Exhibit 10.33
INDUSTRIAL BUILDING LEASE
LANDLORD:
CENTERPOINT PROPERTIES CORPORATION,
a Maryland corporation
TENANT:
WINCUP HOLDINGS, L.P.,
a Delaware limited partnership
Property Address:
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxx
Property Address:
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxx
INDUSTRIAL BUILDING LEASE
-------------------------
THIS LEASE is made as of this _______ day of May, 1996 between
CENTERPOINT PROPERTIES CORPORATION, a Maryland corporation ("Landlord"), and
WINCUP HOLDINGS, L.P., a Delaware limited partnership ("Tenant").
ARTICLE I
---------
LEASE TERMS
-----------
SECTION 1.1 DEFINITIONS. In addition to the other terms, which are
-----------
elsewhere defined in this Lease, the following terms and phrases, whenever used
in this Lease shall have the meanings set forth in this Section 1.1, and only
such meanings, unless such meanings are expressly contradicted, limited or
expanded elsewhere herein.
A. SECURITY DEPOSIT: One monthly Base Rent payment.
B. TENANT'S PROPORTION: 59.70%
C. INITIAL MONTHLY RENT ADJUSTMENT DEPOSIT: $7,615.00
(i) Initial Tax Deposit: $5,675.00
(ii) Initial Expense Deposit: $1,940.00
D. INITIAL TERM: The initial four (4) year term,
commencing as of the Commencement Date.
E. COMMENCEMENT DATE: May 1, 1996.
F. TERMINATION DATE: April 30, 2000.
G. TERM: The Initial Term as same may be extended or
sooner terminated.
H. USE: Warehouse, storage, converting, printing,
distribution of paper and plastic products and
ancillary office use.
I. LANDLORD'S MAILING ADDRESS:
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
J. TENANT'S MAILING ADDRESS:
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxxxx
K. LANDLORD'S BROKER: Colliers Xxxxxxx & Xxxxxxxxxx.
L. TENANT'S BROKER: Xxxxx & Xxxxx.
SECTION 1.2 SIGNIFICANCE OF BASIC LEASE PROVISIONS. Each reference
--------------------------------------
in this Lease to any of the Basic Lease Terms contained in Section 1.1 of this
Article shall be deemed and construed to incorporate all of the terms provided
under each such Basic Lease Terms.
SECTION 1.3 ENUMERATION OF EXHIBITS. The exhibits in this Section
-----------------------
and attached to this Lease are incorporated in this Lease by this reference and
are to be construed as a part of this Lease.
EXHIBIT "A" - Premises
EXHIBIT "B" - Legal Description
EXHIBIT "C" - Form of Estoppel Certificate
EXHIBIT "D" - Landlord's Work
ARTICLE II
----------
PREMISES
--------
SECTION 2.1 LEASE. Landlord, for and in consideration of the rents
-----
herein reserved and of the covenants and agreements herein contained on the part
of Tenant to be kept, observed and performed, does by these presents, lease to
Tenant, and Tenant hereby leases from Landlord, the demised premises
("Premises"), being depicted on page 1 of the plan attached hereto as EXHIBIT
"A" in the building located at 0000 Xxxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxx
("Building"), and legally described on EXHIBIT "B" attached hereto and by this
reference incorporated herein ("Land") (the Land and Building are sometimes
collectively referred to as the "Project"), subject to covenants, conditions,
agreements, easements, encumbrances and restrictions of record on the date
hereof affecting the Land and the Building ("Restrictions").
ARTICLE III
-----------
TERM
----
SECTION 3.1 TERM. The Initial Term of this Lease shall commence on
----
the Commencement Date and shall end on the Termination Date, unless sooner
terminated as hereinafter set forth.
ARTICLE IV
-----------
CONDITION OF DEMISED PREMISES
-----------------------------
SECTION 4.1 CONDITION OF PREMISES. Subject to the performance of
---------------------
the Landlord's Work (as hereinafter defined), Tenant agrees to accept the
Premises in an absolutely "as-is" condition. Tenant acknowledges that Landlord,
its agents, attorneys, representatives and employees have not and do not make
any representations or warranties, express or implied, to Tenant regarding the
Premises or the Project, including, but not limited to: (i) the zoning of the
Premises or the Project; (ii) the condition of any underground, above ground or
surface improvements; (iii) the size, area, use or type of the Premises or the
fitness of the Premises for any intended or particular use; (iv) the nature of
the soil on and underlying the Premises or the Project or its suitability for
development or any other
2
use thereof; (v) any financial information pertaining to the operation of the
Premises or the Project; (vi) the status of any requirements or obligations
imposed, implied or to be undertaken by the owner or developer of the Premises
or the Project pursuant to any zoning, subdivision, development laws or
agreements with any governmental entities; (vii) the presence or absence of any
toxic wastes, hazardous materials or structural defects in, on or under the
Premises or the Project or any improvements thereon; or (viii) the presence or
absence of any rights of any governmental authority, or of owners of property in
the vicinity of the Premises or the Project, to obtain reimbursement, recapture
or special assessments from any owner of the Premises or the Project for all or
a portion of the cost of any utilities, roads or other improvements heretofore
or hereafter located on or in the vicinity of the Premises or the Project, any
and all such representations and warranties, express or implied, being hereby
expressly waived by Tenant and disclaimed by Landlord. Tenant waives any claim
that may exist for patent and/or latent defects or for mutual or unilateral
mistake of fact. Except for Landlord's obligation to improve the Premises in
accordance with Article XXXIII below, no promise of Landlord to alter, remodel,
decorate, clean or improve the Premises or any portion thereof and no
representation respecting the condition of the Premises or any portion thereof
have been made by Landlord to Tenant.
ARTICLE V
---------
RENT
----
SECTION 5.1 BASE RENT. In consideration of the leasing aforesaid,
---------
Tenant agrees to pay Landlord, without offset or deduction, base rent for the
Initial Term ("Base Rent"), payable monthly in advance in equal installments on
the first (1st) day of each month and in addition thereto, shall pay such
charges as are herein described as "Additional Rent". Commencing on May 1, 1996
and continuing through April 30, 1997, Base Rent shall be $304,452.96 per annum
("Annual Base Rent"), payable in equal monthly installments of $25,371.08 ("Base
Rent"). On the first day of May ("Adjustment Date") of each year during the
Initial Term commencing May 1, 1997, Annual Base Rent shall increase to an
amount equal to the lesser of (i) the amount obtained by multiplying the Annual
Base Rent for the preceding twelve (12) month period (each such twelve (12)
month period commencing on May 1st and expiring on April 30th is hereinafter
referred to as a "Lease Year") by 1.03, or (ii) the amount obtained by
multiplying the Annual Base Rent for the preceding Lease Year by a fraction, the
numerator of which is the CPI (hereinafter defined) for April of the preceding
Lease Year and the denominator of which is the CPI for April of 1996. For
example, on May 1, 1997 if the April 1997 CPI is 161.9 and the April 1996 CPI is
155.7, the Annual Base Rent for the Lease Year commencing May 1, 1997 will be
the lesser of (i) 304,452.96 x 1.03 = 313,586.54 or (ii) 304,452.96 x (161.9 /
155.7) = 316,576.30, which is 313,586.54. The term "CPI" when used herein means
the Consumer Price Index - U.S. City Averages for Urban Wage Earners and
Clerical Workers, All Items (1982-1984 = 100), of the United States Bureau of
Labor Statistics. If the CPI shall be substantially revised (including but not
limited to a change from using the 1982-1984 averages as the Base Index of 100)
or become unavailable to the public, Landlord will substitute therefor, a
comparable index based upon changes in the cost of living or purchasing power of
the consumer dollar. In the event the CPI for April of the preceding Lease Year
is not available on the Adjustment Date, Tenant shall make payments of Base Rent
equal to 1.03% of Base Rent for the previous Lease Year until the applicable CPI
shall become available, at which time Base Rent shall be adjusted as provided
hereinabove and Tenant shall receive a credit for any amounts paid in excess of
the actual amount due, if any. The term "Rent" when used in this Lease shall
include all Base Rent payable under this Section 5.1., as well as the charges
herein described as Additional Rent. All Rent payable hereunder shall be
payable to Landlord and Landlord's Mailing Address, or as Landlord may otherwise
from time to time designate in writing.
SECTION 5.2 BASE RENT ADJUSTMENT. In addition to the Base Rent
--------------------
payable by Tenant hereunder, Tenant shall pay to Landlord, as Additional Rent,
the Rent Adjustment described in this Section 5.2 without set off or deduction.
Until such time as Tenant receives the first Adjustment Statement provided for
in clause (C) of this Section 5.2, Tenant shall, commencing on the Commencement
Date and on the first (1st) day of each and every month thereafter, make the
Initial Monthly Rent Adjustment Deposit specified in Article I hereof.
3
A. For the purposes of this Lease:
(1) The term "Calendar Year" shall mean each calendar year or a
portion thereof during the Term.
(2) The term "Expenses" shall mean and include all expenses paid
or incurred by Landlord or its beneficiaries for managing, owning,
maintaining, operating, insuring, replacing and repairing the Project, the
Land, appurtenances and personal property used in conjunction therewith.
Expenses shall not include (i) depreciation charges, (ii) interest and
principal payments on mortgages, (iii) ground rental payments, (iv) real
estate brokerage and leasing commissions, (v) capital expenses (other than
the amortized portion thereof during the Term which shall be a part of
Expenses, based upon the assumption that the cost thereof is amortized over
the useful life of the improvement in accordance with generally accepted
accounting principles), (vi) legal fees for the negotiation or enforcement
of leases, (vii) Taxes, (viii) cost of repair from a casualty or taking,
(ix) cost of altering the space of other tenants and (x) cost of services
provided by affiliates in excess of costs which a bona fide third party
would charge. If the Building is not fully occupied during all or a
portion of any Calendar Year, then Landlord may elect to make an
appropriate adjustment of the Expenses which vary due to occupancy for such
Calendar Year employing sound accounting and management principles, to
determine the amount of Expenses that would have been paid or incurred by
Landlord had the Building been fully occupied and the amount so determined
shall be the amount of Expenses attributable to such Calendar Year.
(3) The term "Rent Adjustments" shall mean all amounts owed by
Tenant as Additional Rent on account of Expenses or Taxes, or both.
(4) The term "Rent Adjustment Deposit" shall mean an amount
equal to Landlord's estimate of Rent Adjustments due for any Calendar Year
made from time to time during the Term.
(5) The term "Taxes" shall mean real estate taxes, assessments,
sewer rents, rates and charges, transit taxes, taxes based upon the receipt
of rent, and any other federal, state or local governmental charge,
general, special, ordinary or extraordinary, which may now or hereafter be
assessed against the Project or any portion thereof in any Calendar Year
during the Term and any tax in substitution of any of the foregoing;
provided, however, in determining the income of Landlord with respect to
any such substituted tax, only the income derived from the Building shall
be included. Taxes shall not include any franchise, capital stock,
transfer, inheritance or income (other than rental income in replacement of
any real estate tax) tax imposed upon Landlord. In case of special taxes
or assessments which may be payable in installments, only the amount of
each installment and interest paid thereon paid during a Calendar Year
shall be included in Taxes for that Calendar Year. Taxes shall also
include any personal property taxes (attributable to the year in which
paid) imposed upon the furniture, fixtures, machinery, equipment,
apparatus, systems and appurtenances of Landlord used in connection with
the operation of the Building. Taxes also include Landlord's reasonable
costs and expenses (including reasonable attorney's fees) in contesting or
attempting to reduce any taxes. Taxes shall be reduced by any recovery or
refund received of Taxes previously paid by the Landlord, provided such
refund relates to taxes paid during the Term of this Lease.
B. Tenant shall pay to the Landlord as Additional Rent Tenant's
Proportion of Expenses and Taxes attributable to each Calendar Year of the
Term. The amount of Taxes attributable to a Calendar Year shall be the
amount assessed for any such Calendar Year, even though the assessment for
such Taxes may be payable in a different Calendar Year.
C. As soon as reasonably feasible after the expiration of each
Calendar Year, Landlord will furnish Tenant a statement ("Adjustment
Statement") showing the following:
4
(1) Actual Expenses and Taxes for Calendar Year last ended and
the amount of Expenses and Taxes payable by Tenant for such Calendar Year;
(2) The amount of Rent Adjustments due Landlord for the Calendar
Year last ended, less credits for Rent Adjustment Deposits paid, if any;
and
(3) The Rent Adjustment Deposit due in the current Calendar
Year.
D. Within thirty (30) days after Tenant's receipt of each Adjustment
Statement, Tenant shall pay to Landlord:
(1) The amount of Rent Adjustment shown on said statement to be
due Landlord for the Calendar Year last ended; plus
(2) The amount, which when added to the Rent Adjustment Deposit
theretofore paid in the current Calendar Year would provide that Landlord
has then received such portion of the Rent Adjustment Deposit as would have
theretofore been paid to Landlord had Tenant paid one twelfth (1/12) of the
Rent Adjustment Deposit, for the current Calendar Year, to Landlord monthly
on the first (1st) day of each month of such Calendar Year.
Commencing on the first (1st) day of the first (1st) month after Tenant's
receipt of each Adjustment Statement, and on the first day of each month
thereafter until Tenant receives a more current Adjustment Statement,
Tenant shall pay to Landlord one twelfth (1/12) of the Rent Adjustment
Deposit shown on said statement. During the last complete Calendar Year,
Landlord may include in the Rent Adjustment Deposit its estimate of the
Rent Adjustment which may not be finally determined until after the
expiration of the Term. The Tenant's obligation to pay the Rent Adjustment
shall survive the Term.
E. Tenant's payment of the Rent Adjustment Deposit for each Calendar
Year shall be credited against the Rent Adjustments for such Calendar Year.
All Rent Adjustment Deposits may be co-mingled and no interest shall be
paid to Tenant thereon. If the Rent Adjustment Deposits paid by Tenant for
any Calendar Year exceeds the Rent Adjustments for such Calendar Year, then
Landlord shall give a credit to Tenant in an amount equal to such excess
against the Rent Adjustments due for the next succeeding Calendar Year,
except that if any such excess relates to the last Calendar Year of the
Term, then, provided that no default of Tenant exists hereunder, Landlord
shall refund such excess to Tenant within thirty (30) days after the
expiration of the Term.
F. Tenant or its representative shall have the right to examine
Landlord's books and records with respect to the items in the Adjustment
Statement during normal business hours at any time within thirty (30) days
following the furnishing by Landlord to Tenant of such Adjustment
Statement. Unless Tenant shall take written exception to any item within
forty-five (45) days after the furnishing of the foregoing statement, such
statement shall be considered as final and accepted by Tenant. Any amount
due to Landlord as shown on any such statement, whether or not written
exception is taken thereto, shall be paid by Tenant within thirty (30) days
after Landlord shall have submitted the statement, without prejudice to any
such written exception. If the actual Taxes and Expenses are at least five
percent (5%) less than those shown on the Adjustment Statement, Landlord
shall reimburse Tenant the reasonable cost of examining Landlord's books
and records.
G. If the Commencement Date is on any day other than the first (1st)
day of January or if the Termination Date is on any day other than the last
day of December, then any Rent Adjustments due Landlord shall be prorated.
5
SECTION 5.3 INTEREST AND LATE CHARGES ON LATE PAYMENTS. Rent not
------------------------------------------
paid when due shall bear interest from the date when the same is payable under
the terms of this Lease until the same shall be paid at an annual rate of
interest equal to the rate of interest announced from time to time by The Wall
--------
Street Journal ("Journal") as its Prime Rate, plus three percent (3%), unless a
--------------
lesser rate shall then be the maximum rate permissible by law, in which event
said lesser rate shall be charged ("Lease Interest Rate"). The term "Prime
Rate" means that rate of interest published by the Journal from time to time as
its "Prime Rate" of interest, changing automatically and simultaneously with
each change in the Prime Rate made by the Journal from time to time. Tenant
further acknowledges that its late payment of any Rent will cause Landlord to
incur certain costs and expenses not contemplated under this Lease, the exact
amount of which is extremely difficult or impracticable to fix. Such costs and
expenses will include, without limitation, loss of use of money, administrative
and collection costs and processing and accounting expenses. Therefore, if any
installment of monthly Base Rent is not received by Landlord when due or any
other sum due hereunder is not paid within ten (10) days of when due, Tenant
shall promptly pay to Landlord a late charge equal to three percent (3%) of the
unpaid amount. Such late charge is in addition to any interest due pursuant to
the first (1st) sentence of this Section 5.3. Landlord and Tenant agree that
this late charge represents a reasonable estimate of costs and expenses incurred
by Landlord from, and is fair compensation to Landlord for, its loss suffered,
by such non-payment by Tenant. Acceptance of the late charge shall not
constitute a waiver of Tenant's default with respect to such non-payment by
Tenant or prevent Landlord from exercising any other rights and remedies
available to Landlord under this Lease. Failure to pay the late charge shall
constitute a default under this Lease.
ARTICLE VI
----------
UTILITIES
---------
SECTION 6.1 UTILITIES. Tenant shall pay, directly to the
---------
appropriate supplier, all costs of natural gas, electricity, heat, light, power,
sewer service, telephone, water, refuse disposal and other utilities and
services supplied to the Premises. Landlord shall, at Landlord's sole cost and
expense, separately meter the Premises. If, however, at any time, any services
or utilities are jointly metered, Landlord shall make a reasonable determination
of Tenant's Proportionate share thereof and Tenant shall pay its proportionate
share, as Additional Rent hereunder, within fifteen (15) days after receipt of
Landlord's written statement. So long as Landlord does not supply any utility
service, Landlord shall not in any way be liable or responsible to Tenant for
any cost or damage or expense which Tenant may sustain or incur if either the
quality or character of such service is changed or is no longer available or
suitable for Tenant's requirements.
ARTICLE VII
-----------
USE
---
SECTION 7.1 USE. The Premises shall be used for the Use only, and
---
for no other purpose.
SECTION 7.2 PROHIBITED USES. Tenant shall not permit the Premises,
---------------
or any portion thereof, to be used in such manner which impairs Landlord's
right, title or interest in the Premises or any portion thereof, or in such
manner which gives rise to a claim or claims of adverse possession or of a
dedication of the Premises, or any portion thereof, for public use. Tenant
shall not use or occupy the Premises or permit the Premises to be used or
occupied contrary to any statute, rule, order, ordinance, requirement,
regulation or restrictive covenant applicable thereto or in any manner which
would violate any certificate of occupancy affecting the same or which would
render the insurance thereon void or the insurance risk more hazardous, or which
would cause structural injury to the Building or cause the value or usefulness
of the Premises or any part thereof to diminish or which would constitute
6
a public or private nuisance or waste, and Tenant agrees that it will, promptly
upon discovery of any such use, immediately notify Landlord and take all
necessary steps to compel the discontinuance of such use.
ARTICLE VIII
------------
MAINTENANCE OF PREMISES
-----------------------
SECTION 8.1 MAINTENANCE.
-----------
A. TENANT'S MAINTENANCE. Subject to the Landlord's obligations in
--------------------
Section 8.1B hereof, Tenant agrees, at Tenant's sole cost and expense, to take
good care of the Premises and keep same and all parts thereof, together with any
and all alterations and additions thereto, in good order, condition and repair,
suffering no waste or injury, reasonable wear and tear and damage by casualty
excepted. Subject to the Landlord's obligations in Section 8.1B hereof, Tenant
shall, at its sole cost and expense, promptly make all necessary repairs and
replacements, foreseen as well as unforeseen, in and to any equipment now or
hereafter located in the Premises, including without limitation, water, sewer,
gas, HVAC and electricity connections, pipes, mains and all other fixtures,
machinery, apparatus, equipment, overhead cranes and appurtenances now or
hereafter belonging to, connected with or used in conjunction with the Premises.
All such repairs and replacements shall be of equal quality to those being
repaired and sufficient for the proper maintenance and operation of the
Premises. Tenant shall keep and maintain the Premises safe, secure and clean,
specifically including, but not by way of limitation, removal of waste and
refuse matter. Tenant shall not permit anything to be done upon the Premises
(and shall perform all maintenance and repairs thereto so as not) to invalidate,
in whole or in part, or prevent the procurement of any insurance policies which
may, at any time, be required under the provisions of this Lease. Tenant shall
not obstruct or permit the obstruction of any parking area, adjoining street or
sidewalk.
B. LANDLORD'S MAINTENANCE. Subject to the provisions of Articles X
----------------------
and XIII hereof, Landlord shall keep, maintain, repair and replace the roof,
structural members of the Building, the parking lot, fire sprinkler system,
sidewalks and appurtenances thereto, including, as necessary, snow and ice
removal and the cost thereof shall be deemed an Expense.
SECTION 8.2 GOVERNMENTAL REQUIREMENTS. Tenant at its own cost and
-------------------------
expense also shall promptly comply with any and all governmental requirement
applicable to the Premises or any part thereof, as a result of Tenant's use,
occupancy or alteration of the Premises, irrespective of the nature of the work
required to be done, extraordinary as well as ordinary, whether or not the same
involve or require any structural changes or additions in or to the Improvements
and irrespective of whether or not such changes or additions be required on
account of any particular use to which the Premises or any part thereof are
being put. Included in the obligations set forth above, but not in limitation
thereof, Tenant, at its own cost and expense, shall promptly comply with OSHA
regulations relating to overhead cranes (CFR 1910-179(j)(2) and 184(d), CFR
1910-179(j)(3), CFR 1910-179(e)(1) through (4) and CFR 1910-179(b)(5)).
SECTION 8.3 TENANT'S RESPONSIBILITIES. Landlord shall not be
-------------------------
required to furnish any services or facilities whatsoever to the Premises.
Except as set forth in Sections 8.1.B. and 8.2 above, Tenant hereby assumes full
and sole responsibility for condition, operation, repair, alteration,
improvement, replacement, maintenance and management of the Premises.
7
ARTICLE IX
----------
TENANT'S INSURANCE
------------------
SECTION 9.1 COMMERCIAL GENERAL LIABILITY AND WORKERS COMPENSATION
-----------------------------------------------------
INSURANCE. At all times during the Term of this Lease, Tenant, at its own
---------
expense, shall maintain, with insurance companies which are authorized to do
business in the State of Illinois and which are reasonably acceptable to
Landlord, the following commercial general liability and workers compensation
insurance (including employer's liability insurance):
(a) COMMERCIAL GENERAL LIABILITY INSURANCE. Written on an
--------------------------------------
Occurrence basis, insuring against claims for bodily and personal injury,
death and property damage occurring in connection with the use and
occupancy of the Premises by Tenant and shall name by specific endorsement
Landlord, Landlord's managing agent, and mortgagee, if any, as additional
insureds. The coverage afforded the additional insureds under the Tenant's
policy shall be primary insurance. Commercial General Liability Insurance
shall afford a limit of at least $1,000,000.00 for each occurrence and at
least a $2,000,000.00 General Aggregate and Personal and Advertising Injury
coverage with a limit of at least $1,000,000.00 for each occurrence.
(b) WORKERS COMPENSATION INSURANCE. Workers compensation
------------------------------
insurance shall meet or exceed the statutory requirements set by the State
of Illinois and shall include occupational disease insurance and employer's
liability insurance. The employer's liability insurance shall afford a
limit of not less than $100,000.00.
(c) CONTENTS INSURANCE. Insurance against fire, sprinkler
------------------
leakage, vandalism, and the extended coverage perils for the full insurable
value of all contents of Tenant within the Premises, and of all office
furniture, trade fixtures, office equipment, merchandise and all other
items of Tenant's property on the Premises and business interruption
insurance.
Tenant shall deliver to Landlord, at least fifteen (15) days prior to
the earlier of (i) the Commencement Date of this Lease or (ii) the date Tenant
takes possession of the Premises, duplicate copies of policies (or certificates
evidencing such policies) of the insurance required by this Section 9.1. Such
policies of insurance shall be renewed and duplicate copies of the new policies
(or new certificates) shall be deposited with Landlord at least fifteen (15)
days prior to the expiration of the old policies.
SECTION 9.2 POLICIES. All insurance policies shall be written with
--------
insurance companies and shall be in form reasonably satisfactory to Landlord.
All insurance policies shall name Landlord as an additional insured and shall
provide that they may not be terminated or modified in any way which would
materially decrease the protection afforded Landlord under this Lease without
thirty (30) days' advance written notice to Landlord. All policies shall also
contain an endorsement that Landlord, although named as an additional insured,
shall nevertheless be entitled to recover for damages caused by the negligence
of Tenant. The minimum limits of insurance specified in this Section shall in
no way limit or diminish Tenant's liability under this Lease. Tenant shall
furnish to Landlord, not less than fifteen (15) days prior to the date such
insurance is first required to be carried by Tenant, and thereafter at least
fifteen (15) days prior to the expiration of each such policy, true and correct
photocopies of all insurance policies required under this Section, together with
any amendments and endorsements to such policies, certificates of insurance, and
such other evidence of coverages as Landlord may reasonably request, and
evidence of payment of all premiums and other expenses owed in connection
therewith. Upon Tenant's default in obtaining or delivering the policy for any
such insurance or Tenant's failure to pay the charges therefor, Landlord may, at
its option, on or after the tenth (10th) day after written notice thereof is
given to Tenant, procure or pay the charges for any such policy or policies and
the total cost and expense (including reasonable attorneys' fees) thereof shall
be paid by Tenant to Landlord as Additional Rent within five (5) days of the
receipt of a xxxx therefor. Any minimum amount of coverage specified above
shall be subject to increase at any time, and from time to time, after
commencement of
8
the third Lease Year of the term of this Lease, if Landlord shall reasonably
deem same to be necessary for adequate protection. Within thirty (30) days after
demand by Landlord that the minimum amount of any coverage be so increased,
Tenant shall furnish Landlord with evidence of Tenant's compliance with such
demand.
SECTION 9.3 ADJUSTMENT. So long as this Lease remains in effect,
----------
the proceeds of any such insurance which are received by Tenant shall be used by
Tenant to repair or replace the property so insured.
SECTION 9.4 SUBROGATION. Landlord and Tenant agree to have all
-----------
fire and extended coverage and material damage insurance which may be carried by
either of them endorsed with a clause providing that any release from liability
of or waiver of claim for recovery from the other party or any of the parties
named in Section 9.2 above entered into in writing by the insured thereunder
prior to any loss or damage shall not affect the validity of said policy or the
right of the insured to recover thereunder, and providing further that the
insurer waives all rights of subrogation which such insurer might have against
the other party or any of the parties named in Section 9.2 above. Without
limiting any release or waiver of liability or recovery contained in any other
section of this Lease but rather in confirmation and furtherance thereof,
Landlord and any beneficiaries of Landlord waive all claims for recovery from
Tenant, and Tenant waives all claims for recovery from Landlord, any
beneficiaries of Landlord and the managing agent for the Project and their
respective agents, partners and employees, for any loss or damage to any of its
property insured under valid and collectible insurance policies to the extent of
any recovery collectible under such insurance policies. Notwithstanding the
foregoing or anything contained in this Lease to the contrary, any release or
any waiver of claims shall not be operative, nor shall the foregoing
endorsements be required, in any case where the effect of such release or waiver
is to invalidate insurance coverage or invalidate the right of the insured to
recover thereunder or increase the cost thereof (provided that in the case of
increased cost the other party shall have the right, within ten (10) days
following written notice, to pay such increased cost, thereby keeping such
release or waiver in full force and effect).
ARTICLE X
---------
DAMAGE OR DESTRUCTION
---------------------
SECTION 10.1 TOTAL DEMISE. In the event that (a) the Premises are
------------
made untenantable by fire or other casualty and Landlord shall decide not to
restore or repair same, or (b) the Building is so damaged by fire or other
casualty that Landlord shall decide to demolish or not rebuild the same, then,
in any of such events, Landlord shall have the right to terminate this Lease by
notice to Tenant given within ninety (90) days after the date of such fire or
other casualty and the Rent shall be apportioned on a per diem basis and paid to
the date of such fire or other casualty. In the event the Premises are made
untenantable by fire or other casualty and Landlord shall decide to rebuild and
restore the same, this Lease shall not terminate and Landlord shall repair and
restore the Premises at Landlord's expense and with due diligence within one
hundred eighty (180) days with the right to extend said time period for a total
period of two hundred forty (240) days due to (i) reasonable delays for
insurance adjustments and (ii) delays caused by matters beyond Landlord's
control. Rent shall xxxxx on a per diem basis during the period of
reconstruction and repair. Tenant shall have the right to terminate this Lease,
upon written notice to Landlord within ten (10) days after the expiration of
said time period (as same may be extended), in the event that the restoration or
repair of the Premises is not substantially complete within said time period (as
same may be extended).
SECTION 10.2 PARTIAL DEMISE. In the event the Premises are
--------------
partially damaged by fire or other casualty but are not made wholly
untenantable, then Landlord shall, except during the last Lease Year of the Term
hereof, proceed with all due diligence to repair and restore the Premises,
subject, however, to (i) reasonable delays for insurance adjustments, and (ii)
delays caused by forced beyond Landlord's control. In such event, Rent shall
xxxxx in proportion to the non-useability of the Premises during the period
while repairs are in progress. If the Premises are made partially untenantable
as aforesaid during the last Lease Year of the Term hereof, Landlord and
9
Tenant shall have the right to terminate this Lease as of the date of fire or
other casualty upon thirty (30) days' prior notice to the other, in which event,
Rent shall be apportioned on a per diem basis and paid to the date of such fire
or other casualty.
ARTICLE XI
----------
LIENS
-----
SECTION 11.1 LIEN CLAIMS. Tenant shall not do any act which shall
-----------
in any way encumber the title of Landlord in and to the Premises or the
Building, nor shall any interest or estate of Landlord in the Premises or the
Building be in any way subject to any claim by way of lien or encumbrance,
whether by operation of law or by virtue of any express or implied contract by
Tenant, and any claim to or lien upon the Premises or the Building arising from
any act or omission of Tenant shall accrue only against the leasehold estate of
Tenant and shall in all respects be subject and subordinate to the paramount
title and rights of Landlord in and to the Premises or the Building. Tenant
will not permit the Premises or the Building to become subject to any
mechanics', laborers' or materialmen's lien on account of labor or material
furnished to Tenant or claimed to have been furnished to Tenant in connection
with work of any character performed or claimed to have been performed on the
Premises by or at the direction of sufferance of Tenant; provided, however that
Tenant shall have the right to contest in good faith and with reasonable
diligence, the validity of any such lien or claimed lien if Tenant shall first
give to Landlord such security as Landlord may reasonably require or an amount
equal to one hundred twenty percent (120%) of the amount of the lien or claimed
lien, which amount, together with interest earned thereon, shall be held by
Landlord as security to insure payment thereof and to prevent any sale,
foreclosure or forfeiture of the Premises by reason of non-payment thereof. Any
such amount so deposited with Landlord shall be held by Landlord in an account
established at a federally insured banking institution until satisfactory
removal of said lien or claim of lien. On any final determination of the lien
or claim for lien, Tenant will immediately pay any judgment rendered, with all
proper costs and charges, and will, at its own expense, have the lien released
and any judgment satisfied. Should Tenant fail to diligently contest and pursue
such lien contest, Landlord may, at its option, use the sums so deposited to
discharge any such lien upon the renewal of such lien or encumbrance Landlord
shall pay all such sums remaining on deposit to Tenant.
SECTION 11.2 LANDLORD'S RIGHT TO CURE. If Tenant shall fail to
------------------------
contest the validity of any lien or claimed lien or fail to give security to
Landlord to insure payment thereof, or shall fail to prosecute such contest with
diligence, or shall fail to have the same released and satisfy any judgment
rendered thereon, then Landlord may, at its election (but shall not be so
required) remove or discharge such lien or claim for lien (with the right, in
its discretion, to settle or compromise the same), and any amounts advanced by
Landlord, including reasonable attorneys' fees, for such purposes shall be so
much additional rent due from Tenant to Landlord at the next rent date after any
such payment, with interest thereon at the Lease Interest Rate from the date so
advanced.
ARTICLE XII
-----------
TENANT ALTERATIONS
------------------
SECTION 12.1 ALTERATIONS. Tenant shall not at any time during the
-----------
Term of this Lease make any openings in the roof or exterior walls of the
Building or make any Tenant alteration, addition or improvement to the Premises
(collectively "Alterations") or any portion thereof without in each instance,
the prior written consent of Landlord; provided, however, upon notice to, but
without the consent of Landlord, Tenant shall have the right to make any
Alterations where same are non-structural, do not require openings on the roof
or exterior walls of the Building, do not affect any Building system, and do not
exceed TEN THOUSAND AND NO/100 ($10,000.00)
10
DOLLARS in the aggregate in any twelve (12) month period. Landlord shall not
unreasonably withhold, delay or condition its consent to other Alterations made
by Tenant. No Alteration to the Premises for which Landlord's consent is
required shall be commenced by Tenant until Tenant has furnished Landlord with a
satisfactory certificate or certificates from an insurance company reasonably
acceptable to Landlord, evidencing workmen's compensation coverage, and
insurance coverage in amounts reasonably satisfactory to Landlord and protecting
Landlord against public liability and property damage to any person or property,
on or off the Premises, arising out of and during the making of such
Alterations. Any Alteration by Tenant hereunder shall be done in a good and
workmanlike manner in compliance with any applicable governmental law, statute,
ordinance or regulation. Upon completion of any Alteration by Tenant hereunder
for which Landlord's consent is required, Tenant shall furnish Landlord with a
copy of the "as built" plans covering such construction. Tenant, at its sole
cost and expense, will make all Alterations on the Premises which may be
necessary by the act or neglect of any other person or corporation (public or
private), except Landlord, its agents, employees or contractors. Before
commencing any Alterations for which Landlord's consent is required: (a) plans
and specifications therefor, prepared by a licensed architect, shall be
submitted to and approved by Landlord (such approval shall not be unreasonably
withheld, delayed or conditioned); (b) Tenant shall furnish to Landlord an
estimate of the cost of the proposed work, certified by the architect who
prepared such plans and specifications; (c) all contracts for any proposed work
shall be submitted to and approved by Landlord; and (d) Tenant shall either
demonstrate to Landlord its ability to pay the entire cost of the Alterations
when due or furnish to Landlord a bond in form and substance satisfactory to
Landlord, or such other security reasonably satisfactory to Landlord to insure
payment for the completion of all work free and clear of liens. Tenant further
agrees that all contractors engaging in any construction activity by and for the
benefit of Tenant for which Landlord's consent shall be required shall obtain
comprehensive/commercial general liability, worker's compensation and such other
liability insurance in such amounts as may be reasonably required by Landlord
naming the Landlord as an additional insured and providing liability coverage
during all phases of construction including, without limitation: (a)
contractor's and owners protection; (b) blanket contractual liability coverage;
(c) broad form property damage insurance; (d) statutory worker's compensation
coverage and employer's liability coverage; and (e) coverage under the
structural work act of the State of Illinois. Before commencing any Alteration
for which Landlord's consent is required, Tenant shall provide Landlord with a
written certification that the Alteration does not have any environmental impact
on the Premises. Prior to the commencement of any construction activity for
which Landlord's consent shall be required, certificates of such insurance
coverages (and original policies with respect to environmental liability
insurance) shall be provided to Landlord and renewal certificates shall be
delivered to Landlord prior to the expiration date of the respective policies.
SECTION 12.2 OWNERSHIP OF ALTERATIONS. All Alterations (except
------------------------
Tenant's Equipment, as defined in Section 19.2 hereof), put in at the expense of
Tenant shall become the property of Landlord at the expiration of the Term and
shall remain upon and be surrendered with the Premises as a part thereof at the
termination of this Lease, or at Landlord's option, provided Landlord shall have
advised Tenant in writing at the time of its consent to said Alteration is
sought that same must be removed and restored to its original condition.
SECTION 12.3 SIGNS. Tenant shall not place any signs on any part of
-----
the Building or Land without the prior written consent of Landlord.
Notwithstanding any of the immediately foregoing provisions of this Section
12.3, upon notice to and with the consent of Landlord, which consent shall not
be unreasonably withheld, conditioned or delayed, Tenant may place a monument
sign adjacent to the Premises, provided that (i) the installation and dimensions
of said sign is in strict accordance with applicable law, ordinances and
restrictions; (ii) Tenant continually maintains said sign in a first-class
manner and (iii) Tenant, at Tenant's sole cost and expense, removes said sign at
the expiration of the Term and restores the area in which said sign is placed to
its condition prior to the installation of said sign.
SECTION 12.4 TENANT INDEMNITY. Tenant hereby agrees to indemnify
----------------
and hold the Landlord, its beneficiaries, shareholders, partners or members and
their respective agents and employees harmless from any and all liabilities of
every kind and description which may arise out of or be connected in any way
with said Alterations. Subject to the Tenant's right to contest as set forth in
Section 11.1 above, any mechanic's lien filed
11
against the Premises for work claimed to have been furnished to Tenant shall be
discharged of record by Tenant within thirty (30) days after Tenant receives
notice thereof, at Tenant's expense. Upon completing any Alterations, Tenant
shall furnish Landlord with contractors' affidavits and full and final waivers
of lien and receipted bills covering all labor and materials expended and used.
All Alterations shall comply with all insurance requirements and with all
applicable ordinances and regulations of any pertinent governmental authority.
All alterations and additions shall be constructed in a good and workmanlike
manner and only good grades of materials shall be used.
SECTION 12.5 ENVIRONMENTAL IMPACT. Notwithstanding any other term,
--------------------
covenant or condition contained in this Lease, in the event that any Alteration
has any environmental impact on the Premises, Landlord may deny the Tenant the
right to proceed in Landlord's sole and absolute discretion.
ARTICLE XIII
------------
CONDEMNATION
------------
SECTION 13.1 TAKING: LEASE TO TERMINATE. If a portion of the
---------------------------
Building or the Premises shall be lawfully taken or condemned for any public or
quasi-public use or purpose, or conveyed under threat of such condemnation and
as a result thereof the Premises cannot be used for the same purpose and with
the same utility as before such taking or conveyance, the Term of this Lease
shall end upon, and not before, the date of the taking of possession by the
condemning authority, and without apportionment of the award ("Award"). Tenant
hereby assigns to Landlord, Tenant's interest in such Award, if any. Current
Rent shall be apportioned as of the date of such termination. If any part of
the Building shall be so taken or condemned, or if the grade of any street or
alley adjacent to the Building is changed by any competent authority and such
taking or change of grade makes it necessary or desirable to demolish,
substantially remodel, or restore the Building, the Landlord shall have the
right to cancel this Lease upon not less than ninety (90) days' prior notice to
the date of cancellation designed in the notice.
SECTION 13.2 TAKING: LEASE TO CONTINUE. In the event only a part
--------------------------
of the Premises shall be taken as a result of the exercise of the power of
eminent domain or condemned for a public or quasi-public use or purpose by any
competent authority or sold to the condemning authority under threat of
condemnation, and as a result thereof the balance of the Premises can be used
for the same purpose as before such taking, sale or condemnation, this Lease
shall not terminate and Landlord, at its sole cost and expense up to the amount
of any condemnation Award, shall promptly repair and restore the Premises,
subject to extension due to delay because of changes, deletion or additions,
acts of Tenant, strikes, lockouts, casualties, acts of God, war, fuel or energy
shortages, material or labor shortages, governmental regulation or control,
severe weather conditions or other causes beyond the actual control of Landlord
and Landlord's receipt of insurance proceeds. Any Award paid as a consequence
of such taking, sale or condemnation, shall be paid to Landlord. Any sums not
so disbursed shall be retained by Landlord.
SECTION 13.3 TENANT'S CLAIM. To the extent permitted by law and
--------------
subject to the rights of any lender with respect to the Premises, Tenant shall
be allowed to pursue a claim against the condemning authority (hereinafter
referred to as the "Tenant's Claim") that shall be independent of and wholly
separate from any action, suit or proceeding relating to the Award (hereinafter
referred to as the "Landlord's Proceeding") for reimbursement of relocation
expenses or for the loss of any Tenant's Equipment; provided, however: (i)
Tenant's Claim shall in no event limit, affect, alter or diminish in any kind or
way whatsoever the Award to Landlord as a result of such taking, sale or
condemnation; (ii) Tenant's Claim shall in no event include any claim for any
interest in real property, it being expressly understood and agreed that the
entire Award and other sums paid with respect to the real property interests
taken, sold or condemned shall be the sole property of Landlord pursuant to this
Article XIII; and (iii) Tenant's Claim shall in no event be joined with
Landlord's Proceeding or argued or heard concurrently therewith and if the
tribunal hearing Tenant's Claim orders such joinder, Tenant agrees to
voluntarily dismiss Tenant's Claim
12
if such dismissal does not preclude Tenant from bringing Tenant's Claim after
such time as Landlord has received the Award for such taking, sale or
condemnation.
ARTICLE XIV
-----------
ASSIGNMENT -- SUBLETTING BY TENANT
----------------------------------
SECTION 14.1 NO ASSIGNMENT, SUBLETTING OR OTHER TRANSFER. Tenant
-------------------------------------------
shall not assign this Lease or any interest hereunder, nor shall Tenant sublet
or permit the use or occupancy of the Premises or any part thereof by anyone
other than Tenant, without the express prior written consent of Landlord, which
consent will not be unreasonably withheld or delayed. No assignment or
subletting shall relieve Tenant of its obligations hereunder, and Tenant shall
continue to be liable as a principal and not as a guarantor or surety, to the
same extent as though no assignment or sublease had been made, unless
specifically provided to the contrary in Landlord's consent. Consent by Landlord
pursuant to this Article shall not be deemed, construed or held to be consent to
any additional assignment or subletting, but each successive act shall require
similar consent of Landlord. Landlord shall be reimbursed by Tenant for any
reasonable costs or expenses incurred pursuant to any request by Tenant for
consent to any such assignment or subletting. In the consideration of the
granting or denying of consent, Landlord may, at its option, take into
consideration: (i) the business reputation and credit worthiness of the
proposed subtenant or assignee; (ii) any required alteration of the Premises;
(iii) the intended use of the Premises by the proposed subtenant or assignee;
and (iv) any other factors which Landlord shall deem reasonably relevant.
SECTION 14.2 OPERATION OF LAW. Tenant shall not allow or permit any
----------------
transfer of this Lease, or any interest hereunder, by operation of law.
SECTION 14.3 EXCESS RENTAL. If Tenant shall, with Landlord's prior
-------------
consent as herein required, sublet the Premises, an amount equal to fifty
percent (50%) of the rental in excess of the Base Rent and any Additional Rent
herein provided to be paid shall be for benefit of Landlord and shall be paid to
Landlord promptly when due under any such subletting as Additional Rent due
hereunder.
SECTION 14.4 MERGER OR CONSOLIDATION. If Tenant is a corporation
-----------------------
whose stock is not publicly traded, any transaction or series of transactions
(including, without limitation, any dissolution, merger, consolidation or other
reorganization of Tenant, or any issuance, sale, gift, transfer or redemption of
any capital stock of Tenant, whether voluntary, involuntary or by operation of
law, or any combination of any of the foregoing transactions) resulting in the
transfer of control of Tenant, other than by reason of death, shall be deemed to
be a voluntary assignment of this Lease by Tenant subject to the provisions of
this Section 14. If Tenant is a partnership, any transaction or series of
transactions (including without limitation any withdrawal or admittance of a
partner or a change in any partner's interest in Tenant, whether voluntary,
involuntary or by operation of law, or any combination of any of the foregoing
transactions) resulting in the transfer of control of Tenant, other than by
reason of death, shall be deemed to be a voluntary assignment of this Lease by
Tenant subject to the provisions of this assignment of this Lease by Tenant
subject to the provisions of this Section 14. If Tenant is a corporation, a
change or series of changes in ownership of stock which would result in direct
or indirect change in ownership by the stockholders or an affiliated group of
stockholders of less than fifty percent (50%) of the outstanding stock as of the
date of the execution and delivery of this Lease shall not be considered a
change of control. Notwithstanding the immediately foregoing, Tenant may, upon
notice to, but without Landlord's consent, assign this Lease to any entity
resulting from a merger or consolidation of Tenant, provided that the total
assets and the total net worth of such assignee after such consolidation or
merger shall be in excess of the greater of (i) the net worth of Tenant
immediately prior to such consolidation or merger, or (ii) the net worth of
Tenant as of the date hereof, determined by generally accepted accounting
principles and provided that Tenant is not at such time in default hereunder,
and provided further that such successor shall execute an instrument in writing,
acceptable to Landlord in its reasonable discretion, fully assuming all of the
obligations and liabilities imposed upon Tenant hereunder and deliver the same
to Landlord.
13
Tenant shall provide in its notice to Landlord such information as may be
reasonably required by Landlord to determine that the requirements of this
Section 14.4 have been satisfied. As used in this Section 14.4, the term
"control" means possession of the power to vote not less than a majority
interest of any class of voting securities and partnership or limited liability
company interests or to direct or cause the direction (directly or indirectly)
of the management or policies of a corporation, or partnership or limited
liability company through the ownership of voting securities, partnership
interests or limited liability company interests, respectively.
SECTION 14.5 UNPERMITTED TRANSACTION. Any assignment, subletting,
-----------------------
use, occupancy, transfer or encumbrance of this Lease or the Premises without
Landlord's prior written consent shall be of no effect and shall, at the option
of Landlord, constitute a default under this Lease.
ARTICLE XV
----------
ANNUAL STATEMENTS
-----------------
SECTION 15.1 ANNUAL STATEMENTS. Tenant agrees to furnish Landlord
-----------------
annually, within ninety (90) days of the end of such fiscal year with a copy of
its annual audited statements, together with applicable footnotes and any other
financial information reasonably requested by Landlord (hereinafter collectively
referred to as, the "Financial Information") and agrees that Landlord may
deliver such Financial Information to any mortgagee, prospective mortgagee or
prospective purchaser of the Premises.
ARTICLE XVI
-----------
INDEMNITY FOR LITIGATION
------------------------
SECTION 16.1 INDEMNITY FOR LITIGATION. Tenant agrees to pay, and to
------------------------
indemnify and defend Landlord against, all costs and expenses (including
reasonable attorney's fees) incurred by or imposed upon Landlord by or in
connection with any litigation to which Landlord becomes or is made a party
without fault on its part, whether commenced by or against Tenant, or any other
person or entity or that may be incurred by Landlord in enforcing any of the
covenants and agreements of this Lease with or without the institution of any
action or proceeding relating to the Premises or this Lease, or in obtaining
possession of the Premises after an Event of Default hereunder or upon
expiration or earlier termination of this Lease. The foregoing notwithstanding,
Tenant's responsibility under this Section 16.1 to pay Landlord's costs and
expenses (including reasonable attorneys' fees) shall not extend to such costs
and expenses incurred in defending an action brought by Tenant to enforce the
terms of this Lease in which there is a court determination that Landlord failed
to perform its obligations under this Lease. The provisions of this Section
16.1 shall survive the expiration or earlier termination of this Lease.
ARTICLE XVII
------------
ESTOPPEL CERTIFICATES
---------------------
SECTION 17.1 ESTOPPEL CERTIFICATE. Tenant agrees that on the
--------------------
Commencement Date and at any time and from time to time thereafter, upon not
less than ten (10) days' prior written request by Landlord, it will execute,
acknowledge and deliver to Landlord, or Landlord's mortgagee to the extent
factually accurate, a statement in writing in the form of EXHIBIT "C" attached
hereto and by this reference incorporated herein; provided, however, that Tenant
agrees to certify to any prospective purchaser or mortgagee any other reasonable
information specifically requested by such prospective purchaser or mortgagee.
14
Landlord agrees that, upon not less than ten (10) day's prior written
request of Tenant, it shall execute, acknowledge and deliver to Tenant an
estoppel certificate in a form reasonably acceptable to Landlord.
ARTICLE XVIII
-------------
INSPECTION OF PREMISES
----------------------
SECTION 18.1 INSPECTIONS. Tenant agrees to permit Landlord and any
-----------
authorized representatives of Landlord, to enter the Premises in the presence of
an employee of Tenant at all reasonable times on reasonable advance notice for
the purpose of inspecting the same; provided, however, in emergency
circumstances Landlord may inspect the Premises without advance notice and
whether or not in the presence of an employee of Tenant. Any such inspections
shall be solely for Landlord's purposes and may not be relied upon by Tenant or
any other person.
SECTION 18.2 SIGNS. Tenant agrees to permit Landlord and any
-----
authorized representative of Landlord to enter the Premises at all reasonable
times during business hours on reasonable advance notice to exhibit the same for
the purpose of sale, mortgage or lease, and during the final Lease Year of the
Term hereof, Landlord may display on the Premises customary "For Sale" or "For
Rent" signs.
ARTICLE XIX
-----------
FIXTURES
--------
SECTION 19.1 BUILDING FIXTURES. All improvements and all plumbing,
-----------------
heating, lighting, electrical and air conditioning fixtures and equipment, and
other articles of personal property used in the operation of the Premises (as
distinguished from operations incident to the business of Tenant), whether or
not attached or affixed to the Premises ("Building Fixtures"), shall be and
remain a part of the Premises and shall constitute the property of Landlord,
except as otherwise provided in Section 12.2 hereof with respect to Alterations.
SECTION 19.2 TENANT'S EQUIPMENT. All of Tenant's trade fixtures and
------------------
all personal property, fixtures, apparatus, machinery and equipment now or
hereafter located upon the Premises, other than Building Fixtures, as shall be
and remain the personal property of Tenant, and the same are herein referred to
as "Tenant's Equipment."
SECTION 19.3 REMOVAL OF TENANT'S EQUIPMENT. Tenant's Equipment may
-----------------------------
be removed from time to time by Tenant; provided, however, that if such removal
shall injure or damage the Premises, Tenant shall repair the damage and place
the Premises in the same condition as it would have been if such Tenant's
Equipment had not been installed.
ARTICLE XX
----------
DEFAULT
-------
SECTION 20.1 EVENTS OF DEFAULT. Tenant agrees that any one or more
-----------------
of the following events shall be considered "Events of Default" as said term is
used herein:
(a) If an order, judgment or decree shall be entered by any
court adjudicating Tenant a bankrupt or insolvent, or approving a petition
seeking reorganization of
15
Tenant or appointing a receiver, trustee or liquidator of Tenant, or of all
or a substantial part of its assets, and such order, judgment or decree
shall continue unstayed and in effect for any period of sixty (60) days; or
(b) Tenant shall file an answer admitting the material
allegations of a petition filed against Tenant in any bankruptcy,
reorganization or insolvency proceeding or under any laws relating to the
relief of debtors, readjustment or indebtedness, reorganization,
arrangements, composition or extension; or
(c) Tenant shall make any assignment for the benefit of
creditors or shall apply for or consent to the appointment of a receiver,
trustee or liquidator of Tenant, or any of the assets of Tenant; or
(d) Tenant shall file a voluntary petition in bankruptcy, or
shall admit in writing its inability to pay its debts as they come due, or
shall file a petition or an answer seeking reorganization or arrangement
with creditors or take advantage of any insolvency law; or
(e) A decree or order appointing a receiver of the property of
Tenant shall be made and such decree or order shall not have been vacated
within sixty (60) days from the date of entry or granting thereof; or
(f) Tenant shall vacate the Premises or abandon same during the
Term hereof; or
(g) Tenant shall default in making any payment of Rent or other
payment required to be made by Tenant hereunder within ten (10) days of
when due as herein provided; or
(h) Tenant shall be in default in the performance of or
compliance with any of the agreements, terms, covenants or conditions in
this Lease other than those referred to in the foregoing subparagraphs (a)
through (g) of this Section for a period of thirty (30) days after notice
from Landlord to Tenant specifying the items in default, or in the case of
a default which cannot, with due diligence, be cured within said thirty
(30)-day period, Tenant fails to proceed within said thirty (30)-day period
to cure the same and thereafter to prosecute the curing of such default
with due diligence (it being intended in connection with a default not
susceptible of being cured with due diligence within said thirty (30)-day
period that the time of Tenant within which to cure the same shall be
extended for such period as may be necessary to complete the same with all
due diligence).
Upon the occurrence of any one or more of such Events of Default,
Landlord may at its election terminate this Lease or terminate Tenant's right to
possession only, without terminating this Lease. Upon termination of this Lease
or of Tenant's right to possession, Tenant shall immediately surrender
possession and vacate the Premises, and deliver possession thereof to Landlord,
and Landlord or Landlord's agents may immediately or any time thereafter without
notice, re-enter the Premises and remove all persons and all or any property
therefrom, either by any suitable action or proceeding at law or equity, without
being liable in indictment, prosecution or damages, therefor, and repossess and
enjoy the Premises, together with the right to receive all income of, and from,
the Premises.
Upon termination of this Lease, Landlord shall be entitled to recover
as liquidated damages, because the parties hereto recognize that as of the date
hereof actual damages are not ascertainable and are of imprecise calculation and
not as a penalty, all Rent and other sums due and payable by Tenant through the
date of termination
16
plus (i) an amount equal to sixty percent (60%) of the Rent and other sums
provided herein to be paid by Tenant for the residue of the Term, and (ii) the
costs of performing any other covenants to be performed by Tenant.
If Landlord elects to terminate Tenant's right to possession only,
without terminating this Lease, Landlord may, at Landlord's option, enter into
the Premises, remove Tenant's signs and other evidences of tenancy, and take and
hold possession thereof as hereinabove provided, without such entry and
possession terminating this Lease or releasing Tenant, in whole or in part, from
Tenant's obligations to pay the Rent hereunder for the full Term or from any
other obligations of Tenant under this Lease. Landlord shall use commercially
reasonably efforts to relet all or any part of the Premises for such rent and
upon terms as are commercially reasonable (including the right to relet the
Premises for a term greater or lesser than that remaining of the Term of
premises and the right to relet the Premises as a part of a larger area, the
right to change the character or use made of the Premises and the right to grant
concessions of free rent). For the purpose of such reletting, Landlord may
decorate or make any repairs, changes, alterations, or additions in or to the
Premises that may be reasonably necessary or desirable. If Landlord is unable
to relet the Premises after using such commercially reasonably efforts to do so,
Landlord shall have the right to terminate this Lease, in which event, Tenant
shall pay to Landlord liquidated damages (because the parties hereto recognize
that as of the date hereof actual damages are not ascertainable and are of
imprecise calculation and not as a penalty) equal to sixty percent (60%) of the
Rent, and other sums provided herein to be paid by Tenant for the remainder of
the Term. If the Premises are relet and sufficient sums shall not be realized
from such reletting after payment of all reasonable expenses of such
decorations, repairs, changes, alterations, additions and the expenses of
repossession and such reletting, and the collection of the Rent herein provided
and other payments required to be made by Tenant under the provisions of this
Lease for the remainder of the Term of this Lease then, in such event, Tenant
shall pay to Landlord on demand any such deficiency and Tenant agrees that
Landlord may file suit to recover any sums falling due under the terms of this
Section from time to time, and all costs and expenses of Landlord, including
attorneys' fees, incurred in connection with any such suit shall be paid by
Tenant.
SECTION 20.2 WAIVERS. Tenant hereby expressly waives, so far as
-------
permitted by law, the service of any notice of intention to re-enter provided
for in any statute, and except as is herein otherwise provided. Tenant for and
on behalf of itself and all persons claiming through or under Tenant, also
waives any and all rights of redemption or re-entry or repossession 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. The terms "enter," "re-enter," "entry" or "re-
entry" as used in this Lease are not restricted to their technical legal
meanings.
SECTION 20.3 BANKRUPTCY. If Landlord shall not be permitted to
----------
terminate this Lease, as provided in this Article XX because of the provisions
of the United States Code relating to Bankruptcy, as amended (the "Bankruptcy
Code"), then Tenant as a debtor-in-possession or any trustee for Tenant agrees
promptly, within no more than sixty (60) days after the filing of the bankruptcy
petition, to assume or reject this Lease. In such event, Tenant or any trustee
for Tenant may only assume this Lease if: (a) it cures or provides adequate
assurances that the trustee will promptly cure any default hereunder; (b)
compensates or provides adequate assurance that Tenant will promptly compensate
Landlord of any actual pecuniary loss to Landlord resulting from Tenant's
default; and (c) provides adequate assurance of performance during the fully
stated term hereof of all of the terms, covenants, and provisions of this Lease
to be performed by Tenant. In no event after the assumption of this Lease shall
any then-existing default remain uncured for a period in excess of the earlier
of ten (10) days or the time period set forth herein. Adequate assurance of
performance of this Lease, as set forth hereinabove, shall include, without
limitation, adequate assurance (i) of the source of rent reserved hereunder; and
(ii) that the assumption of this Lease will not breach any provision hereunder.
If Tenant assumes this Lease and proposes to assign the same pursuant
to the provisions of 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, setting forth: (i) the name
and address of such person; (ii) all of the terms and conditions of such offer;
and (iii) the adequate assurance to be
17
provided Landlord to assure such person's future performance under this Lease,
including, without limitation, the assurance referred to in Section 365(b)(3) of
the Bankruptcy Code, shall be given to Landlord by the Tenant no later than
twenty (20) days after receipt by the Tenant but in any event no later than ten
(10) days prior to the date that the Tenant shall make application to a court of
competent jurisdiction for authority and approval to enter into such assignment
and assumption, and Landlord shall thereupon have the prior right and option, to
be exercised by notice to the Tenant given at any time prior to the effective
date of such proposed assignment, to accept an assignment of this Lease upon the
same terms and conditions and for the same consideration, if any, as the bona
fide offer made by such person, less any brokerage commissions which may be
payable out of the consideration to be paid by such person for the assignment of
this Lease.
If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code any and all monies or other considerations
payable or otherwise to be delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of Tenant or of
the estate of the Tenant within the meaning of the Bankruptcy Code. Any and all
monies or other considerations constituting the Landlord's property under the
preceding sentence not paid or delivered to the Landlord shall be held in trust
for the benefit of Landlord and shall be promptly paid to the Landlord.
Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be conclusively deemed without further
act or deed to have assumed all of the obligations arising under this Lease on
and after the date of such assignment. Any such assignee shall upon demand
execute and deliver to Landlord an instrument confirming such assumption. Any
such assignee shall be permitted to use the Leased Premises only for the Use.
Nothing contained in this Section shall, in any way, constitute a
waiver of the provisions of Article XV of this Lease relating to alienation.
Tenant shall not, by virtue of this Section, have any further rights relating to
assignment other than those granted in the Bankruptcy Code. Notwithstanding
anything in this Lease to the contrary, all amounts payable by Tenant to or on
behalf of Landlord under this Lease, whether or not expressly denominated as
rent, shall constitute rent for the purpose of Section 501(b)(6) or any
successive section of the Bankruptcy Code.
ARTICLE XXI
-----------
LANDLORD'S PERFORMANCE OF TENANT'S COVENANTS
--------------------------------------------
SECTION 21.1 LANDLORD'S PERFORMANCE OF TENANT'S COVENANTS. Should
--------------------------------------------
Tenant at any time fail to do any act or make any payment required to be done or
made by it under the provisions of this Lease, Landlord, at its option, may (but
shall not be required to), upon notice to Tenant (except in emergency
circumstances) do the same or cause the same to be done, and the amounts paid
and expenses incurred by Landlord in connection therewith shall be so much
Additional Rent due on the next rent date after such payment, together with
interest at the Lease Interest Rate from the date of payment.
ARTICLE XXII
------------
EXERCISE OF REMEDIES
--------------------
SECTION 22.1 CUMULATIVE REMEDIES. No remedy contained herein or
-------------------
otherwise conferred upon or reserved to Landlord, shall be considered exclusive
of any other remedy, but the same shall be cumulative and shall be in addition
to every other remedy given herein, now or hereafter existing at law or in
equity or by statute,
18
and every power and remedy given by this Lease to Landlord may be exercised from
time to time and as often as occasion may arise or as may be deemed expedient.
No delay or omission of Landlord to exercise any right or power arising from any
default shall impair any such right or power or shall be construed to be a
waiver of any such default or an acquiescence therein.
SECTION 22.2 NO WAIVER. No waiver of any breach of any of the
---------
covenants of this Lease shall be construed, taken or held to be a waiver of any
other breach, or a waiver, acquiescence in or consent to any further or
succeeding breach of the same covenant. The acceptance by Landlord of any
payment of Rent or other sums payable hereunder after the termination by
Landlord of this Lease or of Tenant's right to possession hereunder shall not,
in the absence of agreement in writing to the contrary by Landlord, be deemed to
restore this Lease or Tenant's right to possession hereunder, as the case may
be, but shall be construed as a payment on account and not in satisfaction of
damages due from Tenant to Landlord. Receipt of Rent by Landlord, with
knowledge of any breach of this Lease by Tenant or of any default by Tenant in
the observance or performance of any of the conditions or covenants of this
Lease, shall not be deemed to be a waiver of any provision of this Lease.
SECTION 22.3 EQUITABLE RELIEF. In the event of any breach or
----------------
threatened breach by Tenant of any of the agreements, terms, covenants or
conditions contained in this Lease, Landlord shall be entitled to enjoin such
breach or threatened breach and shall have the right to invoke any right and
remedy 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.
ARTICLE XXXIII
--------------
SUBORDINATION TO MORTGAGES
--------------------------
SECTION 23.1 SUBORDINATION. Landlord may execute and deliver a
-------------
mortgage or trust deed in the nature of a mortgage (both sometimes referred to
as "Mortgage") against the Premises or any portion thereof. This Lease and the
rights of Tenant hereunder, shall automatically, and without the requirement of
the execution of any further documents, be and are hereby made expressly subject
and subordinate at all times to the lien of any Mortgage now or hereafter
encumbering any portion of the Project, and to all advances made or hereafter to
be made upon the security thereof, provided that the holder of said Mortgage
agrees in writing not to disturb the rights of Tenant under this Lease so long
as Tenant is not in default hereunder. Notwithstanding the foregoing, Tenant
agrees to execute and deliver such instruments subordinating this Lease to the
lien of any such Mortgage as may be requested in writing by Landlord from time
to time. Notwithstanding anything to the contrary contained herein, any
mortgagee under a Mortgage may, by notice in writing to the Tenant, subordinate
its Mortgage to this Lease. Landlord shall use reasonable efforts to cause the
holder of any existing Mortgage to agree in writing with Tenant that it will not
disturb the rights of Tenant under this Lease so long as Tenant is not in
default hereunder.
SECTION 23.2 MORTGAGE PROTECTION. Tenant agrees to give the
-------------------
mortgagee under any Mortgage, by registered or certified mail, a copy of any
notice of default served upon the Landlord by Tenant, provided that prior to
such notice Tenant has received notice (by way of service on Tenant of a copy of
an assignment of rents and leases, or otherwise) of the address of such
mortgagee and containing a request therefor. Tenant further agrees that if
Landlord shall have failed to cure such default within the time provided for in
this Lease, then said mortgagee shall have an additional thirty (30) days after
receipt of notice thereof within which to cure such default or, if such default
cannot be cured within that time, then such additional time as may be necessary,
if, within such thirty (30) days, any mortgagee has commenced and is diligently
pursuing the remedies necessary to cure such default (including but not limited
to commencement of foreclosure proceedings, if necessary to effect such cure).
Until the time allowed as aforesaid for said mortgagee to cure such defaults has
expired without cure, Tenant shall have no right to, and shall not, terminate
this Lease on account of default. This Lease may not be modified or amended so
as to reduce the rent or shorten the term, or so as to adversely affect in any
other respect to any material extent the rights
of the Landlord, nor shall this Lease be cancelled or surrendered, without the
prior written consent, in each instance, of the mortgagee.
ARTICLE XXIV
-------------
INDEMNITY AND WAIVER
--------------------
SECTION 24.1. TENANT'S INDEMNITY. Tenant will protect, indemnify and
------------------
save Landlord, its partners, shareholders, employees, officers, directors,
agents and their respective successors and assigns harmless (if Landlord is a
trustee, the term "Landlord", for the purposes of this Article XXIV only, shall
include the trustee and all beneficiaries of the trust) from and against all
liabilities, obligations, claims, damages, penalties, causes of action, costs
and expenses (including without limitation, reasonable attorneys' fees and
expenses) imposed upon, incurred by or asserted against Landlord by reason of:
(a) any accident, injury to or death of persons or loss of or damage to property
occurring on or about the Premises or any part thereof or the adjoining
properties, sidewalks, curbs, streets or ways, or resulting from an act or
omission of Tenant or anyone claiming by, through or under Tenant; (b) Tenant's
use, occupation, condition or operation of the Premises or any part thereof; or
(c) performance of any labor or services or the furnishing of any materials or
other property by or on behalf of Tenant in respect of the Premises or any part
thereof. In case any action, suit or proceeding is brought against Landlord by
reason of any such occurrence. Tenant will, at Tenant's sole expense, resist
and defend such action, suit or proceeding, or cause the same to be resisted and
defended.
SECTION 24.2. WAIVER OF CLAIMS. Tenant waives all claims it may have
----------------
against Landlord and Landlord's agents for damage or injury to person or
property sustained by Tenant or any persons claiming through Tenant or by any
occupant of the Premises, or by any other person, resulting from any part of the
Premises becoming out of repair, or resulting from any accident on or about the
Premises or resulting directly or indirectly from any act or neglect of any
person other than the negligent act or omission of Landlord and its agents.
This Section 24.2. shall include, but not by way of limitation, damage caused by
water, snow, frost, steam, excessive heat or cold, sewage, gas, odors or noise,
or caused by bursting or leaking pipes or plumbing fixtures, and shall apply
equally whether any such damage results from the act or neglect of Tenant or of
any other person (excluding Landlord), and whether such damage be caused or
result from anything or circumstance above mentioned or referred to, or to any
other thing or circumstance whether of a like nature or of a wholly different
nature. All Tenant's Equipment and other personal property belonging to Tenant
or any occupant of the Premises that is in or on any part of the Premises shall
be there at the risk of Tenant or of such other person only, and Landlord shall
not be liable for any damage thereto other than the negligent act or omission of
Landlord and its agents or for the theft or misappropriation thereof.
ARTICLE XXV
------------
SURRENDER
---------
SECTION 25.1. CONDITION. Upon the termination of this Lease whether
---------
by forfeiture, lapse of time or otherwise, or upon the termination of Tenant's
right to possession of the Premises, Tenant will at once surrender and deliver
up the Premises to Landlord, broom clean, in good order, condition and repair,
reasonable wear and tear and damage by casualty excepted. "Broom clean" means
free from all debris, dirt, rubbish, personal property of Tenant, oil, grease,
tire tracks or other substances. Any damage caused by removal of Tenant from
the Premises, including any damages caused by removal of tenant's equipment as
herein defined, shall be repaired and paid for by Tenant prior to the expiration
of the Term.
20
All Alterations temporary or permanent, excluding Tenant's Equipment,
in or upon the Premises placed there by Tenant, shall become Landlord's property
and shall remain upon the Premises upon such termination of this Lease by lapse
of time or otherwise, without compensation or allowance or credit to Tenant,
unless Landlord requests their removal at the time Tenant requests Landlord to
consent to their installation. If Landlord so requests removal of said
additions, hardware, alterations or improvements and Tenant does not make such
removal by the termination of this Lease, or within ten (10) days after such
request, whichever is later, Landlord may remove the same and deliver the same
to any other place of business of Tenant or warehouse same, and Tenant shall pay
the reasonable cost of such removal, delivery and warehousing to Landlord on
demand.
SECTION 25.2. REMOVAL OF TENANT'S EQUIPMENT. Upon the termination of
-----------------------------
this Lease by lapse of time, or otherwise, Tenant may remove Tenant's Equipment
provided, however, that Tenant shall repair any injury or damage to the Premises
which may result from such removal. If Tenant does not remove Tenant's
Equipment from the Premises prior to the end of the Term, however ended,
Landlord may, at its option, remove the same and deliver the same to any other
place of business of Tenant or warehouse the same, and Tenant shall pay the
reasonable cost of such removal (including the repair of any injury or damage to
the Premises resulting from such removal), delivery and warehousing to Landlord
on demand, or Landlord may treat Tenant's equipment as having been conveyed to
Landlord with this Lease as a Xxxx of Sale, without further payment or credit by
Landlord to Tenant.
SECTION 25.3. HOLDOVER. If Tenant retains possession of the Premises
--------
or any part thereof after the termination of the Term, by lapse of time and
otherwise, then Tenant shall pay to Landlord monthly Base Rent, at one hundred
fifty percent (150%) of the rate payable for the month immediately preceding
said holding over (along with increases for Additional Rent which Landlord may
reasonably estimate), computed on a per-month basis, for each month or part
thereof (without reduction for any such partial month) that Tenant thus remains
in possession, and in addition thereto, Tenant shall pay Landlord all damages,
consequential as well as direct, sustained by reason of Tenant's retention of
possession. Alternatively, at the election of Landlord expressed in a written
notice to Tenant and not otherwise, such retention of possession shall
constitute a renewal of this Lease for one (1) year, at a rental equal to one
hundred twenty percent (120%) of the Base Rent during the previous year. The
provisions of this paragraph do not exclude the Landlord's rights of re-entry or
any other right hereunder. Any such extension or renewal shall be subject to
all other terms and conditions herein contained.
ARTICLE XXVI
------------
COVENANT OF QUIET ENJOYMENT
---------------------------
SECTION 26.1. COVENANT OF QUIET ENJOYMENT. Landlord covenants that
---------------------------
Tenant, on paying the Rent and all other charges payable by Tenant hereunder,
and on keeping, observing and performing all the other terms,covenants,
conditions, provisions and agreements herein contained on the part of Tenant to
be kept, observed and performed, all of which obligations of Tenant are
independent of Landlord's obligations hereunder, shall, during the Term,
peaceably and quietly have, hold and enjoy the Premises subject to the terms,
covenants, conditions, provisions and agreement hereof free from hindrance by
Landlord or any person claiming by, through or under Landlord.
ARTICLE XXVII
-------------
NO RECORDING
------------
SECTION 27.1. NO RECORDING. This Lease shall not be recorded.
------------
21
PAGE>
ARTICLE XXVIII
--------------
NOTICES
-------
SECTION 28.1. NOTICES. All notices, consents, approvals to or
-------
demands upon or by Landlord or Tenant desired or required to be given under the
provisions hereof, shall be in writing. Any notices or demands from Landlord to
Tenant shall be deemed to have been duly and sufficiently given if a copy
thereof has been personally served, forwarded by expedited messenger or
recognized overnight courier service with evidence of delivery or mailed by
United States registered or certified mail in an envelope properly stamped and
addressed to Tenant at Tenant's Mailing Address, or at such other address as
Tenant may theretofore have furnished by written notice to Landlord. Any
notices or demands from Tenant to Landlord shall be deemed to have been duly and
sufficiently given if forwarded by expedited messenger or recognized overnight
courier service with evidence of delivery or mailed by United States registered
or certified mail in an envelope properly stamped and addressed to Landlord at
Landlord's Mailing Address, with a copy to Xxxx X. Xxxxxxxx, Xxxx Xxxxxxx &
Xxxxxxxx, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, or at such
other address as Landlord may theretofore have furnished by written notice to
Tenant. The effective date of such notice shall be the date of actual delivery,
except that if delivery is refused, the effective date of notice shall be the
date delivery is refused.
ARTICLE XXIX
------------
COVENANTS RUN WITH LAND
-----------------------
SECTION 29.1. COVENANTS. All of the covenants, agreements,
---------
conditions and undertakings in this Lease contained shall extend and inure to
and be binding upon the heirs, executors, administrators, successors and assigns
of the respective parties hereto, the same as if they were in every case
specifically named, and shall be construed as covenants running with the Land,
and wherever in this Lease reference is made to either of the parties hereto, it
shall be held to include and apply to, wherever applicable, the heirs,
executors, administrators, successors and assigns of such party. Nothing herein
contained shall be construed to grant or confer upon any person or persons,
firm, corporation or governmental authority, other than the parties hereto,
their heirs, executors, administrators, successors and assigns, any right, claim
or privilege by virtue of any covenant, agreement, condition or undertaking in
this Lease contained.
SECTION 29.2. RELEASE OF LANDLORD. The term "Landlord", as used in
-------------------
this Lease, so far as covenants or obligations on the part of Landlord are
concerned, shall be limited to mean and include only the owner or owners at the
time in question of the fee of the Project, and in the event of any transfer or
transfers of the title to such fee, Landlord herein named (and in the case of
any subsequent transfers or conveyances, the then grantor) shall be
automatically freed and relieved, from and after the date of such transfer or
conveyance, of all personal liability as respects the performance of any
covenants or obligations on the part of Landlord contained in this Lease
thereafter to be performed; provided that any funds in the hands of such
Landlord or the then grantor at the time of such transfer, in which Tenant has
an interest, shall be turned over to the grantee, and any amount then due and
payable to Tenant by Landlord or the then grantor under any provisions of this
Lease, shall be paid to Tenant.
ARTICLE XXX
------------
ENVIRONMENTAL MATTERS
---------------------
SECTION 30.1. HAZARDOUS MATERIALS. Tenant agrees that it will not
-------------------
use, handle, generate, treat, store or dispose of, or permit the use, handling,
generation, treatment, storage or disposal of any Hazardous Materials
22
(as hereinafter defined) in, on, under, around or above the Premises or the
Project now or at any future time and will indemnify, defend and save Landlord
harmless from any and all actions, proceedings, claims, costs, expenses and
losses of any kind, including, but not limited to, those arising from injury to
any person, including death, damage to or loss of use or value of real or
personal property, and costs of investigation and cleanup or other
environmental remedial work, which may arise in connection with the existence of
Hazardous Materials on the Premises occurring or caused in whole or in part
during the Term hereof. The term "Hazardous Materials", when used herein, shall
include, but shall not be limited to, any substances, materials or wastes that
are regulated by any local governmental authority, the state where the Premises
or the Project is located, or the United States of America because of toxic,
flammable, explosive, corrosive, reactive, radioactive or other properties that
may be hazardous to human health or the environment, including without
limitation, above or underground storage tanks, flammables, explosives,
radioactive materials, radon, petroleum and petroleum products, asbestos, urea
formaldehyde foam insulation, methane, lead-based paint, polychlorinated
biphenyl compounds, hydrocarbons or like substances and their additives or
constituents, pesticides and toxic or hazardous substances on materials of any
kind, including without limitation, substances now or hereafter defined as
"hazardous substances," "hazardous materials," "toxic substances" or "hazardous
wastes" in the following statutes, as amended: the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42 U.S.C. (S)9601, et seq.,
-- ----
"CERCLA"); the Hazardous Materials Transportation Act (49 U.S.C. (S)1801, et
--
seq., "HMTA"); the Toxic Substances Control Act (15 U.S.C. (S)2601, et seq.,
---- -- ----
"TSCA"); the Resource Conservation and Recovery Act (42 U.S.C. (S)6901, et seq.,
-- ----
"RCRA"); the Clean Air Act (42 U.S.C. (S)7401 et seq., "CAA"); the Clean Water
-- ----
Act (33 U.S.C. (S)1251, et seq., "CWA"); the Rivers and Harbors Act, (33 U.S.C.
-- ----
(S)401 et seq., "RHA"); the Emergency Planning and Community Right-to-Know Act
-- ----
of 1986 (41 X.X.X. (X)00000 et seq., "EPCRA"), the Federal Insecticide,
-- ----
Fungicide and Rodenticide Act (7 U.S.C. (S)136 to 136y, "FIFRA"); the Oil
Pollution Act of 1990 (33 U.S.C. (S)2701 et seq., "OPA"); and the Occupational
-- ----
Safety and Health Act (29 U.S.C. (S)651 et seq., "OSHA"); and any so-called
-- ----
"Superlien law"; and in the regulations promulgated pursuant thereto, and any
other applicable federal, state or local law, common law, code, rule,
regulation, order, policy or ordinance, presently in effect or hereafter
enacted, promulgated or implemented, or any other applicable governmental
regulation imposing liability or standards of conduct concerning any hazardous,
toxic or dangerous substances, waste or material, now or hereafter in effect.
SECTION 30.2. CONDUCT OF TENANT. If Tenant, in the current operation
-----------------
of its business or otherwise with the prior written authorization of Landlord,
which authorization may be granted or denied by Landlord in its sole and
absolute discretion, generates, uses, transports, stores, treats or disposes of
any Hazardous Materials:
(a) Tenant shall, at its own cost and expense, comply with all
applicable environmental laws relating to such Hazardous Materials;
(b) Tenant shall (i) not dispose of any Hazardous Materials in
dumpsters or trash containers; (ii) not discharge any Hazardous Materials
into drains or sewers; (iii) not cause or allow the release, discharge,
emission or run-off of any Hazardous Materials to air, to surface waters,
to the Land, to ground water, whether directly or indirectly; (iv) at
Tenant's own cost and expense, arrange for the lawful transportation and
off-site disposal of all Hazardous Materials generated by Tenant; (v)
provide secondary containment around all Hazardous Materials storage
containers, storage facilities and above ground storage tanks; (vi) conduct
all necessary environmental inspections, such as, but not limited to,
asbestos inspections prior to any renovation or demolition, as required by
40 CFR Part 61 and provide copies of all such reports to the Landlord;
(vii) comply with all reporting requirements under any local, state or
federal ordinance, statute or regulation, such as, but not limited to,
toxics inventory reporting under the Emergency Planning and Community
Right-to-Know Act, the provisions under 40 CFR Part 61, or various
regulations controlling the emissions into the atmosphere of volatile
organic compounds and provide copies of all such reports and notifications
to Landlord; and (viii) use only highly skilled people to address all
environmental issues associated with the leasehold, and that such people
and all employees of the Tenant shall receive all required training or
certification under any local, state or federal law specifically mentioned
or alluded to in Section 30.1 of this Lease;
23
(c) Tenant shall promptly provide Landlord with copies of all
communications, permits or agreements with any governmental authority or
agency (federal, state or local) or any private entity relating in any way
to the violation or alleged violation of any environmental laws or to any
violation of Tenant's obligations under subparagraph (b) above;
(d) Landlord and Landlord's agents and employees shall have the
right to enter the Premises and/or conduct at Landlord's expense
appropriate tests for the purpose of ascertaining that Tenant complies with
all applicable laws, rules or permits relating in any way to the presence
of Hazardous Materials on the Premises and/or the Project; and
(e) Upon the written request of Landlord no more frequently than
once every Lease Year, or on any other occasion in the event that Landlord
has reason to believe an environmental problem exists at the Premises.
Tenant shall provide Landlord the results of appropriate tests of air,
water and soil to demonstrate (i) that Tenant is in compliance with all
applicable laws, rules or permits relating in any way to the presence of
any Hazardous Materials on the Premises and (ii) the lack of any releases,
discharges or emissions from the Premises.
If the presence, release, threat of release, placement on or in the
Premises and/or the Project occurs or is caused in whole or in part during the
Term of this Lease, or the generation, transportation, storage, treatment, or
disposal at the Premises and/or the Project occurs or is caused in whole or in
part during the Term of this Lease of any Hazardous Materials gives rise to
liability (including, but not limited to, a response action, remedial action, or
removal action) under any environmental laws or common law theory, including,
but not limited to nuisance, strict liability, negligence and trespass, Tenant
shall promptly take any and all remedial and removal action necessary to clean
up the Premises and/or the Project in accordance with applicable environmental
laws, except to the extent any of the foregoing is caused by Landlord or any
other tenant in the Project.
SECTION 30.3. TENANT'S ENVIRONMENTAL INDEMNITY. Tenant does hereby
--------------------------------
indemnify, defend and hold harmless Landlord and its agents and their respective
officers, directors, beneficiaries, lenders, shareholders, partners, agents and
employees and their respective successors and assigns from all fines, suits,
procedures, claims liabilities, damages and actions of every kind, and all costs
associated therewith (including reasonable attorneys', experts' and consultants'
fees and costs of testing) arising out of or in any way connected with any
deposit, spill, discharge or other release of Hazardous Materials that occurs or
is caused in whole or in part during the Term of this Lease, at or from the
Premises and/or the Project (except any deposit, spill, discharge or other
release caused by Landlord or any other tenant of the Project), or which arises
at any time from (i) Tenant's failure to provide all information, make all
submissions, and take all steps required by all applicable governmental
authorities; (ii) any Hazardous Materials on, in, under or affecting all or any
portion of the Premises and/or the Project or the groundwater as a result of
events that took place during the Term of this Lease (except any deposit, spill,
discharge or other release caused by Landlord or any other tenant of the
Project); (iii) any violation by Tenant or claim of a violation by Tenant of any
governmental law, statute, rule, regulation, ordinance, requirement, decree,
order or judgment now or hereafter in effect relating to public health, safety,
protection of the environment or any Hazardous Material; (iv) the imposition of
any lien for damages caused by, or the recovery of any costs for, the
remediation cleanup of Hazardous Material as a result of events that took place
during the Term of this Lease (except any deposit, spill, discharge or other
release caused by Landlord or any other tenant of the Project); (v) costs of
removal of any and all Hazardous Material from all or any portion of the
Premises and/or the Project, which Hazardous Material were placed on the
Premises and/or the Project during the Term of this Lease by Tenant or any
officer, director, shareholder, partner, member, employee, agent, invitee,
contractor, licensee, assignee, sublessee or successor of Tenant or anyone
acting by, through or under any of the foregoing parties; (vi) costs incurred to
comply, in connection with all or any portion of the Premises and/or the
Project, with all governmental regulations with respect to Hazardous Materials
on, in, under or affecting the Premises and/or the Project, which Hazardous
Materials were placed on the Premises and/or the Project by Tenant or any
officer, director, shareholder, partner, member, employee, agent, invitee,
contractor, licensee, assignee, sublessee or successor of Tenant or anyone
acting by, through or under
24
any of the foregoing parties during the Term of this Lease; or (vii) any spills,
discharges, leaks, escapes, releases, dumping, transportation, storage,
treatment or disposal of any Hazardous Substances which occur during the Term of
this Lease, but only to the extent that such Hazardous Materials originated from
or were or are located on the Premises and/or the Project and not caused by
Landlord or any other tenant of the Project. Tenant's obligations and
liabilities under this Article XXX shall survive the expiration of this Lease.
SECTION 30.4. LANDLORD'S RIGHT TO ENTER PREMISES. Landlord shall have
----------------------------------
the right and privilege (but not the obligation) to enter the Premises at
reasonable times, upon reasonable prior notice (except in the event of an
emergency) to make inspections and other tests (including, but not limited to,
drilling) of its condition, including, but not limited to, air, soil and
groundwater sampling and other inspections for Hazardous Materials. In the event
any Hazardous Materials are discovered during the inspections in violation of
this Lease, Tenant shall reimburse Landlord for the cost of all inspections and
tests in addition to its liability under Section 30.3.
SECTION 30.5. TENANT'S NOTIFICATION REQUIREMENTS. Notwithstanding
----------------------------------
anything to the contrary contained in Article XXVIII of this Lease, Tenant
agrees to provide immediate telephonic notification to Landlord in the event of
any release of Hazardous Materials in any manner within or outside of the
Premises. Tenant shall further utilize its reasonable efforts to report to
Landlord any other release of Hazardous Materials actually known to Tenant
within or outside of the Premises by any party other than Tenant.
ARTICLE XXXI
-------------
SECURITY DEPOSIT
----------------
SECTION 31.1. SECURITY DEPOSIT. Tenant agrees to deposit with
----------------
Landlord, upon the execution of this Lease, the Security Deposit as security for
the full and faithful performance by Tenant of each and every term, provision,
covenant and condition of this Lease. If Tenant defaults beyond any applicable
grace and/or cure period in respect to any of the terms, provisions, covenants
and conditions of this Lease including, but not limited to, payment of all
rental and other sums required to be paid by Tenant hereunder, Landlord may use,
apply or retain the whole or any part of the Security Deposit for the payment of
such rent in default, for any sum which Landlord may expend or be required to
expend by reason of Tenant's default including, without limitation, any damages
or deficiency in the reletting of the Premises, whether such damages or
deficiency shall have accrued before or after re-entry by Landlord. If any of
the Security Deposit shall be so used, applied or retained by Landlord at any
time or from time to time, Tenant shall promptly, in each such instance, within
five (5) days of written demand therefor by Landlord, pay to Landlord such
additional sums as may be necessary to restore the Security Deposit to the
original amount set forth in the first Section of this Lease. If Tenant shall
fully and faithfully comply with all the terms, provisions, covenants and
conditions of this Lease, the Security Deposit, or the balance thereof, shall be
returned to Tenant after the following: (a) the time fixed as the expiration of
the Term of this Lease; (b) the removal of Tenant from the Premises; (c) the
surrender of the Premises by Tenant to Landlord in accordance with this Lease;
and (d) thirty (30) days after the Termination Date. Except as otherwise
required by law, Tenant shall not be entitled to any interest on the aforesaid
Security Deposit. In the absence of evidence satisfactory to Landlord of an
assignment of the right to receive the Security Deposit or the remaining balance
thereof, Landlord may return the security deposit to the original Tenant,
regardless of one or more assignments of this Lease.
25
ARTICLE XXXII
-------------
MISCELLANEOUS
-------------
SECTION 32.1. CAPTIONS. The captions of this Lease are for
--------
convenience only and are not to be construed as part of this Lease and shall not
be construed as defining or limiting in any way the scope or intent of the
provisions hereof.
SECTION 32.2. SEVERABILITY. If any covenant, agreement or condition
------------
of this Lease or the application thereof to any person, firm or corporation or
to any circumstances, shall to any extent be invalid or unenforceable, the
remainder of this Lease, or the application of such covenant, agreement or
condition to persons, firms or corporations or to circumstances other than those
as to which it is invalid or unenforceable, shall not be affected thereby. Each
covenant, agreement or condition of this Lease shall be valid and enforceable to
the fullest extent permitted by law.
SECTION 32.3. APPLICABLE LAW. This Lease shall be construed and
--------------
enforced in accordance with the laws of the state where the Premises are
located.
SECTION 32.4. AMENDMENTS IN WRITING. None of the covenants, terms or
---------------------
conditions of this Lease, to be kept and performed by either party, shall in any
manner be altered, waived, modified, changed or abandoned, except by a written
instrument, duly signed, acknowledged and delivered by the other party.
SECTION 32.5. RELATIONSHIP OF PARTIES. Nothing contained herein
-----------------------
shall be deemed or construed by the parties hereto, nor by any third party, as
creating the relationship of principal and agent or of partnership, or of joint
venture by the parties hereto, it being understood and agreed that no provision
contained in this Lease nor any acts of the parties hereto shall be deemed to
create any relationship other than the relationship of Landlord and Tenant.
SECTION 32.6. BROKERAGE. Each of Landlord and Tenant warrants to the
---------
other that it has no dealings with any real estate broker or agent in connection
with this lease other than Landlord's Broker and Tenant's Broker, and each of
Landlord and Tenant covenants to pay, hold harmless and indemnify the other from
and against any and all cost, expense or liability for any compensation,
commissions and charges claimed by any other broker or other agent with respect
to this Lease or the negotiation thereof arising out of any breach of the
foregoing warranty.
SECTION 32.7. NO ACCORD AND SATISFACTION. No payment by Tenant or
--------------------------
receipt by Landlord of a lesser amount than the monthly rent herein stipulated
and additional rent shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any other remedy
in this Lease provided.
SECTION 32.8. JOINT EFFORT. The preparation of this Lease has been a
------------
joint effort of the parties hereto and the resulting documents shall not, solely
as a matter of judicial construction, be construed more severely against one of
the parties than the other.
SECTION 32.9. WAIVER OF JURY TRIAL. Tenant hereby waives a jury
--------------------
trial in action brought by Landlord hereunder. If Landlord commences any
proceeding for nonpayment of rent or any other sum due to be paid by Tenant
under this Lease, Tenant hereby agrees that Tenant will not impose any
counterclaim of any nature or description in any such proceeding, provided
however, that such agreement of Tenant shall not be construed as a waiver of the
right of Tenant to assert such claim in a separate action or actions brought by
Tenant.
26
SECTION 32.10. TIME. Time is of the essence of this Lease, and all
----
provisions herein relating thereto shall be strictly construed.
SECTION 32.11. LANDLORD'S CONSENT. Landlord's granting of any consent
------------------
under this Lease, or Landlord's failure to object to any action taken by Tenant
without Landlord's consent required under this Lease, shall not be deemed a
waiver by Landlord of its rights to require such consent for any further similar
act by Tenant. No waiver by Landlord of any other breach of the covenants of
this Lease shall be construed, taken or held to be a waiver of any other breach
or to be a waiver, acquiescence in or consent to any further or succeeding
breach of the same covenant. None of the Tenant's covenants under this Lease,
and no breach thereof, shall be waived, altered or modified except by a written
instrument executed by Landlord.
SECTION 32.12. NO PARTNERSHIP. Landlord is not, and shall not be
--------------
deemed to be, in any way or for any purpose, the partner, employer, principal,
master or agent of or with Tenant.
SECTION 32.13. LANDLORD'S LIABILITY. Notwithstanding anything to the
--------------------
contrary herein contained, there shall be absolutely no personal liability
asserted or enforceable against Landlord or on any persons, firms or entities
who constitute Landlord with respect to any of the terms, covenants, conditions
and provisions of this Lease, and Tenant shall, subject to the rights of any
mortgagee, look solely to the interest of Landlord, its successors and assigns
in the Project for the satisfaction of each and every remedy of Tenant in the
event of default by Landlord hereunder; such exculpation of personal liability
is absolute and without any exception whatsoever. If the entity constituting
Landlord is a partnership, Tenant agrees that the deficit capital account of any
such partner shall not be deemed an asset or property of said partnership.
ARTICLE XXXIII
--------------
LANDLORD'S WORK
---------------
SECTION 33.1. LANDLORD'S WORK. Landlord hereby agrees, at Landlord's
---------------
sole cost and expense, in a good and workmanlike manner, to perform the work
described in Exhibit "D", which is attached hereto and made a part hereof, to
-----------
the Premises (hereinafter collectively referred to as "Landlord's Work"). When
Landlord's Work is "substantially complete" (as hereinafter defined), then
Landlord shall so notify Tenant. It is acknowledged between the parties that
Landlord's Work shall be deemed substantially complete at such time as Landlord
has substantially completed Landlord's Work, notwithstanding Landlord may not
have completed any extra work requested by Tenant or that minor or insubstantial
portions of the construction, decoration, mechanical adjustments or other
customary "punch list" items remain to be done. Upon such notification, Tenant
shall promptly (and not later than two (2) business days after the date of
Landlord's said notice) inspect Landlord's Work and furnish to Landlord a
written statement that, with the exception of certain specified and enumerated
items (hereinafter referred to as the "Punch List"), Landlord's Work is
substantially complete. At the request of Landlord, from time to time
thereafter, Tenant shall, upon completion of items previously listed on a Punch
List, promptly furnish to Landlord a revised Punch List acknowledging completion
of said item. Landlord hereby agrees to use reasonable efforts to complete all
Punch List items within thirty (30) days of the date Landlord's Work is
substantially complete, subject to extension due to delays caused by Tenant, its
agents or employees or customary "force majeure" conditions. Landlord shall use
its best efforts to minimize interference with Tenant's use and occupancy of the
Premises during the pendency of Landlord's Work.
27
ARTICLE XXXIV
-------------
RENEWAL OPTION
--------------
SECTION 34.1. RENEWAL OPTION. Tenant shall have the option
--------------
(hereinafter referred to as the "Renewal Option") to renew the Initial Term for
all of the Premises as of the expiration date of the Initial Term, for two (2)
additional periods of three (3) Lease Years each (each of said renewals is a
"Renewal Term") upon the following terms and conditions:
A. Tenant gives Landlord written notice of its exercise of each
Renewal Option at least nine (9) months prior to the expiration of the
Term.
B. Tenant is not in default under this Lease either on the date
Tenant delivers the notice required under (A) above or at any time
thereafter prior to the commencement of the Renewal Term so exercised.
C. All of the terms and provisions of this Lease (except this
Article XXXIV) shall be applicable to the Renewal Term, except that Annual
Base Rent for each year of each Renewal Term shall be increased as provided
in Section 5.1 hereof on May 1st during each year of each Renewal Term.
SECTION 34.2. "AS IS" CONDITION. Tenant agrees to accept the
-----------------
Premises to be covered by this Lease during the Renewal Term in an "as is"
physical condition and Tenant shall not be entitled to receive any allowance,
credit, concession or payment from Landlord for the improvement thereof.
SECTION 34.3. AMENDMENT. In the event Tenant exercises a Renewal
---------
Option, Landlord and Tenant shall mutually execute and deliver an amendment to
this Lease reflecting the renewal of the Term on the terms herein provided,
which amendment shall be executed and delivered promptly after the determination
of Rent to be applicable to the first year of each Renewal Term as hereinabove
provided.
SECTION 34.4. TERMINATION. The Renewal Options herein granted shall
-----------
automatically terminate upon the earliest to occur of (i) the expiration or
termination of this Lease, (ii) the termination of Tenant's right to possession
of the Premises, (iii) any assignment or subletting by Tenant, or (iv) the
failure of Tenant to timely or properly exercise the Renewal Option.
IN WITNESS WHEREOF, the parties have executed this Lease as of the
date set forth above.
LANDLORD: CENTERPOINT PROPERTIES CORPORATION, a Maryland
--------
corporation
By: [SIGNATURE APPEARS HERE]
--------------------------------------------------
Its: COO
By: [SIGNATURE APPEARS HERE]
--------------------------------------------------
Its: CFO
28
TENANT: WINCUP HOLDINGS, L.P., a Delaware limited partnership
------
By: Wincup Holdings, Inc., its general partner
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------------
Its: SR V.P. ADMIN
By: _______________________________________________
Its:
29
EXHIBIT "A"
PREMISES
--------
[FLOOR PLAN OF LEASED PREMISES APPEARS HERE]
EXHIBIT "B"
LEGAL DESCRIPTION
-----------------
XXX 0 XX XXXX XXXXXXX XXXXXXXXXX XXXXXX XXXX XXXXX-X BEING A RESUBDIVISION OF
WEST CHICAGO INDUSTRIAL CENTER UNIT 7, BEING A SUBDIVISION OF PART OF THE WEST
1/2 OF SECTION 33, TOWNSHIP 40 NORTH, RANGE 9, EAST OF THE THIRD PRINCIPAL
MERIDIAN, ACCORDING TO THE PLAT OF SAID RESUBDIVISION RECORDED FEBRUARY 18, 1975
AS DOCUMENT R75-06899, IN DUPAGE COUNTY, ILLINOIS.
PERMANENT INDEX NUMBER: 00-00-000-000
COMMONLY KNOWN AS: 0000 XXXXXXXX XXXXX, XXXX XXXXXXX, XXXXXXXX
EXHIBIT "C"
TENANT ESTOPPEL CERTIFICATE
---------------------------
Property Name: ___________________________________________________
("Property")
Tenant: ___________________________________________________
To: ___________________________________________________
DEFINITIONS:
-----------
Lease Date: ___________________________________________________
Landlord: ___________________________________________________
Tenant: ___________________________________________________
Security Deposit: ___________________________________________________
Date of Possession: ___________________________________________________
Rent Commencement Date: ___________________________________________________
Monthly Base Rent: ___________________________________________________
Annual Base Rental Amount: ___________________________________________________
Monthly Deposits: ___________________________________________________
Term: ___________________________________________________
Termination Date: ___________________________________________________
Renewal Option(s): ___________________________________________________
Square Footage: ___________________________________________________
Use: ___________________________________________________
Tenants Address For Notices: ___________________________________________________
["Purchaser"] ["Lender"] proposes to [purchase the Property] [finance the
Property] and this Tenant Estoppel Certificate is to be made and delivered in
connection with that [purchase] [financing].
The undersigned Tenant under the above-referenced lease dated as of the
Lease Date between Landlord and Tenant ("Lease"), certifies, represents,
confirms and agrees in favor of [Purchaser] [Lender] the following:
1. The above-described Lease has not been cancelled, modified, assigned,
extended or amended and contains the entire agreement between Landlord and
Tenant except as follows:
2. Rent has been paid to ___________________________________. There is
no Prepaid Rent. The amount of the Security Deposit is as set forth above, which
is currently being held by Landlord.
3. Tenant took possession of the leased premises on the Date of
Possession, and commenced to pay rent on the Rent Commencement Date, in the
amount of the Monthly Base Rent, each payable in advance. Our current Annual
Base Rental Amount is as set forth above, payable in equal monthly installments,
subject to percentage rental, common area maintenance charges, escalation
charges and other charges in accordance with the terms and provisions of the
Lease, which as of the date hereof total the Monthly Deposit Amount, each
payable in equal monthly installments in advance. We are currently in occupancy
of the leased premises. No "discounts", "free rent", "discounted rent" or
"abatements of rent" have been agreed to or are in effect.
4. The Lease is for the Term set forth above and ending on the
Termination Date, and we have the Renewal Option(s) set forth above.
5. All space and improvements covered by the Lease have been completed
and furnished to the satisfaction of Tenant, all conditions required under the
Lease have been met, and Tenant has accepted and taken possession of the leased
premises on the Date of Possession as set forth above and presently occupies the
leased premises, presently consisting of the Square Footage as set forth above.
6. The Lease is (a) in full force and effect, and (b) free from default
by both Landlord and Tenant; and we have no claims, liens, charges or credits
against Landlord or offsets against rent.
7. The undersigned has not assigned or sublet the Lease, nor does the
undersigned hold the Property under assignment or sublease.
8. There are no other agreements written or oral, between the undersigned
and Landlord with respect to the Lease and/or the leased premises and building.
Landlord has satisfied all commitments, arrangements or understandings made to
induce Tenant to enter into the Lease, and Landlord is not in any respect in
default in the performance of the terms and provisions of the Lease, nor is
there now any fact or condition which, with notice or lapse of time or both,
would become such a default.
9. The leased premises are currently being used for the Use set forth
above.
10. Tenant is maintaining (free of default) all insurance policies that
the Lease requires Tenant to maintain.
11. Neither Landlord nor [Purchaser] [Lender] nor any of their respective
successor or assigns, has or will have any personal liability of any kind or
nature under or in connection with the Lease; and, in the event of a default by
Landlord or [Purchaser] [Lender] under the Lease, Tenant shall look solely to
Landlord's or [Purchaser's] [Lender's] interest in the building in which the
leased premises are located.
12. Tenant is not in any respect in default under the terms and provisions
of the Lease (nor is there now any fact or condition which, with notice or lapse
of time or both, would become such a default), and Tenant has not assigned,
transferred or hypothecated its interest under the Lease.
13. Tenant (i) does not have any option or preferential right to purchase
all or any part of the leased premises or all or any part of the building of
which the leased premises are a part; and (ii) does not have any right, title or
interest with respect to the leased premises other than as lessee under the
Lease.
2
14. We understand that [Purchaser] [Lender] is planning to [purchase]
[finance] the Property on which the leased premises is located to Purchaser, and
we agree to make all payments required under the Lease to [Purchaser] [Lender]
upon our receipt of notice from Landlord and/or [Purchaser] [Lender]. Further,
upon receipt of such notice, we will thereafter look to [Purchaser] [Lender] and
not Landlord as the landlord under the Lease. We agree to give all notices
required to be given by us to Landlord under the Lease to [Purchaser] [Lender]
upon our receipt of said notice.
15. The statements contained herein may be relied upon by [Purchaser]
[Lender] and by any prospective purchaser or lender of the Property.
16. If Tenant is a Corporation, the undersigned is a duly appointed
officer of the corporation signing this Agreement, and is the incumbent in the
office indicated under his or her name. If Tenant is a partnership or joint
venture, the undersigned is a duly appointed partner or officer of the
partnership or joint venture signing this certificate. In any event, the
undersigned individual is duly authorized to execute this Agreement on behalf of
Tenant.
17. Tenant (a) executes this certificate with the understanding that
[Purchaser] [Lender] is contemplating [purchasing] [financing] the Property, and
that if [Purchaser] [Lender] [purchases] [finances] the Property, [Purchaser]
[Lender] will do so in material reliance on this certificate; and (b) agrees
that the certifications and representations made herein shall survive such
acquisition.
18. The current address to which all notices to Tenant as required under
the Lease should be sent is the Tenant's Address for Notices.
19. [Purchaser's] [Lender's] rights hereunder shall inure to its
successors and assigns.
IN WITNESS WHEREOF, Tenant has executed this estoppel certificate as of
this ________ day of ________________________, 199___.
_________________________, a _____________________
By: ______________________________________________
Its:
3
EXHIBIT "D"
LANDLORD'S WORK
---------------
1. Divide the Premises from the remaining area of the Building.
2. Install separate electric, gas, water and sewer lines and meters for
the Premises.
[MAP OF LEASED PREMISES AND SURROUNDING AREA APPEARS HERE]
5
