EXHIBIT 10.50
SUBLEASE
THIS SUBLEASE AGREEMENT ("Sublease"), is made and entered into as of
the ____ day of September, 2000, by and between Papercraft, LLC, a Delaware
limited liability company ("Sublessor"), and Xxxx Xxxx Financial Corp. (WCFC)
dba Quantum Marketing, a _______________ corporation ("Sublessee").
WITNESSETH:
WHEREAS, Sublessor is presently the lessee under that certain Lease
dated January 13, 1977, as amended January 3, 1986 and December 18, 1987, by and
between X.X. Xxxx (referred to herein as "Prime Lessor"), as Landlord, and
Sublessor, as Tenant (referred to herein as the "Prime Lease");
WHEREAS, Sublessor desires to lease to Sublessee and Sublessee desires
to lease from Sublessor certain space subject to the Prime Lease in order that
Sublessee may use the same for office and warehouse uses.
NOW, THEREFORE, the parties hereto in consideration of the premises and
the mutual covenants and agreements herein contained hereby stipulate, covenant
and agree as follows:
ARTICLE I
Leased Premises
1.1 Sublessor hereby demises and subleases to Sublessee and Sublessee hereby
leases from Sublessor approximately 30,000 square feet of warehouse and office
space (leased by Sublessor under the Prime Lease) in the building located at
0000 Xxxxx Xxxxxxx, Xxxxxxx, XX (the "Building"), together with the nonexclusive
right to use the access and parking facilities located on the land on which the
Building is located (the "Leased Premises").
ARTICLE II
The Prime Lease
2.1 Sublessee acknowledges that it has read the Prime Lease attached hereto as
Exhibit A, which has not been supplemented, modified or amended (other than as
attached hereto), and that it is familiar with the terms and provisions thereof
From and after the Commencement Date, Sublessee covenants not to cause a default
under the Prime Lease and to keep, observe and perform all of the terms,
provisions, obligations and conditions of Sublessor under the Prime Lease,
except for the provisions of the Prime Lease relating to the payment of rent and
security deposit. Sublessee, shall indemnify and hold harmless Sublessor from
and against any loss, claim or cause of action, whether claimed by the Prime
Lessor or any other party, caused by Sublessee's breach of any of the terms and
conditions of the Prime Lease. This Sublease is subject and subordinate to all
of the terms, provisions and conditions of the Prime. Lease.
2.2 In the event the Prime Lease expires or is terminated, this Sublease shall
terminate as of the date the Prime Lease expires or is terminated, and the
parties shall have no further rights or obligations under this Sublease, unless
expressly provided herein. Sublessee shall have lo right to terminate this
Sublease except as expressly provided herein.
2.3 Except as expressly provided otherwise herein, Sublessee shall have all the
rights and privileges of Sublessor pursuant to the Prime Lease. Upon Sublessee
paying the Rent reserved hereunder and observing and performing all of the
covenants, conditions and provisions on the Sublessee's part to be observed and
performed hereunder, Sublessor shall not interfere with Sublessee's quiet
possession of the Leased Premises for the entire term hereof subject t o all of
the provisions of this Sublease and the Prime Lease and Sublessor shall not
breach any of the Sublessor's obligations under the Prime Lease.
ARTICLE III
Term
3.1 The initial term of this Sublease shall commence on October 1, 2000 (the
"Commencement Date"), and end on August 31, 2005 (the "Termination Date"),
unless sooner terminated in accordance with the terms hereof (the "Term").
Sublessee shall be entitled to early occupancy of the Leased Premises,
commencing upon delivery to Sublessor of (1) an amount equal to the sum of the
first months Rent and the Security Deposit; (2) a certificate of insurance
evidencing the insurance coverage required by Article X of this Sublease and (3)
Prime Lessor's consent to this Sublease. Sublessee's early occupancy shall be
governed by all of the terms and conditions of this Sublease, except for the
payment of Rent, which shall commence on December 1, 2000. Sublessee
acknowledges that the Prime Lease expires on August 31, 2005.
ARTICLE IV
Rental, Net Lease
4.1 In consideration of the agreements set forth herein to be performed by
Sublessor, and of the leasing of the Leased Premises, Sublessee agrees to pay to
Sublessor, a monthly rental (the "Rent"), as follows:
Months 01 - 02 $ -0-
Months 03 - 36 $ 10,810
Months 36 - Expiration $ 12,275
Rent shall be due and payable in advance ten (10) days before the rent is due
under the Prime Lease. The Rent shall be prorated for any partial month at the
commencement or termination of the Term.
4.2 Other remedies for nonpayment of Rent notwithstanding, if the Rent payment
is not received by Sublessor on or before the fifth (5th) day following the date
such Rent is due, or if any other payment due Sublessor by Sublessee is not
received by Sublessor on or before the tenth (10th) day following the day in
which Sublessee was invoiced, a late payment charge of five percent (5%) of such
past due amount shall become due and payable in addition to such amounts owed
under this Sublease.
4.3 In the event that Sublessee does not vacate the Leased Premises upon the
expiration or termination of this Sublease, Sublessee shall be a tenant at will
for the holdover period and all of the terms and provisions of this Sublease
shall be applicable during that period, except that Sublessee shall pay
Sublessor as Rent for, the period of such holdover an amount equal to the rent
due the Prime Lessor (under the Prime Lease) during such holdover period and
Sublessee shall indemnify and save Sublessor harmless against all costs, claims,
loss or liability resulting from delay by Sublessee in surrendering the Leased
Premises. Sublessee agrees to vacate and deliver the Leased Premises to
Sublessor upon the expiration of this Sublease or, if earlier terminated, upon
Sublessee's receipt of notice from Sublessor to vacate. The rental payment
during the holdover period shall be payable to Sublessor on demand. No holding
over by Sublessee, whether with or without the consent of Sublessor, shall
operate to extend the Term of this Sublease.
4.4 This Sublease is what is commonly known as "triple net". In addition to
Rent, Sublessee shall pay to the parties respectively entitled thereto all
charges, costs and expenses which arise out of Sublessee's operation of the
Leased Premises or may be contemplated under any provision of this Sublease or
the Prime Lease. Sublessee shall reimburse Sublessor for any amounts paid by
Sublessor to the Prime Lessor on Sublessee's behalf within five (5) days after
demand by Sublessor. All such charges, costs and expenses shall constitute
additional rent and upon the failure of Sublessee to pay any of such charges,
costs or expenses, Sublessor shall have the same rights and remedies provided in
this Sublease for Sublessee's failure to pay Rent.
4.5 Sublessee shall pay to Sublessor a monthly escrow amount for real estate
taxes, as reasonably determined by Sublessor. Sublessor shall reconcile the
escrowed amounts to the actual amounts upon receipt of the tax xxxx from the
Prime Lessor.
ARTICLE V
Security Deposit
5.1 Sublessee shall deposit with Sublessor upon execution of this Sublease
Twelve Thousand Two Hundred Seventy Five and 00/100 Dollars ($12,275.00) as
security for Sublessee's faithful performance of Sublessee's obligations
hereunder. If Sublessee fails to pay Rent or other charges due hereunder, or
otherwise defaults with respect to any provision of this Sublease, Sublessor may
use, apply or retain all or any portion of the deposit for the payment of any
Rent or other charge in default or for the payment of any other sum to which
Sublessee may become obligated to Sublessor by reason of Sublessee's default or
to compensate Sublessor for any loss or damage which Sublessor may suffer
thereby. If Sublessor so uses or applies all or any portion of the deposit,
Sublessee shall within ten (10) days after written demand deposit cash with
Sublessor in an amount sufficient to restore the deposit and Sublessee's failure
to do so shall be a default of this Sublease. If Sublessee performs all of its
obligations hereunder, the deposit, or so much thereof as has not been applied
by Sublessor, shall be returned, without payment of interest, to Sublessee at
the expiration of the Term, and after Sublessee has vacated the Leased Premises.
ARTICLE VI
Permitted Uses
6.1 Subject to the provisions of Section 13.8 of this Sublease, Sublessee shall
use the Leased Premises only for warehouse, administrative offices and related
legal purposes and for no other purpose or purposes.
ARTICLE VII
Utilities
7.1 Sublessee shall pay the costs for all utility services supplied to the
Leased Premises. Sublessee shall pay all costs caused by Sublessee introducing
excessive pollutants or solids other than ordinary human waste into the sanitary
system, including permits, fees and charges levied by any governmental
subdivision for any such pollutants or solids. Sublessee shall be responsible
for the installation or maintenance of any dilution tanks, holding tanks,
settling tanks, sewer sampling devices, sand traps, grease traps, or similar
devices as may be required by any governmental subdivision for Sublessee's use
of the sanitary sewer system.
ARTICLE VIII
Repairs and Maintenance
8.1 Sublessor represents that, to the best of Sublessor's knowledge, the
electrical, lighting, HVAC, plumbing, mechanical and operating systems in the
Leased Premises will be in working order as of the Commencement Date. Sublessee
shall be required to maintain, at its sole cost, the Leased Premises in
accordance with the terms of the Prime Lease and hereby agrees to assume all of
Sublessor's repair, maintenance and replacement obligations under the Prime
Lease. Sublessor shall not be liable to Sublessee, except as expressly provided
in this Sublease, for any damage or inconvenience, and Sublessee shall not be
entitled to any abatement or reduction of Rent by reason of any repairs,
alterations or additions made by Sublessor or Prime Lessor under this Sublease,
except for uninsured damage to property caused by Sublessor's negligence or
willful misconduct.
8.2 Notwithstanding anything to the contrary contained in this Sublease,
Sublessee shall repair and pay for any damage caused by any act or omission of
Sublessee or Sublessee's agents, employees, invitees, licensees or visitors. If
Sublessee fails to make the repairs or replacements promptly as required herein
or as required in the Prime Lease, Sublessor may, at its option, make the
repairs and replacements and the cost of such repairs and replacements shall be
charged to Sublessee as Rent and shall become due and payable by Sublessee
within five (5) days after demand by Sublessor. Costs incurred under this
section are the total responsibility of Sublessee.
8.3 Sublessee shall not allow any damage or waste to be committed on any portion
of the Leased Premises or Building, and at the termination of this Sublease, by
lapse of time or otherwise, Sublessee shall deliver the Leased Premises to
Sublessor in as good condition as existed at the Commencement Date, ordinary
wear and tear and damage by casualty excepted. The cost and expense of any
repairs to restore the condition of the Leased Premises shall be borne by
Sublessee.
8.4 Sublessor agrees, prior to the Commencement Date, at Sublessor's sole cost
and expense, to provide the Leased Premises in broom clean condition and to
upgrade the existing power to provide approximately 400 amps of 277/480 volt, 3
phase power.
ARTICLE IX
Alterations and Improvements
9.1 Sublessee shall not make or allow to be made any alterations, improvements,
additions or utility installations (as defined in the Prime Lease) in or to the
Leased Premises, without first obtaining the written consent of Sublessor, which
consent shall not be unreasonably withheld, but only if Prime Lessor also
consents and Sublessee pays any costs of Prime Lessor in connection with such
consent.
ARTICLE X
Insurance
10.1 Anything in this Sublease to the contrary notwithstanding, Sublessor and
Sublessee hereby waive and release each other from any and all right of
recovery, claim, action or cause of action, against each other, their agents,
officers and employees, for any loss or damage that may occur to the Leased
Premises, or the Building or personal property within the Building, by reason of
fire or the elements, regardless of cause or origin, including negligence, of
Sublessor or Sublessee and their agents, officers and employees, provided this
waiver and release does not have the effect of invalidating any policy of
insurance carried by either party. Sublessor and Sublessee agree immediately to
give their respective insurance companies which have issued policies of
insurance covering all risk of direct physical loss, written notice of the terms
of the mutual waivers contained in this section, and to have the insurance
policies properly endorsed, if necessary, to prevent the invalidation of the
insurance coverages by reason of the mutual waivers.
10.2 Sublessor shall not be liable to Sublessee or Sublessee's employees,
agents, invitees, licensees or visitors, or to any other person, for any injury
to person or damage to property on or about the Leased Premises or the Building
or the parking areas caused by any act or omission of Sublessee or its agents,
servants or employees, or of any other person entering upon the Leased Premises
under express or implied invitation by Sublessee, or caused by the improvements
located on the Leased Premises becoming out of repair, the failure or cessation
of any service provided by Sublessor (including security service and devices),
or caused by leakage of gas, oil, water or steam or by electricity emanating
from the Leased Premises. Sublessee agrees to indemnify and hold harmless
Sublessor of and from any loss, attorney's fees, expenses or claims arising out
of any such damage or injury; provided, however, this indemnification shall not
apply to any damage or injury caused by the negligence or willful misconduct of
Sublessor or its employees or agents.
10.3 Sublessee at its expense, shall maintain in force during the Term of this
Sublease all insurance Sublessor is obligated to maintain under the Prime Lease.
Sublessee shall name both Prime Lessor and Sublessor as additional insureds.
Sublessee shall furnish to Sublessor upon request, certificates or other
evidence acceptable to Sublessor as to the insurance maintained by Sublessee
hereunder.
ARTICLE XI
Assignment or Sublease
11.1 Sublessee shall not assign, in whole or in part, this Sublease, or allow it
to be assigned, in whole or in part, by operation of law or otherwise or
mortgage or pledge the same, or sublet the Leased Premises, in whole or in part,
without the prior written consent of Sublessor, which consent shall not be
unreasonably withheld, but only if Prime Lessor also consents and Sublessee pays
any costs of Prime Lessor in connection with such consent. In no event shall
Sublessor's consent to any assignment or sublease ever release Sublessee or any
guarantor from any obligation or liability hereunder.
Sublessee shall, upon demand, reimburse Sublessor for the
reasonable legal fees and expenses incurred by Sublessor and/or Prime Lessor
(not to exceed $500.00) in processing any request to assign this Sublease or to
sublet all or any portion of the Leased Premises, whether or not Sublessor
agrees thereto, and if Sublessee shall fail promptly so to reimburse Sublessor,
the same shall be a default in Sublessee's monetary obligations under this
Sublease.
Without limitation of the rights of Sublessor hereunder in
respect thereto, if there is any assignment of this Sublease by Sublessee for
consideration or a subletting of the whole of the Leased Premises by Sublessee
at a rent which exceeds the Rent payable hereunder by Sublessee, or if there is
a subletting of a portion of the Leased Premises by Sublessee at a rent in
excess of the subleased portion's pro rata share of the Rent payable hereunder
by Sublessee, then Sublessee shall pay to Sublessor, as Rent, forthwith upon
such assignment or subletting, the consideration (or the cash equivalent
thereof) therefor and in the case of a subletting, one-half (1/2) of the amount
of any such excess rent. The provisions of this section shall apply to each and
every assignment of this Sublease and each and every subletting of all or a
portion of the Leased Premises, whether to a subsidiary or controlling
corporation of the Sublessee or any other person, firm or entity, in each case
on the terms and conditions set forth herein. For the purposes of this section,
the term "rent" shall mean all rent or other payments and/or consideration
payable by one party to another for the use and occupancy of all or a portion of
the Leased Premises.
11.2 Sublessee agrees to furnish to Sublessor, from time to time, within fifteen
(15) days after receipt of a request from Sublessor, a statement certifying, if
applicable, the following: Sublessee is in possession of the Leased Premises;
the Leased Premises are acceptable; the Sublease is in full force and effect;
the Sublease is unmodified; Sublessee claims no present charge, lien or claim of
offset against Rent; the Rent is paid for the current month, but is not prepaid
for more than one (1) month and will not be prepaid for more than one (1) month
in advance; there is no existing default by reason of sonic act or omission by
Sublessor known to Sublessee; and such other matters as may be reasonably
required by Sublessor. Sublessee's failure to deliver such statement, in
addition to being a default under this Sublease, shall be deemed to establish
conclusively that this Sublease is in full force and effect except as declared
by Sublessor, that Sublessor is not in default of any of its obligations under
this Sublease, and that Sublessor has not received more than one (1) month's
rent in advance.
11.3 Sublessor agrees to furnish to Sublessee, from time to time, within 15 days
after receipt of a request from Sublessee, a statement certifying the following
to the extent true: The Sublease is in full force and effect; the Sublease is
unmodified; to the best of Sublessor's knowledge, neither the Sublessee nor the
Sublessor are in default under the Sublease, and no event has occurred that,
with the passage of time or the giving of notice, would constitute a default
under the Sublease by either the Sublessee or the Sublessor; the Prime Lease is
in full force and effect; the Prime Lease is unmodified; no notice of default or
termination of the Prime, Lease has been served on Sublessor under the terms of
the Prime Lease; to the best of Sublessor's knowledge, neither the Prime Lessor
nor the Sublessor are in default under the Prime Lease, and no event has
occurred that, with the passage of time or the giving of notice, would
constitute a default under the Prime Lease by either the Prime Lessor or the
Sublessor.
ARTICLE XII
Default and Remedies
12.1 The following shall be deemed to be events of default by Sublessee under
this Sublease:
(a) Sublessee shall fail to pay Rent or other charges for which provision
is made herein on or before five (5) days following the date on which
the same becomes due and payable; or
(b) Sublessee shall fail to perform or observe any other terms or
conditions contained in this Sublease or the Prime Lease if such
failure has continued for more than twenty (20) days after Sublessor's
notice; or
(c) the estate hereby created shall be taken on execution or by other
process of law, or if Sublessee shall be judicially declared bankrupt
or insolvent according to law, or if any assignment shall be made of
the property of Sublessee for the benefit of creditors, or if a
receiver, guardian, conservator, trustee in involuntary bankruptcy or
other similar officer shall be appointed to take charge of all or any
substantial part of Sublessee's assets by a court of competent
jurisdiction, or if a petition shall be filed for the reorganization
of Sublessee under any provisions of the Bankruptcy Code now or
hereafter enacted or if Sublessee shall file a petition for such
reorganization or for arrangements under any provision of the
Bankruptcy Code now or hereafter enacted and providing a plan for a
debtor to settle, satisfy or extend the time for payment of debts
(references herein to. Sublessee shall include any guarantor of
Sublessee's obligations hereunder);
(d) Sublessee shall do or permit to be done any act which results in a
lien being filed against the Leased Premises or the Building; or
(e) the vacating or abandonment of the Leased Premises by Sublessee, then
and in any such case (notwithstanding any license of a former breach
of covenant or waiver of the benefit hereof or consent in a former
instance), in addition to any rights of Prime Lessor under the Prime
Lease, Sublessor lawfully may, immediately or at any time thereafter,
and without demand or notice, enter into and upon the Leased Premises
or any part thereof in the name of the whole and repossess the same as
of Sublessor's former estate, and expel Sublessee and those claiming
through or under Sublessee and remove its or their affects (forcibly,
if necessary) without being guilty of any manner of trespass, and
without prejudice to any remedies. which might otherwise be used for
arrears of rent or preceding breach of covenant, and, upon entry as
aforesaid, Sublessor shall have the right, by suitable notice to
Sublessee, forthwith to terminate this Sublease; and Sublessee
covenants and agrees, notwithstanding any entry or re-entry by
Sublessor, whether by summary proceedings, termination, or otherwise,
to pay and be liable for, on the days originally fixed herein for the
payment thereof, amounts equal to the several installments of Rent and
other charges reserved as they would, under the terms of this
Sublease, become due if this Sublease had not been terminated or if
Sublessor had not entered of re-entered, as aforesaid, and whether the
Leased Premises be relet or remain vacant, in whole or in part, or for
a period less than the remainder of the Term, and for the whole
thereof, but, in the event the Leased Premises be relet by Sublessor,
Sublessee shall be entitled to a credit in the net amount of rent or
other charges received by Sublessor in reletting, after deduction of
all expenses incurred in reletting the Leased Premises (including,
without limitation, remodeling costs, brokerage fees and the like),
and in collecting the Rent in connection therewith, in the following
manner:
Amounts received by Sublessor after reletting shall first be applied
against such Sublessor's expenses, until the same are recovered, and until such
recovery, Sublessee shall pay, as of each day when a payment would fall due
under this Sublease, the amount which Sublessee is obligated to pay under the
terms of this Sublease; when and if such expenses have been completely
recovered, the amounts received from reletting by Sublessor as have not
previously been applied shall be credited against Sublessee's obligations as of
each day when a payment would fall due under this Sublease, and only the net
amount thereof shall be payable by Sublessee. Further, amounts received by
Sublessor from such reletting for any period shall be credited only against
obligations of Sublessee allocable to such period, and shall not be credited
against obligations of Sublessee hereunder accruing subsequent or prior to such
period, nor shall any credit of any kind be due for any period after the date
when the Term of this Sublease is scheduled to expire according to its terms.
As an alternative at the election of Sublessor, Sublessee will upon
such termination, pay. to Sublessor, as damages, such a sum as at the time of
such termination represents the amount of the excess, if any, of the then
present value of the total Rent and other benefits which would have accrued to
Sublessor under this Sublease for the remainder of the then current Term of this
Sublease (discounted by appropriate capitalization rate) if said term had been
fully complied with by Sublessee over and above the then present cash rental
value (in advance) of the Leased Premises for the balance of the Term.
If any payment of Rent or any other payment payable hereunder by
Sublessee to Sublessor shall not be paid when due, the same shall bear interest
from the date when the same was payable until the date paid at the rate of
twelve percent (12%) per annum, compounded monthly. Such interest shall
constitute Rent payable hereunder and be payable upon demand therefor by
Sublessor.
If Sublessee shall default in the performance of any of the terms or
provisions of this Sublease, other than the payment of Rent, and if Sublessee
shall fail to cure such default within the above-described cure period,
Sublessor may, at its sole option, cure such default for the account of
Sublessee and the sum so expended by Sublessor shall be deemed Rent and on
demand shall be paid by Sublessee on the day when Rent shall next become due and
payable..
ARTICLE XIII
Miscellaneous
13.1 Failure to declare an event of default immediately upon its occurrence, or
delay in taking any action in connection with an event of default, shall not
constitute a waiver of the default, but Sublessor shall have the right to
declare the default at any time and take such action as is lawful or authorized
under this Sublease. Pursuit of any one or more of the remedies set forth in
Article XII above shall not preclude pursuit of any one or more of the other
remedies provided elsewhere in this Sublease or provided by law, nor shall
pursuit of any remedy constitute forfeiture or waiver of any Rent or damages
accruing to Sublessor by reason of the violation of any of the terms, provisions
or covenants of this Sublease. Failure by Sublessor to enforce one or more of
the remedies provided upon an event of default shall not be deemed or construed
to constitute a waiver of the default or of any other violation or breach of any
of the terms, provisions and covenants contained in this Sublease.
13.2 In the event Sublessee defaults in the performance of any of the terms,
covenants, agreements or conditions contained in this Sublease and Sublessor
places this Sublease in the hands of an attorney for enforcement of all or any
part of this Sublease, the collection of any Rent due or to become due or
recovery of the possession of the Leased Premises, Sublessee agrees to pay
Sublessor's costs of collection, including reasonable attorney's fees for the
services of the attorney, whether suit is actually filed or not.
13.3 This Sublease shall be binding upon and inure to the benefit of Sublessor
and Sublessee and their respective heirs, personal representatives, successors
and assigns. It is hereby covenanted and agreed that should Sublessor's interest
in the Leased Premises cease to exist for any reason during the Term of this
Sublease, then notwithstanding the happening of such event, this Sublease
nevertheless shall remain unimpaired and in full force and effect, and Sublessee
hereunder agrees to attorn to the then owner of the Leased Premises.
13.4 Sublessee shall pay and be liable for all rental, sales and use taxes or
other similar taxes, if any, levied or imposed by the city, state, county or
other governmental body having authority to levy such taxes. In no event shall
Sublessee be entitled to any credit against or reduction in such rental, sales
or use tax due to the reduction of Sublessor's obligation to pay such taxes to
Prime Lessor resulting from the Sublessor entering into this Sublease.
13.5 The captions appearing in this Sublease are inserted only as a matter of
convenience and in no way define, limit, construe or describe the scope of
intent of any section.
13.6 All Rent and other payments required to be made by Sublessee shall be
payable to Sublessor at Bunzl, 0000 X. Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000,
Attention: Controller, or at any other address within the United States as
Sublessor may specify from time to time by written notice. Any notice or
document required or permitted to be delivered by the terms of this Sublease
shall be deemed to be delivered (whether or not actually received) when
deposited in the United States Mail, postage prepaid, certified mail, return
receipt requested, addressed, in the case of Sublessee, to the Leased Premises,
and in the case of Sublessor to Bunzl, 0000 X. Xxxxxxxx Xxxxxx, Xxxxxxx, XX
00000, Attention: Region Manager, with a copy to: Bunzl Distribution USA, Inc.,
000 Xxxxxxx Xxxxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx 00000, Attention: General
Counsel. Any notice received by Sublessor from the Prime Lessor shall be
forwarded to Sublessee within ten (10) days of the receipt thereof.
13.7 If any provision of this Sublease or the application thereof to any person
or circumstance shall be invalid or unenforceable to any extent, the remainder
of this Sublease and the application of such provisions to other persons or
circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
13.8 Sublessor hereby represents and warrants that Sublessor has not used the
Leased Premises to generate, manufacture, refine, transport, treat, store,
discharge or dispose of hazardous or toxic wastes and substances, except for
those substances used by Sublessor in the ordinary course of its business,
including, but not limited to, oil and grease for the operation and maintenance
of equipment, and customary cleaning products, in compliance with applicable
law. Sublessor makes no representation as to the presence of lead paint or
asbestos-containing building material on the Leased Premises, except that
Sublessor represents and warrants that it has not placed any lead paint or
asbestos-containing building material on the Leased Premises.
Sublessee hereby expressly represents and warrants that it will not use the
Leased Premises to generate, manufacture, refine, transport, treat, store,
handle, discharge or dispose of hazardous or toxic wastes and substances, and
that Sublessee has not and will not permit any of such substances to be brought
onto the Leased Premises or into the Building or onto the real property upon
which the Building is located. Notwithstanding the foregoing, Sublessee may
store and handle in the Premises, in compliance with applicable laws and
regulations, food, cosmetics and related products for human use or consumption
which incidentally may contain minor concentrations of hazardous or toxic wastes
and substances. Sublessor, for itself, and on behalf of its agents, employees,
consultants and contractors reserves the right to enter upon the Leased Premises
to perform, at its own expense unless Sublessee has not so complied in which
case it shall be at Sublessee's expense, such tests on the Leased Premises as
are reasonably necessary to ensure that Sublessee has complied with this
representation and warranty.
The term "hazardous or toxic wastes and substances" shall be deemed to
include all hazardous, toxic or radioactive substances, wastes or materials, all
pollutants or contaminants, asbestos, pesticides, gasoline, diesel fuel and
other petroleum products, polychlorinated biphenyls (PCBs), and other similar
substances and materials containing such substances that are included or
regulated under the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C.ss.6901 et seq. "CERCLA"), the -- --- Resource
Conservation and Recovery Act (42 U.S.C.ss.6901 et seq.), the Hazardous
Materials Transportation Act (49 U.S.C.ss.5101 et -- --- -- seq.), the Clean Air
Act (42 U.S.C.ss.7401 et seq.), the Clean Water Act (33 U.S.C.ss.1251 et seq.)
and any other local, state or -- --- -- --- federal law, either by definition,
determination or identification in such laws or by judicial or administrative
interpretation of such laws, together with any other chemical, material or
substance, exposure to which is prohibited, limited or regulated by any
governmental authority.
In the event that Sublessee receives any notice of violation, summons,
citation, directive, letter or other communication from any federal, state or
local agency or local governmental body concerning the presence, release and
threatened release of hazardous or toxic wastes or substances, Sublessee shall
immediately notify Sublessor of the fact and content thereof.
In the event it is determined that any action must be taken with regard to
the presence of any such hazardous or toxic wastes and substances on the Leased
Premises due to acts or omissions of Sublessee, Sublessee covenants and agrees
(a) to take all such actions requited under the Prime Lease and such other
actions necessary to bring promptly the Leased Premises into compliance with all
applicable laws or governmental regulations and (b) to secure evidence
acceptable to Sublessor that all governmental agencies and entities having
jurisdiction over the Leased Premises, the real property of which the Leased
Premises are a part, and the hazardous or toxic wastes and substances have
certified that the Leased Premises and the real property are in compliance with
all applicable laws and governmental regulations, all at Sublessee's sole cost
and expense. Sublessee acknowledges that Sublessor is relying on the warranties,
representations and covenants contained in this section in executing this
Sublease, and Sublessee agrees to defend, indemnify and hold Sublessor and its
successors and assigns harmless from and against any and all actions, suits,
claims, remedial orders, judgments, decrees and damages of any nature (including
but not limited to, attorneys' fees and costs, consultants' fees, cleanup,
monitoring, removal and restoration costs, and environmental damages, including
but not limited to natural resource damages, provided for under all applicable
federal, state and local environmental laws) arising from or in relation to the
presence, generation, manufacture, refining, transportation, treatment, storage,
handling, disposal, discharge, release or spill of any hazardous or toxic wastes
or substances in or on the Leased Premises during the term of this Sublease
unless caused by Sublessor. The foregoing indemnification and hold harmless
obligations shall be in addition to any and all remedies otherwise available to
Sublessor hereunder. The provisions of this section shall be deemed to survive,
and continue in full force and effect, after the termination, sale assignment or
sublease of this Sublease.
In the event of a violation of the representations, covenants and
warranties contained herein, Sublessor may, at its sole discretion: (i) declare
a default hereunder; (ii) require Sublessee to take actions and expend whatever
funds are necessary to correct such violation and to correct all adverse
consequences of such violations so that full compliance with all applicable
federal, state and local laws, rules and regulations is ensured; and/or (iii)
Sublessor may take such action and expend such sums on Sublessee's behalf to
ensure that all such violations and all adverse consequences of such violations
are corrected and that the Leased Premises (and the real estate of which the
Leased Premises are a part) are brought into full compliance with all applicable
federal, state and local laws, rules and regulations. In the event Sublessor
elects to expend moneys to correct any such violations, such moneys shall be
deemed Rent, payable within ten (10) days of Sublessee's receipt of an invoice
thereof. Any such action taken by Sublessor shall not constitute a waiver of any
claim that Sublessor has or may have against Sublessee or any other person to
recover any loss incurred by Sublessor as a result of such violation.
13.9 Any time Sublessor's consent shall be required under the terms of this
Sublease, Prime Lessor's consent shall also be deemed to be required, if
required by the terms of the Prime Lease.
13.10 Sublessee warrants and represents that Sublessee has not dealt with any
broker in connection with the consummation of this Sublease. Sublessor shall be
responsible for payment., of a commission in the amount of $33,107.00 to CB
Xxxxxxx Xxxxx, Inc., the broker which represented Sublessor on this transaction.
In the event any claim is made against the Sublessor relative to dealings with
any other broker contacted by Sublessee, Sublessee shall defend the claim
against Sublessor with counsel of Sublessor s selection and save harmless and
indemnity Sublessor on account of loss, cost or damage which may arise by reason
of any such claim.
13.11 In any action or proceeding involving this Lease, the prevailing party in
any such action or proceeding shall be entitled to an award, by the court or
other tribunal before which such action or proceeding is heard, of its
reasonable attorneys' fees and disbursements.
ARTICLE XIV
Amendment and Limitation of Warranties
14.1 IT IS EXPRESSLY AGREED BY SUBLESSEE, AS MATERIAL CONSIDERATION FOR THE
EXECUTION OF THIS SUBLEASE, THAT THIS SUBLEASE, WITH THE SPECIFIC REFERENCES TO
WRITTEN EXTRINSIC DOCUMENTS, IS THE ENTIRE AGREEMENT OF THE PARTIES; THAT THERE
ARE, AND WERE NO VERBAL REPRESENTATIONS, WARRANTIES, UNDERSTANDINGS,
STIPULATIONS, AGREEMENTS OR PROMISES PERTAINING TO THIS SUBLEASE OR TO THE
EXPRESSLY MENTIONED WRITTEN EXTRINSIC DOCUMENTS NOT INCORPORATED IN WRITING IN
THIS SUBLEASE.
14.2 THIS SUBLEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR EXTENDED EXCEPT BY AN
INSTRUMENT IN WRITING SIGNED BY SUBLESSOR AND SUBLESSEE.
14.3 SUBLESSOR AND SUBLESSEE EXPRESSLY AGREE THAT THERE ARE AND SHALL BE NO
IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THE SUBLEASE, AND THERE ARE NO
WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN THIS SUBLEASE.
14.4 IN THE EVENT OF LITIGATION INVOLVING THIS SUBLEASE, BOTH PARTIES AGREE AND
CONSENT TO THE JURISDICTION OF THE COURTS OF THE STATE OF OREGON FOR SUCH
LITIGATION.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease as
of the day and year first above written.
Signatures
SUBLESSOR SUBLESSEE
BUNZL CALIFORNIA, LLC XXXX XXXX FINANCIAL CORP.
By:/s/ Xxxxxx X. Xxxxxx
Print Name:Xxxxxx X. Xxxxxx
By: Title:Chief Operating Officer
-----------------------------------------
Xxxxxx X. Xxxx
Secretary
