under this Lease
after the revised Expiration Date except those that expressly survive a
termination of this Lease.
ARTICLE 22
SUBORDINATION TO SENIOR DEBT
Section 22.1. Tenant's obligations under this Lease are and at all
times hereafter will be junior and subordinate in right of payment and exercise
of remedies to the indefeasible prior payment in full in cash of all
obligations owed in respect of the Senior Debt (as defined in Section 22.2
below). The subordination of the obligations under this Lease is for the
benefit of all holders of Senior Debt from time to time, whether
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such Senior Debt is outstanding on the date hereof or incurred, created or
arising hereafter. Upon the occurrence and during the continuance of any
default or event of default under any Senior Debt, Tenant will have no
obligation to make, and Landlord will not accept or receive or take any action
to collect, any payment of any portion of the obligations under this Lease
until all obligations with respect to such Senior Debt have been indefeasibly
discharged in full in cash. Should any payment, distribution, security, or
proceeds thereof be received by Landlord contrary to the terms hereof, Landlord
shall immediately deliver the same to the holders of the Senior Debt in
precisely the form received (except for endorsement or assignment of Landlord
where necessary), for application on or to secure the Senior Debt, whether it
is due or not due, and until so delivered the same shall be held in trust by
Landlord as property of the holders of the Senior Debt. Nothing in this section
shall prohibit Landlord from receiving and retaining amounts due to Landlord
hereunder, provided that at the time such amount is paid to Landlord there
shall not have occurred or be continuing any default or event of default of
which Landlord has received notice under any Senior Debt.
Section 22.2. For purposes hereof, "SENIOR DEBT" means (i) all
indebtedness and obligations of Marketing Specialists Corporation, a Delaware
corporation ("MSC"), or Tenant in favor of any bank, trust company, insurance
company or other institutional lender providing financing to MSC or Tenant or
entering into swap or hedging agreements with MSC or Tenant, including without
limitation all indebtedness and obligations under that certain Amended and
Restated Credit Agreement dated August 18, 1999 among MSC, the lenders party
thereto and First Union National Bank, as agent for the lenders, including any
guaranty thereof by Tenant, as the same may be amended, restated, refinanced,
supplemented or otherwise modified from time to time (the "FIRST UNION CREDIT
AGREEMENT"), and all Senior Obligations as defined under the First Union Credit
Agreement, (ii) if so elected by Tenant, all indebtedness and obligations under
that certain Indenture dated as of December 19, 1997, among MSC, as successor
by merger to Richmont Marketing Specialists, Inc., the subsidiaries of MSC
party thereto and Chase Bank of Texas, N.A., as successor-in-interest to Texas
Commerce Bank National Association, as trustee, including any guaranty thereof
by Tenant, as the same may be amended, restated, refinanced, supplemented or
otherwise modified from time to time (the "INDENTURE"), and (iii) if so elected
by Tenant, any other Senior Indebtedness as defined in the Indenture.
LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY THAT THE PREMISES
ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL PURPOSE AND, EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED IN THIS LEASE, TENANT'S OBLIGATION TO PAY RENT HEREUNDER IS
NOT DEPENDENT UPON THE CONDITION OF THE PREMISES OR THE PERFORMANCE BY LANDLORD
OF ITS OBLIGATIONS HEREUNDER, AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
THIS LEASE, TENANT SHALL CONTINUE TO PAY FIXED RENT AND ALL ADDITIONAL RENT,
WITHOUT ABATEMENT, SETOFF OR DEDUCTION NOTWITHSTANDING ANY BREACH BY LANDLORD
OF ITS DUTIES OR OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED.
[THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK]
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36
The parties hereto have executed this Lease as of the day and year
first above set forth.
TENANT:
MARKETING SPECIALISTS SALES COMPANY, a Texas
corporation
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
LANDLORD:
RCPI OFFICE PROPERTIES, LLC, a Texas limited
liability company
By: Richmont Capital Partners I, L.P., a
Delaware limited partnership, it sole
member
By: J.R. Investments Corp., its
managing general partner
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
33
37
EXHIBIT "A"
DESCRIPTION OF THE LAND
[to be attached]
A-1
38
EXHIBIT "B"
RCPI OFFICE PROPERTIES, LLC, a Delaware limited liability company
("LANDLORD"), and MARKETING SPECIALISTS SALES COMPANY, a Texas corporation
("TENANT"), have entered into that certain Lease (the "LEASE") dated as of
February 17, 2000, for the lease of property located at 744 and 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000. This Exhibit "B" (this "EXHIBIT") is attached
to the Lease. Except to the extent otherwise indicated herein, the initially
capitalized terms used in this Exhibit shall have the meanings assigned to them
in the Lease.
MEMORANDUM OF LEASE
The Lease is for a term of forty-eight (48) months and will commence
on February 17, 2000, . The Lease provides that Tenant may, under certain
circumstances, have a right to extend the Primary Term of the Lease for up to
two (2) additional three (3) year periods.
The Premises includes the real property located in ___________ County,
California and more particularly described in the Exhibit A attached hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum
of Lease on the 17th day of February, 2000.
TENANT:
MARKETING SPECIALISTS SALES COMPANY, a Texas
corporation
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
LANDLORD:
RCPI OFFICE PROPERTIES, LLC, a Texas limited
liability company
By: Richmont Capital Partners I, L.P., a
Delaware limited partnership, its sole
member
By: J.R. Investments Corp., its managing
general partner
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
X-0
00
XXXXXXX "X"
XXXX OFFICE PROPERTIES, LLC, a Delaware limited liability company
("LANDLORD"), and MARKETING SPECIALISTS SALES COMPANY, a Texas corporation
("TENANT"), have entered into that certain Lease (the "LEASE") dated as of
February 17, 2000, for the lease of property located at 744 and 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000. This Exhibit "C" (this "EXHIBIT") is attached
to the Lease. Except to the extent otherwise indicated herein, the initially
capitalized terms used in this Exhibit shall have the meanings assigned to them
in the Lease.
RENEWAL OPTIONS
1. Tenant shall have the right to renew and extend the Initial
Term with respect to the Premises then subject to the Lease as of the
applicable Renewal Notice Date (as defined in Paragraph 2 below) upon and
subject to the terms and conditions set forth below.
2. Provided that, at such time, no Event of Default has occurred
and is continuing, Tenant may renew the term of the Lease for two (2)
additional periods of three (3) years each (each renewal term is herein
referred to as a "Renewal Term") on the same terms provided in the Lease
(except as set forth below), by delivering written notice of the exercise
thereof to Landlord ("Tenant's Notice of Exercise") not earlier than twelve
(12) months and not later than six (6) months prior to the expiration of the
Initial Term or, if applicable, the first Renewal Term (the date of Landlord's
receipt of the applicable Tenant's Notice of Exercise is herein referred to as
the "Renewal Notice Date"). If Tenant fails to deliver Tenant's Notice of
Exercise at least six (6) months prior to the expiration of the Initial Term,
Tenant's rights under this Exhibit shall terminate. The first Renewal Term
shall commence immediately upon the expiration of the Initial Term, and upon
Tenant's exercise of the renewal option set forth in this Exhibit, the date of
expiration of the Initial Term shall automatically become the last day of the
first Renewal Term and any second Renewal Term if Tenant timely exercises its
second renewal option set forth herein.
3. The exercise by Tenant of either of the renewal options set
forth herein must be made, if at all, by Tenant's timely delivery to Landlord
of Tenant's Notice of Exercise during the time period required by the preceding
paragraph. Once Tenant exercises either renewal option, Tenant may not
thereafter revoke such exercise. Tenant's failure, for any reason whatsoever,
to timely exercise either of the renewal options set forth herein shall
conclusively be deemed a waiver of the applicable renewal option, time being of
the essence with respect to Tenant's exercise of the same.
4. On or before the commencement date of the applicable Renewal
Term, Landlord and Tenant shall execute an amendment to the Lease extending the
Initial Term (or, if applicable, the first Renewal Term) on the same terms
provided in the Lease, except as follows:
(a) The Base Rent payable for each month during each Renewal Term
shall be the prevailing fair market rental rate and terms for renewals in the
Building and for renewals at comparable buildings in the Orange Area (as
hereinafter defined) at the commencement of each such Renewal Term (such rate
is herein referred to as the "FMV Renewal Rate") for space of equivalent
quality, size, utility and location, with the length of the Renewal Term and
the credit standing and financial condition of Tenant to be taken into account;
(b) Tenant shall have no further renewal options unless expressly
granted by Landlord in writing or otherwise provided by this Exhibit; and
(c) Landlord shall not provide to Tenant any allowances (e.g.,
moving allowance, construction allowance, and the like) or other tenant
inducements other than a tenant improvement allowance which Landlord, in its
sole discretion reasonably exercised, determines is appropriate taking into
account the applicable FMV Renewal Rate, the condition of the Premises at the
time of Tenant's exercise of the applicable renewal option and the financial
condition of Tenant at such time.
5. As used herein, the term "Orange Area" shall mean the area
within a ten (10) mile radius of the Building.
6. Within thirty (30) days after Landlord's receipt of Tenant's
Notice of Exercise, Landlord shall deliver to Tenant Landlord's determination
of the FMV Renewal Rate (such determination by Landlord of the
C-1
40
FMV Renewal Rate is herein referred to as "Landlord's Assessment"). Tenant
shall, within thirty (30) days after Tenant's receipt of Landlord's Assessment,
notify Landlord in writing whether Tenant accepts or rejects Landlord's
Assessment. The failure of Tenant to so notify Landlord shall be deemed to be
an acceptance by Tenant of Landlord's Assessment and the same shall be the FMV
Renewal Rate. If Tenant timely delivers to Landlord written notice that Tenant
does not accept Landlord's Assessment ("Tenant's Objection Notice"), the FMV
Renewal Rate shall be determined as provided in the following paragraph.
Tenant's Objection Notice must identify Tenant's determination of the FMV
Renewal Rate ("Tenant's Assessment") to trigger the following appraisal
process.
7. If Tenant timely delivers to Landlord Tenant's Objection
Notice in which Tenant's Assessment has been identified, Landlord shall have
the right to accept Tenant's Assessment by giving Tenant written notice thereof
within five (5) days after Landlord's receipt of Tenant's Objection Notice. If
Landlord does not so accept Tenant's Assessment, then Landlord and Tenant
shall, within five (5) business days after the expiration of such five (5) day
period, jointly appoint an independent real estate broker or other person with
at least ten (10) years' commercial real estate experience in Orange County,
California, (an "Appraiser") to determine the FMV Renewal Rate. If the parties
are unable to agree upon an Appraiser within such five (5) business day period,
either party may request that the Orange County, California office of the
American Arbitration Association designate, within five (5) days of such
request, a broker with at least ten (10) years' commercial real estate
experience in Orange County, California to be the Appraiser for the purposes of
this paragraph; provided, however, in no event shall such designated Appraiser
be employed, or have been employed, by either Landlord or Tenant. Such
designation shall be binding on Landlord and Tenant. Within five (5) business
days after the selection of an Appraiser, each of Landlord and Tenant shall
submit to the Appraiser such party's determination of the FMV Renewal Rate
(revised, if applicable, from any earlier determination), together with such
supporting data used to make such determination. Within ten (10) business days
after the selection of the Appraiser, the Appraiser shall select the
determination of the FMV Renewal Rate for the Renewal Term which is closest to
such Appraiser's determination of the FMV Renewal Rate, and such determination
shall be the FMV Renewal Rate for the purpose of determining the Base Rent for
the applicable Renewal Term. The entire cost for the Appraiser's services shall
be borne equally by Landlord and Tenant.
8. Tenant's rights under this Exhibit shall terminate following
the occurrence of the following events: (a) a termination of Tenant's right to
possess all or any portion of the Premises; (b) the failure of Tenant to timely
exercise its right to renew the Initial Term as provided in this Exhibit, time
being of the essence with respect to Tenant's exercise thereof; (c) Tenant
assigns all or any of its interest in the Lease or sublets all or any portion
of the Premises (other than any Permitted Transferee); and/or (d) a termination
of the Lease.
C-2
