EXHIBIT 10.10
FACILITY USE AGREEMENT
BETWEEN
TENNECO PACKAGING INC.
as Landlord
AND
PACKAGING CORPORATION OF AMERICA
as Tenant
Facility Address:
0000 Xxxx Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Dated: As of April 12, 1999
TABLE OF CONTENTS
PAGE
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1. Recitals; Defined Terms................................................2
2. Prime Lease............................................................2
3. Premises Demised.......................................................2
4. Relocation of Tenant to First Floor of Building........................3
5. Common Areas and Access................................................6
6. Term...................................................................7
7. Rent...................................................................8
8. Services Provided By Landlord.........................................13
9. Use...................................................................15
10. Compliance with Legal Requirements....................................15
11. Environmental Compliance..............................................16
12. Repairs and Maintenance...............................................17
13. Utilities.............................................................18
14. Alterations; Liens....................................................18
15. Assignment and Subleasing.............................................20
16. Damage or Destruction.................................................22
17. Eminent Domain........................................................22
18. Insurance.............................................................23
19. Subrogation and Waiver................................................24
20. Indemnification.......................................................24
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21. Interruption of Services..............................................24
22. Subordination and Nondisturbance......................................25
23. Landlord's Right of Entry.............................................26
24. Rules and Regulations.................................................26
25. Tenant's Default; Rights and Remedies.................................26
26. Holding Over..........................................................29
27. Quiet Enjoyment.......................................................30
28. Mutual Representation of Authority....................................30
29. Real Estate Brokers...................................................30
30. Business Hours - Holidays.............................................30
31. Estoppel Certificate..................................................31
32. No Recording..........................................................31
33. Late Payments.........................................................31
34. Surrender; Restoration................................................31
35. Waiver................................................................32
36. Governing Law.........................................................32
37. Notices...............................................................32
38. Table of Contents - Captions..........................................33
39. Dispute Resolution....................................................33
40. Counterparts..........................................................34
41. Audit.................................................................34
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42. Signs.................................................................34
43. Entire Agreement......................................................34
44. Release...............................................................34
Exhibit "A" -- First Floor Space Plan
Exhibit "B" -- Form of Landlord's Annual Statement
Exhibit "C" -- Current Categories of Expense Items
Exhibit "D" -- [Intentionally Deleted]
Exhibit "E" -- Calculation of Tenant's Proportionate Share
Exhibit "F" -- Additional Services to be Billed as Additional Charges
Exhibit "G" -- Rules and Regulations
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FACILITY USE AGREEMENT
This Facility Use Agreement (this "Lease") is entered into as of April 12,
1999, by and between TENNECO PACKAGING INC., a Delaware corporation, with
offices at 0000 Xxxx Xxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxx 00000 ("Landlord"), and
PACKAGING CORPORATION OF AMERICA, a Delaware corporation, with offices at 0000
Xxxx Xxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxx 00000 ("Tenant").
INTRODUCTORY STATEMENTS
A. Pursuant to a Contribution Agreement dated as of January 25, 1999 (the
"Contribution Agreement") between Landlord, PCA HOLDINGS LLC, a Delaware limited
liability company ("PCA Holdings"), and Tenant, Landlord and PCA Holdings have
organized Tenant to acquire and operate the Containerboard Business (as such
term is defined in the Contribution Agreement), and Landlord has contributed to
Tenant substantially all of the assets and certain liabilities of Landlord's
Containerboard Business.
B. In connection with the acquisition and operation of substantially all
of the assets and liabilities of the Containerboard Business, Tenant has
determined that it is in its best interest to be located in the space which is
the subject of this Lease, for the term herein provided.
C. Landlord is the lessee of the building located in Xxxxxx Park at Lake
Forest Office Park and commonly known as 0000 Xxxx Xxxxx Xxxxx, Xxxx Xxxxxx,
Xxxxxxxx (the "Building") and the land on which the Building is located (the
"Land") and all appurtenances belonging to or appertaining to the Land pursuant
to that certain Lake Forest Lease dated as of December 17, 1997 (the "Prime
Lease"), between Credit Suisse Leasing 92A, L.P., a Delaware limited partnership
("Prime Landlord"), as lessor, and Landlord, as lessee. The Building and the
Land together are sometimes referred to herein collectively as the "Property".
D. Tenant desires to lease from Landlord and Landlord desires to lease to
Tenant office space in certain portions of the Building, as more particularly
set forth in the Lease, and allow Tenant to use, in common with Landlord's
employees, guests and invitees, various common areas and amenities of the
Building.
E. The parties desire to enter into this Lease defining their respective
rights, duties, obligations and liabilities relating to the Premises.
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WITNESSETH
NOW THEREFORE, Landlord and Tenant, in consideration of the mutual
promises and covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
each with intent to be legally bound, for themselves and their respective
successors and assigns, agree as follows:
1. Recitals; Defined Terms. The foregoing recitals are acknowledged to be
accurate and are incorporated herein by reference. Capitalized terms used but
not otherwise defined herein shall have the meanings given to such terms in the
Contribution Agreement.
2. Prime Lease. Tenant acknowledges having received a copy of the Prime
Lease, and Tenant and Landlord agree that this Lease is and shall be subject to
and subordinate to the Prime Lease in all respects. Tenant is not hereby
assuming any of the obligations of Landlord to Prime Landlord under the Prime
Lease, and Landlord shall remain liable to Prime Landlord thereunder.
3. Premises Demised.
a. Landlord leases and demises to Tenant and Tenant accepts from Landlord
those portions of the Building presently used by the employees of the
Containerboard Business for office space as of the Commencement Date (as
hereinafter defined), subject to relocation to the first floor of the Building
(excluding the portions of the first floor occupied by the computer and
telephone equipment room and the main lobby of the Building), as provided in
Section 4 hereof (such portions of the Building presently used by the employees
of the Containerboard Business for office space, and following such relocation
to the first floor of the Building, the first floor of the Building (excluding
the portions of the first floor occupied by the computer and telephone equipment
room and the main lobby of the Building), is referred to herein as the
"Premises"), together with the non-exclusive right to use portions of the
parking facility adjacent to the Building for parking passenger automobiles and
the non-exclusive right to use from time to time those portions of the Building
and the Land which Landlord designates as common areas, it being the intent of
the parties that stairways, halls, entrances, rest rooms on the lower level of
the building, the cafeteria, the exercise facilities in the Wellness Center, and
other facilities used in common by employees of Landlord and the Containerboard
Business immediately prior to the date of Closing of the transactions
contemplated by the Contribution Agreement will be designated and remain as
common areas, subject to the terms of Section 5 and Section 24 herein, provided,
however, that following the relocation of Tenant to the first floor of the
Building (as set forth in Section 5 hereof), Tenant shall not have the right to
use any portions of the second, third or fourth floors of the Building, except
to the extent permitted by, and subject to the conditions set forth in, the last
sentence of Section 5 hereof. Landlord agrees not to segregate or restrict
portions of the parking facility for its own use, or to designate for use by
Tenant segregated or specified portions of the parking facility, except to the
extent mandated by Legal Requirements.
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b. Tenant acknowledges that Landlord has made and is making no
representations or warranties with respect to the Property, the Building or the
Premises or any personal property of Landlord included with the Premises except
to the extent expressly set forth herein and in the Contribution Agreement, and
subject to such representations and warranties, if any, made herein and in the
Contribution Agreement, Tenant accepts the Premises and any such personal
property of Landlord in its existing "AS IS", "WHERE IS" condition and "WITH ALL
FAULTS".
4. Relocation of Tenant to First Floor of Building.
a. As of the Commencement Date, Tenant's Premises consists of office space
located in various portions of the Building which the Containerboard Employees
currently occupy. Landlord and Tenant acknowledge that it is in their best
interest to consolidate Tenant to a single contiguous area of the Building as
soon as practicable after the Commencement Date. Accordingly, Tenant agrees to
relocate all Containerboard Employees to the first floor of the Building
(excluding the computer room and the main lobby of the Building presently
located on the first floor) promptly following completion of the reconfiguration
of the first floor office space.
b. Landlord and Tenant agree to the reconfiguration of certain portions of
the first floor space as set forth on the conceptual space plan for the first
floor attached hereto as Exhibit "A" (the "First Floor Space Plan"). As soon as
practicable following the Commencement Date, Landlord shall cause the
construction and installation of demising walls and/or alterations to the first
floor space as shown on the First Floor Space Plan (the "Initial Tenant
Improvements"). The cost of moving the Containerboard Employees from other areas
of the Building to the first floor of the Building shall be borne by Tenant. The
cost of moving Landlord's employees out of the first floor of the Building to
other areas of the Building shall be borne by Landlord. The cost and expense
associated with the design and engineering (including the design and engineering
of the First Floor Space Plan), the preparation of plans and specifications and
working drawings, and the construction and installation of (i) the Initial
Tenant Improvements, (ii) demising walls and/or alterations to segregate
Landlord's and Tenant's portions of the computer room on the first floor of the
Building, and (iii) entry door security to restrict access to the portions of
the first floor of the Building to be occupied exclusively by Tenant shall be
shared equally between Landlord and Tenant.
c. Landlord and Tenant acknowledge and agree that the computer and
telephone equipment room located on the first floor of the building is and shall
remain a common area of the Building. Landlord's and Tenant's authorized
employees each shall have the right of access to the computer and telephone
equipment room on the first floor of the Building. Landlord and Tenant shall
institute reasonable security measures to restrict access to the computer room
only to authorized representatives and employees of Landlord and Tenant.
d. The parties may, by mutual agreement in writing, increase or decrease
the amount of office space or reconfigure the office space which is leased to
Tenant and, if necessary, in such event, the rent, taxes, other charges, and the
Tenant's Proportionate Share (defined below) will be equitably adjusted.
Notwithstanding the foregoing, in the event Tenant desires to vacate part of the
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Premises (the "Vacated Space"), Tenant shall notify Landlord in writing at least
thirty (30) days prior to the date Tenant expects to vacate the Vacated Space,
and Landlord shall have the right, but not the obligation, to recover the
Vacated Space, upon thirty (30) days' written notice to Tenant of Landlord's
exercise of its right of recovery. In such event the rent, taxes and other
charges and Tenant's Proportionate Share will be reduced in the same proportion
that the Vacated Space bears to the Premises. The terms of this Section 4(d)
shall not give Tenant the right or option to surrender or return any Vacated
Space to Landlord prior to the expiration or earlier termination of this Lease.
4.1 Option to Relocate Tenant to TA Building. Tenneco Automotive Inc.
("TAI"), an Affiliate of Landlord, is the present tenant under a lease (the
"Prime Lease") of the three-story office building located in Xxxxxx Park at Lake
Forest office park and commonly known as 000 Xxxxx Xxxxx Xxxxx, Xxxx Xxxxxx,
Xxxxxxxx (the "New Building"). In connection with a transaction under
consideration by TAI, a portion of the New Building may become available for
occupancy by Tenant. Tenant agrees that Landlord shall have the right, subject
to the terms and conditions set forth below (the "Relocation Option"), to
relocate Tenant from the Building to the New Building. Landlord shall have the
right to exercise the Relocation Option any time during the first twelve (12)
months of the Term of this Agreement by giving written notice thereof to Tenant.
(a) Upon exercise by Landlord of the Relocation Option, each of Landlord
and Tenant will enter into a new facility use agreement for the New Building
("New Building Sublease"), which shall contain the terms and conditions set
forth below, and such other terms and conditions which are no less favorable
(but shall not be required to be more favorable) than the terms and conditions
set forth in this Agreement (the "Other Terms"), and other mutually acceptable
changes to the extent required to reflect differences between the New Building
and the Building:
(1) Landlord will provide building services and amenities in the New
Building at least equivalent in quantity and quality to the building
services and amenities provided to Tenant in the Building immediately
prior to relocation to the New Building, provided that Tenant shall have
the right to direct the provision of reasonable building services for the
New Building or decline services offered by Landlord for the New Building
and, in such case, Landlord shall be released from its obligation to
provide such services declined by Tenant and Tenant shall be permitted to
obtain any such services for its own account, except to the extent such
services relate to the maintenance and/or repair of the New Building or
are otherwise required to satisfy the obligations of the tenant under the
Prime Lease. Landlord will not be obligated to provide a Wellness Center
in the New Building, but employees of the Containerboard Business located
in the New Building will have the right to use the Wellness Center in the
Building.
(2) Landlord will convey or cause Tenneco Automotive to convey to
Tenant, by xxxx of sale in customary form, the owned furniture and office
equipment in the New Building, and Landlord will provide any leased office
equipment in the New Building, in each case at least equivalent in quality
and quantity to the office furniture and equipment owned and used by
Tenant in the Building, and Tenant will convey to Landlord, by xxxx of
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sale in customary form, all furniture and office equipment owned by Tenant
in the Building and Tenant will leave all owned furniture and office
equipment and leased office equipment in the Building upon relocation to
the New Building.
(3) Tenant will occupy the second and third floors of the New
Building (consisting of approximately 61,000 sq. ft.), to accommodate
Tenant's required 200 work stations and offices. Landlord will be
responsible for all out-of-pocket costs to move Tenant into the New
Building and to deliver premises in the New Building at least equivalent
in quality to the Premises. Tenant agrees to vacate the Premises and
relocate to the New Building as soon as practicable following completion
(i.e., subject only to completion of minor punchlist items) of the
reconfiguration of the premises to be occupied by Tenant in the New
Building, provided, however, that such relocation shall occur during a
weekend. In no event shall Landlord be responsible for any consequential,
indirect or business interruption costs paid, incurred or suffered by
Tenant occasioned by or arising out of the relocation to the New Building.
Landlord also shall be responsible for and shall pay the cost of all
alterations necessary to convert the common areas of the New Building to a
configuration suitable for multi-tenant occupancy. All determinations with
respect to (i) whether the Other Terms to be contained in the New Building
Sublease are no less favorable (but shall not be required to be more
favorable) than those set forth in this Agreement, and (ii) whether (x)
the quantity and quality of building services and amenities, (y) the
quantity and quality of furniture and office equipment, and (z) the
quality of the premises to be occupied by Tenant in the New Building are
"at least equivalent" with those required by the terms of this Section
4.1(a) (the matters referred to in the foregoing clauses (i) and (ii) are
referred to herein collectively as the "Equivalency Determinations") shall
be made jointly between the Chief Executive Officer of Tenant on the one
hand, and Xxxxxxxx X. Xxxxxxxx (so long as he is one of the TPI/PCA
Directors (as such term is defined in the Stockholders Agreement), and if
Xxxxxxxx X. Xxxxxxxx is not one of the TPI/PCA Directors, such other one
of the TPI/PCA Directors designated by Landlord), on the other hand. The
obligation of Landlord and Tenant to enter into the New Building Sublease
shall be subject to the joint agreement of the Chief Executive Officer of
Tenant and Xxxxxxxx X. Xxxxxxxx (or if Xxxxxxxx X. Xxxxxxxx is not one of
the TPI/PCA Directors, such other one of the TPI/PCA Directors designated
by Landlord), acting reasonably and in good faith, with respect to the
Equivalency Determinations.
(4) The initial term of the New Building Sublease will expire on the
Expiration Date of this Agreement (i.e., January 31, 2003). The rent and
occupancy costs which Tenant shall pay under the New Building Sublease
shall be the same rent and occupancy costs as Tenant would have paid under
this Agreement had Tenant remained in occupancy of the first floor of the
Building, adjusted as may be necessary to reflect any increases or
decreases in building services by Tenant as set forth in Subsection
4.1(a)(1) above. The rent and occupancy costs for calendar year 1999 shall
be subject to the XXX 0000 Cap, as set forth in Section 7(i) of this
Agreement. Tenant shall have the right to terminate the New Building
Sublease in the event total annual Building Occupancy Costs for
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the Building for any calendar year exceed the BOC Threshold Amount, as set
forth in Section 6(b) of this Agreement.
(5) Provided that Tenant is not in default under the New Building
Sublease, Tenant shall have the right to extend the term of the New
Building Sublease for one additional period of four (4) years (the
"Extension Period") following the expiration of the initial term
("Extension Option"). Tenant shall give Landlord written notice of its
exercise of the Extension Option not less than twelve (12) months prior to
the expiration of the initial term of the New Building Sublease. If Tenant
shall fail to exercise its Extension Option on or before the expiration of
such 12-month period, the Extension Option shall terminate and shall be
null and void. If Tenant shall exercise the Extension Option, the base
rent for the Extension Period shall be equal to the Tenant's proportionate
share of the contract rent payable under the Prime Lease of the New
Building, together with Tenant's proportionate share of all Building
Occupancy Costs (as defined in Section 7(a) of this Agreement) paid or
incurred by Landlord with respect to the New Building, adjusted as may be
necessary to reflect any increases or decreases in building services by
Tenant as set forth in Subsection 4.1(a)(1) above.
(6) Upon the execution and delivery of the New Building Sublease,
this Agreement will terminate, except with respect to each party's
indemnification obligations under Section 20 of this Agreement.
(b) Tenant agrees to keep the terms of this Relocation Option
confidential and agrees not to disclose to any person: (i) any non-public
information disclosed by Landlord or any of its Affiliates to Tenant regarding
the fact that discussions or negotiations are taking place concerning a possible
transaction with Tenneco Automotive, (ii) the terms of this Relocation Option,
or (iii) the fact that this Relocation Option exists, provided, however, that
Tenant may disclose the terms of this Relocation Option to its officers,
directors, shareholders, lenders and their respective outside legal counsel and
other professional advisors ("Tenant's Representatives") who shall be informed
of the confidential nature of the matters set forth in clauses (i), (ii) and
(iii) of this paragraph. The confidentiality requirements of this paragraph
shall not apply to any information (1) which is or becomes generally available
to the public (other than as a result of an unauthorized disclosure by Tenant or
any of Tenant's Representatives), or (2) which is required to be disclosed by
applicable law, regulation or court order.
5. Common Areas and Access. Subject to the terms of the last three
sentences of this Section 5, Tenant shall have full and unimpaired access to the
Building and the Premises at all times, and Tenant shall have the nonexclusive
right to use the private driveways on the Property which provide access to the
public road now known as "Field Court" for ingress and egress to the Building
and the Premises. Tenant shall have the nonexclusive right to use the truck
delivery docks, stairways, halls, entrances, rest rooms on the lower level,
cafeteria, exercise facilities, services and programs offered in the Wellness
Center, training rooms on the lower level and other facilities in and about the
Property (which are designated by Landlord as common areas) in common with
Landlord
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6. and any parties using the Property by, through or under Landlord,
subject to Landlord's Rules and Regulations which may be changed from time to
time in accordance with the terms of Section 24 hereof, and, in the case of the
training rooms, further subject to availability and reasonable advance
scheduling with Landlord on the same basis as Landlord's employees. Landlord
reserves the right to change, increase, reduce, restrict, limit or eliminate,
from time to time: the number, composition, dimensions or location of any
parking areas as long as same is in compliance with Legal Requirements; signs;
the Building name; the Building address; service areas; cafeteria; patio;
exercise facilities, services and programs offered in the Wellness Center;
training rooms on the lower level; walkways; roadways; or other common areas or
make alterations or additions to the Building, in its sole discretion, provided,
however, that Tenant's access to and use and enjoyment of the Premises shall not
be materially and adversely impacted by any of the foregoing. Notwithstanding
anything to the contrary contained in this Section 5, but subject to the terms
of Section 8(b) hereof, Landlord shall have the right to impose reasonable
restrictions on Tenant's access to certain common areas of the Building for
health and safety reasons (such as delivery areas, kitchen, mechanical rooms,
telephone rooms and electrical closets), and other portions of the Building used
and occupied principally by Landlord. Upon the relocation of Tenant to the first
floor of the Building, Tenant shall not be permitted to have access to or the
right to use any common areas, conference rooms, board room, training rooms or
video conference rooms on the second, third and fourth floors of the Building,
except that Tenant shall have the right from time to time to use the board room
on the fourth floor of the Building and the video conference rooms on the second
and fourth floors of the Building, subject in each case to availability and
reasonable advance scheduling with Landlord, and further subject, in the case of
the video conference rooms, to payment to Landlord of the use charge set forth
herein. Landlord agrees that Tenant shall be entitled to reserve the training
rooms on the lower level, the video conference rooms and the board room on the
same basis as Landlord's employees.
7. Term.
a. The term of this Lease (the "Term") shall commence on the date of
Closing of the transactions contemplated by the Contribution Agreement (the
"Commencement Date") and shall end on January 31, 2003 (the "Expiration Date"),
unless sooner terminated as provided herein.
b. Notwithstanding the Term of this Lease, Tenant shall have the right to
terminate this Lease, in the manner provided below, in the event the total
Building Occupancy Costs (as hereinafter defined) with respect to any calendar
year after calendar year 1999, as set forth in Landlord's Annual Statement,
exceed the aggregate sum of Fourteen Million Dollars ($14,000,000) (the "BOC
Threshold Amount") with respect to such calendar year. Tenant shall exercise its
right of termination by giving written notice thereof to Landlord (an "Early
Termination Notice") on or before the forty-fifth (45th) day following the date
on which Landlord renders a Landlord's Annual Statement reflecting total
Building Occupancy Costs in excess of the BOC Threshold Amount. The Early
Termination Notice delivered by Tenant shall designate the effective date of the
termination, which date shall be: (i) on the last day of a month, and (ii) at
least six (6) but not more than nine (9) months after the date of such
termination notice (such nine month period is referred to herein as the
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"Stub Period"). For purposes of determining whether the total Building Occupancy
Costs with respect to any calendar year after calendar year 1999 exceed the BOC
Threshold Amount, the BOC Threshold amount shall be adjusted (up or down, as
applicable) to reflect: (i) increases in Service Costs (as hereinafter defined)
resulting from utilization by Tenant of the services giving rise thereto in
amounts materially greater than Tenant's historical use of such services; and
(ii) decreases in Service Costs resulting from the termination by Tenant of the
utilization of such services (or part thereof) pursuant to Section 7(b) hereof.
In the event Tenant shall exercise its termination right, Tenant shall be
obligated to pay Rent (as hereinafter defined) during the entire Stub Period,
including, without limitation, Basic Rent (as hereinafter defined), except that
Tenant shall not be obligated to pay Rent on the amount by which total Building
Occupancy Costs exceed the BOC Threshold Amount during the first six (6) months
of the Stub Period.
8. Rent.
a. The basic rent (the "Basic Rent") during the Term shall be equal to
Tenant's Proportionate Share (as hereinafter defined), except to the extent that
certain expense items described below shall be billed to Tenant on the basis of
Tenant's actual use thereof, of all actual costs and expenses paid or incurred
by Landlord from time to time relating to the leasing (or if Landlord shall
become the owner of fee title to the Property, the ownership), use, management,
occupancy, operation, maintenance and repair of and necessary replacements for
the Property (referred to herein collectively as the "Building Occupancy
Costs"), including, without limitation, the following items:
(i) the Fixed Rent (as defined in the Prime Lease) and any other
amounts that Landlord is or may be required to pay to the Prime Landlord
pursuant to the Prime Lease (or any fixed rent and other amounts that may be
paid by Landlord under any lease that may replace the Prime Lease, or in the
event Landlord shall acquire fee title to the Property, the cost of capital
charged at Landlord's internal cost of funds applied to the purchase price paid
for the Property);
(ii) Taxes (as hereinafter defined);
(iii) insurance premiums;
(iv) Xxxxxx Park at Lake Forest Owner's Association dues and
assessments (special or otherwise);
(v) fuel costs and utility charges for electricity, heating,
ventilating and air conditioning;
(vi) the salaries, wages and benefits (including the amount of any
social security taxes, unemployment insurance contributions, union benefits and
other "fringe benefits") of the following individuals employed from time to time
by Landlord or an Affiliate of Landlord:
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(1) maintenance engineers to operate, maintain and repair the
Building systems, but not more than the pro-rata portion of such
maintenance engineers' time utilized for operating, maintaining and
repairing the Building;
(2) facility management personnel to operate and manage the
Property, the Building, and to arrange for and monitor the performance of
the services performed by vendors and contractors providing services to
the Property and the Building, but not more than the pro-rata portion of
such individuals' time devoted to the operation and management of the
Building;
(3) administrators and trainers to operate and manage the Wellness
Center, but not more than the pro-rata portion of such individuals' time
devoted to the operation and management of the Wellness Center;
(4) receptionists and switchboard operators to operate and manage
the telephone switchboard presently located in the main lobby of the
Building, and to receive guests and visitors, and issue visitor passes,
but not more than the pro-rata portion of such individuals' time devoted
to such activities;
(vii) the cost of all service contracts of vendors providing
services to the Property and the Building, including, without limitation,
property management, janitorial, maintenance, landscaping, window washing,
scavenger service, security, mailroom, photocopy service providers, food and
beverage services, HVAC maintenance services, etc.;
(viii) the cost of all leased machinery and equipment, including,
without limitation, leased office equipment, photocopiers, fax machines and
telephones;
(ix) the cost of any repairs, replacements, upgrades, alterations or
improvements made by Landlord to the Property or the Building which Landlord
reasonably believes are necessary and appropriate, provided, however, that if
the cost of any such repair, replacement, upgrade, alteration or improvement is
classified by Landlord for tax accounting purposes as capital in nature, the
cost shall be amortized over the useful life of the asset in the manner
determined by Landlord; and
(x) a replacement capital reserve relating to the estimated cost to
replace certain wearing components of the Building (such as roof, mechanical
components of the Building, chillers, and primary systems of the heating,
ventilating and cooling, the parking structure and electrical switch gear
serving the Building), provided, however, that the estimated cost to replace
such capital items shall be amortized over the expected useful life of the asset
in the manner determined by Landlord.
The categories of Building Occupancy Costs presently paid or incurred or
anticipated to be paid or
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incurred by Landlord relating to the Property are set forth on Exhibit "B"
attached hereto and made a part hereof. The Building Occupancy Costs which are
included in Basic Rent shall be those costs and expenses reasonably necessary to
lease (or to own, if Landlord shall become the owner of fee title to the
Property) manage, operate, maintain and repair the Property in a manner
consistent with first-class corporate headquarters office buildings in the
Xxxxxx Park at Lake Forest office park, and shall include, without limitation,
all costs and expenses necessary to comply with Legal Requirements (as
hereinafter defined).
b. Notwithstanding the foregoing, Landlord shall xxxx to Tenant the actual
cost utilized by Tenant with respect to the categories of expense items set
forth on Exhibit "C", together with a pro-rata allocation the fixed costs paid
or incurred by Landlord (collectively, the "Service Costs") with respect to the
administration and operation of the service (referred to herein individually as
a "Business Service" and collectively as "Business Services") to which such
expense item relates, which allocation shall be based upon the actual use of
such Business Services by each party, or such other basis of allocation as may
be set forth on Exhibit "C". Subject to the terms of Section 8(b) hereof with
respect to contractual arrangements with third-party service providers or
vendors for such Business Services, Tenant shall have the right to not utilize
any Business Service in its sole discretion and contract separately for such
Business Service. In such event, Tenant shall not be required to pay that
portion of the Service Costs associated with Business Services so separately
obtained by Tenant. To the extent Landlord does not have in place on the
Commencement Date the appropriate means to accurately record each parties'
actual use of the expense items to be billed based upon actual usage, Landlord
shall use reasonable commercial efforts to institute appropriate means of
recording each parties' actual use of these expense items, and Tenant agrees to
cooperate with Landlord's efforts. Until such time as Landlord has instituted
appropriate means to record the cost of the parties' actual use of these expense
items, Tenant shall pay Tenant's Proportionate Share with respect to such
expense items.
c. Basic Rent shall be payable in monthly installments in advance on the
first day of each calendar month during the Term in lawful money of the United
States of America. During the first and last months of the Term of this Lease,
if the Term commences on a date other than the first day of the month or ends on
a date other than the last day of a month, the Rent (as defined below) shall be
prorated based upon the actual number of days in such month.
d. In addition to the Basic Rent, Tenant shall pay Landlord, as additional
rent ("Additional Rent"), any and all other charges which Tenant is obligated to
pay to Landlord under the terms of this Lease, including but not limited to any
Additional Charges (as hereinafter defined). Additional Rent will be paid on a
one-twelfth (1/12) charge basis in advance with the monthly Basic Rent on the
first day of each calendar month during the Term. The charges for any Additional
Rent which are not included in the monthly rent shall be billed by Landlord to
Tenant and Tenant shall pay bills within thirty (30) days after the date they
are billed.
e. The terms "Basic Rent" and "Additional Rent" are sometimes collectively
referred to herein as "Rent" and shall include any and all sums due from Tenant
to Landlord under the terms
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of this Lease. All Rent shall be payable at the office of Landlord at 0000 Xxxx
Xxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxx 00000, or at such other address as directed
by notice from Landlord to Tenant. All Rent shall be due and payable without
notice, demand, abatement, offset, or right of recoupment, unless otherwise
specifically provided for in this Lease. If and to the extent Tenant is
obligated to pay any charge or expense item as Rent hereunder, and the same
charge or expense item also is included as an obligation of Tenant under the
Transition Services Agreement, Tenant shall pay such duplicate charge or expense
item as Rent under this Lease and not under the Transition Services Agreement,
unless the parties shall otherwise mutually agree. For administrative
convenience of Landlord and Tenant, Landlord may invoice Tenant for Rent using a
monthly rent invoice, provided, however, that the failure of Landlord to render
a rent invoice to Tenant shall not relieve Tenant of its obligation to pay Rent
on the first day of each month during the Term hereof.
f. As used in this Lease, the term "Tenant's Proportionate Share" shall
mean twenty-three and 85/100 percent (23.85%), which is approximately the number
of rentable square feet in the first floor of the Premises (excluding the
computer and telephone equipment room and the main lobby common areas), divided
by the number of total rentable square feet in the Building (excluding common
areas). The calculation of the Tenant's Proportionate Share is set forth in
Exhibit "E" attached hereto.
g. If the amount of any component of Basic Rent for a particular period is
not known, Landlord shall have the right to make reasonable estimates, forecasts
or projections of such amount for the purpose of determining the amount to
include with monthly Basic Rent. When the actual amount of the estimated item is
known, an adjustment will be made and Landlord shall refund any overpayment to
Tenant and Tenant shall pay any underpayment to Landlord, in the manner set
forth in Subparagraph 7(h) hereof. Landlord shall have the right from time to
time, but not more than four (4) times in any twelve (12) month period, to
change the amount of Basic Rent, and upon receipt by Tenant of written notice of
the change in the amount of Basic Rent, which notice shall identify the reason
for such change. Tenant shall commence paying, on the date of monthly Basic Rent
next due following Landlord's notice, the new amount of monthly Basic Rent. Upon
request by Tenant, Landlord shall provide Tenant with reasonably detailed
documentation supporting the change in Basic Rent, provided, however, that
Tenant's satisfaction or dissatisfaction with either (i) the reason for such
change in Basic Rent set forth in Landlord's notice, or (ii) Landlord's
documentation supporting such change in Basic Rent shall not limit or affect
Tenant's obligation to commence paying, on the date of monthly Basic Rent next
due following Landlord's notice, the new amount of monthly Basic Rent.
h. As soon as practicable after December 31 for the calendar year in which
the Lease commences, and for each calendar year thereafter (including the
calendar year following the year in which this Lease expires or is terminated),
Landlord shall deliver to Tenant a written statement setting forth in reasonable
detail the actual amount of Basic Rent during the immediately preceding year
(each such statement is referred to herein as a "Landlord's Annual Statement").
The form of the Landlord's Annual Statement shall be in substantially the form
of Exhibit "B" attached hereto. Within thirty (30) days after the delivery of
Landlord's Annual Statement to Tenant, Tenant
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shall pay to Landlord as Additional Rent the amount by which (i) the actual
amount of Basic Rent set forth in Landlord's Annual Statement for the preceding
year exceeds (ii) the aggregate of the monthly installments paid by Tenant on
account of Basic Rent for the immediately preceding year. In the event the
aggregate amount of the monthly installments paid by Tenant on account of Basic
Rent for such immediately preceding year exceeds the actual amount of Basic Rent
set forth in Landlord's Annual Statement for the immediately preceding year,
Landlord shall pay to Tenant the excess amount, without interest, within thirty
(30) days after delivery of the Landlord's Annual Statement. If the Term ends
other than on the last day of a calendar year, Tenant's Additional Rent as shown
on the Landlord's Annual Statement delivered after the end of the Term shall be
reduced proportionately and the payment due from Landlord or Tenant also shall
be apportioned and paid as aforesaid.
i. Notwithstanding anything to the contrary set forth in this Section 7,
for the calendar year ending on December 31, 1999, Tenant shall not be obligated
to pay Basic Rent on the amount by which the total Building Occupancy Costs paid
or incurred by Landlord for calendar year 1999 relating to the leasing (or if
Landlord shall become the owner of fee title to the Property, the ownership),
use, management, occupancy, operation, maintenance and repair of and necessary
replacements for the Property exceed the aggregate sum of Ten Million Dollars
($10,000,000) (the "BOC 1999 Cap"). For purposes of the foregoing determination,
the XXX 0000 Cap shall be adjusted (up or down, as applicable) to reflect: (i)
increases in Service Costs resulting from utilization by Tenant of Business
Services in amounts materially greater than Tenant's historical use of such
Services (including Tenant's historical use of such Services when the
Containerboard Business was operated as a division of Landlord); and (ii)
decreases in Service Costs resulting from the Termination by Tenant of the
utilization of such Services (or part thereof) pursuant to Section 7(b) hereof.
"Taxes" shall mean:
(1) All real estate taxes, assessments (special or otherwise), sewer
and water rents, rates and charges, and any other governmental levies,
impositions, rent tax, sales tax on rent, and charges of a similar nature
("Impositions"), which may be levied, assessed or imposed on or in respect
of all or any part of the Property and/or the Rent payable hereunder,
whether or not the Property constitutes one or more tax lots. If, however,
by law, any assessment may be divided and paid in annual installments,
then, for the purposes of this definition, such assessment shall be deemed
to have been so divided and to be payable in the maximum number of annual
installments permitted by law, together with interest payable during such
year on such annual installment and on all installments thereafter
becoming due as provided by law, all as if such assessment had been so
divided.
(2) Any reasonable and appropriate expenses incurred by Landlord in
contesting any of the foregoing or the assessed valuation of all or any
part of the Property.
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(3) If at any time during the Term the methods of taxation
prevailing at the date hereof shall be altered so that in lieu of or as a
substitute for the whole or any part of the Impositions now levied,
assessed or imposed on all or any part of the Property, there shall be
levied, assessed or imposed (i) an Imposition based on the income or Rents
received therefrom whether or not wholly or partially as a capital levy or
otherwise, or (ii) an Imposition measured by or based in whole or in part
upon all or any part of the Property and imposed on Landlord, then all
such Impositions shall be deemed to be Taxes.
"Taxes" shall not include: (i) Impositions upon, or arising from,
improvements or alterations outside of the Premises or to the Property or
Building made by Landlord or other tenants after the Commencement Date, and any
expenses in contesting such Impositions; (ii) penalties or interest paid by
Landlord on account of taxes; or (iii) income, gross profit, franchise or
similar taxes.
If, as a result of any application or proceeding brought by Landlord for a
reduction in the assessed valuation of the Property affecting any tax year
commencing after the Lease Commencement Date, there shall be a decrease in Taxes
for any such tax year, Landlord shall promptly refund to Tenant, Tenant's
Proportionate Share of the refund of the Taxes received by Landlord, including
refunds received after the expiration date of this Lease for periods during the
Term. Landlord may deduct from such refund Tenant's Proportionate Share of all
costs and expenses, including reasonable counsel fees, incurred by Landlord in
connection with the application or proceeding to reduce the Taxes.
9. Services Provided By Landlord.
a. Subject to the terms of Section 21 hereof, Landlord will provide Tenant
with substantially the same services that Landlord provides to other occupants
of the Building ("Services"). Services to be provided by Landlord may, at
Landlord's sole discretion, be provided, in whole or in part, by affiliates,
subsidiaries, contractors or vendors of Landlord. If Services are currently
provided by employees of Landlord, then Landlord shall not be obligated to hire
additional employees to perform the Services. Tenant agrees that all third
parties which currently provide any Services are acceptable. Landlord shall
provide Services to the extent, quantity, and quality that it provides such
services as of the Commencement Date of this Lease and shall not be required to
provide a level of Services which is greater than that provided immediately
prior to the Commencement Date of this Lease. Landlord shall not be required to
provide any Services to the extent that, in the Landlord's reasonable judgment,
(i) the performance of such services becomes unnecessary for Landlord's business
operations at the Building and the cessation of such service would not
materially diminish Tenant's use and enjoyment of the Premises; (ii) the
performance of such Services becomes commercially impractical as a result of a
cause or causes outside the reasonable control of Landlord; or (iii) to the
extent the performance of such Services would require Landlord to violate any
Legal Requirements. Landlord shall not be liable for any delay or failure of
performance to the extent such delay or failure is caused by circumstances
beyond its reasonable control, provided that Landlord uses commercially
reasonable efforts to overcome such
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circumstances. LANDLORD MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, AND LANDLORD SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
SERVICES TO BE PROVIDED HEREUNDER.
b. Landlord shall give Tenant written notice (a "Vendor Contract Notice")
before entering into any new contracts with service providers or vendors, or
renewing or extending existing contractual arrangements with existing service
providers or vendors for Business Services. Tenant shall have the right, at that
time, to elect not to utilize the Business Services which are the subject of
Landlord's Vendor Contract Notice, provided that if Tenant does not so elect by
delivery of written notice to Landlord on or before the fifteenth (15th)
business day following receipt of a Vendor Contract Notice, Tenant may not
exercise its right to terminate such Business Service pursuant to Section 7(b)
hereof until such time as Tenant shall receive a subsequent Vendor Contract
Notice with respect thereto. Landlord shall endeavor to give Tenant as much
notice as reasonably possible before entering into new contracts with service
providers or vendors, or renewing or extending existing contractual arrangements
with existing service providers or vendors for Business Services, but in any
event not less than fifteen (15) business days. If Tenant fails to respond to
Landlord's Vendor Contract Notice, Tenant shall be deemed to have waived its
election not to utilize the Business Service which is the subject of the Vendor
Contract Notice for the term of the contract with such service provider or
vendor. If Tenant shall exercise its right not to utilize any Business Service,
Tenant shall have the right to procure such Business Services for itself, and
Landlord shall use commercially reasonable efforts to facilitate Tenant's use of
third party service providers and vendors (referred to herein as "Tenant's
Vendors"), subject to the following conditions:
(i) Landlord shall have the right to impose on Tenant's Vendors
reasonable restrictions and scheduling requirements with respect to access to
the building, use of the Building (including, without limitation, use of
driveways, loading dock, freight elevator, use common areas, storage rooms and
corridors), and scheduling of deliveries and pick-ups; and
(ii) Tenant shall be solely responsible for Tenant's Vendors,
including, without limitation, any bodily injury or property damage caused by or
arising out of Tenant's Vendors use of the Building.
c. Subject to the terms of Subsection 8(a) hereof, Landlord shall not be
required to provide to Tenant (i) any services which Landlord does not provide
to other occupants of the Building, or (ii) services to the extent that the cost
of providing such services exceeds in the future the cost of providing such
services as of the Commencement Date as the result of, and only to the extent
caused by, an organizational or operational change by Tenant (such services
described in clauses (i) and (ii) are referred to herein collectively as
"Additional Services"). Additional Services also shall include, without
limitation, the items set forth in Exhibit "F" attached hereto. Upon written
request by Tenant, Landlord shall have the right, but not the obligation, to
provide the requested Additional Services at the rate which reasonably reflects
the expense to Landlord to
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provide such Additional Services, and in the case of Additional Services under
clause (ii) of the preceding sentence, continue to provide the service but at an
increased rate which reasonably reflects the increased cost to Landlord of
providing such service (the cost and expense associated with such Additional
Services are referred to herein collectively as "Additional Charges"). If
Landlord elects not to provide the Additional Services requested by Tenant,
Tenant shall have the right to procure the Additional Services for itself,
subject to the terms and conditions set forth in clause (i) and clause (ii) of
Subsection 8(b) above. Additional Charges shall constitute Additional Rent under
this Lease. In the event Landlord elects to provide any Additional Services,
Landlord shall issue to Tenant a service work order, and Landlord shall
separately identify Additional Charges on the monthly invoice for Rent.
d. Tenant shall provide to Landlord on a timely basis any and all
information which may be necessary for Landlord to provide the Services. Tenant
shall be solely responsible for the timely delivery of such information, and the
accuracy and completeness thereof.
e. The charges for any Services which are not included in the monthly Rent
on a one-twelfth (1/12) annual charge basis will be billed by Landlord to Tenant
not more often than monthly and Tenant shall pay bills within thirty (30) days
after the date they are billed.
f. Any sales, value added, or similar taxes imposed on the Service
(including, without limitation, any telephone surcharge or tax imposed by the
City of Lake Forest with respect to telephone usage) shall be paid by Tenant to
Landlord in addition to the charges for the services.
g. Notwithstanding any other provision of this Lease to the contrary, the
parties may, by mutual agreement in writing, increase or decrease the charges
for the Services and, may add, delete, or modify the Services.
10. Use. Tenant shall have the right to use and occupy the Premises for
general office use and any other use consistent with (a) the current use of the
Premises by the Containerboard Business as of the Commencement Date, (b)
applicable Legal Requirements (as defined in Section 10 below), (c) the nature
of and the character of the Building, and (d) the uses of the Building by
Landlord. Tenant shall not have the right to use the roof or any portion thereof
for any purpose whatsoever, including the installation or use of any microwave
dishes or other communications radio antenna or other transmission or reception
equipment, except to the extent, if any, the roof of the Building is utilized by
the Containerboard Business as of the Commencement Date hereof.
11. Compliance with Legal Requirements. Tenant shall comply with all
applicable Legal Requirements insofar as they pertain to Tenant's use of the
Premises, including cases where Legal Requirements mandate repairs, alterations,
changes or additions to the Premises caused by Tenant's use of the Premises
during the Term. Landlord shall comply with Legal Requirements in every other
case. In the event Tenant's obligation to comply with Legal Requirements
requires any "Alterations" (defined in Section 14), then such Alterations shall
be made in accordance with the provisions of Section 14 of this Lease. Landlord
shall be responsible to make any Alterations
-15-
resulting from the Premises' failure to comply with any Legal Requirements up to
and including the Commencement Date. "Legal Requirements" shall mean the
requirements of (a) all applicable laws, statutes, ordinances, codes, rules,
orders and regulations of all federal, state, county, and municipal governments,
and any and all of their departments, bureaus and agencies, including without
limitation all "Environmental Laws" (defined in Section 11 hereof) and the
Americans with Disabilities Act, (b) all rules, regulations and restrictions
from time to time established by the Xxxxxx Park at Lake Forest Owners'
Association, (c) any covenants, conditions and restrictions affecting the
Property, such as those contained in the Declaration recorded as Document No.
2552398, as amended by First Amendment to Annexation Agreement, recorded August
9, 1996 as Document No. 3860724, and as further amended by the First Amendment
to Declaration of Easements and Protective Covenants, Conditions and
Restrictions for Xxxxxx Park at Lake Forest, recorded September 24, 1997 as
Document No. 4024067, and (d) all rules, orders and regulations of the Board of
Fire Underwriters or equivalent association for the prevention of fires.
12. Environmental Compliance.
a. Tenant accepts, assumes and agrees to pay, perform or otherwise
discharge all liabilities and obligations arising after the Commencement Date,
under any "Environmental Laws" ("Assumed Environmental Liabilities") with
respect to conditions, events, occurrences, practices, releases of Hazardous
Substances or other acts or omissions after the Commencement Date and through
the Term hereunder relating directly to the use of the Premises and operations
conducted by Tenant and its employees, guests, invitees, contractors, vendors,
agents and representatives at the Premises. Assumed Environmental Liabilities
means all liabilities and obligations arising after the Commencement Date under
any Environmental Law with respect to conditions, events, occurrences,
practices, "Releases" of "Hazardous Substances" or other acts or omissions after
the Commencement Date relating directly to the operations conducted by Tenant
and its employees, guests, invitees, contractors, vendors, agents and
representatives at the Premises.
b. Tenant agrees to comply in all material respects with all applicable
"Environmental Laws" with respect to conditions, events, occurrences, practices,
"Releases" of "Hazardous Substances" or other acts or omissions as they pertain
to the manner in which Tenant uses the Premises during the Term hereunder.
"Environmental Laws" means CERCLA, the Resource Conservation and Recovery Act of
1976, and the Occupational Safety and Health Act of 1970, each as amended, and
any similar local, county, state and/or federal law or regulation relating to or
addressing the environment, health or safety, in each case as in effect on or
after the Commencement Date. "Governmental Authority" means any federal state,
local, foreign or international court, government, department, commission,
board, bureau, agency, official or other regulatory, administrative or
governmental authority. "Hazardous Substance(s)" means any substance that is
regulated under any Environmental Law or is deemed by any Environmental Law to
be hazardous, toxic, a contaminant, waste, a source of contamination or
pollutant. In the event Tenant's obligation to comply with Environmental Laws
requires any "Alterations" (defined in Section 14), then such Alterations shall
be made in accordance with the provisions of Section 14 of this Lease provided,
however, that Tenant shall not be required to make Alterations that are required
as a result of
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Landlord's use or ownership of the Property. Upon expiration or earlier
termination of the Lease, Tenant shall provide proof reasonably satisfactory to
Landlord of compliance with all Governmental Authority and Environmental Laws.
c. Tenant shall not generate, store, transport, treat, dispose of or use
on the Property Hazardous Substances, except Tenant's use in the Building of
cleaning supplies, copying fluids, other office and maintenance supplies and
other substances normally and customarily used by tenants of office space shall
not be deemed a violation of this Subsection 11(c) if such use is in compliance
with all Legal Requirements.
d. Landlord agrees to comply in all material respects with all applicable
Environmental Laws insofar as they pertain to Landlord's use or ownership of the
Property, unless said ownership compliance is due to a failure of the
Containerboard Business or Tenant to fulfill its obligations under Subsections
(a), (b) or (c) above.
e. Landlord and Tenant shall each defend, indemnify and save the other
harmless from any claims, fines, penalties, liabilities, losses, damages, costs
and expenses (including reasonable attorney's fees, expert witness fees and
other costs of defense) which arise from its breach of its respective agreements
contained in this Section 11. Landlord and Tenant expressly waive, release and
agree not to make any claim against the other or their Affiliates, except for
indemnification claims made pursuant to this Section 11, for the recovery of any
cost or damages, whether directly or by way of contribution, or for any other
relief whatsoever for environmental matters under Environmental Laws, whether
known or unknown, foreseen or unforeseen, now existing or applicable or
hereinafter enacted or applicable, providing for any right of recovery relating
to or arising out of the Premises, the operation or conduct of the
Containerboard Business and Tenant, or the "Release", threat of "Release" or
presence of Hazardous Substances. "Release" means any releasing, spilling,
leaking, discharging, disposing of, pumping, pouring, emitting, emptying,
injecting, leaching, dumping or allowing to escape. The procedures for
Landlord's and Tenant's indemnification hereunder shall be governed by Section
7.4 of the Contribution Agreement
f. Landlord's and Tenant's obligations under this Section 11 shall survive
the expiration or earlier termination of this Lease.
13. Repairs and Maintenance.
a. During the Term, Landlord shall, subject to the terms of Section 21
hereof, perform diligently, promptly and in a good and workmanlike manner all
maintenance, repairs and replacements to: the structural components of the
Building, including without limitation the roof, roofing system, exterior walls,
bearing walls, support beams, foundations, columns, exterior doors and windows,
and lateral support to the Building; (ii) assure water tightness of the Building
and the Premises (including caulking of the flashings) and repairs to the roof,
roofing system, curtain walls and windows, if required to assure watertightness;
(iii) the plumbing; lawn and fire sprinklers; heating, ventilation and air
conditioning systems; electrical and mechanical lines, equipment and
-17-
systems, including without limitation elevators; (iv) the parking facility,
common areas of the Property and Building, including their lighting systems; (v)
exterior improvements to the Building, including walkways, shrubbery and
landscaping; (vi) the glass including cleaning and replacements; and (vii)
normal routine maintenance, cleaning, and janitorial services.
b. Tenant shall maintain the Premises and the fixtures and appurtenances
therein in good repair at all times, except to the extent such maintenance is
the responsibility of the Landlord pursuant to Section 12(a) above. During the
Term, Tenant shall not cause or perform any redecorating of the interior of the
Premises without the written consent of Landlord, which consent may be withheld
in Landlord's sole discretion.
c. Landlord, at Tenant's sole cost and expense, unless covered by any
insurance policy maintained by Landlord, shall make all repairs to the Building
(excluding the Premises) caused by the negligence or misconduct of Tenant, its
agents, independent contractors, representatives, or employers, and Tenant shall
promptly reimburse Landlord for the reasonable costs and expenses for such work.
14. Utilities. Landlord shall, subject to the terms of Section 21 hereof,
provide all utilities for the Premises consistent with the utilities provided at
the Commencement Date.
15. Alterations; Liens.
a. Tenant shall not make any alterations, improvements or installations
including placement of any signs (collectively, "Alterations") in or to the
Premises without the prior written consent of Landlord, which consent shall not
be unreasonably withheld, except that Landlord's consent may be withheld in
Landlord's sole and absolute discretion with respect to any proposed Alterations
affecting: (i) the structural components of the Building; (ii) the roof or
roofing system; (iii) exterior walls, bearing walls, support beams, foundations,
columns, exterior doors and windows, and lateral support to the Building; (iv)
curtain walls and windows; (v) the base building plumbing supply system and
fire/life safety systems (but relocation of sprinkler heads will be permitted
subject to Landlord's consent, which consent will not be unreasonably withheld);
(vi) the base building heating, ventilation and air conditioning systems (but
relocation of ductwork and ceiling vents will be permitted subject to Landlord's
consent, which consent will not be unreasonably withheld); (vii) base building
electrical and mechanical lines, equipment and systems, including, without
limitation, elevators; (viii) the parking facility, (ix) common areas of the
Property and Building, including their lighting systems; (x) exterior
improvements to the Building, including walkways, shrubbery, lawn and
landscaping; and (xi) the glass. In addition, Landlord shall have the right to
withhold consent, in Landlord's sole and absolute discretion, with respect to
any proposed Alterations to the interior of the Premises which would be visible
from outside the Building or which would diminish the design uniformity of the
Building.
-18-
b. Any Alterations consented to by Landlord shall be made by Landlord or
Landlord's contractors, at the sole cost and expense of Tenant, unless Landlord
shall elect, at Landlord's option, to permit Tenant itself to arrange and
contract for the Alterations, each as hereinafter provided.
c. In the event that Landlord shall elect to permit Tenant to arrange and
contract for the Alterations, then Tenant shall, before permitting commencement
of the Alterations, furnish to Landlord for Landlord's review and approval all
necessary plans and specifications in reasonable detail, names and addresses of
proposed contractors, copies of contracts, and shall furnish necessary permits
and indemnification in form and amount reasonably satisfactory to Landlord,
against any and all claims, costs, damages, liabilities and expenses which may
arise in connection with the Alterations, and certificates of insurance in form
and amount reasonably satisfactory to Landlord from all contractors performing
labor or providing materials, insuring Landlord against any and all liabilities
which may arise out of or be connected in any way with the Alterations. Tenant
shall pay all costs and expenses relative to the Alterations. Tenant shall
permit Landlord to monitor the construction operations in connection with the
Alterations and to restrict, as may reasonably be required, the passage of
manpower and materials and the conducting of construction activity in order to
avoid unreasonable disruption to Landlord or to other tenants of the Building or
damage to the Property or the Premises. Tenant shall pay to Landlord, for
Landlord's overhead in connection with monitoring the Alterations, a sum equal
to five percent (5%) of Tenant's costs for the Alterations. Promptly following
completion of the Alterations, Tenant shall furnish to Landlord contractors'
affidavits, full and final waivers of lien and receipted bills covering all
labor and materials expended and used in connection with the Alterations.
Whether or not Tenant shall furnish Landlord with all the foregoing, Tenant
hereby agrees to indemnify Landlord and hold Landlord harmless from any and all
liabilities of any kind and description which may arise out of or be connected
in any way with any Alterations. Any Alterations performed by Tenant shall
comply with all Landlord's insurance requirements and with all applicable laws,
ordinances and regulations. Landlord's approval of plans and specifications or
supervision of construction operations, if any, shall not imply Landlord's
acknowledgment, opinion or belief that the Alterations complies with any such
applicable laws, ordinances or regulations, nor relieve Tenant from any
responsibility hereinabove imposed. Following the completion of the Alterations,
Tenant shall also provide Landlord with "as-built" drawings showing in detail
the full extent and nature of the Alterations.
d. In the event that Landlord shall elect to directly arrange and contract
for the Alterations on behalf of Tenant, Landlord shall assume full
responsibility for the preparation of plans and specifications for the
Alterations for the Tenant's approval, the contracting for all labor and
materials required by the Alterations, compliance of the Alterations with all
applicable laws, ordinances, regulations, insurance and other requirements, and
monitoring of the Alterations. Prior to contracting for any Alterations on
behalf of Tenant, Landlord shall prepare for Tenant's approval a budget of the
anticipated cost of the Alterations, and Landlord shall not contract for any
Alterations until Tenant has approved the proposed budget. Tenant shall pay to
Landlord the costs of the Alterations including, without limitation, the cost of
preparing the plans and specifications, the cost of permits, fees, labor and
materials required to complete the Alterations, and the cost, if any, to
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repair and/or redecorate the Premises as may be necessitated by the Alterations
(collectively, "Costs"). Landlord's charge to Tenant for Landlord's overhead in
connection with Landlord's performance of the Alterations shall be computed at
five percent (5%) of the total substantiated Costs. The Costs payable by Tenant
to Landlord and Landlord's charge therefor shall be deemed to be Additional Rent
and shall be paid by Tenant as the Alterations are performed, upon being billed
by Landlord.
e. Tenant, promptly following receipt of notice thereof, shall remove any
lien or claim of lien filed against the Property or any part thereof for
materials or labor performed by any contractors, subcontractors, workmen, or
suppliers engaged directly or indirectly by Tenant and Tenant hereby indemnifies
and holds Landlord harmless from and against any and all losses, costs, damages,
expenses, or liabilities including, but not limited to, reasonable attorneys'
fees and other costs incurred by Landlord as a result of or in any way related
to such claims or liens, or Tenant's failure to promptly remove any such claims
or liens.
16. Assignment and Subleasing.
a. Except as provided in Subsections 15(b) and 15(e) below, Tenant shall
not, without the prior written consent of Landlord, which consent may be
withheld in Landlord's sole and absolute discretion, (i) assign, convey or
transfer this Lease or any interest under it; (ii) allow any transfer thereof or
any lien upon Tenant's interest by operation of law; (iii) sublet or license the
Premises, in whole or in part, or grant any party the right to occupy the
Premises or any part thereof; or (iv) permit the occupancy of the Premises or
any part thereof by anyone other than Tenant. The consent by Landlord to any
particular assignment, subletting or mortgaging shall not in any way be
considered a consent by Landlord to any other or further assignment, subletting
or mortgaging.
b. Tenant shall not, without the prior written consent of Landlord, which
consent shall not be unreasonably withheld, assign this Lease or permit any
transfer to (i) any corporation resulting from a merger or consolidation of
Tenant or (ii) a wholly-owned subsidiary of Tenant. In making its determination
as to whether to consent to any proposed assignment resulting from a merger or
consolidation of Tenant or to a wholly-owned subsidiary of Tenant, Landlord may
consider, among other things, the creditworthiness and business reputation of
the proposed assignee. Landlord shall be entitled to withhold its consent to any
proposed assignment if, at the time of the proposed assignment, the proposed
assignee or any of its Affiliates manufactures or produces products which
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compete with any products manufactured or produced by Landlord or any of its
Affiliates. Tenant's remedy, in the event that Landlord shall unreasonably
withhold its consent to an assignment shall be limited to injunctive relief or
declaratory judgment and in no event shall Landlord be liable for damages
resulting therefrom. For purposes hereof, a proposed assignee shall not be
deemed to compete with Landlord or its Affiliates by virtue of: (i) ownership of
less than 5% of the outstanding stock of any publicly-traded corporation, (ii)
the sale of competing products if such sales are not such proposed assignee's
primary business and such sales are less than $100 million per year, and (iii)
sales of products and services made in the Containerboard Business as of the
Closing Date (each as defined in the Contribution Agreement).
c. If Landlord consents to an assignment of this Lease, then the assignee
shall furnish to Landlord an assumption instrument pursuant to which such
assignee assumes all of Tenant's obligations hereunder accruing as of the
effective date of the assignment. Notwithstanding any assignment or transfer of
this Lease, and notwithstanding the acceptance of Rent by Landlord from an
assignee, transferee, or any other party, Tenant shall remain fully liable for
the payment of Rent and for the performance and observance of all other
obligations of this Lease on the part of Tenant to be performed or observed.
Tenant's liability shall be joint and several with any immediate and remote
successors in interest of Tenant, and such joint and several liability in
respect of Tenant's obligations under this Lease shall not be discharged,
released or impaired in any respect by any agreement or stipulation made by
Landlord extending the time of, or modifying any of the obligations of, this
Lease, or by any waiver or failure of Landlord to enforce any of the obligations
of this Lease.
d. Tenant shall not mortgage, pledge, assign or otherwise encumber its
interest in and to this Lease or the Rent payable hereunder without the prior
written consent of Landlord and Prime Landlord, which consent may be withheld in
the sole and absolute discretion of Landlord or Prime Landlord, as the case may
be, and any mortgage, pledge or assignment of the Tenant's interest hereunder
made without the prior written consent of the Landlord and Prime Landlord shall
be null and void and of no force or effect.
e. Notwithstanding the restrictions on assignment of this Lease set forth
in Subsection 15(a) above, but subject to any applicable restrictions set forth
in the Prime Lease, and provided that no Event of Default has occurred and is
continuing, and no event has occurred which, with the passage of time or giving
of notice or both, would constitute an Event of Default hereunder, Tenant shall
have the right to assign its interest as tenant under this Lease, in whole but
not in part, without the prior written consent of Landlord, in the event of a
sale of substantially all of the assets and business of Tenant, provided that
such sale transaction has been approved by 4 of the 5 TPI/PCA Directors (as such
terms is defined in the Stockholders Agreement) as set forth in the Stockholders
Agreement.
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17. Damage or Destruction.
a. If the Premises or the Building shall be so damaged by fire, other
casualty, acts of God or the elements (a "Casualty") so that it cannot, in
Landlord's good faith business judgment, be restored or made suitable for
Tenant's business needs within one hundred eighty (180) days after the date of
the Casualty, or if Prime Landlord exercises any right granted to it pursuant to
the Prime Lease to terminate the Prime Lease by reason of such Casualty, then
either Landlord or Tenant (as its sole remedy) may terminate this Lease by
written notice given to the other party within thirty (30) days after the date
of the Casualty. Any such termination of this Lease shall be effective as of the
date of the Casualty and the Rent shall xxxxx from that date, and any Rent paid
for any period beyond such date shall be refunded to Tenant.
b. If this Lease is not terminated as provided in Subsection (a), then
Landlord shall, at its sole cost and expense, restore the Premises and/or the
Building as soon as reasonably practicable (and in all events within the time
periods set forth in Subparagraph (c) below) to the condition existing prior to
the Casualty (to the extent practicable), including without limitation any
tenant improvements other than those improvements constructed for Tenant after
the Commencement Date. During the restoration period, the Rent shall xxxxx for
the period during which the Premises are not suitable for Tenant's business
needs. If only a portion of the Premises is damaged, the Rent shall xxxxx
proportionately based upon the portion of the Premises that are not suitable for
Tenant's business needs and not used by Tenant.
c. If Landlord, subject to delays occasioned by the occurrence of events
of force majeure, does not restore the Premises and/or the Building as required
in Subparagraph (b) within the one hundred eighty (180) day period after the
date of the Casualty, Tenant may, as its sole remedy, terminate this Lease
without incurring any liability to Landlord subsequent to the Casualty, provided
(i) Tenant gives Landlord not less than thirty (30) days prior written notice
after the expiration of the applicable one hundred eighty (180) day period, and
(ii) Landlord does not complete the restoration during such thirty (30) day
period.
18. Eminent Domain.
a. If there is a taking of the Property or the Premises by right or threat
of eminent domain (a "Taking") which results in the remainder of the Premises
being unable to be restored, in Landlord's good faith business judgment, to a
complete architectural unit within one hundred twenty (120) days from the date
of the Taking ("Substantial Taking"), or if Prime Landlord exercises any right
granted to it pursuant to the Prime Lease to terminate the Prime Lease by reason
of such Taking, then either Landlord or Tenant (as its sole remedy) may
terminate this Lease by written notice given to the other party within thirty
(30) days after the date of the Taking. Any such termination of this Lease shall
be effective as of the date of the Taking and the Rent shall xxxxx from that
date, and any Rent paid for any period beyond such date shall be refunded to
Tenant.
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b. If there shall be a Taking which does not constitute a Substantial
Taking, this Lease shall not terminate but Landlord shall, at its sole cost and
expense, with due diligence, restore the Premises as soon as reasonably
practicable to its condition before the Taking (to the extent practicable) but
excluding any improvements made for Tenant after the Commencement Date of this
Lease. During the restoration period, the Rent shall xxxxx for the period during
which the Premises are not suitable for Tenant's business needs. If only a
portion of the Premises is taken, the Rent shall xxxxx proportionately based
upon the portion of the Premises that are not suitable for Tenant's business
needs and not used by Tenant.
c. Tenant shall not be entitled to any part of the payment or award for a
Taking, provided that Tenant may file a claim, separate from Landlord's claim,
for any loss of Tenant's property, moving expenses, or for damages for cessation
or interruption of Tenant's Containerboard Business, provided such claim is not
for the value of the Leasehold and does not reduce Landlord's award therefor.
19. Insurance.
a. Landlord shall maintain, at its expense, during the Term, fire
insurance, with standard "all risk" coverage for the Building. Such coverage
shall equal one hundred percent (100%) of the replacement cost of the Building
and any parking facility, exclusive of excavation, footings and foundations.
b. Landlord shall maintain, at its expense, during the Term, comprehensive
general liability insurance covering injuries occurring on the Property, which
shall provide for a combined coverage for bodily injury and property damage in
an amount not less than Three Million Dollars ($3,000,000).
c. Tenant shall maintain, at its expense, during the Term, with insurance
companies reasonably acceptable to Landlord, comprehensive general liability
insurance for the Premises in a combined coverage for bodily injury and property
damage in an amount not less than Three Million Dollars ($3,000,000). Tenant
shall name Landlord, Prime Landlord, Existing Mortgagee (defined below) and any
mortgagee of the Property of which Landlord has advised Tenant in writing, as
additional insureds under such policy.
d. Tenant shall maintain, at its expense, during the Term, property
insurance on all personal property located in the Premises from damage or other
loss caused by fire or other casualty, including but not limited to, vandalism
and malicious mischief, perils covered by extended coverage, theft, sprinkler
leakage, water damage (however caused), explosion, malfunction or failure of
heating and cooling or other apparatus, and other similar risks in amounts not
less than the full insurable replacement value of such property.
e. Tenant shall maintain such worker's compensation insurance as is
required by applicable law.
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f. The policy or policies evidencing such insurance for Subsections (a),
(b), (c), and (d) shall provide that they may not be canceled or amended without
thirty (30) days' prior written notice being given to the party for whose
benefit such insurance has been obtained. Prior to the Commencement Date, each
party shall submit to the other insurance certificates demonstrating the
required policies are in effect.
g. Notwithstanding the foregoing, Landlord may self-insure provided
Landlord provides evidence reasonably satisfactory to Tenant that Landlord has
the financial ability to self-insure such obligation and the self-insurance
program must meet the requirements of any applicable laws pertaining to such
self-insurance programs and must meet any and all requirements and approvals of
any insurance commission of the state in which the Property is located and where
the subject matter of said self-insurance program is to be applicable.
20. Subrogation and Waiver.
The parties release each other and their respective authorized
representatives from any claims for injury to any person or damage to the
Property that are caused by or result from risks required to be insured against
under any all risk or fire insurance policies carried by either of the parties.
Each party to the extent possible shall obtain, for each policy of insurance,
provisions permitting waiver of any claim against the other party for loss or
damage within the scope of the insurance and each party to the extent permitted,
for itself and its insurer, waives all such insured claims against the other
party. If such waiver or agreement shall not be obtainable, or shall cease to be
obtainable without additional charge, the insured party shall so notify the
other party promptly after notice thereof. If the other party shall agree in
writing to pay the insurer's additional charge therefor, such waiver or
agreement shall (if obtainable) be included in the policy.
21. Indemnification.
a. Except as specifically provided to the contrary elsewhere in this Lease
and in addition to the indemnities provided for in the Contribution Agreement,
Tenant shall defend, indemnify and save harmless Landlord, its Affiliates,
subsidiaries, and any officers, directors, against all claims, liabilities,
losses, fines, penalties, damages, costs and expenses (including reasonable
attorneys' fees and other costs of litigation) because of injury, including
death, to any person, or damage or loss of any kind to any property caused by
any negligent action or omission of Tenant or Tenant's Vendors, or any failure
on the part of Tenant to perform all of its liabilities and obligations under
this Lease.
b. Except as specifically provided to the contrary elsewhere in this Lease
and in addition to the indemnities provided for in the Contribution Agreement,
Landlord shall defend, indemnify and save harmless Tenant, its Affiliates, and
any officers, directors, against all claims, liabilities, losses, fines,
penalties, damages, costs and expenses (including reasonable attorneys' fees and
other
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costs of litigation) because of injury, including death, to any person, or
damage or loss of any kind to any property caused by any negligent action or
omission of Landlord, or any failure on the part of Landlord, to perform its
obligations under this Lease.
c. Landlord's and Tenant's indemnification obligations under this Section
20 shall survive the expiration or earlier termination of this Lease.
22. Interruption of Services. Landlord shall not be liable to Tenant for
any damages, nor shall Tenant be entitled to any abatement of Rent due to any
interruption or failure to furnish or delay in furnishing any utilities or
Services, or for any diminution in the quality or quantity thereof, when such
delay, failure or diminution is occasioned, in whole or in part, by repairs,
renewals or improvements, by any strike, lockout or other labor trouble, failure
of any vendor, contractor or service provider to perform, by inability to secure
fuel or supplies for the Building, provided that Landlord uses commercially
reasonable efforts to overcome such circumstances, by any accident or casualty
whatsoever, by the act, omission, or default of Tenant, or any other cause or
circumstance beyond Landlord's reasonable control, and such failures or delays
or diminution shall never be deemed to constitute an eviction or disturbance of
the Tenant's use and possession of the Premises or relieve Tenant from paying
Rent or performing any of its obligations under this Lease. Notwithstanding the
foregoing, if the Premises are rendered untenantable as the result of any such
interruption or failure to furnish utilities or Services, and such
untenantability continues for a period of five (5) consecutive Business Days
(and provided that Tenant does not, in fact, use or occupy the Premises during
the period of such untenantability), then, commencing with the sixth such day
and continuing until such untenantability has been remedied, Basic Rent shall be
abated in proportion to the portion of the Premises so rendered untenantable. In
the Premises are rendered untenantable as the result of any such interruption or
failure to furnish utilities or Services, and such interruption of failure
continues for a period of thirty (30) or more consecutive days (a "Prolonged
Interruption"), and such Prolonged Interruption actually prevents the Tenant
from using and occupying the entire Premises or so much of the Premises that
Tenant is unable to conduct any of its business operations therein, then Tenant
shall have the right, after thirty (30) consecutive days of Prolonged
Interruption, to terminate this Lease by giving not less than ten (10) Business
Days advance written notice to Landlord, provided, however, that if Landlord
shall cause such utility or Service to be restored before the expiration of such
ten (10) Business Day period, this Lease shall not terminate.
23. Subordination and Nondisturbance. Tenant's interest in this Lease
shall be subject and subordinate in all respects to any fee owner, ground or
prime lease or the lien of any mortgage or deed of trust which may now or
hereafter be placed on the Property, including without limitation, (i) that
certain Lake Forest Lease dated as of December 17, 1997 between Credit Suisse
Leasing 92A, L.P. and Tenneco Packaging Inc. a Memorandum of which was recorded
in the Office of the Recorder of Deeds for Lake County, Illinois on February 10,
1998 as Document No. 4084981, and (ii) that certain Mortgage, Assignment of
Leases and Rents, Security Agreement and Financing Statement made by Credit
Suisse Leasing 92A, L.P. to State Street Bank and Trust Company, as Collateral
Agent ("Existing Mortgagee"), dated February 4, 1998 and recorded in the Office
of the
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Recorder of Deeds for Lake County, Illinois on February 10, 1998 as Document No.
4084980. Landlord shall request any present or future mortgagee, trustee, fee
owner, ground or prime lessor, or any person having an interest in the Premises
superior to this Lease (a "Superior Interest") to provide a written
subordination and nondisturbance agreement in recordable form, providing that so
long as Tenant performs all of the terms, covenants and conditions of this Lease
and agrees to attorn to the mortgagee, beneficiary of the deed of trust,
purchaser at a foreclosure sale, ground or prime lessor or fee owner, Tenant's
rights under this Lease shall not be disturbed and shall remain in full force
and effect for the Term, and Tenant shall not be joined by the holder of any
mortgage or deed of trust in any action or proceeding to foreclose thereunder,
unless such joinder is required for jurisdictional purposes. Landlord shall not
have any liability to Tenant if it is not able to obtain such subordination and
nondisturbance agreement.
24. Landlord's Right of Entry.
a. Landlord has the right to enter the Premises at any reasonable time
upon (i) twenty-four (24) hours' prior notice to Tenant, (ii) without notice in
case of emergency, for the purpose of performing maintenance, repairs, and
replacements to the Premises as are permitted or required under this Lease, and
(iii) without notice for entry for the purpose of performing routine services
which Landlord is required to provide under this Lease.
b. Upon reasonable advance notice to Tenant, Landlord may, during the
Term, show the Premises to prospective purchasers, mortgagees and tenants.
c. In exercising its rights under this Section, Landlord shall not
materially interfere with or disrupt the normal operation of Tenant's
Containerboard Business. Landlord, and any third parties entering the Premises
at Landlord's invitation or request shall at all times strictly observe Tenant's
rules relating to security on the Premises. Tenant shall have the right, in its
sole discretion, to designate a representative to accompany Landlord, or any
third parties, while they are on the Premises.
25. Rules and Regulations. Tenant agrees to comply with all reasonable
written rules and regulations which Landlord may establish for the protection
and welfare of Tenant, the Building and all the other tenants and occupants of
the Building, provided that all such rules and regulations (i) shall be applied
uniformly to all occupants of the Building, (ii) do not discriminate against
Tenant, and (iii) do not unreasonably interfere with Tenant's use of the
Premises. A copy of the current rules and regulations is attached as Exhibit "G"
hereto and by this reference made a part hereof. Tenant shall be given a copy of
any changes to the rules and regulations at least ten (10) days before they
become effective. In the event of a conflict between the rules and regulations,
and the provisions of this Lease, the provisions of this Lease shall prevail.
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26. Tenant's Default; Rights and Remedies.
a. The occurrence of any one or more of the following matters constitutes
an "Event of Default" by Tenant under this Lease:
(i) failure by Tenant to pay Basic Rent within five (5) Business
Days after receipt of written notice from landlord to Tenant;
(ii) failure by Tenant to pay any Additional Rent within five (5)
Business Days after receipt of written notice from Landlord to Tenant;
(iii) failure by Tenant to observe or perform any other covenant,
agreement, condition or provision of this Lease, if such failure continues for
thirty (30) days after receipt of written notice from Landlord to Tenant, except
that if the default cannot be cured within the thirty (30) day period, it shall
not be considered an Event of Default if Tenant commences to cure such default
within such thirty (30) day period and thereafter proceeds diligently and
continuously to effect such cure;
(iv) the making of any assignment by Tenant for the benefit of
creditors;
(v) the filing by or against Tenant of a petition to have Tenant
adjudged a bankrupt or a petition of reorganization or arrangement under any law
relating to bankruptcy (unless, in the case of a petition filed against Tenant,
the petition is dismissed within sixty (60) days of the date filed);
(vi) the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets; and
(vii) the attachment, execution or other judicial seizure of
substantially all of Tenant's assets;
(viii) an assignment or subletting by Tenant in violation of Section
15 hereof.
b. If an Event of Default by Tenant occurs,
(i) Landlord may terminate this Lease, by giving Tenant not less
than ten (10) Business Days' written notice of Landlord's election to do so, in
which event the Term shall end, and all right, title and interest of Tenant
hereunder shall expire, on the date stated in such notice; or
(ii) Landlord may terminate the right of Tenant to possession of the
Premises without terminating the Lease by giving not less than ten (10) Business
Days' written notice to Tenant.
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c. If this Lease and the Term and estate hereby granted shall terminate
for an Event of Default as provided in Subsection (b), then
(i) Landlord and Landlord's agents may thereupon re-enter the
Premises or any part thereof by summary proceedings or by any other applicable
legal proceeding and may repossess the Premises and dispossess Tenant and any
other persons therefrom and remove any and all of its or their property and
effects from the Premises, and
(ii) Landlord, at its option, may relet the whole or any part of the
Premises from time to time, either in the name of Landlord or otherwise, to such
tenant(s), for such term(s) ending before, on or after the Expiration Date, at
such rental(s) and upon such other conditions, which may include concessions and
free rent periods, as Landlord may reasonably determine to be necessary.
Landlord, at Tenant's sole cost and expense, may make such reasonable repairs,
improvements, alterations, additions, decorations and other physical changes in
and to the Premises as Landlord, in its reasonable discretion, considers
advisable or necessary in connection with any such reletting or proposed
reletting, without relieving Tenant of any liability under this Lease or
otherwise affecting any such liability.
d. Should this Lease be terminated as provided in Subsection (b), or by or
under any other proceeding, or if Landlord shall re-enter the Premises, Landlord
shall be entitled to recover, and Tenant shall pay, in addition to any damages
or amounts provided for elsewhere in this Section 25 or under any other
provisions of this Lease, the then cost of:
(i) restoring the Premises to the same condition as that in which
Tenant has agreed to surrender them to Landlord on the Expiration Date; and
(ii) completing in accordance with this Lease any improvements to
the Premises that have been actually commenced as of the date of the Event of
Default, or for repairing any part thereof.
e. If an Event of Default by Tenant or any person claiming through or
under Tenant should occur, Landlord shall be entitled to seek to enjoin such
default and shall have the right to invoke any right allowed at law or in
equity, by statute or otherwise, as if re-entry, summary proceedings or other
specific remedies were not provided for in this Lease.
f. Should this Lease be terminated by Landlord as provided herein,
(i) Tenant shall pay to Landlord all Rent through the date upon
which this Lease was terminated for Tenant's Event of Default pursuant to
Subsection (b)(i) hereof, and
(ii) Tenant shall be liable for and shall pay to Landlord, as
damages, any deficiency between (A) the rent that would have been payable
hereunder for the period which
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otherwise would have constituted the unexpired portion of the Term and (B) the
net amount, if any, of rents ("Net Rent") collected under any reletting effected
pursuant to the provisions of this Section for any part of such period (first
deducting from the rents collected under any such reletting all of Landlord's
expenses in connection with the termination of this Lease or Landlord's
re-entry, including all repossession costs, brokerage commissions, legal
expenses, alteration costs and other expenses of preparing the Premises for such
reletting). Such deficiency shall be paid in monthly installments by Tenant on
the days specified in this Lease for the payment of installments of Basic Rent.
Landlord shall be entitled to recover from Tenant each monthly deficiency as the
same shall arise and no suit to collect the amount of the deficiency for any
month shall prejudice Landlord's right to collect the deficiency for any prior
or subsequent month by a similar proceeding or otherwise. A suit or suits for
the recovery of such deficiencies may be brought by Landlord from time to time
at its election.
g. Landlord shall be entitled to recover from Tenant, and Tenant shall pay
Landlord, on demand, as liquidated damages and not as a penalty, a sum equal to
the amount by which (A) the Basic Rent and Additional Rent payable hereunder
(reduced by any amounts collected by Landlord on account of monthly deficiencies
as provided in Subsection (f)(ii) above) for the period ending on the Expiration
Date and beginning on the latest of the date of termination of this Lease, the
date of re-entry by Landlord or the date through which monthly deficiencies
shall have been paid in full, exceeds (B) an amount equal to the then fair and
reasonable rental value of the Premises for the same period, both amounts
discounted to present value at the Interest Rate as defined below. If, before
presentation of proof of such liquidated damages to any court, commission or
tribunal, the Premises or any part thereof shall have been relet by Landlord for
the period which otherwise would have constituted all or any part of the
unexpired portion of the Term, the amount of rent upon such reletting shall be
deemed, prima facie, to be the fair and reasonable rental value for the part or
the whole of the Premises (as the case may be) so relet during the term of such
reletting. As used herein, "Interest Rate" shall mean an annual rate equal to
the Prime Rate as set forth in The Wall Street Journal on the date of the
default or, if The Wall Street Journal is not published that day, the first date
of publication thereafter.
h. In no event shall Tenant be entitled (A) to receive any excess of any
Net Rent under Subsection (f) over the sums payable by Tenant to Landlord
hereunder or (B) in any suit for the collection of damages pursuant to this
Section to a credit in respect of any Net Rent from a reletting except to the
extent that such Net Rent is actually received by Landlord. Should the Premises
or any part thereof be relet in combination with other space, then proper
apportionment on a square foot area basis shall be made of the rent received
from such reletting and the expenses of reletting.
i. If Landlord spends any money to cure such Event of Default by Tenant,
then Landlord shall also be entitled to interest on such expenditure at the
Interest Rate.
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j. Nothing contained herein shall be construed as limiting or precluding
the recovery by Landlord from Tenant of any sums or damages to which, in
addition to the damages particularly provided above, Landlord may lawfully be
entitled by reason of any default hereunder on the part of Tenant.
27. Holding Over. Should Tenant remain in possession of the Premises after
the expiration of this Lease, Tenant shall be a tenant from month-to-month of
the Premises under all the terms and conditions of this Lease, except that Rent
shall be at a rate one hundred fifty percent (150%) of the then applicable Rent,
prorated on a daily basis, provided, however, that if Tenant shall remain in
possession of the Premises after the expiration of the Stub Period, the
applicable Rent for the period of such hold-over shall not be limited by the BOC
Threshold Amount. If the Premises are not surrendered upon the termination date
or prior expiration of the Term, in addition to the use and occupancy charge set
forth above, Tenant shall indemnify and hold harmless Landlord against any and
all actual and direct damages suffered by Landlord resulting therefrom. Nothing
contained in this lease shall be construed as a consent by Landlord to the
occupancy or possession by Tenant of the Premises beyond the termination date or
prior expiration of the Term, and Landlord, upon said termination date or prior
expiration of the Term, or at any time thereafter (and notwithstanding that
Landlord may accept from Tenant one or more payments called for herein), shall
be entitled to the benefit of all legal remedies that now may be in force or may
be hereafter enacted relating to the immediate repossession of the Premises. The
provisions of this Section shall survive the expiration date or earlier
termination of the Term.
28. Quiet Enjoyment. Subject to Section 22 hereof, Landlord covenants that
if and for so long as Tenant pays the Rent and performs the covenants and
conditions hereof, Tenant shall peaceably and quietly have, hold and enjoy the
Premises for the Term, without interference by Landlord or anyone claiming by,
through or under landlord, or by anyone claiming superior title to Landlord.
Landlord agrees that it shall observe and comply in all material respects with
all of the terms, provisions, conditions, covenants and agreements to be
observed and performed by it under the Prime Lease, provided, however, that
nothing in this sentence shall prohibit, limit, diminish or otherwise affect the
right of the Landlord (i) to exercise any right provided under the Prime Lease,
(ii) acquire the Property, (iii) refinance the Prime Lease with another
financing lease, or (iv) effect a sale and lease-back transaction with respect
to the Property with any other party.
29. Mutual Representation of Authority.
a. Landlord and Tenant represent and warrant to each other that they have
full right, power and authority to enter into this Lease without the consent or
approval of any other entity or person and each party makes these
representations knowing that the other party will rely thereon.
b. The signatories on behalf of Landlord and Tenant further represent and
warrant that each has full right, power and authority to act for and on behalf
of Landlord and Tenant in entering into this Lease.
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c. Each party agrees that they will not raise or assert as a defense to
any obligation under this Lease or make any claim that this Lease is invalid or
unenforceable due to any failure of this document to comply with ministerial
requirements, including but not limited to requirements for corporate seals,
attestations, witnesses, notarization, or other similar requirements, and each
party hereby waives the right to assert any such defense or make any claim of
invalidity or unenforceability due to any of the foregoing.
30. Real Estate Brokers. The parties warrant that they have had no
dealings with any real estate broker or agent in connection with this Lease.
Each party covenants to pay, hold harmless, and indemnify the other from and
against any and all costs, expenses, or liabilities for any compensation,
commissions, and charges claimed by any broker or agent with respect to this
Lease or the negotiation thereof, based upon alleged dealings with the
indemnifying party.
31. Business Hours - Holidays.
a. As used in this Lease, "Business Hours" shall mean the hours of 7 a.m.
through 6 p.m., Monday through Friday except Holidays, and "Holidays" shall mean
New Years Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, the
Day after Thanksgiving, and Christmas. (Holidays may be added or deleted by
mutual agreement of Landlord and Tenant.)
b. During Business Hours, Tenant shall have access to the Premises, and
Landlord shall furnish, without extra charge, all services and utilities
required under this Lease. After Business Hours, Tenant shall have access to the
Premises, provided Tenant complies with Landlord's normal security procedures,
and Tenant pays Landlord a charge as established by Landlord for the use of
electricity and other services during non-Business Hours. Landlord may establish
and advise Tenant of any reasonable requirements for prior notification to
Landlord for Tenant's use of the Premises during non-Business Hours.
32. Estoppel Certificate.
a. Tenant agrees, upon not less than fifteen (15) days' prior written
request by Landlord, to deliver to Landlord a statement in writing signed by
Tenant certifying (i) that this Lease is unmodified and in full force and effect
(or if there have been modifications, identifying the modifications); (ii) the
date upon which Tenant began paying Rent and the date(s) to which the Rent has
been paid; (iii) that, to the best of Tenant's knowledge, Landlord is not in
default under any provision of this Lease, or, if in default, the nature
thereof; and (iv) that there has been no prepayment of Rent except as provided
for in this Lease.
b. Landlord, upon not less than fifteen (15) days' prior written request
from Tenant, shall furnish a statement in writing to Tenant covering the matters
set forth in Subsection (a), to the extent applicable to Landlord.
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33. No Recording. Landlord and Tenant agree not to record this Lease or
any memorandum of this Lease.
34. Late Payments. If either party fails to make a payment to the other
when due under the terms of this Lease, interest shall be added to the payment
at an annual rate equal to the Prime Rate (as set forth in The Wall Street
Journal from time to time) plus two percent (2%). In any case where payment is
required under this Lease and a specific time period is not set forth for making
such payment, the payment shall be due within thirty (30) days of the date a
xxxx is rendered for such payment, or for situations where a xxxx is not
rendered (e.g., a refund of an overpayment) the payment will be due thirty (30)
days from (a) the date that the precise amount of the payment can reasonably be
determined and (b) the party obligated to make the payment becomes aware of the
obligation to make the payment.
35. Surrender; Restoration.
a. At the expiration or earlier termination of this Lease, whether by
forfeiture, lapse of time or otherwise, or upon termination of Tenant's right to
possession of the Premises, Tenant will surrender and deliver up the Premises to
Landlord, in good condition and repair, reasonable wear and tear and loss by
fire or other casualty excepted. Tenant will vacate the Premises and leave it in
neat and clean condition and free of any Hazardous Substances brought onto the
Property by Tenant or its affiliates, subsidiaries, contractors, subcontractors,
employees, guests, or invitees after the Commencement Date of this Lease. In
addition to the provisions of Subsection (b) below, Landlord may require the
removal and restoration of (i) any special improvements in the Premises which
are solely for the benefit of Tenant or the Premises such as interfloor
stairways, supplemental air-conditioning, generators or raised flooring which
were constructed by or at the request of Tenant after the Commencement Date of
this Lease (other than the Initial Tenant Improvements), and (ii) any
improvements made by or for Tenant after the Commencement Date of the Lease. Any
such removal and restoration required by Landlord will be performed by Landlord
or its contractors at Tenant's cost and expense.
b. Tenant, at its sole cost and expense, shall remove any personal
property, furniture, and trade fixtures which it owns or leases from third
parties. Tenant shall pay Landlord for the cost to restore any damage caused by
such removal. Tenant shall verify the ownership of any such items before
removing them from the Premises. Any personal property, furniture, and trade
fixtures used by Tenant but which are owned by Landlord or leased by Landlord
from third parties shall not be removed by Tenant. Tenant shall leave the
Premises in a neat and clean condition.
36. Waiver. No consent or waiver, express or implied, by either party to
or of any breach or default by the other party in the performance by such other
party of its obligations under or in
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connection with this Lease shall be deemed or construed to be a consent or
waiver to or of any other breach or default in the performance by such other
party of the same or any other obligation of such party. Failure on the part of
any party to complain of any act or failure to act of the other party or to
declare the other party in default, irrespective of how long such failure
continues, shall not constitute a waiver by such party of its rights hereunder.
37. Governing Law. This Lease shall be construed and interpreted in
accordance with the laws of the State of Illinois.
38. Notices. All notices given pursuant to the provisions of this Lease
shall be in writing, addressed to the party to whom notice is given and hand
delivered or sent registered or certified mail, return receipt requested, in a
postpaid envelope or by nationally recognized overnight delivery service to the
addresses set forth below. All notices shall be deemed given upon receipt or
rejection. Either party by notice to the other may change or add persons and
places where notices are to be sent or delivered.
Notice Addresses: If to Landlord:
Tenneco Packaging Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Attention: President
Facsimile No.: (000) 000-0000
With a copy to:
Tenneco Packaging Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
If to Tenant:
Packaging Corporation of America
0000 Xxxx Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Attention: President
Facsimile No.: (847) 482-_____
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With a copy to:
PCA Holdings LLC
c/o Madison Dearborn Partners, Inc.
Three First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
and Xxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
39. Table of Contents - Captions. The Table of Contents and the captions
appearing in this Lease and its Exhibits are inserted only as a matter of
convenience and do not define, limit, construe or describe the scope or intent
of the sections of this Lease or its Exhibits nor in any way affect this Lease
or its Exhibits.
40. Dispute Resolution.
a. Prior to commencing any action, suit or proceeding in connection with
this Lease, the parties shall first in good faith consult among appropriate
officers of Landlord and Tenant, which shall begin promptly after one party has
delivered to the other a written request for consultation. At any time
thereafter, either party may request in writing that the dispute be referred to
appropriate senior executives of Landlord and Tenant. Within ten (10) Business
Days after such request, the senior executives (and not their designees) shall
meet and attempt in good faith to resolve the dispute.
b. Neither party shall file any action, suit or proceeding in connection
with this Agreement until twenty (20) Business Days after a request is made for
a senior executive meeting as provided for in Subsection (a).
41. Counterparts. This Lease may be executed in one or more counterparts,
each of which shall be deemed an original but all of which, when taken together,
shall constitute one and the same instrument.
42. Audit. Landlord shall maintain reasonably complete records of all
costs and expenses which comprise the Rent payable hereunder by Tenant to
Landlord. Tenant shall have the right, through itself or its representatives, at
Tenant's sole cost and expense, to examine, copy and audit such records at all
reasonable times at Landlord's office during business hours. Landlord's
calculation of Basic Rent as set forth on any Landlord's Annual Statement shall
be conclusive and binding upon Tenant unless, within forty-five (45) days after
the date Landlord renders the Landlord's Annual Statement, Tenant shall notify
Landlord that it disputes the correctness of any
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charge set forth on Landlord's Annual Statement. Tenant shall have a period of
sixty (60) days to complete any audit it desires to undertake. If the result of
the audit conducted by Tenant or its representative determines that Landlord has
overcharged Tenant, Landlord shall promptly refund to Tenant any overpayment,
together with interest at the rate set forth in the "Late Payments" section of
this Lease. Tenant shall promptly pay Landlord if the audit determines that
there has been any undercharge.
43. Signs. In the event Landlord, in its sole discretion, shall institute
the use of a directory in the main lobby of the Building (but without any
obligation to do so), Landlord shall place the Tenant's name and location on the
directory in the Building, and afford Tenant, without charge, the placing of the
customary number of names in the Building directory. Tenant shall not be
permitted to erect, install, affix or exhibit any other signage in the Building,
the Premises or on the Property without the express written consent of Landlord,
which consent may be withheld by Landlord in its sole discretion.
44. Entire Agreement. This Lease (which includes each of the Exhibits
attached hereto) contains the entire agreement between the parties with respect
to the subject matter hereof, and all prior negotiations and agreements are
merged into this Lease. This Lease may not be changed, modified, terminated or
discharged, in whole or in part, nor any of its provisions waived except by a
written instrument which (a) shall expressly refer to this Lease and (b) shall
be executed by the party against whom enforcement of the change, modification,
termination, discharge or waiver shall be sought.
45. Release. Tenant, on behalf of itself and its officers, directors,
employees, agents, representatives, guests and invitees, and its and their
respective heirs, legal representatives, successors and assigns, hereby remise,
and release and forever discharge Landlord, its officers, directors, employees,
affiliates, agents, representatives and independent contractors, and its and
their respective heirs, legal representatives, successors and assigns, of and
from any and all manner of actions, cause and causes of actions, lawsuits,
claims, demands and liability, in law or in equity, arising out of or relating
to the use by Tenant and its officers, directors, employees, agents,
representatives, guests and invitees of the Wellness Center in the Building,
except to the extent caused by the gross negligence of Landlord.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Facility
Use Agreement as of the day and year first above written.
LANDLORD:
TENNECO PACKAGING INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
-----------------------------------
Its: Vice President
-----------------------------------
TENANT:
PACKAGING CORPORATION OF
AMERICA, a Delaware corporation
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------
Its: Vice President
-----------------------------------
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