Exhibit 10.16
LEASE AGREEMENT
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THIS LEASE AGREEMENT ("Lease"), made as of the 31st day of August, 1999,
by and between CP GAL PLAINFIELD, LLC, a Delaware limited liability company
having an address of 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000 ("Landlord"), and XXXXXX'X TRADING COMPANY, INC., an Indiana
corporation having an office at 0000 Xxxx Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000
("Tenant").
Agreement
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Landlord and Tenant agree as follows:
1. Demise of Premises. Landlord demises and lets to Tenant, and Tenant
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takes and leases from Landlord, for the Term (defined below) and upon
the provisions specified in this Lease the following described property
(the "Leased Premises"):
(i) the lot or parcel of land described in Exhibit A to this Lease,
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together with the easements, rights and appurtenances thereunto
belonging or appertaining (the "Land");
(ii) the buildings, structures and other improvements on the Land
(collectively, the "Improvements"); and
(iii) the machinery and equipment which is attached to the Improvements
in such a manner as to become fixtures under applicable law,
together with all additions and accessions thereto, substitutions
therefor and replacements thereof permitted by this Lease
(collectively, the "Equipment");
excepting therefrom the Trade Fixtures.
2. Certain Definitions.
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(a) "Additional Rent" means all amounts, costs, expenses,
liabilities, indemnification obligations and/or other obligations
(including but not limited to Tenant's obligation to pay any Net
Awards or Purchase Price under this Lease) which Tenant is
required to pay pursuant to the terms of this Lease other than
Basic Rent.
(b) "Adjoining Property" means all sidewalks, curbs, gores and vault
spaces adjoining the Leased Premises.
(c) "Alteration" or "Alterations" means any or all changes, additions
(whether or not adjacent to or abutting any then existing
Improvements), expansions (whether or not adjacent to or abutting
any then existing Improvements), improvements, reconstructions,
removals or replacements of any of the Improvements or Equipment,
both interior or exterior, and ordinary and extraordinary.
(d) "Basic Rent" means Basic Rent as defined in Section 6.
(e) "Basic Rent Payment Dates" means the Basic Rent Payment Dates as
defined in Section 6.
(f) "Casualty Purchase Price" is defined in Section 15(j)(i).
(g) "Casualty Purchase Offer" is defined in Section 15(j)(ii).
(h) "Commencement Date" means the Commencement Date as defined in
Section 5.
(i) "Condemnation" means a Taking and/or a Requisition.
(j) "Condemnation Termination Date" means the Condemnation
Termination Date as defined in Section 13(b)(i).
(k) "Default Rate" means the Default Rate as defined in Section
19(b)(iv).
(l) "Equipment" means the Equipment as defined in Section 1.
(m) "Event of Default" means an Event of Default as defined in
Section 19(a).
(n) "GMAC" shall mean GMAC Commercial Mortgage Corporation or its
successor in interest as Lender under the GMAC Loan.
(o) "GMAC Loan" means the loan made by GMAC Commercial Mortgage
Corporation to Landlord on August 31, 1999.
(p) "Impositions" means the Impositions as defined in Section 8.
(q) "Improvements" means the Improvements as defined in Section 1.
(r) "Insurance Requirement" or "Insurance Requirements" means, as the
case may be, any one or more of the terms of each insurance
policy required to be carried by Tenant under this Lease and the
requirements of the issuer of such policy, and whenever Tenant
shall be engaged in making any Alteration or Alterations, repairs
or construction work of any kind (collectively, "Work"), the term
"Insurance Requirement" or "Insurance Requirements" will be
deemed to include a requirement that Tenant obtain or cause its
contractor to obtain completed value builder's risk insurance
when the estimated cost of the Work in any one instance exceeds
the sum of $500,000 and that Tenant or its contractor shall
obtain worker's compensation insurance or other adequate
insurance coverage covering all persons employed in connection
with the Work, whether by Tenant, its contractors or
subcontractors and with respect to whom death or bodily injury
claims could reasonably be asserted against Landlord.
(s) "Land" means the Land as defined in Section 1.
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(t) "Law" means any constitution, statute, code, ordinances, orders,
judgments, decrees, injunctions, rules, regulations and
requirements, even if unforeseen or extraordinary, of every duly
constituted governmental authority or agency (but excluding those
which by their terms are not applicable to and do not impose any
obligation on Tenant, Landlord or the Leased Premises).
(u) "Leased Premises" means the Leased Premises as defined in Section
1.
(v) "Legal Requirement" or "Legal Requirements" means, as the case
may be, any one or more of all present and future Laws and all
covenants, restrictions and conditions now of record which may be
applicable to Tenant, Landlord (with respect to the Leased
Premises) or to all or any part of or interest in the Leased
Premises, or to the use, manner of use, occupancy, possession,
operation, maintenance, alteration, repair or reconstruction of
the Leased Premises, in each case, even if compliance therewith:
(i) necessitates structural changes or improvements (including
changes required to comply with the "Americans with Disabilities
Act") or results in interference with the use or enjoyment of the
Leased Premises; or (ii) requires Tenant to carry insurance other
than as required by the provisions of this Lease.
(w) "Lender" means an entity identified as such in writing to Tenant
which makes a Loan secured by a Mortgage and evidenced by a Note
or which is the holder of the Mortgage and Note as a result of an
assignment thereof.
(x) "Loan" means a loan made, from time-to-time during the Term, by a
Lender secured by a Mortgage and evidenced by a Note.
(y) "Mortgage" means a first priority mortgage or similar first lien
security instrument hereafter executed covering the Leased
Premises and in favor of Lender.
(z) "Net Award" means the entire award payable to Landlord by reason
of a Condemnation, less any reasonable out-of-pocket expenses
incurred by Landlord in collecting such award.
(aa) "Net Proceeds" means the entire proceeds of any insurance
required under clauses (i), (iv), (v) or (vi) of Section 14(a),
less any actual and reasonable out-of-pocket expenses incurred by
Landlord in collecting such proceeds.
(bb) "Note" or "Notes" means a promissory note or notes now or
hereafter executed to Lender, which Note or Notes will be secured
by a Mortgage.
(cc) "Permitted Encumbrances" means those covenants, restrictions,
reservations, liens, conditions, encroachments, easements and
other matters of title that affect the Leased Premises as of the
date of Landlord's acquisition of the Leased Premises and any
matters created and permitted under and pursuant to the express
terms of this Lease or expressly consented to by Landlord,
excepting, however, any mortgage placed on the Leased Premises
for the purpose of securing the Loan.
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(dd) "Purchase Price" is defined in Section 13(b)(i)(B).
(ee) "Replacement Equipment" means Replacement Equipment, as defined
in Section 11(d).
(ff) "Requisition" means any temporary condemnation or confiscation of
the use or occupancy of the Leased Premises by any governmental
authority, civil or military, whether pursuant to an agreement
with such governmental authority in settlement of or under threat
of any such requisition or confiscation, or otherwise.
(gg) "Restoration" means the Restoration as defined in Section
13(c)(i).
(hh) "State" means the State or Commonwealth in which the Leased
Premises is situated.
(ii) "Taking" means any taking of the Leased Premises or any portion
thereof in or by condemnation or other eminent domain proceedings
pursuant to any Law, general or special, or by reason of any
agreement with any condemnor in settlement of or under threat of
any such condemnation or other eminent domain proceedings or by
any other means, or any de facto condemnation.
(jj) "Term" means the Term as defined in Section 5.
(kk) "Termination Date" means the Termination Date as defined in
Section 19(b)
(ll) "Trade Fixtures" means all fixtures, equipment and other items of
personal property (whether or not attached to the Improvements)
which are owned by Tenant and used in the operation of the
business conducted on the Leased Premises.
(mm) "Trustee" means a federally insured bank or other financial
institution selected by Landlord and Tenant and reasonably
satisfactory to any Lender. With Lender's consent, Landlord and
Tenant may select Lender as the Trustee. As of the date of this
Lease, GMAC Commercial Mortgage Corporation, the current Lender,
is the initial Trustee.
3. Title and Condition.
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(a) The Leased Premises are demised and let "as is," "where is"
subject to: (i) the Permitted Encumbrances; (ii) all Legal
Requirements and Insurance Requirements, including any existing
violation of any thereof; and (iii) the condition of the Leased
Premises as of the commencement of the Term, in each case,
without representation or warranty by Landlord. The recital of
the Permitted Encumbrances in this Lease may not be construed as
a revival of any Permitted Encumbrances which for any reason may
have expired.
(b) LANDLORD HAS NOT MADE AND WILL NOT MAKE ANY INSPECTION OF ANY OF
THE LEASED PREMISES, AND LANDLORD LEASES AND WILL LEASE, AND
TENANT TAKES AND WILL TAKE, THE LEASED PREMISES
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"AS IS," "WHERE IS" AND TENANT ACKNOWLEDGES THAT LANDLORD
(WHETHER ACTING AS LANDLORD UNDER THIS LEASE OR IN ANY OTHER
CAPACITY) HAS NOT MADE AND WILL NOT MAKE, NOR MAY LANDLORD BE
DEEMED TO HAVE MADE, ANY WARRANTY OR REPRESENTATION, EXPRESS OR
IMPLIED, WITH RESPECT TO ANY OF THE LEASED PREMISES, INCLUDING
ANY WARRANTY OR REPRESENTATION AS TO FITNESS FOR USE OR PURPOSE,
DESIGN OR CONDITION FOR ANY PARTICULAR USE OR PURPOSE, AS TO THE
QUALITY OF THE MATERIAL OR WORKMANSHIP, LATENT OR PATENT, AS TO
LANDLORD'S TITLE, OR AS TO VALUE, COMPLIANCE WITH SPECIFICATIONS,
LOCATION, USE, CONDITION, MERCHANTABILITY, QUALITY, DESCRIPTION,
DURABILITY OR OPERATION, IT BEING AGREED THAT, ALL RISKS OF ANY
KIND INCIDENT TO THE OWNERSHIP, USE, OCCUPANCY, POSSESSION OR
OPERATION OF THE LEASED PREMISES, INCLUDING, WITHOUT LIMITATION,
ALL RISKS OF ANY KIND TO ANY PERSON IN, ON OR ABOUT THE LEASED
PREMISES, ARE TO BE BORNE BY TENANT, BUT EXCLUDING THE WILLFUL
MISCONDUCT OR GROSS NEGLIGENCE OF LANDLORD. Tenant acknowledges
that the Leased Premises are of its selection and to its
specifications, and that the Leased Premises have been inspected
by Tenant and are satisfactory. Landlord will not have any
responsibility or liability with respect to any defect or
deficiency in the Leased Premises of any nature, whether patent
or latent, or for any actual, incidental or consequential damages
(including strict liability in tort). Tenant agrees that it has
selected and operated the Leased Premises and that Landlord
cannot, as a factual matter, have in any way engaged in willful
misconduct or been grossly or otherwise negligent with respect to
any aspect of the Leased Premises now existing. The provisions of
this Section 3(b) have been negotiated and are intended to be a
complete exclusion and negation of any representations and
warranties by Landlord, express or implied, with respect to the
Leased Premises, arising pursuant to the uniform commercial code
or any other Law now or hereafter in effect or otherwise.
(c) Tenant acknowledges and agrees that Tenant has examined the title
to the Leased Premises prior to the execution and delivery of
this Lease and has found such title to be satisfactory for the
purposes contemplated by this Lease.
(d) Landlord assigns, without recourse or warranty whatsoever, to
Tenant, all warranties, guaranties and indemnities, express or
implied, and similar rights which Landlord may have against any
manufacturer, seller, engineer, contractor or builder in respect
of the Leased Premises, including, but not limited to, any rights
and remedies existing under contract or pursuant to the uniform
commercial code (collectively, the "Guarantees"). Such assignment
will remain in effect until the termination or expiration of this
Lease. Landlord also retains the right to enforce any Guarantees
assigned in the name of Tenant upon the occurrence of an Event of
Default. Landlord hereby agrees to execute and deliver at
Tenant's expense such further documents, including powers of
attorney, as Tenant may reasonably request in order that Tenant
may have the full benefit of the assignment effected or intended
to be
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effected by this Section 3(d). Upon the termination or expiration
of this Lease, the Guarantees will automatically revert to
Landlord. The foregoing provision of reversion is self-operative
and no further instrument of reassignment will be required in
confirmation of such reassignment. Notwithstanding the terms of
the preceding sentence, Tenant shall also execute and deliver
such further documents as Landlord may reasonably request in
order that Landlord may have full benefit to enforce Guarantees
upon the occurrence of an Event of Default or upon termination or
expiration of this Lease. Any monies collected by Tenant under
any of the Guarantees after the occurrence of and during the
continuation of an Event of Default will be held in trust by
Tenant and promptly paid over to Landlord.
(e) Upon Tenant's written request, Landlord shall enter into, at
Tenant's expense, such easements, covenants, waivers, approvals
or restrictions for utilities, parking or other matters as are
desirable to Tenant for operation of the Leased Premises or
adjacent properties (collectively, "Easements"), subject to
Landlord's and any Lender's approval of the form and substance of
such Easement, not to be unreasonably withheld or delayed.
Landlord need not enter into any Easement that would result in
the diminution in the value or utility of the Leased Premises,
that would render the use of the Leased Premises dependent upon
any other property or that would condition the use of the Leased
Premises upon the use of any other property. Tenant's request (i)
must be sent to both Landlord and any Lender in writing, by
registered or certified U.S. mail only, return receipt requested,
postage prepaid, (ii) must certify that, in Tenant's opinion, the
Easement would not have an effect described in the preceding
sentence, (iii) must state the consideration or other benefit to
the Leased Premises, if any, to be paid or received for such
Easement; (iv) must include Tenant's written undertaking
acknowledging that Tenant remains liable under this Lease as
principal and not merely as a surety or guarantor notwithstanding
the establishment of any Easement and (z) shall obligate Tenant
to provide Landlord and any Lender with such other instruments,
certificates and opinions of counsel as Landlord or any Lender
may reasonably request to confirm the foregoing. If either
Landlord or any Lender fails to approve the form of any such
Easement, within a period of 30 days from their respective
receipt of Tenant's request, then either Landlord or any Lender,
as the case may be, will be deemed to have disapproved the form
of any such Easement. Within 15 days after Landlord's or any
Lender's written request therefor, which request must contain
reasonable supporting information, Tenant shall pay the
reasonable attorney fees and third-party consulting fees incurred
by Landlord and any Lender in connection with the review of
Tenant's request, to a maximum of $2,000 each. Any such Easement
shall be at the cost and expense of Tenant. Any consideration
paid in connection with any such Easement shall be paid to the
Landlord. In no event shall Landlord be obligated to perform any
obligations in connection with such Easement that cannot be
assumed and/or performed by Tenant.
(f) Tenant shall perform all obligations of and pay all out-of-pocket
expenses which Landlord, as owner of the Leased Premises, may be
required to pay in accordance with any Permitted Encumbrances,
and shall comply with all of the terms and conditions of any
Permitted Encumbrances applicable to Landlord during the Term.
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Tenant further covenants and agrees to indemnify, defend and hold
harmless Landlord and any Lender against any claim, loss or
damage suffered by Landlord or any Lender by reason of Tenant's
failure to perform any obligations or pay any expenses as
required under any of the Permitted Encumbrances or comply with
the terms and conditions of any of the Permitted Encumbrances as
provided in this Section 3(f) during the Term.
4. Use of Leased Premises; Quiet Enjoyment.
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(a) Except as set forth in Section 4(d) or as otherwise prohibited by
this Lease and in accordance with the Insurance Requirements,
Tenant may use the Leased Premises as a distribution center or
for any other lawful purpose so long as such other lawful purpose
will not: (i) have a material adverse effect on the value of the
Leased Premises; (ii) materially increase (when compared to use
as a retail store) the reasonable likelihood that Tenant,
Landlord or any Lender will incur liability under any
Environmental Law referred to in Section 26; or (iii) result in
or give rise to any material environmental or other deterioration
or degradation of the Leased Premises. In addition, Tenant may
not use or permit the use of the Leased Premises for any purpose
which violates any of the provisions of any Permitted Encumbrance
or any covenants, restrictions or agreements hereafter created by
or consented to by Tenant applicable to the Leased Premises.
Tenant agrees that with respect to the Permitted Encumbrances and
any covenants, restrictions or agreements hereafter created by or
consented to by Tenant that Tenant will observe, perform and
comply with and carry out the provisions thereof required to be
observed and performed by Landlord.
(b) Subject to Tenant's rights under Section l8, Tenant will not
permit any unlawful occupation, business or trade to be conducted
on the Leased Premises or any use to be made of the Leased
Premises contrary to applicable Legal Requirements or Insurance
Requirements. Subject to Tenant's rights under Section 18, Tenant
will not use, occupy or permit any of the Leased Premises to be
used or occupied, nor do or permit anything to be done in or on
the Leased Premises, in a manner which would: (i) make void or
voidable any insurance which Tenant is required under this Lease
to then maintain in force with respect to the Leased Premises;
(ii) affect the ability of Tenant to obtain any insurance which
Tenant is required to furnish under this Lease; or (iii) cause
any injury or damage to the Improvements unless caused in
connection with the making of Alterations permitted under Section
12 all of which injury or damage shall be repaired by Tenant at
Tenant's sole cost and expense.
(c) Subject to all of the provisions of this Lease, so long as no
Event of Default exists, Landlord covenants to do no act to
disturb the peaceful and quiet occupation and enjoyment of the
Leased Premises by Tenant.
(d) Tenant may not use the Leased Premises for any of the following
uses:
(i) a gun range, except as may be incidental to the operation
of a sporting goods facility;
(ii) distilling, refining or smelting plant;
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(iii) central laundry or dry cleaning plant;
(iv) massage parlor, adult book store, adult movie theater or
other sexually oriented shops, or any other establishment
which exhibits live to any degree nude or topless dancers
or waitstaff or similar establishments;
(v) funeral home, funeral parlor, or mortuary;
(vi) off-track betting establishment;
(vii) flea market; and
(viii) a labor camp, junkyard or stockyard.
5. Term.
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(a) Subject to the provisions of this Lease, Tenant will have and
hold the Leased Premises for an initial term ("Initial Term")
commencing on August 31, 1999 (the "Commencement Date"). The
Initial Term will terminate on the date that is the twentieth
anniversary of the last day of the calendar month in which the
Commencement Date occurs. The Initial Term and any Renewal Terms
(defined below) which come into effect are collectively called
the "Term". As used in this Lease, "Lease Year" means each of (i)
the period beginning on the Commencement Date and ending on the
first anniversary of the last day of the calendar month in which
the Commencement Date occurs, (ii) the one-year period beginning
on the date (the "Anniversary Date") that is the first
anniversary of the first day of the calendar month following the
calendar month in which the Commencement Date occurs, and (iii)
all other one-year periods during the Term beginning on an
anniversary of the Anniversary Date.
(b) Provided this Lease has not been terminated pursuant to the
provisions of Sections 13(b) or 19, this Lease and the Term will
automatically extend for that number of consecutive Renewal Terms
set forth in Exhibit B to this Lease (each, a "Renewal Term"),
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each for the duration set forth in Exhibit B to this Lease, upon
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the condition that Tenant may cancel any future Renewal Terms by
giving notice ("Renewal Term Cancellation Notice") to Landlord in
writing at least twelve months prior to the expiration of the
then current Term (excluding any future Renewal Terms). Upon the
giving of a Renewal Term Cancellation Notice, this Lease and the
Term will terminate at the close of business on the later of: (i)
the 90th day following the giving of the Renewal Term
Cancellation Notice; and (ii) the last day of the then current
Term (excluding any future Renewal Terms). If the effect of the
preceding sentence is to extend the Term, then the Term will be
so extended on the terms and conditions and for the Rent in
effect for the Term expiring. Any Renewal Term will be subject to
all of the provisions of this Lease, and all such provisions will
continue in full force, except that the Basic Rent for each
Renewal Term will be the amounts determined in accordance with
the schedule set forth in Exhibit B to this Lease. If Tenant
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timely gives a Renewal Term Cancellation Notice, then all options
with regard to subsequent Renewal Terms will expire and be void.
6. Rent.
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(a) Tenant will pay to Landlord (or to any Lender, if directed by
Landlord), as minimum annual rent for the Leased Premises during
the Term, the amounts set forth in Exhibit B to this Lease
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("Basic Rent"), monthly in advance commencing on the Commencement
Date and continuing on the first day of October, 1999 and the
first day of each subsequent month during the Term (each, a
"Basic Rent Payment Date"). Tenant will pay the Basic Rent at
Landlord's address set forth below, or at such other place as
Landlord from time to time may designate to Tenant in writing, in
funds which at the time of such payment will be legal tender for
the payment of public or private debts in the United States of
America and if required by any Lender by wire transfer in
immediately available federal funds to such account in such bank
as any Lender may reasonably designate, from time to time. If the
Commencement Date occurs on a date other than the first day of a
calendar month, then Basic Rent for the period from and including
the Commencement Date through and including the last day of the
following month will be paid on the Commencement Date in the
amount equal to 1/30 of the monthly Basic Rent for the initial
term set forth on Exhibit B to this Lease for each day during
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such period. As long as the GMAC Loan shall remain outstanding
and Tenant shall be paying Basic Rent directly to such Lender,
Tenant shall provide Landlord notice of payment of Basic Rent or
Additional Rent by Tenant directly to such Lender on the day of
such payment.
(b) Tenant will pay and discharge before the imposition of any fine,
lien, interest or penalty may be added thereto for late payment
thereof, as Additional Rent, all other amounts and obligations
which Tenant assumes or agrees to pay or discharge pursuant to
this Lease, together with every fine, penalty, interest and cost
which may be added by the party to whom such payment is due for
nonpayment or late payment thereof. If Tenant fails to pay or
discharge any Additional Rent, Landlord will have all rights,
powers and remedies with respect to such Additional Rent that are
provided in this Lease, by law or otherwise, for nonpayment of
Basic Rent.
(c) If any installment of Basic Rent is not paid within three (3)
business days after the date due, Tenant will pay to Landlord or
any Lender, as the case may be, on demand as Additional Rent a
late charge equal to five percent (5%) on such overdue
installment of Basic Rent (such amount, the "Late Charge").
(d) It is the intent of Landlord and Tenant that this Lease is a true
lease and does not represent a financing arrangement. Each party
will reflect the transactions represented by this Lease in all
applicable books, records and reports (including, without
limitation, income tax filings) in a manner consistent with "true
lease" treatment rather than "financing" treatment.
Notwithstanding the foregoing, Tenant acknowledges and agrees
that Landlord has not made any representations or warranties
concerning the tax, accounting or legal characteristics of the
Lease or any aspect of the transaction described herein and that
Tenant has obtained and relied upon such tax, accounting and
legal advice concerning this Lease and the transaction described
herein as it deems appropriate.
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7. Net Lease; Non-Terminability.
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(a) This is a net Lease and Basic Rent and Additional Rent will be
paid, except as otherwise expressly set forth in this Lease,
without notice, demand, setoff, counterclaim, recoupment,
abatement, suspension, deferment, diminution, deduction,
reduction, defense or relief from valuation or appraisement laws.
(b) Except as otherwise expressly provided in this Lease, this Lease
will not terminate and Tenant will not have any right to
terminate this Lease during the Term. Except as otherwise
expressly provided in this Lease, Tenant will not be entitled to
any setoff, counterclaim, recoupment, abatement, suspension,
deferment, diminution, deduction, reduction or defense of or to
Basic Rent, Additional Rent or any other sums payable under this
Lease; and except as otherwise expressly provided in this Lease,
the obligations of Tenant under this Lease will not be affected
by any interference with Tenant's use of any of the Leased
Premises for any reason, including but not limited to the
following: (i) any damage to or destruction of any of the Leased
Premises by any cause whatsoever; (ii) any Condemnation; (iii)
the prohibition, limitation or restriction of Tenant's use of any
of the Leased Premises; (iv) any eviction by paramount title or
otherwise; (v) Tenant's acquisition of ownership of any of the
Leased Premises other than pursuant to an express provision of
this Lease; (vi) any default on the part of Landlord under this
Lease or under any other agreement; (vii) any latent or other
defect in, or any theft or loss of any of the Leased Premises;
(viii) the breach of any warranty of any seller or manufacturer
of any of the Equipment or any other portion of the Leased
Premises ; (ix) any violation of Paragraph 4(c) by Landlord; or
(x) any other cause, whether similar or dissimilar to the
foregoing, any present or future Law to the contrary
notwithstanding. It is the intention of the parties hereto that
the obligations of Tenant under this Lease will be separate and
independent covenants and agreements, and that Basic Rent,
Additional Rent and all other sums payable by Tenant hereunder
will continue to be payable in all events (or, in lieu thereof,
Tenant shall pay amounts equal thereto), and that the obligations
of Tenant under this Lease will continue unaffected, unless this
Lease shall have been terminated pursuant to an express provision
of this Lease.
(c) Tenant agrees that it will remain obligated under this Lease in
accordance with its provisions and that, except as otherwise
expressly provided in this Lease, Tenant will not take any action
to terminate, rescind or avoid this Lease, notwithstanding: (i)
the bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution, winding-up or other
similar proceeding affecting Landlord; (ii) the exercise of any
remedy, including foreclosure, under the Mortgage; or (iii) any
action with respect to this Lease (including the disaffirmance of
this Lease) which may be taken by Landlord under the Federal
Bankruptcy Code or by any trustee, receiver or liquidator of
Landlord or by any court under the Federal Bankruptcy Code or
otherwise.
(d) This Lease is the absolute and unconditional obligation of
Tenant. Tenant waives all rights which are not expressly stated
in this Lease but which may now or hereafter otherwise be
conferred by Law: (i) to quit, terminate or surrender this Lease
or the
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Leased Premises; (ii) to any setoff, counterclaim, recoupment,
abatement, suspension, deferment, diminution, deduction,
reduction or defense of or to Basic Rent or Additional Rent,
except as otherwise expressly provided in this Lease; and (iii)
for any statutory lien or offset right against Landlord or its
property.
8. Payment of Impositions; Compliance with Legal Requirements and Insurance
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Requirements.
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(a) (i) Subject to Section 8(a)(ii), as used in this Lease the
term "Impositions" means, collectively: all taxes, levies,
assessments and governmental charges of any kind imposed
by any federal, state, regional, municipal, local or other
governmental authority or agency, including, without
limitation, quasi-public agencies ("Governmental
Authority") of every kind and nature (including real, ad
valorem, personal property, gross income, franchise,
withholding, profits and gross receipts taxes) (A) on or
with respect to the Leased Premises, or (B) imposed on or
measured by or based, in whole or in part, on rent payable
to Landlord under this Lease and/or from the rental by
Landlord of the Leased Premises or any portion thereof, or
(C) based on the square footage, assessed value or other
measure or evaluation of any kind of the Leased Premises
or any portion thereof, or (D) assessed or imposed by or
on the operation or maintenance of any portion of the
Leased Premises or any portion thereof, including parking,
or (E) assessed or imposed by, or at the direction of, or
resulting from statutes or regulations, or interpretations
thereof, promulgated by, any Governmental Authority, or
(F) imposed as a license or other fee on Landlord's
business of leasing the Leased Premises or any portion
thereof; all charges and taxes for any easement or
agreement maintained for the benefit of the Leased
Premises or any portion thereof; all general and special
assessments, levies, permits, inspection and license fees
on or with respect to the Leased Premises or any portion
thereof and the rents therefor; all water and sewer rents
and other utility charges on or with respect to the Leased
Premises or any portion thereof; all ground rents on or
with respect to the Leased Premises or any portion
thereof; and all other public charges and taxes whether of
a like or different nature, even if unforeseen or
extraordinary, imposed or assessed upon or with respect to
the Leased Premises or any portion thereof, prior to or
during the Term, against Landlord, Tenant or the Leased
Premises or any portion thereof as a result of or arising
in respect of the occupancy, leasing, use, ownership,
maintenance, operation, management, repair or possession
of the Lease Premises or any portion thereof, or any
activity conducted on the Leased Premises, or the Basic
Rent or Additional Rent, including without limitation, any
gross income tax, sales tax, occupancy tax or excise tax
levied by any governmental or quasi-governmental body on
or with respect to such Basic Rent or Additional Rent.
If received by Landlord, Landlord will immediately deliver
to Tenant any xxxx or invoice with respect to any
Imposition. To the extent the Land is subject to any tax
increment financing agreements (the "TIF"), Tenant and
Landlord acknowledge and agree that Tenant shall be
entitled to any and all rebates
11
associated with the TIF for the Land and Landlord hereby
assigns its rights to any and all TIF rebates for the Land
to Tenant. In the event Landlord receives any TIF rebates
associated with the Land, Landlord agrees to promptly
forward such monies to Tenant.
(ii) Nothing herein obligates Tenant to pay, and the term
"Impositions" will exclude federal, state or local: (A)
transfer taxes as the result of a conveyance by (or
suffered by) Landlord; (B) franchise, capital stock or
similar taxes if any, of Landlord; (C) income, excess
profits or other taxes, if any, of Landlord, determined on
the basis of or measured by its net income; or (D) any
estate, inheritance, succession, gift, capital levy or
similar taxes, unless the taxes referred to in clauses (B)
and (C) above are in lieu of or a substitute for any other
tax or assessment upon or with respect to the Leased
Premises which, if such other tax or assessment were in
effect at the commencement of the Term, would be payable
by Tenant. If any assessment against the Leased Premises
may be paid in installments, Tenant will have the option
to pay such assessment in installments; and in such event,
Tenant will be liable only for those installments which
become due and payable during, or with respect to, the
Term. Tenant will prepare and file all tax reports
required by governmental authorities which relate to the
Impositions. Tenant will deliver to Landlord and to any
Lender, within 30 days after the receipt thereof, copies
of all settlements and notices pertaining to the
Impositions which may be issued by any governmental
authority and receipts for payments of all Impositions
made during each calendar year of the Term, within 30 days
after payment, except to the extent such impositions are
paid by Landlord or Lender.
(b) On each Basic Rent Payment Date, Tenant shall make a monthly
escrow deposit into an interest-bearing account of Landlord's
choice (the "Escrow Account") maintained with the Trustee. All
interest earned on the funds in the Escrow Account will belong to
Tenant, and the Trustee shall pay the interest to Tenant
quarterly; provided, however, that if such Escrow Account is
required to be held by a Lender acting as Trustee under the terms
of any Loan, then Tenant shall only be entitled to such interest
on such Escrow Account that is payable to Landlord under the
terms of such Loan. The amount of each monthly escrow deposit
will be equal to 1/12 of the total amount of all Impositions that
Landlord or any Lender reasonably estimates will be due and
payable during the next ensuing twelve months. Initially, the
amount of each monthly escrow deposit will be $1,733.92. From
time to time, Landlord or any Lender may change the monthly
escrow deposit amount to an amount reasonably determined by
Landlord or any Lender to reflect an accurate escrow of Tenant's
estimated obligation to discharge Impositions, by giving Tenant
30 days prior written notice. The notice must include information
reasonably supporting the new amount. Tenant shall pay the
noticed amount as its monthly escrow deposit for each deposit due
after the expiration of the 30-day period.
(c) Before interest or penalties are due thereon, but subject to the
provisions of Section 18, Tenant shall direct the Trustee to pay
all Impositions from the Escrow Account.
12
If the amount of funds in the Escrow Account is insufficient to
fully pay and discharge any Impositions, Tenant shall pay the
difference from its own accounts. If Tenant fails to pay any
Impositions when due, or if Landlord or any Lender reasonably
determine that because of Tenant's bankruptcy or similar
occurrence, Tenant is unable generally to pay its bills when due,
Tenant hereby authorizes Landlord and any Lender to use funds in
the Escrow Account to pay the Impositions and any penalties or
interest due thereon. If the amount of the Impositions paid by
Landlord or any Lender exceeds the amount in the Escrow Account,
Landlord or any Lender may xxxx Tenant for the excess, and Tenant
shall pay the excess to Landlord or any Lender, as appropriate,
within 10 business days after receiving the xxxx.
(d) During such times as Tenant maintains a Standard & Poors rating
of BBB- or better, Tenant will not be required to maintain an
escrow account for the payment of Impositions, but subject to the
provisions of Section 18, Tenant shall instead pay all
Impositions directly, before interest or penalties are due
thereon. So long as the GMAC Loan shall be outstanding, Tenant's
right to relief from maintenance of an escrow account for the
payment of Impositions under this paragraph (d) shall be
expressly conditioned on GMAC's waiving any similar escrow
requirement imposed on Landlord under the mortgage or other
security instrument securing the GMAC Loan.
(e) Subject to the provisions of Section 18, Tenant shall promptly
comply with and conform to all of the Legal Requirements and
Insurance Requirements.
9. Liens; Recording and Title.
--------------------------
(a) Subject to Section 18, Tenant will not, directly or indirectly,
create or permit to be created or to remain, and will promptly
discharge, any lien on the Leased Premises, on the Basic Rent or
Additional Rent, other than the Mortgage, the Permitted
Encumbrances and any mortgage, lien, encumbrance or other charge
created by or resulting from any act or omission by Landlord or
those claiming by, through or under Landlord (except Tenant).
Notice is hereby given that Landlord will not be liable for any
labor, services or materials furnished or to be furnished to
Tenant, or to anyone holding the Leased Premises through or under
Tenant, and that no mechanic's or other liens for any such labor,
services or materials will attach to or affect the interest of
Landlord in and to any of the Leased Premises.
(b) Landlord and Tenant will each execute, acknowledge and deliver to
the other a written Memorandum of this Lease to be recorded in
the appropriate land records of the jurisdiction in which the
Leased Premises is located, to give public notice and protect the
validity of this Lease. In the event of any discrepancy between
the provisions of the recorded Memorandum of this Lease and the
provisions of this Lease, the provisions of this Lease will
prevail.
(c) Nothing in this Lease and no action or inaction by Landlord will
be deemed or construed to mean that Landlord has granted to
Tenant any right, power or permission to do any act or to make
any agreement which may create, give rise to,
13
or be the foundation for, any right, title, interest or lien in
or upon the estate of Landlord in the Leased Premises.
(d) Landlord expressly disclaims any lien, direct or indirect, it may
be deemed or construed to have, whether by statute or not, on any
of Tenant's personal property located or used on the Leased
Premises, including, but not limited to, any lien on Tenant's
inventory and Trade Fixtures.
10. Indemnification.
---------------
(a) Tenant shall defend, pay, protect, indemnify, save and hold
harmless Landlord and any Lender, and their respective officers,
directors, shareholders, partners, beneficial owners, trustees,
members, managers, agents and employees (each, an "Indemnified
Party"), from and against any and all liabilities, losses,
damages, penalties, reasonable out-of-pocket costs and expenses
(including attorneys' fees and expenses), causes of action,
suits, claims, demands or judgments of any nature whatsoever,
howsoever caused, arising from the Lease or the use, non-use,
occupancy, operation, condition, design, construction,
maintenance, repair or rebuilding of the Leased Premises during
the Term, and any injury to or death of any person or persons or
any loss of or damage to any property, real or personal, in any
manner arising therefrom, connected therewith or occurring
thereon, whether or not such Indemnified Party has or should have
knowledge or notice of the defect or conditions, if any, causing
or contributing to said injury, death, loss, damage or other
claim; except to the extent that any such liability, loss,
damage, penalty, cost, expense, cause of action, suit, claim,
demand or judgment is the result of the gross negligence of such
Indemnified Party or the intentional act of such Indemnified
Party. If any action or proceeding is brought against any
Indemnified Party by reason of any such claim against which
Tenant has agreed to defend, pay, protect, indemnify, save and
hold harmless pursuant to the preceding sentence, Tenant
covenants, upon advance written notice received from such
Indemnified Party, to resist or defend such Indemnified Party in
such action, with the expenses of such defense paid by Tenant,
and such Indemnified Party will cooperate and assist in the
defense of such action or proceeding if reasonably requested to
do so by Tenant.
(b) The obligations of Tenant under this Section 10 will survive any
expiration or termination of this Lease.
11. Maintenance and Repair.
----------------------
(a) Tenant will at all times during the Term put, keep and maintain
the Leased Premises in the same condition and order of repair
that exists as of: (i) the date of substantial completion
thereof, if the building and related improvements are not
complete as of the date of this Lease, (ii) with respect to
Alterations made in accordance with Section 12, the date of
substantial completion of such Alterations, or (iii) in all other
cases, the date of this Lease. Tenant will at all times during
the Term promptly make all repairs and replacements of every kind
and nature, whether foreseen or unforseen, which may be required
to be made upon or in connection with the Leased Premises
14
during the Term in order to keep and maintain the Leased Premises
in the order and condition required by this Section 11(a). Tenant
will do or cause others to do all shoring of the Leased Premises
or of foundations and walls of the Improvements and every other
act necessary or appropriate for preservation and safety thereof
during the Term, by reason of or in connection with any
excavation or other building operation upon any of the Leased
Premises, whether or not Landlord is, by reason of any Legal
Requirements or Insurance Requirements, required to take such
action or liable for failure to do so. Landlord will not be
required to make any repair, whether foreseen or unforeseen, or
to maintain any of the Leased Premises or Adjoining Property
(except if owned by Landlord) in any way, and Tenant hereby
expressly waives the right to make repairs at the expense of the
Landlord, which right may be provided for in any Law now or
hereafter in effect. Nothing in the preceding sentence will be
deemed to preclude Tenant from being entitled to insurance
proceeds or condemnation awards for Restoration pursuant to
Sections 13(c) and 14(g). Tenant will, in all events, make all
repairs for which it is responsible promptly, and all repairs
will be in a good, proper and workmanlike manner.
(b) If any Improvement violates any Legal Requirements or Insurance
Requirements as of the date hereof or at any time during the Term
and as a result of such violation enforcement action is
threatened or commenced against Landlord, Tenant or with respect
to the Leased Premises, then Tenant, at the request of Landlord,
will either: (i) obtain valid and effective waivers or
settlements of all claims, liabilities and damages resulting from
each such violation, whether the same will affect Landlord,
Tenant or both; or (ii) take such action as will be necessary to
remove such violation, including, if necessary, any Alteration.
Any such repair or Alteration will be made in conformity with the
provisions of Section 12 at Tenant's sole cost and expense.
(c) If Tenant is in default under any of the provisions of this
Section 11 or Section 26, Landlord may after 30 business days
written notice received by Tenant and failure of Tenant to cure
during such 30-business-day period, but without notice in the
event of an emergency, do whatever is necessary to cure such
default as may be reasonably appropriate under the circumstances
for the account of and at the expense of Tenant. If there is an
emergency, Landlord will notify Tenant of the situation by phone
or other available communication. All reasonable sums paid by
Landlord and all reasonable out-of-pocket costs and expenses
(including, without limitation, attorneys' fees and expenses)
paid by Landlord under this Section 11, together with interest
thereon at the Default Rate from the date of payment, will
constitute Additional Rent payable by Tenant under this Lease and
will be paid by Tenant to Landlord on demand.
(d) Tenant will from time to time replace with other operational
equipment or parts (the "Replacement Equipment") any of the
Equipment which becomes worn out or unusable for the purpose for
which it is intended, is taken by a Condemnation as provided in
Section 13, or been lost, stolen, damaged or destroyed as
provided in Section 14. Tenant will repair at its sole cost and
expense all damage to the Leased Premises caused by the removal
of Equipment or Replacement Equipment or other personal property
of Tenant or the installation of Replacement Equipment during the
15
Term. All Replacement Equipment will become the property of
Landlord, will be free and clear of all liens and rights of
others and will become a part of the Equipment as if originally
demised under this Lease.
12. Alterations.
-----------
(a) Tenant (i) will not make any Alterations which would (after the
completion thereof) impair the structural integrity of the Leased
Premises without Landlord's prior written consent, which consent
may be withheld in Landlord's sole discretion; and (ii) may make
any other Alterations without the prior written consent of
Landlord provided such Alterations comply with the provisions of
Section 12(b).
(b) If Landlord gives its prior written consent to any Alterations,
or if such consent is not required, Tenant agrees that in
connection with any Alteration: (i) the fair market value of the
Leased Premises will not be lessened in any material respect
after the completion of any such Alteration, nor shall the
structural integrity of the Leased Premises be impaired; (ii) the
Alteration and any Alteration theretofore made or thereafter to
be made may not in the aggregate reduce the gross floor area of
the Improvements by more than 10%; (iii) all such Alterations
will be performed in a good and workmanlike manner, and will be
expeditiously completed in compliance with all Legal
Requirements; (iv) all work done in connection with any such
Alteration will comply with all Insurance Requirements; (v)
Tenant will promptly pay all costs and expenses of any such
Alteration, and will (subject to the provisions of Section 18)
discharge all liens filed against any of the Leased Premises
arising out of the same; (vi) Tenant will, prior to making any
Alterations, procure and pay for all permits and licenses
required in connection with any such Alteration; (vii) in the
case of any Alteration the estimated cost of which in any one
instance exceeds $500,000 (A) such Alteration will be made under
the supervision of an architect or engineer and, in accordance
with plans and specifications which will be submitted to Landlord
(for informational purposes only where Landlord's consent is not
required) prior to the commencement of the Alterations, and (B)
Tenant shall deliver or cause its general contractor to deliver
to Landlord payment and performance bonds (issued by companies
and in a form reasonably acceptable to Landlord) covering all
such Alterations, provided that such requirement shall be waived
to the extent Tenant shall have a Standard & Poor's rating of
BBB- or better; (viii) all such Alterations will be the property
of Landlord and will be subject to this Lease; (ix) Tenant will
execute any documents or instruments reasonably required, if any,
by Landlord to transfer, assign and convey such Alterations to
Landlord, and (x) at least ten (10) days before beginning
construction of structural Alterations, Tenant shall send written
notice of its intent to make such structural Alterations to
Landlord, which notice must contain plans and specifications
relating to the contemplated Alterations. Tenant shall also
deliver to Landlord copies of such licenses and permits that
Tenant is required to obtain in connection with the construction
of the Alterations, either with Tenant's notice described in the
preceding clause (x) or within a reasonable time after receiving
such licenses and permits. No consent of Landlord will be
required in connection with Tenant's obligations under the
preceding clause (x), unless such notice is otherwise required
under Section 12(a).
16
13. Condemnation.
------------
(a) Tenant, promptly after obtaining knowledge of the institution of
any proceeding for Condemnation, will notify Landlord thereof and
Landlord will be entitled to participate in any Condemnation
proceeding. Landlord, promptly after obtaining knowledge of the
institution of any proceeding for Condemnation, will notify
Tenant thereof and Tenant will have the right to participate in
such proceedings. Subject to the provisions of this Section 13
and Section 15, Tenant irrevocably assigns to Lender, if any, or
to Landlord, in that order, any award or payment in respect of
any Condemnation of any interest in the Leased Premises, except
that (except as provided below) nothing in this Lease will be
deemed to assign to Landlord or any Lender any award or payment
on account of the Trade Fixtures, moving expenses and
out-of-pocket expenses incidental to the move, if available, to
the extent Tenant has a right to make a separate claim therefor
against the condemnor. Notwithstanding the preceding sentence,
Tenant will in no event be entitled to any payment that reduces
the award to which Landlord is or would be entitled for the
condemnation of Landlord's interest in the Leased Premises.
(b) (i) (A) Tenant may terminate this Lease if any of the
following becomes the subject of a Taking by a duly
constituted authority or agency having jurisdiction: (I)
the entire Leased Premises; (II) at least 35% of the
Land; (III) at least 10% of the building constructed on
the Land; or (IV) any means of ingress, egress or access
to, or parking, at the Leased Premises, the loss of which
even after Restoration would be, in Tenant's reasonable
business judgment, substantially and materially adverse
to the business operations of Tenant at the Leased
Premises. In order to exercise this termination right,
Tenant will, not later than 90 days after a Taking has
occurred, serve notice ("Tenant's Termination Notice")
upon Landlord of Tenant's intention to terminate this
Lease on any Basic Rent Payment Date specified in such
Tenant's Termination Notice, which date (the
"Condemnation Termination Date") will be no sooner than
the first Basic Rent Payment Date occurring at least 30
days after the date of Tenant's Termination Notice.
(B) If Tenant serves a Tenant's Termination Notice upon
Landlord, Tenant will, as part of such Tenant's
Termination Notice, offer to purchase the Leased Premises
and the award (or, if no part of the Leased Premises will
remain, the entire award) for the applicable price (the
"Purchase Price") computed in accordance with Exhibit C
---------
to this Lease plus all other amounts which may be due and
owing to Landlord by reason of any default by Tenant in
complying with its obligations under this Lease (the
"Additions to Purchase Price"), which offer may be
rejected by Landlord as set forth below.
(C) If Landlord elects not to accept Tenant's offer to
purchase described in Section 13(b)(i)(B), Landlord will
give notice thereof to Tenant within 60 days after the
receipt of Tenant's Termination Notice.
17
(D) Should an offer to purchase not be accepted by
Landlord, this Lease will be terminated as above provided
and the entire award made in the Condemnation proceeding
with respect to the Leased Premises will be paid to
Landlord.
(E) Landlord's notice not to accept Tenant's offer to
purchase described in Section 13(b)(i)(B) will be void
and of no effect unless accompanied by the written notice
of any Lender to the effect that such Lender has
consented to Landlord's rejection of such offer to
purchase. Should such notices of Landlord or any Lender
rejecting Tenant's offer to purchase described in Section
13(b)(i)(B) not be served within the 60-day period, then
such offer will be deemed accepted.
(ii) If Landlord accepts or is deemed to have accepted
Tenant's offer to purchase described in Section
13(b)(i)(B), title shall close and the Purchase Price and
Additions to Purchase Price will be paid as provided in
this Lease. In such event Tenant will be entitled to and
shall receive any and all awards with respect to the
Leased Premises then or thereafter made in the
Condemnation proceeding and Landlord will assign (or in
case of any award previously made, deliver to Tenant on
the Closing Date (defined below)) such award as may be
made with respect to the Leased Premises. If Landlord
accepts Tenant's offer to purchase described in Section
13(b)(i)(B), or is deemed to have accepted such Tenant's
offer, title will close 30 days after the Condemnation
Termination Date defined above (the "Closing Date"), at
noon at the local office of Landlord's counsel, or at
such other time and place as the parties may agree upon,
this Lease will be automatically extended to and
including the Closing Date (or, if applicable the
extended Closing Date described (defined below)) and
Tenant will pay the Purchase Price and Additions to
Purchase Price by transferring immediate funds to such
account or accounts and in such bank or banks as Lender,
if any, or Landlord, in that order, may designate, upon
delivery of a special warranty deed (or local equivalent)
conveying the Leased Premises and all other required
documents including an assignment of any award in
connection with the taking of Leased Premises. The
special warranty deed (or local equivalent) will convey
title, free from encumbrances other than: (A) Permitted
Encumbrances; (B) liens or encumbrances created or
suffered by, through or under Tenant or arising by reason
of the failure of Tenant to observe or perform any of the
terms, covenants or agreements herein provided to be
observed and performed by Tenant; (C) any installments of
Impositions then affecting the Leased Premises; and (D)
this Lease. The Purchase Price and Additions to Purchase
Price payable as provided above will be charged or
credited, as the case may be, on the Closing Date, to
reflect adjustments of Basic Rent paid or payable to and
including the Closing Date, apportioned as of the Closing
Date. Tenant will pay all conveyance, transfer, sales and
like taxes required in connection with the purchase,
regardless of who is required to pay such taxes under
State or local law or custom (and Tenant will also pay to
Landlord any amount necessary to yield to Landlord the
entire
18
Purchase Price and Additions to Purchase Price if as a
matter of the Law of the State or locality such tax
cannot be paid directly by Tenant). If there be any liens
or encumbrances against the Leased Premises which
Landlord is obligated to remove, upon request made a
reasonable time before the Closing Date, Landlord will
provide at the Closing separate funds for the foregoing,
payable to the holder of such lien or encumbrances.
(iii) If during the month which is marked "$00" on Exhibit C to
---------
this Lease, Tenant will serve a Tenant's Termination
Notice upon Landlord, this Lease and the Term hereof will
terminate on the Condemnation Termination Date specified
in the Termination Notice; and in such event the entire
award to be made in the Condemnation proceeding will be
paid to Lender, if any, or to Landlord, in that order.
(c) (i) If a Condemnation of any part of the Leased Premises
occurs which does not result in a termination of this
Lease, subject to the requirements of Section 15, the Net
Award of such Condemnation will be retained by Landlord;
and promptly after such Condemnation, Tenant will
commence and diligently continue to restore the Leased
Premises as nearly as possible to its value, condition
and character immediately prior to such Condemnation, in
accordance with the provisions of this Lease, including
but not limited to the provisions of Sections 11(a), 12
and 15 (such restoration following a Condemnation and
restoration following a casualty is, as the context shall
require, called a "Restoration").
(ii) Upon the payment to Landlord of the Net Award of a Taking
in accordance with this Section 13(c), Landlord and any
Lender will, to the extent received, make that portion of
the Net Award equal to the cost of Restoration (the
"Restoration Award") available to Tenant for Restoration,
-----------------
in accordance with the provisions of Section 15, and
promptly after completion of the Restoration, the balance
of the Net Award will be paid to Tenant and all Basic
Rent and Additional Rent will continue unabated and
unreduced.
(iii) If a Requisition of the Leased Premises occurs, Landlord
shall apply the Net Award of such Requisition, to the
extent available, to the installments of Basic Rent or
Additional Rent thereafter payable and Tenant will pay
any balance remaining thereafter. Upon the expiration of
the Term, any portion of such Net Award which has not
been previously credited to Tenant on account of the
Basic Rent and Additional Rent will be retained by
Landlord.
(d) Except with respect to an award or payment to which Tenant is
separately entitled pursuant to the provisions of Section 13(a)
for any Trade Fixtures, moving expenses and out-of-pocket
expenses incidental to such move, no agreement with any condemnor
in settlement of or under threat of any Condemnation will be made
by either Landlord or Tenant without the written consent of the
other, and of Lender, if the Leased Premises are then subject to
a Mortgage, which consent will not be unreasonably withheld or
delayed.
19
14. Insurance.
---------
(a) Tenant shall obtain and maintain, or cause to be maintained,
insurance for Tenant and the Leased Premises providing at least
the following coverages:
(i) Property Insurance. Insurance with respect to the
Improvements and Equipment insuring against any peril
included within the classification "All Risks of Physical
Loss" in amounts at all times sufficient to prevent
Landlord or Lender from becoming a co-insurer within the
terms of the applicable policies and under applicable
law, but in any event such insurance shall be maintained
in an amount equal to the full insurable value of the
Improvements and Equipment, the term "full insurable
value" to mean the actual replacement cost of the
Improvements and Equipment (without taking into account
any depreciation, and exclusive of excavations, footings
and foundations, landscaping and paving) determined
annually by an insurer, a recognized independent
insurance broker or an independent appraiser selected and
paid by Tenant. Absent such annual adjustment, each
policy shall contain inflation guard coverage insuring
that the policy limit will be increased over time to
reflect the effect of inflation. Tenant shall also
maintain insurance against loss or damage to such
furniture, furnishings, fixtures, equipment and other
items (whether personalty or fixtures) included in the
Leased Premises and owned by Tenant from time to time, to
the extent applicable, in the amount of the cost of
replacing the same, in each case, with inflation guard
coverage to reflect the effect of inflation, or annual
valuation. Each policy or policies shall contain a
replacement cost endorsement and either an agreed amount
endorsement (to avoid the operation of any co-insurance
provisions) or a waiver of any co-insurance provisions,
all subject to Landlord's and Lender's approval. The
maximum deductible shall be $50,000.00.
(ii) Liability Insurance. Comprehensive general liability
insurance, including personal injury, bodily injury,
death and property damage liability, insurance against
any and all claims, including all legal liability to the
extent insurable and imposed upon Landlord and Lender and
all court costs and attorneys' fees and expenses, arising
out of or connected with the possession, use, leasing,
operation, maintenance or condition of the Leased
Premises in such amounts as are generally available at
commercially reasonable premiums and are generally
required by institutional lenders for properties
comparable to the Leased Premises but in no event for a
combined single limit of less than $3,000,000. During any
construction of the Leased Premises, Tenant's general
contractor for such construction shall also provide the
insurance required in this Subsection (ii). Landlord (and
its Lender) hereby retain the right to periodically
review the amount of said liability insurance being
maintained by Tenant and to require an increase in the
amount of said liability insurance should Landlord or
Lender deem an increase to be reasonably prudent under
then existing circumstances.
20
(iii) Workers' Compensation Insurance. Statutory workers' compensation
insurance with respect to any work on or about the Leased
Premises covering all persons subject to the workers'
compensation laws of the state in which the Leased Premises is
located.
(iv) Business Interruption. Business interruption and/or loss of
"rental income" insurance in an amount sufficient to avoid any
co-insurance penalty and to provide proceeds which will cover a
period of not less than one (1) year from the date of casualty
or loss, with a six-month extended period of indemnity, the term
"rental income" to mean the sum of (A) the total then
ascertainable Basic Rent and Additional Rent payable under this
Lease and (B) the total ascertainable amount of all other
amounts to be received by Tenant from third parties which are
the legal obligation of Tenant, reduced to the extent such
amounts would not be received because of operating expenses not
incurred during a period of non-occupancy of that portion of the
Leased Premises then not being occupied. The amount of coverage
shall be adjusted annually to reflect the Basic Rent and
Additional Rent payable during the succeeding twelve (12) month
period.
(v) Boiler and Machinery Insurance. Broad form boiler and machinery
insurance (without exclusion for explosion) covering all boilers
or other pressure vessels, machinery, and equipment located in,
on or about the Leased Premises and insurance against loss of
occupancy or use arising from any breakdown in such amount per
accident equal to the replacement value of the improvements
housing the machinery or $2,000,000 or such other amount
reasonably determined by Landlord or Lender. If one or more
large HVAC units is in operation at the Leased Premises, "System
Breakdowns" coverage shall be required, as reasonably determined
by Landlord and Lender. Minimum liability coverage per accident
must equal the value of such unit(s).
(vi) Flood Insurance. If any part of the leased Premises is now or at
any time in the future located within an area identified by the
Secretary of Housing and Urban Development or any successor
thereto as an area having special flood hazards pursuant to
National Flood Insurance Act of 1968 or the Flood Protection Act
of 1973, or the National Flood Insurance Reform Act of 1994, as
each may be amended, or any successor law, flood insurance in an
amount at least equal to the lesser of (A) the minimum amount
required, under the terms of coverage, to compensate for any
damage or loss on a replacement basis (or the unpaid balance of
the Loan if replacement cost coverage is not available for the
type of building insured); or (B) the maximum insurance
available under the appropriate National Flood Insurance
Administration program. The deductible may not exceed $25,000.
(vii) Improvements. During the period of any construction, renovation
or alteration of Improvements which exceeds the lesser of 10% of
the principal amount of the Loan or $500,000, at Landlord's or
Lender's request, a
21
completed value, "All Risk" Builder's Risk form, or "Course of
Construction" insurance policy in non-reporting form for any
Improvements under construction, renovation or alteration in an
amount reasonably approved by Landlord and Lender may be
required. During the period of any construction of any addition
to the existing Improvements, a completed value, "All Risk"
Builder's Risk form or "Course of Construction" insurance
policy in non-reporting form, in an amount reasonably approved
by Landlord and Lender, shall be required.
(viii) Other Insurance. Such other insurance with respect to the
Leased Premises or on any replacements or substitutions thereof
or additions thereto as may from time to time be reasonably
required by Landlord or Lender against other insurable hazards
or casualties which at the time are commonly insured against in
the case of property similarly situated, including, without
limitation, sinkhole, mine subsidence, earthquake and
environmental insurance, due regard being given to the height
and type of buildings, their construction, location, use and
occupancy.
(b) All insurance provided for in Subsection 14(a) hereof shall be
obtained under valid and enforceable policies (the "Policies" or in
the singular, the "Policy"), and shall be issued by one or more
domestic primary insurer(s) having an investment grade rating of "A"
or better ("AA" or better for loans of $25 million or more) or a
comparable claims paying ability assigned by Standard & Poors Rating
Services or equivalent credit Rating Agency approved by Landlord and
Lender (a "Rating Agency") (each such insurer shall be referred to
below as a "Qualified Insurer"). All insurers providing insurance
required by this Lease shall be authorized to issue insurance in the
state in which the Leased Premises is located. The Policy referred to
in Subsection 14(a)(ii) above shall name Landlord and Lender as an
additional named insured and the Policy referred to in Subsection
14(a)(i), (iv), (v) and (vi) above shall provide that all proceeds
payable to Lender be payable as set forth in the Mortgage to the
extent Lender is Trustee hereunder. The Policies referred to in
Subsections 14(a)(i), (v) and (vi) shall also contain: (i) a standard
"non-contributory mortgagee" endorsement or its equivalent relating,
inter alia, to recovery by Landlord and/or Lender notwithstanding the
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negligent or willful acts or omission of Landlord and/or Lender; and
(ii) to the extent available at commercially reasonable rates, a
waiver of subrogation endorsement as to Landlord and Lender. All
Policies described in Subsection 14(a) above shall contain (x) a
provision that such Policies shall not be canceled or terminated, nor
shall they expire, without at least thirty (30) days' prior written
notice to Landlord and Lender in each instance; and (y) include
effective waivers by the insurer of all claims for Insurance Premiums
(defined below) against any mortgagee, loss payees, additional
insureds and named insureds (other than Tenant). If the Leased
Premises or the Improvements constitutes a legal non-conforming use
under applicable building, zoning or land use laws or ordinances, the
policy shall include an ordinance or law coverage endorsement which
will contain Coverage A: "Loss Due to Operation of Law" (with a
minimum liability limit equal to Replacement Cost With Agreed Value
Endorsement), Coverage B:
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"Demolition Cost" and Coverage C: "Increased Cost of Construction"
coverages. Certificates of insurance with respect to all renewal and
replacement Policies shall be delivered to Landlord and Lender not
less than thirty (30) days prior to the expiration date of any of the
Policies required to be maintained hereunder which certificates shall
bear notations evidencing payment of applicable premiums (the
"Insurance Premiums"). Originals or certificates of such replacement
Policies shall be delivered to Landlord and Lender promptly after
Tenant's receipt thereof but in any case within thirty (30) days after
the effective date thereof. If Tenant fails to maintain and deliver to
Landlord and Lender the original Policies or certificates of insurance
required by this Lease, upon ten (10) days' prior notice to Tenant,
Landlord (or Lender) may procure such insurance at Tenant's sole cost
and expense.
(c) Tenant shall comply with all insurance requirements and shall not
bring or keep or permit to be brought or kept any article upon any of
the Leased Premises or cause or permit any condition to exist thereon
which would be prohibited by an insurance requirement, or would
invalidate the insurance coverage required hereunder to be maintained
by Tenant on or with respect to any part of the Leased Premises
pursuant to this Section 14.
(d) If the Leased Premises shall be damaged or destroyed, in whole or in
part, by fire or other casualty, Tenant shall give prompt notice of
such damage to Landlord and Lender, and Tenant shall promptly commence
and diligently prosecute the completion of the repair and restoration
of the Leased Premises as nearly as possible to the condition the
Leased Premises was in immediately prior to such fire or other
casualty, with such alterations as may be approved by Landlord and
Lender (the "Casualty Restoration") and otherwise in accordance with
the Mortgage.
(e) The insurance coverage required under Section 14(a) may be effected
under a blanket policy or policies covering the Leased Premises and
other properties and assets; provided that any such blanket policy
shall specify, except in the case of public liability insurance, the
portion of the total coverage of such policy that is allocated to the
Leased Premises, and any sublimit in such blanket policy applicable to
the Leased Premises, and shall in any case comply in all other
respects with the requirements of this Section 14.
(f) The insurance coverage required under Subsection 14(a)(ii) may be
satisfied by a layering of commercial general liability, umbrella and
excess liability Policies, but in no event will the commercial general
liability Policy be written for an amount less than $1,000,000 per
occurrence and $2,000,000 aggregate for bodily injury and property
damage liability.
(g) Approval of any insurance by Landlord or Lender shall not be a
representation of the solvency of any insurer or the sufficiency of
any amount of insurance.
(h) Landlord and Lender shall not be responsible for nor incur any
liability for the insolvency of the insurer or other failure of the
insurer to perform, even though
23
Landlord or Lender has caused the insurance to be placed with the
insurer after failure of Tenant to furnish such insurance. Tenant
shall not obtain insurance for the Leased Premises in addition to that
required by Landlord or Lender without the prior written consent of
Landlord and Lender, which consent will not be unreasonably withheld
provided that (i) Landlord and Lender are named insured on such
insurance, (ii) Landlord and Lender receive complete copies of all
policies evidencing such insurance, and (iii) such insurance complies
with all of the applicable requirements set forth herein.
(i) The insurance coverage required under this Section 14 shall be deemed
satisfied so long as Tenant self insures all of the coverage referred
to in this Section 14, subject, however, to the following conditions:
(i) Tenant is in actual possession of the Leased Premises and is
paying Basic Rent and Additional Rent pursuant to this Lease; (ii)
this Lease is in full force and effect and no default or event of
default exists hereunder; (iii) Tenant has credit rating of "BBB" or
better by Standard & Poor's Rating Services (or, if rated by another
Rating Agency, a rating in an equivalent category by such other Rating
Agency); and (iv) the tangible net worth of Tenant is no less than
$100,000,000 as determined in accordance with generally accepted
accounting principles consistently applied. If, during the Term, any
damage or destruction occurs and Tenant is self-insuring under this
Section 12(i), then Tenant shall pay to the Trustee the amount of the
proceeds that would have been payable had such insurance program been
in effect within 30 days after the occurrence of the casualty (the
"Tenant Insurance Payment").
(j) On each Basic Rent Payment Date, unless Tenant self insures under
Section 14(i), Tenant shall make a monthly escrow deposit into an
interest-bearing account of Landlord's choice (the "Escrow Account")
maintained with the Trustee. All interest earned on the funds in the
Escrow Account will belong to Tenant, and the Trustee shall pay the
interest to Tenant quarterly; provided, however, that if such Escrow
Account is required to be held by a Lender acting as Trustee under the
terms of any Loan, Tenant shall be entitled to only such interest that
is payable to Landlord under the terms of such Loan. The amount of
each monthly escrow deposit will be equal to 1/12 of the total amount
which would be sufficient to pay the annual insurance premiums due
(without any consideration or deduction attributable to blanket
coverage) for the renewal of the insurance policies required under
this Section 14 upon the expiration thereof. Initially, the amount of
each monthly escrow deposit will be $1,057.2 From time to time,
Landlord or any Lender may change the monthly escrow deposit amount to
an amount reasonably determined by Landlord or any Lender to reflect
an accurate escrow of Tenant's estimated obligation to discharge
Impositions, by giving Tenant 30 days prior written notice. The notice
must include information reasonably supporting the new amount. Tenant
shall pay the noticed amount as its monthly escrow deposit for each
deposit due after the expiration of the 30-day period.
15. Restoration. Net Proceeds, Restoration Award and any Tenant Insurance
-----------
Payment (the aggregate of which being defined as the "Restoration Fund")
will be disbursed by the Trustee in accordance with the following
conditions:
24
(a) If the cost of Restoration will exceed $500,000, prior to commencement
of the Restoration the architects, general contractor(s), and plans
and specifications for the Restoration must be approved by Landlord,
which approval will not be unreasonably withheld or delayed; and which
approval must be granted to the extent that the plans and
specifications depict a Restoration which is substantially similar to
the Improvements and Equipment which existed prior to the occurrence
of a casualty or Taking, whichever is applicable, so long as the same
comply with all current Legal Requirements.
(b) At the time of any disbursement under this Section 15, no Event of
Default may exist and no mechanics' or materialmen's liens may have
been filed and remain undischarged or unbonded.
(c) Disbursements will be made from time to time in an amount not
exceeding the cost of the work and costs incurred since the last
disbursement, less a retainage as provided below, upon receipt of: (i)
satisfactory evidence, including architects' certificates of the stage
of completion, of the estimated cost of completion and of performance
of the work to date in a good and workmanlike manner in accordance
with the contracts, plans and specifications; (ii) partial releases of
liens; and (iii) other reasonable evidence of cost and payment so that
Landlord can verify that the amounts disbursed from time to time are
represented by work that is completed in place or delivered to the
site and free and clear of mechanics' lien claims in accordance with
this Lease.
(d) Each request for disbursement must be accompanied by Tenant's
certificate describing the work, materials or other costs or expenses
for which payment is requested, stating the cost incurred in
connection therewith and stating that Tenant has not previously
received payment for such work or expense and the certificate to be
delivered by Tenant upon completion of the work will, in addition,
state that the work has been substantially completed and complies with
the applicable requirements of this Lease.
(e) The Trustee may retain ten percent (10%) of the Restoration Fund until
the Restoration is substantially completed.
(f) The Restoration Fund will be kept in a separate interest-bearing
federally insured account by the Trustee.
(g) At all times the undisbursed balance of the Restoration Fund held by
Trustee plus any funds contributed thereto by Tenant, at Tenant's
option, will not be less than the cost of completing the Restoration,
free and clear of all liens.
(h) In addition, prior to commencement of Restoration and at any time
during Restoration, if the estimated cost of Restoration, as
reasonably determined by Landlord, exceeds the amount of the
Restoration Fund, the amount of such excess will be paid by Tenant to
the Trustee to be added to the Restoration Fund or Tenant will fund at
its own expense the costs of such Restoration until the remaining
25
Restoration Fund is sufficient for the completion of the Restoration.
Any sum in the Restoration Fund which remains in the Restoration Fund
upon the completion of Restoration will be paid to Tenant. For
purposes of determining the source of funds with respect to the
disposition of funds remaining after the completion of Restoration,
the Net Proceeds or the Restoration Award will be deemed to be
disbursed prior to any amount added by Tenant.
(i) Notwithstanding the foregoing, so long as the GMAC Loan shall be
outstanding, the Restoration Fund shall be maintained and disbursed in
accordance with the terms of the GMAC Loan documents in effect as of
the date hereof.
(j) (i) If at any time and from time to time during the Term, any Lender
applies any part of the Restoration Fund to reduce amounts owing
under the Loan (other than costs of settlement), then (A)
Landlord shall promptly send written notice of that fact to
Tenant, and (B) Tenant may make a rejectable purchase offer (the
"Casualty Purchase Offer") to purchase the Leased Premises for a
purchase price computed in accordance with Exhibit C hereto,
---------
plus all other amounts which may be due and owing to Landlord by
Tenant under the Lease (the "Casualty Purchase Price"). Tenant
shall serve Landlord with such Casualty Purchase Offer not later
than 90 days after Tenant receives notice that Lender has
applied Restoration Fund proceeds to amounts owing under the
Loan (other than costs of settlement).
(ii) If Landlord elects not to accept Tenant's Casualty Purchase
Offer, then Landlord will give notice thereof to Tenant within
60 days after the receipt of such offer, which notice shall be
accompanied by a financing commitment or other evidence that
Landlord will have available to it within 30 days an amount
equal to the amount of the Restoration Fund that Lender applied
to reduce amounts owing under the Loan. Landlord shall disburse
such amounts to Tenant in connection with the Restoration
commencing 30 days following Landlord's rejection notice in
accordance with the provisions of Section 15 of this Lease and
this Lease shall remain in full force and effect.
(iii) Should Landlord fail to reject Tenant's offer to purchase by
timely sending Landlord's notice and providing evidence of
availability of funds under Section 15(j)(ii), then, Landlord
will be deemed to have accepted Tenant's Casualty Purchase
Offer.
(iv) If Landlord accepts Tenant's Casualty Purchase Offer or is
deemed to have accepted such Tenant's offer, title will close on
the first Basic Rent Payment Date which occurs 90 days after
Tenant served Landlord with the Casualty Purchase Offer (the
date of actual closing, "Closing Date"), at noon at the local
office of Landlord's counsel, or at such other time and place as
the parties may agree upon, and this Lease will be automatically
extended to and including the Closing Date and Tenant will pay
the Casualty Purchase Price by transferring immediate funds to
such account or accounts and in such bank or banks as Landlord
may designate, upon delivery of a special warranty deed
26
(or local equivalent) conveying the Leased Premises and all
other required documents. The special warranty deed (or local
equivalent) will convey title, free from encumbrances other
than: (A) Permitted Encumbrances; (B) liens or encumbrances
created or suffered by, through or under Tenant or arising by
reason of the failure of Tenant to observe or perform any of the
terms, covenants or agreements herein provided to be observed
and performed by Tenant; (C) any installments of Impositions
then affecting the Leased Premises; and (D) this Lease. The
Casualty Purchase Price will be charged or credited, as the case
may be, on the Closing Date, to reflect adjustments of Basic
Rent paid or payable to and including the Closing Date,
apportioned as of the Closing Date. Tenant will pay all
conveyance, transfer, sales and like taxes required in
connection with the purchase, regardless of who is required to
pay such taxes under State or local law or custom (and Tenant
will also pay to Landlord any amount necessary to yield to
Landlord the entire Casualty Purchase Price if as a matter of
the Law of the State or locality such tax cannot be paid
directly by Tenant). If there are any liens or encumbrances
against the Leased Premises which Landlord is obligated to
remove (including any Mortgage), upon request made a reasonable
time before the Closing Date, Landlord will provide at the
Closing separate funds for the foregoing to the extent required,
payable to the holder of such lien or encumbrances.
16. Subordination to Financing.
--------------------------
(a) (i) Subject to the provisions of Section 16 (a)(ii), Tenant agrees
that this Lease will at all times be subject and subordinate to
the lien of any Mortgage, and Tenant agrees, upon demand,
without cost, to execute instruments as may be required to
further effectuate or confirm such subordination.
(ii) Except as expressly provided in this Lease by reason of the
occurrence of an Event of Default, Tenant's tenancy and Tenant's
rights under this Lease will not be disturbed, terminated or
otherwise adversely affected, nor will this Lease be affected,
by any default under any Mortgage, and in the event of a
foreclosure or other enforcement of any Mortgage, or sale in
lieu thereof, the purchaser at such foreclosure sale will be
bound to Tenant for the Term of this Lease (including, without
limitation, any Renewal Term) the rights of Tenant under this
Lease will expressly survive, and this Lease will in all
respects continue in full force and effect so long as no Event
of Default has occurred and is continuing. Tenant will not be
named as a party defendant in any such foreclosure suit, except
as may be required by law. Any Mortgage (other than a mortgage
or security instrument securing the GMAC Loan) to which this
Lease is now or hereafter subordinate will provide, in effect,
that during the time this Lease is in force insurance proceeds
and Restoration Award will be permitted to be used for
Restoration in accordance with the provisions of this Lease.
27
(b) Notwithstanding the provisions of Section 16(a), the holder of any
Mortgage to which this Lease is subject and subordinate will have the
right, at its sole option, at any time, to subordinate and subject the
Mortgage, in whole or in part, to this Lease by recording a unilateral
declaration to such effect, provided that such holder will have agreed
that during the time this Lease is in force insurance proceeds and
Restoration Award will be permitted to be used for restoration in
accordance with the provisions of this Lease.
(c) At any time prior to the expiration or termination of the Term, Tenant
agrees, at the election and upon demand of any owner of the Leased
Premises, or of a Lender who has granted non-disturbance to Tenant
pursuant to Section 16(a) above, to attorn, from time to time, to any
such owner or any Lender, upon the terms and conditions of this Lease,
for the remainder of the Term. The provisions of this Section 16(c)
will inure to the benefit of any such owner or any Lender, will apply
notwithstanding that, as a matter of law, this Lease may terminate
upon the foreclosure of the Mortgage, will be self-operative upon any
such demand, and no further instrument will be required to give effect
to said provisions. Notwithstanding the foregoing, however, Tenant
agrees to execute any document reasonably requested by any such owner
or any Lender to confirm such attornment.
(d) Each of Tenant, Landlord and any Lender, however, upon demand of the
other, agrees to execute, from time to time, instruments in
confirmation of the foregoing provisions of Sections 16(a) and 16(c),
reasonably satisfactory to the requesting party acknowledging such
subordination, non-disturbance and attornment as are provided in such
subsections and setting forth the terms and conditions of its tenancy.
(e) Each of Tenant, Landlord and any Lender agrees that, if requested by
any of the others, each will, without charge, enter into a
subordination, non-disturbance and attornment agreement reasonably
requested by any Lender, provided such agreement contains provisions
relating to non-disturbance in accordance with the provisions of
Section 16(a) and Tenant agrees for the benefit of such Lender that
Tenant will not: (i) without in each case the prior written consent of
such Lender, which will not be unreasonably withheld, conditioned or
delayed, amend or modify the Lease (provided, however, such Lender, in
-------- -------
such Lender's sole discretion may withhold or condition its consent to
any amendment or modification which would or could: (A) alter in any
way the amount or time for payment of any Basic Rent, Additional Rent
or other sum payable hereunder; (B) alter in any way the absolute and
unconditional nature of Tenant's obligations hereunder or materially
diminish any such obligations; (C) result in any termination prior to
the end of the Initial Term; or (D) otherwise, in such Lender's
reasonable judgment, adversely affect the rights or obligations of
Landlord or Tenant under this Lease), or enter into any agreement with
Landlord so to do; (ii) without the prior written consent of such
Lender which may be withheld in such Lender's sole discretion, cancel
or surrender or seek to cancel or surrender the Term of this Lease, or
enter into any agreement with Landlord to do so (the parties agreeing
that the foregoing will not be construed to affect the rights or
obligations of Tenant, Landlord or such Lender with respect to any
termination permitted under the express terms of this Lease in
connection with an offer to purchase the Leased
28
Premises following certain events of condemnation as provided in
Section 13); or (iii) pay any installment of Basic Rent more than one
(1) month in advance of the due date thereof or otherwise than in the
manner provided for in this Lease.
17. Assignment, Subleasing.
----------------------
(a) Tenant may assign its interest in this Lease to a Qualified Assignee
and may sublet the Leased Premises in whole or in part, from time to
time, without the consent of Landlord, subject and subordinate to all
of the terms of this Lease and provided that any such sublease: (1)
does not extend beyond the term of the Lease; (2) is consistent with
the terms of the Lease (and Landlord and any Lender shall have the
right to reasonably approve the form of any such sublease); (3) is
expressly by its terms subordinate to the Lease, provided, that if the
Tenant defaults under the Lease while the subtenant is not in default,
and the subtenant is not an affiliate of the Tenant, the subtenant's
possession will not be disturbed; and (4) provides that the subtenant
agrees to attorn to Landlord and any Lender and be subordinate to any
Loan. Notwithstanding the foregoing, however, neither this Lease nor
the leasehold estate created hereby may be mortgaged by Tenant, nor
may Tenant mortgage or pledge its interest in any sublease of the
Leased Premises or the rentals payable thereunder. Tenant may, without
Landlord's consent, permit licensees or concessionaires to occupy
portions of the Premises.
(b) No assignment or sublease may affect or reduce any of the obligations
of Tenant under this Lease, and all such obligations will continue in
full force and effect as obligations of a principal and not as
obligations of a guarantor, as if no assignment, mortgage, pledge or
sublease had been made. Notwithstanding any assignment or subletting
Tenant will continue to remain primarily liable and responsible, as a
principal and not as a surety, for the payment of the Basic Rent and
Additional Rent and the performance of all of its other obligations
under this Lease. No assignment or sublease will impose any
obligations on Landlord under this Lease except as otherwise expressly
provided in this Lease. Tenant agrees that in the case of an
assignment of the Lease, Tenant will, within 15 days after the
execution and delivery of any such assignment, deliver to Landlord:
(i) a duplicate original of such assignment in recordable form; and
(ii) an agreement executed and acknowledged by the assignee in
recordable form wherein the assignee shall agree to assume and agree
to observe and perform all of the terms and provisions of this Lease
on the part of the Tenant to be observed and performed from and after
the date of such assignment, and shall agree that such assignment is
subject and subordinate to all of the terms and provisions of this
Lease. In the case of a sublease, Tenant will, within 15 days after
the execution and delivery of such sublease, deliver to Landlord a
duplicate original of such sublease.
(c) Upon the occurrence of an Event of Default under this Lease, Landlord
will have the right to collect and enjoy all rents and other sums of
money payable under any sublease of any of the Leased Premises, and
Tenant hereby irrevocably and unconditionally assigns such rents and
money to Landlord, which assignment may be exercised upon and after
(but not before) the occurrence of an Event of Default.
29
(d) (i) Landlord agrees for itself, its successors and assigns, promptly
upon Tenant's request, to enter into a non-disturbance and
attornment agreement with any Qualified Subtenant (defined below)
upon the terms described below, pursuant to which Landlord shall
agree, for so long as such Qualified Subtenant is not in default
under its Qualified Sublease (defined below) that the Qualified
Sublease shall not be terminated as a result of any termination
of this Lease and such Qualified Subtenant's use and occupancy of
the Leased Premises shall not be disturbed by Landlord, and
pursuant to which such Qualified Subtenant will agree to attorn
to Landlord or its successor as landlord under the Qualified
Sublease upon any termination of this Lease. Said agreement will
further provide that nothing therein contained shall impose any
obligation on the Landlord or any Lender to: (A) return or apply
any security deposit under such sublease, unless such security
deposit is transferred and turned over to the Landlord or any
Lender or their or either of their successors; (B) expend any
sums to make any installations or alterations provided to be made
by the Landlord under said sublease or reimburse the Tenant under
said sublease for any installations or alterations made by it;
(C) be liable for any act or omission of Tenant as sublandlord
(or any successor to Tenant as sublandlord) or be subject to any
offsets or defense which such subtenant might have against Tenant
as sublandlord (or any successor to Tenant as sublandlord); (D)
be bound by any rent or additional rent which such subtenant
might have paid for more than the current month to any prior
landlord; or (E) be bound by any amendment or modification of the
sublease made without the prior written consent of Landlord, the
terms of which amendment or modification if included in the
original sublease would have prevented such sublease from meeting
the criteria for a Qualified Sublease.
(ii) Any subtenant under a Qualified Sublease (defined below) is a
"Qualified Subtenant." "Qualified Sublease" means any sublease
(i) of all of the Leased Premises, (ii) pursuant to which the
subtenant thereunder had, at the time such sublease was entered
into, either a Standard & Poors rating of BBB or better or a net
worth equal to or greater than $300,000,000, (iii) that is on the
terms and conditions of this Lease (except that Basic Rent or
Additional Rent (or both) may be higher), (iv) for a term not to
exceed the Term of this Lease (and if any such Qualified Sublease
includes all or part of any Renewal Term or Renewal Terms, then
Tenant will be conclusively deemed to have irrevocably waived the
right to issue a Renewal Term Cancellation Notice as to such
Renewal Term or Renewal Terms, which waiver Tenant will confirm
in writing to Landlord if requested to do so), (v) at fair market
rents, confirmed by an appraisal or a broker's certification, and
(vi) providing that such subtenant may not assign or further
sublease the Leased Premises.
(e) (i) Landlord agrees for itself, its successors and assigns, promptly
upon Tenant's request, to enter into an agreement with any
Qualified Assignee (defined below) pursuant to which Landlord
will agree, for so long as such Qualified
30
Assignee is not in default of its obligations under this
Lease, that no defaults or Event of Default shall be
deemed to have occurred under this Lease by reason of the
occurrence of one or more of the events designated in
this Lease with respect to any party who was a Tenant
under this Lease prior to the date of the assignment of
this Lease to the Qualified Assignee.
(ii) "Qualified Assignee" means any assignee of the Tenant's
rights, title and interest under this Lease which, at the
time of the assignment to it, had either a Standard &
Poors rating of BBB or better or a net worth equal to or
greater than $300,000,000.
(f) Landlord agrees for itself, its successors and assigns, that in
the event Tenant grants to any lender a chattel mortgage or other
security interest that is secured by any Trade Fixtures or
inventory of Tenant that is located at or used in the Leased
Premises, then such lender, when authorized under the terms of
the applicable loan documents, shall be permitted to enter upon
the Leased Premises and to remove any or all of the Trade
Fixtures or inventory of Tenant in which the lender holds a
security interest. Tenant will and does agree to defend,
indemnify and hold any Lender and Landlord, their respective
officers, directors, shareholders, partners, beneficial owners,
trustees, members, managers, agents and employees, harmless from
and against any and all causes of actions, suits, demands or
judgments of any nature whatsoever, losses, damages, penalties,
expenses, fees, claims, costs (including response and remedial
costs), and liabilities, including, but not limited to,
reasonable out-of-pocket attorneys' fees and costs of litigation,
arising out of or in any manner connected with such removal.
18 Permitted Contests.
------------------
(a) After prior written notice to Landlord and any Lender, Tenant
will not be required to: (i) pay any Imposition; (ii) comply with
any Legal Requirement; (iii) discharge or remove any lien
referred to in Sections 9 or 12; or (iv) take any action with
respect to any violation referred to in Section 11(b) so long as
Tenant shall contest, in good faith and at its expense, the
existence, the amount or the validity thereof, the amount of the
damages caused thereby, or the extent of its or Landlord's
liability therefor, by appropriate proceedings which shall
operate during the pendency thereof to prevent: (A) the
collection of, or other realization upon, the Imposition or lien
so contested; (B) the sale, forfeiture or loss of any of the
Leased Premises, any Basic Rent or any Additional Rent to satisfy
the same or to pay any damages caused by the violation of any
such Legal Requirement or by any such violation; (C) any
interference with the use or occupancy of any of the Leased
Premises; (D) any interference with the payment of any Basic Rent
or any Additional Rent; and (E) the cancellation of any fire or
other insurance policy.
(b) In no event may Tenant pursue any contest with respect to any
Imposition, Legal Requirement, lien, or violation, referred to in
Section 18(a) in such manner that exposes Landlord or any Lender
to: (i) criminal liability, penalty or sanction; (ii) any civil
liability, penalty or sanction for which Tenant has not made
provisions
31
reasonably acceptable to Landlord and any Lender; or (iii)
defeasance of its interest in the Leased Premises.
(c) Tenant agrees that each such contest will be promptly and
diligently prosecuted to a final conclusion, except that Tenant
will have the right to attempt to settle or compromise such
contest through negotiations. Tenant will pay and save any Lender
and Landlord harmless against any and all losses, judgments,
decrees, reasonable out-of-pocket costs and expenses (including
all attorneys' fees and expenses) in connection with any such
contest and will, promptly after the final determination of such
contest, fully pay and discharge the amounts which will be
levied, assessed, charged or imposed or be determined to be
payable therein or in connection therewith, together with all
penalties, fines, interest, costs and expenses thereof or in
connection therewith, and perform all acts the performance of
which will be ordered or decreed as a result thereof.
19. Conditional Limitations; Default Provisions.
-------------------------------------------
(a) The occurrence of any one or more of the following events (any
such event being a "failure" or "default") will constitute an
Event of Default under this Lease: (i) a failure by Tenant to
make (regardless of the pendency of any bankruptcy,
reorganization, receivership, insolvency or other proceedings, in
law, in equity or before any administrative tribunal which had or
might have the effect of preventing Tenant from complying with
the provisions of this Lease): (x) any payment of Basic Rent
which continues unremedied for a period of 3 business days after
written notice ("Nonpayment Notice") thereof given to Tenant by
Landlord; or (y) any payment of Additional Rent or other sum
herein required to be paid by Tenant which continues unremedied
for a period of 15 business days after a Nonpayment Notice is
given to Tenant by Landlord; (ii) failure of Tenant to deliver to
Landlord evidence of renewal and replacement Policies not less
than 30 days prior to the expiration date(s) of such Policies as
required by Section 14(b) hereof and such default shall continue
for a period of 10 days after the written notice thereof is given
by Landlord to Tenant, (iii) failure by Tenant to perform and
observe, or a violation or breach of, any other provision in this
Lease and such default continues for a period of 30 days after
written notice thereof is given by Landlord to Tenant or if such
default is of such a nature that it cannot reasonably be cured
within such period of 30 days, such period will be extended for
such longer time as is reasonably necessary provided that Tenant
has commenced to cure such default within said period of 30
business days and is actively, diligently and in good faith
proceeding with continuity to remedy such default not to exceed
an additional 120 days; (iv) Tenant: (A) is voluntarily
adjudicated a bankrupt or insolvent; (B) or voluntarily consent
to the appointment of a receiver or trustee for itself or for the
Leased Premises; (C) voluntarily files a petition seeking relief
under the bankruptcy or other similar laws of the United States,
any state or any jurisdiction; or (D) voluntarily files a general
assignment for the benefit of creditors; (v) a court enters an
order, judgment or decree appointing, with the voluntary consent
of Tenant, a receiver or trustee for Tenant or for the Leased
Premises or approving a petition filed against Tenant which seeks
relief under the bankruptcy or other similar laws of the United
States or any State, and such order,
32
judgment or decree remains in force, undischarged or unstayed,
180 business days after it is entered; (vi) Tenant in any
insolvency proceedings is liquidated or dissolved or voluntarily
commences proceedings towards its liquidation or
dissolution;(vii) the estate or interest of Tenant in the Leased
Premises is levied upon or attached in any proceeding and such
estate or interest is about to be sold or transferred or such
process is not vacated or discharged within 180 business days
after such levy or attachment; (viii) should any representation
of Tenant in Section 33 hereof be untrue in any material respect
as of the date made. Notwithstanding anything in the foregoing
portions of this Section 19(a), if Landlord or any Lender
receives notice that Tenant has not timely paid any insurance
premiums required under this Lease, then either Landlord or such
Lender may pay the premiums and xxxx Tenant for the amount of the
premiums (which xxxx must include reasonable proof of payment of
the premiums), and Tenant must pay the premiums to Landlord or
such Lender, as applicable, within 15 days after receiving the
xxxx. If Landlord or any Lender pays the insurance premiums as
provided in the previous sentence, and Tenant reimburses Landlord
or Lender as applicable within the 15 day period provided above,
Tenant's failure to pay the premiums will not be considered to be
a default under this Lease.
(b) If any Event of Default occurs, Landlord shall have the right, at
its option, to do any one or more of the following without demand
upon or notice to Tenant:
(i) Landlord may give Tenant notice (following the occurrence
of an Event of Default) of Landlord's intention to
terminate this Lease on a date specified in such notice
(which date will be no sooner than 3 business days after
the date the notice is received by Tenant (the
"Termination Date"). Upon the Termination Date, unless the
Event of Default for which the termination is effected is
a default which can be cured by the payment of money and
such Event of Default has been cured by Tenant, the Term
and the estate hereby granted and all rights of Tenant
hereunder will expire and terminate as if such Termination
Date were the date fixed for the expiration of the Term,
but Tenant will remain liable for all its obligations
under this Lease through the date otherwise fixed for the
expiration of the Term in Section 5, including its
liability for Basic Rent and Additional Rent as provided
below.
(ii) Landlord may, whether or not the Term of this Lease has
been terminated pursuant to clause (i) above give Tenant
notice (following the occurrence of an Event of Default)
to surrender the Leased Premises to Landlord on a date
specified in such notice (which date shall be no sooner
than 30 days after the date the notice is received by
Tenant), at which time Tenant will surrender and deliver
possession of the Leased Premises to Landlord unless the
Event of Default for which the termination is effected is
a default which can be cured by the payment of money and
such Event of Default has been cured by Tenant within 3
business days of Landlord's notice given under this
paragraph. Upon or at any time after taking possession of
the Leased Premises, Landlord may remove any persons or
property therefrom. Landlord will have no liability for or
by reason of any such entry,
33
repossession or removal. No such entry or repossession may
be construed as an election by Landlord to terminate this
Lease unless Landlord gives a written notice of such
intention to Tenant pursuant to clause (i) above.
(iii) After repossession of any of the Leased Premises pursuant
to clause (ii) above, whether or not this Lease has been
terminated pursuant to clause (i) above, Landlord may
relet the Leased Premises or any part thereof to such
tenant or tenants for such term or terms (which may be
greater or less than the period which would otherwise have
constituted the balance of the Term) for such rent, on
such conditions (which may include concessions or free
rent) and for such uses as Landlord, in its reasonable
discretion, may determine; and Landlord will collect and
receive any rents payable by reason of such reletting. The
rents received on such reletting will be applied: (A)
first to the reasonable and actual expenses of such
reletting and collection, including without limitation
necessary renovation and alterations of the Leased
Premises, reasonable and actual attorneys' fees and any
reasonable and actual real estate commissions paid; and
(B) thereafter toward payment of all sums due or to become
due Landlord hereunder. If a sufficient amount to pay such
expenses and sums is not realized or secured, then Tenant
will pay Landlord any such deficiency monthly, and
Landlord may bring an action therefor as such monthly
deficiency shall arise. Landlord will not, in any event,
be required to pay Tenant any sums received by Landlord on
a reletting of the Leased Premises in excess of the rent
provided in this Lease, but such excess will reduce the
accrued present or future obligations of Tenant under this
Lease. Landlord's re-entry and reletting of the Leased
Premises without termination of this Lease will not
preclude Landlord from subsequently terminating this Lease
as set forth in this Section. Landlord may make such
Alterations as Landlord in its reasonable discretion may
deem advisable. Tenant agrees to pay Landlord, as
Additional Rent, immediately upon demand, all reasonable
out-of-pocket costs and expenses incurred by Landlord in
obtaining possession, in performing Alterations and in
reletting any of the Leased Premises, including fees and
commissions of attorneys, architects, agents and brokers.
(iv) If Tenant fails to make payment of any installment of
Basic Rent or any Additional Rent on or before the date
when each such payment is due, Tenant will pay to
Landlord, an amount equal to the amount unpaid times the
rate (the "Default Rate") that is the greater of (A) 4%
per annum above the then current Prime Rate (defined
below) or (B) the default rate owed by Landlord under its
loan documents with any Lender, computed from the date
such payment of Basic Rent or Additional Rent was due
through and including the date of payment. The term "Prime
Rate" means the prime rate of interest published in The
Wall Street Journal or its successor, from time to time.
(v) Landlord may exercise any other right or remedy now or
hereafter existing by law or in equity.
34
(c) In the event of any expiration or termination of this Lease or
repossession of any of the Leased Premises by reason of the
occurrence of an Event of Default, Tenant will pay to Landlord
Basic Rent and Additional Rent through and including the date of
such expiration, termination or repossession and, thereafter,
Tenant will, until the end of what would have been the Term in
the absence of such expiration, termination or repossession, and
whether or not any of the Leased Premises have been relet, be
liable to Landlord for and will pay to Landlord as liquidated and
agreed current damages: (i) Basic Rent, Additional Rent and all
other sums which would be payable under this Lease by Tenant in
the absence of such expiration, termination or repossession, less
(ii) the net proceeds, if any, of any reletting pursuant to
Section 19(b)(iii), after deducting from such proceeds all of
Landlord's reasonable out-of-pocket expenses in connection with
such reletting (including all reasonable repossession costs,
brokerage commissions, legal expenses, attorneys' fees,
employees' expenses, costs of Alteration and expenses of
preparation for reletting). Tenant hereby agrees to be and remain
liable for all such sums and Landlord may recover such damages
from Tenant and institute and maintain successive actions or
legal proceedings against Tenant for the recovery of such
damages. Nothing in this subsection will be deemed to require
Landlord to wait to begin such action or other legal proceedings
until the date when the Term would have expired by limitation had
there been no such Event of Default. In addition to the
foregoing, Tenant shall pay to Landlord the yield maintenance
premium, if any, paid by Landlord to GMAC in connection with a
repayment by Landlord of the GMAC Loan following an acceleration
thereof as a result of an Event of Default by Tenant hereunder.
(d) At any time after such expiration or sooner termination of this
Lease pursuant to Section 19 or pursuant to law or if Landlord
has reentered the Leased Premises, as the case may be, whether or
not Landlord has recovered any amounts under Section 19(b)(iii)
or 19(c), Landlord will be entitled to recover from Tenant and
Tenant will pay to Landlord, on demand, as and for liquidated and
agreed final damages for Tenant's default, the amount by which
the Basic Rent, and all Additional Rent reserved under this
Section 19 for the unexpired portion of the Term as if the Lease
had not expired or been terminated exceeds the then fair and
reasonable rental value of the Leased Premises for the same
period, discounted to present worth at the annual rate of seven
percent (7%), minus any such monthly deficiencies previously
recovered from Tenant under Section 19(b)(iii) if applicable to
such period.
(e) If any statute or rule of law governing a proceeding in which
such liquidated final damages provided for in Section 19(d) are
to be proved shall validly limit the amount thereof to an amount
less than the amount above agreed upon, Landlord will be entitled
to the maximum amount allowable under such statute or rule of
law.
20. Additional Rights of Landlord and Tenant.
----------------------------------------
(a) No right or remedy conferred upon or reserved to Landlord in this
Lease is intended to be exclusive of any other right or remedy;
and each and every right and remedy is cumulative and in addition
to any other right or remedy contained in this Lease. No delay or
failure by Landlord or Tenant to enforce its rights under this
Lease will
35
be construed as a waiver, modification or relinquishment of such
rights. In addition to the other remedies provided in this Lease,
Landlord and Tenant will be entitled, to the extent permitted by
applicable law, to injunctive relief in case of the violation or
attempted or threatened violation of any of the provisions of
this Lease, or to specific performance of any of the provisions
of this Lease.
(b) Tenant waives and surrenders for itself and all those claiming
under it, including creditors of all kinds, any right and
privilege which it or any of them may have under any present or
future law to redeem any of the Leased Premises or to have a
continuance of this Lease after termination of this Lease or of
Tenant's right of occupancy or possession pursuant to any court
order or any provision of this Lease.
(c) Landlord waives any right to distrain or levy upon Trade Fixtures
or any property of Tenant and any Landlord's lien or similar lien
upon Trade Fixtures and any other property of Tenant regardless
of whether such lien is created or otherwise. Landlord agrees at
the request of Tenant, to execute a waiver of any Landlord's or
similar lien for the benefit of any present or future holder of a
security interest in or lessor of any of Trade Fixtures or any
other personal property of Tenant.
(d) Landlord acknowledges and agrees in the future to acknowledge (in
a written form reasonably satisfactory to Tenant) to such persons
and entities at such times and for such purposes as Tenant may
reasonably request that the Trade Fixtures are Tenant's property
and not part of the Improvements (regardless of whether or to
what extent such Trade Fixtures are affixed to the Improvements)
or otherwise subject to the terms of this Lease.
(e) Each of Tenant and Landlord (each, a "Paying Party") agrees to
pay to the other party (each, a "Demanding Party") any and all
reasonable out-of-pocket costs and expenses incurred by the
Demanding Party in connection with any litigation or other action
instituted by the Demanding Party to enforce the obligations of
the Paying Party under this Lease, to the extent that the
Demanding Party has prevailed in any such litigation or other
action. Any amount payable by Tenant to Landlord pursuant to this
Section 20(e) will be due and payable by Tenant to Landlord as
Additional Rent. No sum payable by Landlord to Tenant under this
Section 20(e) will be payable or recoverable from any sums
pledged or assigned (or intended to have been pledged or
assigned) by Landlord to any Lender, Tenant's right to recover
such sums from Landlord being subordinate to the rights of any
Lender, such sums only being recoverable after payment to any
Lender in full of the Loan as constituted on the date of this
Lease. As used in this Section, "costs and expenses" shall
include, without limitation, reasonable out-of-pocket attorneys'
fees at trial, on appeal and on any petition for review, and in
any proceeding in bankruptcy, in addition to all other sums
provided by law.
21. Notices. All notices, demands, requests, consents, approvals, offers,
-------
statements and other instruments or communications required or permitted
to be given pursuant to the provisions of this Lease (collectively,
"Notice" or "Notices") must be in writing and, unless otherwise
specified in this Lease, will be deemed to have been given for all
purposes (except for the
36
purpose of Tenant's notice to Landlord under Section 3(e), requesting
that any Lender enter into an Easement, which notice must be sent only
in the manner prescribed in the following clause (i)): (i) three days
after having been sent by United States mail, by registered or certified
mail, return receipt requested, postage prepaid, addressed to the other
party at its address as stated below; or (ii) one day after having been
sent by Federal Express, United Parcel or other nationally recognized
air courier service.
If to Landlord:
At the addresses set forth on Exhibit D to this Lease.
---------
If to Tenant:
Xxxxxx'x Trading Company, Inc.
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: President
With copies to:
The Limited, Inc.
Three Limited Parkway
X.X. Xxx 00000
Xxxxxxxx, XX 00000
(Columbus, OH 43230 for overnight deliveries)
Attention: Corporate Real Estate
And:
Xxxxxxx Xxxxxx & Co.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx
And:
O'Melveny & Xxxxx LLC
One Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxx, Esq.
If any Lender has advised Tenant by Notice in the manner described above
that it is the holder of a Mortgage and states in such Notice its
address for the receipt of Notices, then simultaneously with the giving
of any Notice by Tenant to Landlord, Tenant will send a copy of such
Notice to such Lender in the manner described above. For the purposes of
this Section 21, any party may substitute its address by giving 15 days'
notice to the other party
37
in the manner provided above. Any Notice may be given on behalf of any
party by its counsel.
22. Estoppel Certificates. Landlord and Tenant will at any time and from
---------------------
time to time, upon not less than 20 days' prior written request by the
other, execute, acknowledge and deliver to the other a statement in
writing, certifying: (i) that this Lease is unmodified and in full
effect (or, if there have been modifications, that this Lease is in full
effect as modified, setting forth such modifications); (ii) the dates to
which Basic Rent, payable hereunder has been paid; (iii) that to the
knowledge of the signer of such certificate (after due inquiry) no
default by either Landlord or Tenant exists under this Lease or
specifying each such default of which the signer may have knowledge;
(iv) the remaining Term under this Lease; (v) with respect to a
certificate signed on behalf of Tenant, that to the knowledge of the
signer of such certificate (after due inquiry), there are no proceedings
pending or threatened against Tenant before or by any court or
administrative agency which if adversely decided would materially and
adversely affect the financial condition and operations of Tenant or if
any such proceedings are pending or threatened to said signer's
knowledge, specifying and describing the same; and (vi) such other
matters as may reasonably be requested by the party requesting the
certificate. It is intended that any such statements may be relied upon
by any Lender, the recipient of such statements or their assignees or by
any prospective purchaser, assignee or subtenant of the Leased Premises.
23. Surrender and Holding Over.
--------------------------
(a) Upon the expiration or earlier termination of this Lease, Tenant
will peaceably leave and surrender the Leased Premises (except as
to any portion thereof with respect to which this Lease has
previously terminated) to Landlord. Tenant will remove from the
Leased Premises on or prior to such expiration or earlier
termination the Trade Fixtures and personal property which is
owned by Tenant or third parties other than Landlord, and Tenant
at its expense will, on or prior to such expiration or earlier
termination, repair any damage caused by such removal. Trade
Fixtures and personal property not so removed by the fifth day
after the end of the Term or within thirty days after the earlier
termination of the Term for any reason whatsoever will become the
property of Landlord, and Landlord may thereafter cause such
property to be removed from the Leased Premises without any
liability to Tenant or any third party whose personal property
Tenant permitted to be placed at the Leased Premises. The
reasonable out-of-pocket cost of removing and disposing of such
property and repairing any damage to any of the Leased Premises
caused by such removal and the reimbursement cost owed to any
third party whose personal property Tenant permitted to be placed
at the Leased Premises will be borne by Tenant. Landlord will not
in any manner or to any extent be obligated to reimburse Tenant
for any property which becomes the property of Landlord as a
result of such expiration or earlier termination.
(b) Any holding over by Tenant of the Leased Premises after the
expiration or earlier termination of the Term of this Lease or
any extensions of this Lease, with the consent of Landlord, will
operate and be construed as tenancy from month to month only, at
200% of the Basic Rent in effect immediately preceding the
holdover and
38
otherwise upon the same terms and conditions as contained in this
Lease. Notwithstanding the foregoing, any holding over without
Landlord's consent will entitle Landlord, in addition to
collecting Basic Rent at a rate of 200% of the Basic Rent as
provided under the previous sentence, to exercise all rights and
remedies provided by law or in equity, including the remedies of
Section 19(b).
24. No Merger of Title. There will be no merger of this Lease nor of the
------------------
leasehold estate created by this Lease with the fee estate in or
ownership of any of the Leased Premises by reason of the fact that the
same person, corporation, firm or other entity may acquire or hold or
own, directly or indirectly: (a) this Lease or the leasehold estate
created by this Lease or any interest in this Lease or in such leasehold
estate; and (b) the fee estate or ownership of any of the Leased
Premises or any interest in such fee estate or ownership. No such merger
will occur unless and until all persons, corporations, firms and other
entities having any interest as owner, lien holder, lessee or otherwise
in: (i) this Lease or the leasehold estate created by this Lease; and
(ii) the fee estate in or ownership of the Leased Premises or any part
thereof sought to be merged join in a written instrument effecting such
merger and duly record the same.
25. Definition of Landlord.
----------------------
(a) Anything contained in this Lease to the contrary notwithstanding,
any claim based on or in respect of any liability of Landlord
under this Lease will be enforced only against the Landlord's
interest in the Leased Premises and will not be enforced against
the Landlord individually or personally.
(b) The term "Landlord" as used in this Lease so far as covenants or
obligations on the part of Landlord are concerned, will be
limited to mean and include only the owner or owners of the
Leased Premises or holder of the Mortgage in possession of the
Leased Premises at the time in question. In the event of any
transfer or transfers of the title of the Leased Premises, the
Landlord named in this Lease (and in case of any subsequent
transfers or conveyances, the then grantor) shall be
automatically freed and relieved from and after the date of such
transfer and 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.
26. Hazardous Substances.
--------------------
(a) Tenant agrees that it will not on, about, or under the Leased
Premises, make, release, treat or dispose of any "hazardous
substances" as that term is defined in the Comprehensive
Environmental Response, Compensation and Liability Act, and the
rules and regulations promulgated pursuant thereto, as from time
to time amended, 42 U.S.C.(SS).9601 et seq. (the "Act") or any
other federal, state, or local law applicable to the Leased
premises regulating the use, storage, release, transportation or
any other aspect of Hazardous Materials, as defined below
(collectively, "Environmental Law"); but the foregoing will not
prevent the use of any hazardous substances strictly in
accordance with applicable laws and regulations. Tenant
represents and warrants that it will at all times comply with the
Act and any other
39
federal, state or local Laws governing "Hazardous Materials".
"Hazardous Materials" means all chemicals, petroleum, crude oil
or any fraction thereof, hydrocarbons, polychlorinated biphenyls
(PCBs), asbestos, asbestos-containing materials and/or products,
urea formaldehyde, or any substances which are classified as
"hazardous" or "toxic" under the Act; hazardous waste as defined
under the Solid Waste Disposal Act, as amended 42 U.S.C.(SS).
6901 et seq.; air pollutants regulated under the Clean Air Act,
as amended, 42 U.S.C.(SS). 7401, et seq.; pollutants as defined
under the Clean Water Act, as amended, 33 U.S.C.(SS). 1251, et
seq., any pesticide as defined by Federal Insecticide, Fungicide,
and Rodenticide Act, as amended, 7 U.S.C.(SS). 136, et seq., any
hazardous chemical substance or mixture or imminently hazardous
substance or mixture regulated by the Toxic Substances Control
Act, as amended, 15 U.S.C.(SS). 2601, et Seq., any substance
listed in the United States Department of Transportation Table at
45 CFR l72.101; any chemicals included in regulations promulgated
under the above listed statutes; any explosives, radioactive
material, and any chemical or other substance regulated by
federal, state or local statutes similar to the federal statutes
listed above and regulations promulgated under such federal,
state or local statutes.
(b) To the extent required by the Act and/or any federal, state or
local Laws governing Hazardous Materials, Tenant will remove any
hazardous substances (as defined in the Act) and Hazardous
Materials (as defined above) whether now or hereafter existing on
the Leased Premises and whether or not arising out of or in any
manner connected with Tenant's occupancy of the Leased Premises
during the Term. In addition to, and without limiting Section 10
of this Lease Tenant will and does agree to defend, indemnify and
hold any Lender and Landlord, their respective officers,
directors, shareholders, partners, beneficial owners, trustees,
members, managers, agents and employees, harmless from and
against any and all causes of actions, suits, demands or
judgments of any nature whatsoever, losses, damages, penalties,
expenses, fees, claims, costs (including response and remedial
costs), and liabilities, including, but not limited to,
reasonable out-of-pocket attorneys' fees and costs of litigation,
arising out of or in any manner connected with: (i) the violation
of any applicable Environmental Law with respect to the Leased
Premises or Tenant's or any other person's or entity's prior
ownership of the Leased Premises; (ii) the "release" or
"threatened release" of or failure to remove, as required by this
Section 26, "hazardous substances" (as defined in the Act) and
Hazardous Materials (as defined above) at or from the Leased
Premises or any portion or portions thereof, including any past
or current release and any release or threatened release during
the initial Term and any extension or Renewal Term whether or not
arising out of or in any manner connected with Tenant's occupancy
of the Leased Premises during the initial Term or any extension
or Renewal Term.
(c) Tenant agrees that it will not install any underground storage
tank at the Leased Premises without specific, prior written
approval from the Landlord and any Lender, which may be withheld
in Landlord's or such Lender's sole discretion. The Tenant agrees
that it will not store combustible or flammable materials on the
Leased Premises in violation of the Act or any other federal,
state or local Laws governing Hazardous Materials.
40
(d) If Landlord shall have reason to believe that the Leased Premises
shall not be in compliance with Environmental Law, a "release" of
Hazardous Materials shall have occurred in, on, under or from the
Leased Premises, or there shall be Hazardous Materials in, on or
under the Leased Premises that are not in compliance with all
Environmental Laws, upon Landlord's written request Tenant shall
perform an environmental assessment for the benefit of Landlord
and Lender which shall be prepared at Tenant's expense, provided
that Landlord shall reimburse Tenant for the actual cost of such
report to the extent that (a) such report reveals no violation of
Environmental Laws and (b) such report was not legally required
of owners or possessors of real property in the locality where
the Leased Premises are situated.
27. Entry by Landlord. Landlord and its authorized representatives (which
-----------------
includes, without limitation, any Lender) will have the right upon
reasonable notice (which shall be not less than 2 business days except
in the case of emergency) to enter the Leased Premises at all reasonable
business hours (and at all other times in the event of an emergency):
(a) for the purpose of inspecting the same or for the purpose of doing
any work under Section 11(c), and may take all such action thereon as
may be necessary or appropriate for any such purpose (but nothing
contained in this Lease or otherwise will create or imply any duty upon
the part of Landlord to make any such inspection or do any such work);
and (b) for the purpose of showing the Leased Premises to prospective
purchasers and mortgagees and, at any time within 6 months prior to the
expiration of the Term of this Lease for the purpose of showing the same
to prospective tenants. No such entry will constitute an eviction of
Tenant but any such entry will be done by Landlord in such reasonable
manner as to minimize any disruption of Tenant's business operation.
28. Financial Information.
---------------------
(a) Tenant agrees to deliver the financial information hereinafter
described to Landlord: within 120 days after the end of each
fiscal year of Tenant, a balance sheet of Tenant and its
consolidated subsidiaries, if any, as at the end of such year, a
statement of changes in Tenant's financial position for such
year, and a statement of operations and cash flows of Tenant and
its consolidated subsidiaries, if any, for such year, setting
forth in each case, in comparative form, the corresponding
figures for the preceding fiscal year in reasonable detail and
scope and certified by independent certified accountants of
recognized national standing selected by Tenant; and within 45
days after the end of each fiscal quarter of Tenant (other than
the fourth fiscal quarter) a balance sheet of Tenant and its
consolidated subsidiaries, if any, as at the end of such quarter
and statements of operations and cash flows of Tenant and its
consolidated subsidiaries, if any, for such quarter, setting
forth in each case, in comparative form, the corresponding
figures for the similar quarter of the preceding year, in
reasonable detail and scope and certified by a financial officer
of Tenant having knowledge thereof; the foregoing financial
statements all being prepared in accordance with generally
accepted accounting principles, consistently applied (subject, in
the case of quarterly statements, to year-end adjustments and the
absence of footnotes). Tenant shall also deliver to Landlord with
the foregoing financial statements a quarterly statement of total
expenses incurred and total cost of all capital improvements with
respect to the Leased Premises for such calendar quarter. It is
41
understood that all such financial statements may contain a
legend restricting the use that may be made of such information
and precluding public access thereto and that acceptance of such
financial statements constitutes the agreement by the recipients
thereof to comply with such legend, provided, however, that
Landlord shall not have any liability for, in connection with or
arising from any failure of any recipient of such financial
statements to comply with such legend. Notwithstanding the
foregoing, in the event that Tenant shall become a publicly owned
corporation, Tenant will deliver to Landlord when filed with the
Securities and Exchange Commission, copies of the Forms 10Q and
10K of Tenant.
(b) Landlord agrees to keep all information delivered by Tenant under
Section 28(a) confidential, provided that this confidentiality
requirement will not apply to information of a public nature or
learned by Landlord from any source other than Seller. Nothing
contained in this Section 28(b) will prohibit Landlord from
disclosing information: (i) to (A) institutional investors which,
directly or indirectly, provide financing for Landlord
acquisition of the Leased Premises on the date of this Lease, (B)
such other institutional investors which acquire Landlord's
interest in this Lease and the Premises, or from time to time
provide or may be willing to provide, directly or indirectly,
such financing to Landlord, (C) Landlord's agents, (D)
prospective investors in Landlord, and (E) Landlord's
consultants, as long as each such party referred to in this
clause (i) enters into an agreement with Landlord and Tenant to
keep such information confidential, (ii) to Landlord's members,
partners and shareholders (provided that such parties will be
obligated to abide by the provisions of this Section 28(b)),
(iii) as required by any applicable securities requirement, law,
or court order, or (iv) in any action between the Tenant and any
such parties. The provisions of this Section 28(b) will survive
the expiration or earlier termination of this Lease.
29. No Usury. The intention of the parties being to conform strictly to the
--------
applicable usury laws, whenever any provision herein provides for
payment by Tenant to Landlord of interest at a rate in excess of the
legal rate permitted to be charged, such rate herein provided to be paid
will be deemed reduced to such legal rate.
30. Separability. Each and every covenant and agreement contained in this
------------
Lease is, and will be construed to be, a separate and independent
covenant and agreement, and the breach of any such covenant or agreement
by Landlord will not discharge or relieve Tenant from its obligation to
perform the same. If any term or provision of this Lease or the
application thereof to any provision of this Lease or the application
thereof to any person or circumstances will to any extent be invalid and
unenforceable, the remainder of this Lease, or the application of such
term or provision to person or circumstances other than those as to
which it is invalid or unenforceable, will not be affected thereby, and
each term and provision of this Lease will be valid and will be enforced
to the extent permitted by law.
31. Miscellaneous.
-------------
(a) Unless otherwise stated, all section references in this Lease
refer to sections of this Lease. The section headings in this
Lease are used only for convenience in finding
42
the subject matters and are not part of this Lease or to be used
in determining the intent of the parties or otherwise
interpreting this Lease.
(b) As used in this Lease the singular includes the plural as the
context requires and the following words and phrases shall have
the following meanings: (i) "including" means "including but not
limited to"; (ii) "provisions" means "provisions, terms,
agreements, covenants and/or conditions"; (iii) "lien" means
"lien, charge, encumbrance; title retention agreement, pledge,
security interest, mortgage and/or deed of trust"; and (iv)
"obligation" means "obligation, duty, agreement, liability,
covenant or condition".
(c) Any act which Landlord is permitted to perform under this Lease
may be performed at any time and from time to time by Landlord or
any person or entity designated by Landlord. Any act which Tenant
is required to perform under this Lease will be performed at
Tenant's sole cost and expense without contribution by or charge
to Landlord at any time.
(d) This Lease may be modified, amended, discharged or waived only by
an agreement in writing signed by the party against whom
enforcement of any such modification, amendment, discharge or
waiver is sought.
(e) The covenants of this Lease will run with the Land and bind
Tenant, the successors and assigns of Tenant and all present and
subsequent encumbrances and subtenants of any of the Leased
Premises, and will inure to the benefit of and bind Landlord, its
successors and assigns.
(f) This Lease will be simultaneously executed in several
counterparts, each of which when so executed and delivered will
constitute an original, fully enforceable counterpart for all
purposes.
(g) This Lease will be governed by and construed according to the
laws of the State in which the Leased Premises is located.
(h) Wherever the consent or approval of Landlord is required under
this Lease, unless otherwise specified, Landlord agrees that it
will not unreasonably withhold or delay such consent or approval.
32. Right of First Refusal.
----------------------
(a) Landlord will not at any time during the Term sell or convey or
agree to sell or convey the Leased Premises without first having
complied with the requirements of this Section 32. If Landlord
desires to sell or convey all or any portion or portions of the
Leased Premises, Landlord will obtain from a third party a bona
fide arms' length written offer (the "Offer"), acceptable to
Landlord, to purchase all or such portion of the Leased Premises;
and Landlord will submit a written copy of the Offer to Tenant
and will give Tenant 10 days within which to elect to purchase
the portion of the Leased Premises which is the subject of the
Offer (the "Subject Premises") on
43
the precise terms and conditions of the Offer (except that if the
Offer is in whole or in part for consideration other than cash,
Tenant will have the right to pay in cash the fair market value
of such non-cash consideration). If Tenant elects to so purchase
the Subject Premises, Tenant will give to Landlord written notice
thereof ("Acceptance Notice") and closing will be held within 60
days after the date of the Acceptance Notice, whereupon Landlord
will convey the Subject Premises to Tenant. At closing, Landlord
will deliver to Tenant a special warranty deed (or local
equivalent), sufficient to convey to Tenant fee simple title to
the Subject Premises free and clear of all liens, restrictions
and encumbrances, except for the Permitted Encumbrances, liens or
encumbrances created or suffered by, through or under Tenant or
arising by reason of the failure of Tenant to have observed or
performed any term, covenant or agreement under this Lease to be
observed or performed by Tenant, the lien of any Impositions then
affecting the Leased Premises, this Lease and, if the Subject
Premises are to be conveyed subject to the outstanding balance of
the Loan, the Mortgage and all other Loan documents.
(b) Despite Landlord's sale, from time to time, of any portion or
portions of the Leased Premises, this right of first refusal will
continue as to all remaining portions of the Leased Premises. If
Tenant elects not to purchase the Subject Premises, Landlord may
thereafter sell the Subject Premises which are the subject of the
Offer only to the party making the Offer or its assignee(s) and
only in accordance with the terms thereof, unless a further Offer
is submitted to Tenant in accordance with this Section 32;
provided, however, that Landlord will not be required to submit
such offer to Tenant if the revised Purchase Price (including the
fair market value of any non-cash consideration) is not less than
97.5% of the purchase price (including the fair market value of
any non-cash consideration) listed in the original Offer. To
prevent Landlord from defeating the rights of Tenant under this
Section 32, Landlord agrees that Landlord will at no time accept
an offer to purchase all or any portion of the Leased Premises
together with any other property, except for (i) other property
which is leased to Tenant or an affiliate of Tenant, or (ii)
sales of multiple properties (including the Leased Premises) as
to which the Leased Premises is separated from the multiple-
property sale upon Tenant's request, a separate purchase price is
set for the Leased Premises and Tenant's rights under this
Section 32 are otherwise preserved. In no event will the
provisions of this Section 32 or the rights and privileges of
Tenant under this Section 32 be construed as limiting in any
manner any other rights granted elsewhere in this Lease to
Tenant.
(c) Notwithstanding anything to the contrary in this Lease, the
provisions of this Section 32 will not apply to: (i) any sale or
conveyance of the Leased Premises in foreclosure (or similar
proceeding) of a bona-fide mortgage or deed of trust or to any
conveyance in lieu of foreclosure of such a mortgage or deed of
trust; or (ii) any sale, conveyance, alienation, mortgage,
encumbrance, pledge or transfer of the beneficial ownership
interest, membership interest or other equity interest in
Landlord, or the change of the trustee, manager or other
controlling person of the Landlord.
(d) If Landlord obtains an Offer with respect to a sale or conveyance
of all or any portion of the Leased Premises, and sells the
Leased Premises (to Tenant or anyone else) Tenant hereby
acknowledges and consents as follows: (i) any such sale or
conveyance during any period in which the Loan may not be prepaid
will be subject to the outstanding balance of the Loan, and, if
Tenant is entitled to, and does, exercise its rights under this
Section 32, the Loan, Note, Mortgage and other Loan
44
documents will be assumed by Tenant, and the lien of the Mortgage
may not be released during such period; (ii) such sale will be in
accordance with and subject to the terms and provisions of the
Note and Mortgage, whether such purchase contemplates the
purchase of the Leased Premises subject to the lien of the
Mortgage or for a release of the lien of the Mortgage; and (iii)
if the lien of the Mortgage is not released in connection with
such sale of the Leased Premises, and if Tenant acquires the
Leased Premises, no merger of title will occur and this Lease and
any guaranty of this Lease will remain in full force and effect
in accordance with their terms.
(e) If Tenant has agreed to purchase the Subject Premises pursuant to
an Offer under which the third party offeror was to acquire the
Subject Premises under and subject to the lien of the Mortgage,
and if such purchase by Tenant of the Subject Premises occurs at
a time when the Loan may be prepaid, Tenant may purchase the
Subject Premises for cash free and clear of the Mortgage but only
if: (i) the cash portion of the Offer is increased by an amount
equal to the principal and interest secured by the Mortgage; and
(ii) Tenant pays (in addition to the purchase price) all
prepayment premiums, yield maintenance amounts, satisfaction fees
and other sums which become owing as a result of such prepayment;
all to the end and effect that Landlord will net the same amount
as Landlord would have netted had the Subject Premises been sold
under and subject to the lien of the Mortgage, pursuant to the
Offer. Otherwise, Tenant shall be responsible (with Landlord's
cooperation) for obtaining any required Lender consent to the
transfer.
33. Tenant Representations. Tenant hereby represents and warrants to
----------------------
Landlord as follows:
(a) Tenant is duly organized, validly existing and in good standing
as a corporation under the laws of the State of Indiana and is
qualified to do business and is in good standing in the State of
Indiana.
(b) Tenant has all requisite power and authority, has taken all
actions required by its organizational documents and applicable
law, and has obtained all consents that are necessary to
authorize or enable it to executive and deliver this Lease and
the Lease Memorandum being executed concurrently herewith and to
perform the obligations of Tenant as set forth in this Lease. The
representatives executing this Lease and the Lease Memorandum on
Tenant's behalf have been duly authorized and are empowered to
bind Tenant to this Lease and the Lease Memorandum.
(c) Neither the execution of this Lease and the Lease Memorandum by
Tenant nor the consummation by Tenant of the transactions
contemplated thereby will (i) conflict with, or result in a
breach of, the terms, conditions, or provisions of, or constitute
a default under, or result in a termination of, any material
agreement or instrument to which Tenant is a party (this
representation being made to the knowledge of the current
management of Tenant as to matters prior to the date of this
Lease) and which would have a material adverse effect on
45
Tenant's ability to perform its obligations hereunder, (ii)
violate any restriction to which Tenant is subject (this
representation being made to the knowledge of the current
management of Tenant as to matters prior to the date of this
Lease) and which would have a material adverse effect on Tenant's
ability to perform its obligations hereunder, or (iii) constitute
a violation of any applicable code, resolution, law, statute,
regulation, ordinance, judgment, rule, decree or order of which
Tenant is aware and which would have a material adverse effect on
Tenant's ability to perform its obligations hereunder.
(d) The execution and delivery of this Lease and the performance of
its terms by Tenant do not and will not conflict with or result
in a breach of any of the terms, provisions or conditions of the
articles of incorporation or bylaws of Tenant presently in
effect.
(e) This Lease has been duly authorized by all necessary action on
the part of Tenant, has been duly executed and delivered by
Tenant, and constitutes the legally valid and enforceable
obligations of Tenant, enforceable in accordance in accordance
with it terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws or by equitable principles or local landlord/tenant law
relating to or limiting the rights of landlords generally.
34. Landlord Representations. Landlord hereby represents and warrants to
------------------------
Tenant as follows:
(a) Landlord has all requisite power and authority, has taken all
actions required by its organizational documents and applicable
law, and has obtained all consents that are necessary to
authorize or enable it to executive and deliver this Lease and
the Lease Memorandum being executed concurrently herewith. The
representatives executing this Lease and the Lease Memorandum on
Landlord's behalf have been duly authorized and are empowered to
bind Landlord to this Lease and the Lease Memorandum.
(b) The execution and delivery of this Lease do not and will not
conflict with or result in a breach of any of the terms,
provisions or conditions of the certificate of formation or
limited liability company agreement of Landlord presently in
effect.
(c) This Lease has been duly authorized by all necessary action on
the part of Landlord, has been duly executed and delivered by
Landlord, and constitutes the legally valid obligations of
Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have caused this
instrument to be executed as of the day and year first written above.
Landlord: CP GAL PLAINFIELD, LLC,
a Delaware limited liability company
/s/ Xxxxxx X. Xxxxx
By:-------------------------------------
Xxxxxx X. Xxxxx, Manager
46
Tenant: XXXXXX'X TRADING COMPANY, INC.,
an Indiana corporation
/s/ Xxxx X. Xxxxxxxxx
By:------------------------------
Xxxx X. Xxxxxxxxx
Name:----------------------------
President
Title:---------------------------
47
Exhibit A
Description of Property
-----------------------
Xxx 0 xx xxx Xxxxx Xxxx - Xxxxxxx, Xxxxx 0 "An Incremental Phase Plat of
Westcor" being a part of the North Half of Section 31, Township 15 North, Range
2 East located in Plainfield, Indiana and recorded as Instrument Number
9700007298 in Plat Cabinet 4, Slide 87, pages 1 & 2 in the Office of the
Recorder of Xxxxxxxxx County, Indiana.
Exhibit B
Store # 0
Plainfield, IN
Lease Year Sept 1-Aug 31 Annual Monthly
------------ ------------- ------------ -----------
1 1999-2000 $ 725,000.00 $ 60,416.67
2 2000-2001 735,875.04 61,322.92
3 2001-2002 746,913.12 62,242.76
4 2002-2003 758,116.80 63,176.40
5 2003-2004 769,488.60 64,124.05
6 2004-2005 781,030.92 65,085.91
7 2005-2006 792,746.40 66,062.20
8 2006-2007 804,637.56 67,053.13
9 2007-2008 816,707.16 68,058.93
10 2008-2009 828,957.72 69,079.81
11 2009-2010 841,392.12 70,116.01
12 2010-2011 854,013.00 71,167.75
13 2011-2012 866,823.24 72,235.27
14 2012-2013 879,825.60 73,318.80
15 2013-2014 893,022.96 74,418.58
16 2014-2015 906,418.32 75,534.86
17 2015-2016 920,014.56 76,667.88
18 2016-2017 933,814.80 77,817.90
19 2017-2018 947,822.04 78,985.17
20 2018-2019 962,039.40 80,169.95
First Option 0000-0000 000,039.40 80,169.95
Second Option 2024-2029 1,034,192.40 86,182.70
Third Option 2029-2034 1,111,756.80 92,646.40
Fourth Option 2034-2039 1,195,138.56 99,594.88
Fifth Option 2039-2044 1,284,774.00 107,064.50
Sixth Option 2044-2049 1,381,132.08 115,094.34
Seventh Option 2049-2054 1,484,717.04 123,726.42
Eighth Option 2054-2059 1,596,070.80 133,005.90