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EXHIBIT 10.13
LEASE
BETWEEN
RCPI OFFICE PROPERTIES, LLC, a
Texas limited liability company
Landlord
AND
MARKETING SPECIALISTS SALES COMPANY, a Texas corporation
Tenant
Dated: February 17, 2000
Premises: 0000 X. 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
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INDEX
ARTICLE HEADING PAGE
------- ------- ----
ARTICLE 1 PREMISES AND TERM.......................................................................................5
ARTICLE 2 FIXED RENT AND ADDITIONAL RENT..........................................................................5
ARTICLE 3 IMPOSITIONS.............................................................................................6
ARTICLE 4 USE AND OPERATION OF PREMISES...........................................................................7
ARTICLE 5 CONDITION OF PREMISES, ALTERATIONS AND REPAIRS..........................................................8
ARTICLE 6 INSURANCE...............................................................................................9
ARTICLE 7 DAMAGE OR DESTRUCTION..................................................................................11
ARTICLE 8 CONDEMNATION...........................................................................................13
ARTICLE 9 ASSIGNMENT AND SUBLETTING..............................................................................13
ARTICLE 10 SUBORDINATION.........................................................................................16
ARTICLE 11 OBLIGATIONS OF TENANT.................................................................................18
ARTICLE 12 DEFAULT BY TENANT; REMEDIES...........................................................................20
ARTICLE 13 NO WAIVER.............................................................................................24
ARTICLE 14 ESTOPPEL CERTIFICATE..................................................................................24
ARTICLE 15 QUIET ENJOYMENT.......................................................................................25
ARTICLE 16 SURRENDER.............................................................................................25
ARTICLE 17 ACCESS ...............................................................................................26
ARTICLE 18 ENVIRONMENTAL MATTERS.................................................................................26
ARTICLE 19 MISCELLANEOUS PROVISIONS..............................................................................29
ARTICLE 20 LANDLORD'S ADDITIONAL TERMINATION RIGHT...............................................................31
ARTICLE 21 SUBORDINATION TO SENIOR DEBT..........................................................................31
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EXHIBITS
Exhibit "A" - Description of the Land
Exhibit "B" - Memorandum of Lease
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LEASE
THIS LEASE is made as of the 17th day of February, 2000 (the
"EFFECTIVE DATE"), between RCPI Office Properties, LLC, a Texas limited
liability company, as "LANDLORD", and MARKETING SPECIALISTS SALES COMPANY, a
Texas corporation, as "TENANT".
W I T N E S S E T H:
- - - - - - - - - -
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns, hereby
covenant as follows:
ARTICLE A
CERTAIN LEASE PROVISIONS
1. Address for 0000 X. 00xx Xxxxxx
the Premises: Xxxxxxx, Xxxxxxx 00000-0000
2. (a) Primary Term: Approximately one (1) year,
beginning on the Commencement Date
and ending on the Expiration Date.
As used in this Lease, the term
"TERM" shall mean the Primary Term
together with any renewal thereof.
(b) Commencement
Date: February 17, 2000.
(c) Expiration
Date: February 28, 2001, unless sooner
terminated pursuant to this Lease.
(d) Renewal
Options: None.
3. Fixed Rent: Tenant agrees to pay to Landlord as
monthly rental for the Premises
(such monthly rental is herein
referred to as "FIXED RENT") in
lawful money of the United States of
America, at _______________________,
or to such other person or entity
and at such other place as Landlord
may from time to time designate in
writing, as follows:
From the Commencement Date through
the Expiration Date, Tenant shall
pay Fixed Rent in the amount of
$20,414.17 ($9.35 per rentable
square foot on an annual basis for
the Premises) in advance on the
first day of each and every
successive calendar month during
such period of time.
4. Use of Premises: For general office use and uses
incidental thereto and for no other
purpose without the prior written
consent of Landlord.
5. Address for Notices:
For Landlord: RCPI Office Properties LLC.
00000 Xxxxxx Xxxxxxx, 7th Floor
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Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxxx
For Tenant: Marketing Specialists Sales Company
00000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Gage X. Xxxx and Xxxxx X. Xxxxxxxxx
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ARTICLE B
CERTAIN DEFINITIONS
"ADDITIONAL RENT" is defined in Section 2.2.
"ALTERATIONS" is defined in Section 5.4.
"BANKRUPTCY CODE" means the provisions of 11 U.S.C. Section 101 et seq.
or any statute of similar purpose or nature as more particularly set forth in
Section 9.10.
"BASE BUILDING COMPONENTS" means the foundation, the roof and the
structural walls of the Building.
"BUILDING" means the buildings, building equipment and improvements now
or hereinafter erected on the Land.
"BUSINESS DAY" is every day which most commercial banks based in New
York, New York are open for the ordinary conduct of business.
"CLAIMS" is defined in Section 11.3.
"CONTRACT OF SALE" is defined in Section 21.1.
"COMMENCEMENT DATE" is set forth in Article A, Section 2(b).
"DEFAULT RATE" means three percent (3%) over the prime reference rate
announced from time to time by Citibank, N.A. in New York, New York, as such
prime reference rate may be adjusted and announced from time to time, or if
unavailable, the parties shall use the prime reference rate of any New York
regional bank selected by Landlord.
"DEFICIENCY" is defined in Section 12.3(c).
"ENVIRONMENTAL LAWS" is defined in Section 18.9.
"EVENT OF DEFAULT" is defined in Section 12.1.
"EXPIRATION DATE" is defined in Article A, Section 2(c).
"FIXED RENT" is defined in Article A, Section 3.
"FORCE MAJEURE DELAYS" is defined in Section 19.16.
"HAZARDOUS SUBSTANCES" is defined in Section 18.10.
"IMPOSITIONS" is defined in Section 3.1.
"INDEMNIFIED PARTIES" is defined in Section 11.3.
"INSURANCE COSTS" is defined in Section 7.3.
"LAND" means that certain real property described on Exhibit "A"
attached hereto and incorporated herein by this reference.
"LANDLORD" is defined in the introductory paragraph to this Lease.
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"LANDLORD PARTIES" is defined in Section 6.2.
"LANDLORD'S AWARD" is defined in Section 8.1.
"LEASE" means this lease made between Landlord, as landlord, and
Tenant, as tenant.
"MAINTENANCE AND REPAIR OBLIGATIONS" is defined in Section 5.2.
"MORTGAGE" is defined in Section 3.2.
"MORTGAGEE" is defined in Section 3.2.
""SUBORDINATION, NON-DISTURBANCE, AND ATTORNMENT AGREEMENT" is defined
in Section 10.1.
"PERMITTED TRANSFER" shall mean either (i) a Transfer after Tenant's
receipt of Landlord's prior written consent thereto, or (ii) a Permitted
Transfer Without Landlord Consent.
"PERMITTED TRANSFER WITHOUT LANDLORD CONSENT" is defined in Section 9.1
below.
"PREMISES" means the Land and the Building.
"PREMISES DELIVERY DATE" is defined in Article A, Section 2(b) above.
"PROJECT EXPENSES is defined in Section 5.7.
"REMEDIAL WORK" is defined in Section 18.7.
"RENT" is defined in Section 2.3.
"REQUIREMENTS" is defined in Section 11.1.
"SUBTENANT" is defined in Section 9.5.
"TENANT" is defined in the introductory paragraph to this Lease.
"TENANT'S EXPENSE PAYMENT" is defined in Section 5.6.
"TERM" is defined in Article A, Section 2(a).
"TRANSFER" is defined in Section 9.1.
"TRANSFEREE" means any assignee or purchaser of Tenant's interest in
this Lease or any sublessee of all or any portion of the Premises.
"UTILITIES" is defined in Section 5.2.
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ARTICLE 1
PREMISES AND TERM
Section 1.1. During the Term, Landlord, in consideration of the rents
herein reserved and of the terms, provisions, covenants and agreements on the
part of Tenant to be kept, observed and performed, does hereby lease and demise
the Premises unto Tenant, and Tenant does hereby hire and take the Premises from
Landlord, subject to each and every matter affecting title to the Premises
including, without limitation, all of the following which are in effect as of
the Commencement Date: all easements, rights of way, covenants, conditions and
restrictions, liens, encumbrances, encroachments, licenses, notices of pendency,
charges, zoning laws, ordinances, regulations, building codes and other
governmental laws, rules and orders affecting the Premises, and other exceptions
to Landlord's title, whether or not the same are of public record.
Section 1.2. Tenant shall lease the Premises for the Term, unless
sooner terminated as hereinafter provided or pursuant to law.
ARTICLE 2
FIXED RENT AND ADDITIONAL RENT
Section 2.1. Tenant shall pay to Landlord as Fixed Rent for the
Premises during the Term the amounts stated in Article A, Section 3. Fixed Rent
shall be payable in equal monthly installments in advance on the first day of
each and every month during the Term, without previous demand therefor and
without offset or deduction of any kind whatsoever. Notwithstanding the
foregoing, Tenant shall pay the partial month's installment of Fixed Rent (with
respect to the remaining days of the month in which this Lease is executed) upon
the execution of this Lease.
Section 2.2. Tenant shall also pay and discharge, as additional rent,
all other amounts, liabilities and obligations of whatsoever nature relating to
the Premises, including, without limitation, all Impositions (as defined in
Section 3.1 below), all Project Expenses (as defined in Section 5.9 below) those
arising under any common area maintenance agreements however denominated,
easements, declarations, restrictions, or other similar agreements affecting the
Premises or any adjoining property thereto, and all interest and penalties that
may accrue thereon in the event of Tenant's failure to pay such amounts when
due, and all damages, costs and expenses which Landlord may incur by reason of
any default of Tenant or failure on Tenant's part to comply with the terms of
this Lease, all of which Tenant hereby agrees to pay upon demand or as is
otherwise provided herein (all of the foregoing together with any other amounts
and charges payable by Tenant under this Lease in addition to Fixed Rent are
herein collectively called "ADDITIONAL RENT"). Upon any failure by Tenant to pay
any of the Additional Rent, Landlord shall have all legal, equitable and
contractual rights, powers and remedies provided either in this Lease or by
statute or otherwise in the case of non-payment of the Fixed Rent. The term
Additional Rent shall be deemed rent for all purposes hereunder other than with
respect to Tenant's internal accounting procedures.
Section 2.3. All Fixed Rent and Additional Rent payable hereunder
(collectively, "RENT") shall be payable when due by wire transfer of immediately
available funds to an account designated from time to time by Landlord. At
Landlord's option upon Landlord's request, Rent shall be made in United States
currency which shall be legal tender for all debts, public and private, payable
to Landlord and sent to Landlord's address set forth in Article A, or to such
other person or persons or at such other place as may be designated by notice
from Landlord to Tenant, from time to time. Notwithstanding the foregoing,
Impositions shall be payable to the parties to whom they are due, except as
otherwise provided herein.
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ARTICLE 3
IMPOSITIONS
Section 3.1. From and after the Commencement Date and throughout the
Term, Tenant shall pay and discharge not later than twenty (20) days before any
fine, penalty, interest or cost may be added thereto for the non-payment
thereof, all taxes, assessments, water rents, sewer rents and charges, duties,
impositions, license and permit fees, charges for public utilities of any kind,
payments and other charges of every kind and nature whatsoever, ordinary or
extraordinary, foreseen or unforeseen, general or special, in said categories,
together with any interest or penalties imposed upon the late payment thereof,
which, pursuant to past, present or future law, during, prior to or after (but
attributable to a period within) the Term, shall have been or shall be levied,
charged, assessed, imposed upon or grow or become due and payable out of or for
or have become a lien on the Premises or any part thereof, any improvements or
personal property in or on the Premises, the Rent and income payable by Tenant
or on account of any use of the Premises and such franchises as may be
appurtenant to the use and occupation of the Premises (all of the foregoing
being hereinafter referred to as "IMPOSITIONS"). Tenant, upon request from
Landlord, shall submit to Landlord the proper and sufficient receipts or other
evidence of payment and discharge of the same. If any Impositions are not paid
when due under this Lease, Landlord shall have the right but shall not be
obligated to pay the same following written notice to Tenant of such payment,
provided Tenant does not contest the same as herein provided. If Landlord shall
make such payment, Landlord shall thereupon be entitled to repayment by Tenant
on demand as Additional Rent hereunder.
Section 3.2. Tenant shall have the right to protest and contest any
Impositions imposed against the Premises or any part thereof, provided (i) the
same is done at Tenant's sole cost and expense, (ii) nonpayment will not subject
the Premises or any part thereof to sale or other liability by reason of such
nonpayment, (iii) such contest shall not subject Landlord or the holder (the
"MORTGAGEE") of any mortgage or deed of trust (a "MORTGAGE") encumbering all or
any part of the Premises to the risk of any criminal or civil liability, and
(iv) Tenant shall provide such security as may reasonably be required by
Landlord or any Mortgagee or under the terms of any Mortgage to ensure payment
of such contested Imposition. Landlord agrees to execute and deliver to Tenant
any and all documents reasonably required for such purpose and to cooperate with
Tenant in every reasonable respect in such contest, but without any cost or
expense to Landlord.
Section 3.3. To the extent permitted by law, Tenant shall have the
right to apply for the conversion of any Impositions to make the same payable in
annual installments over a period of years, and upon such conversion Tenant
shall pay and discharge said annual installments as they shall become due and
payable. Tenant shall pay all such deferred installments prior to the expiration
or sooner termination of the Term, notwithstanding that such installments shall
not then be due and payable; provided, however, that any Impositions (other than
one converted by Tenant so as to be payable in annual installments as aforesaid)
relating to a fiscal period of the taxing authority, a part of which is included
in a period of time after the Expiration Date, shall (whether or not such
Impositions shall be assessed, levied, confirmed, imposed or become payable,
during the Term) be adjusted between Landlord and Tenant as of the Expiration
Date, so that Landlord shall pay that portion of such Impositions which relate
to that part of such fiscal period included in the period of time after the
Expiration Date, and Tenant shall pay the remainder thereof.
Section 3.4. If at any time during the Term, a tax or excise on Rent or
other tax, however described, is levied or assessed with respect to the Rent or
any part thereof (as opposed to the income of Landlord) or against Landlord as a
substitute in whole or in part for any Impositions theretofore payable by
Tenant, Tenant shall pay and discharge such tax or excise on Rent or other tax
before it becomes delinquent, and the same shall be deemed to be an Imposition
levied against the Premises.
Section 3.5. Except as set forth in Section 3.4 above, Tenant shall not
be obligated to pay any franchise, excise, corporate, estate, inheritance,
succession, capital, levy or transfer tax of Landlord or any income, profits or
revenue tax upon the income of Landlord.
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Section 3.6. In the event that Landlord is required pursuant to the
terms of any Mortgage to make monthly or other tax escrow payments to any
Mortgagee or if an Event of Default shall occur and be continuing, Tenant agrees
that, on demand made by Landlord, it shall: (i) deposit with Landlord or
Mortgagee, on the day of demand and on the same day of each month thereafter
until thirty (30) days prior to the date when the next installment of
Impositions is due to the authority or other person to whom the same is paid, an
amount equal to said next installment of Impositions divided by the number of
months over which such deposits are to be made; and (ii) thereafter during the
Term deposit with Landlord or Mortgagee an amount each month estimated by
Landlord or Mortgagee to be adequate to create a fund which, as each succeeding
installment of Impositions becomes due, will be sufficient, thirty (30) days
prior to such due date, to pay such installment in full. Landlord or Mortgagee
shall use reasonable efforts to cause the monthly deposits to be equal in
amount, but neither of them shall be liable in the event that such required
deposits are unequal. If at any time the amount of any Imposition is increased
or Landlord or Mortgagee believes that it will be, said monthly deposits shall
be increased upon demand by Landlord or Mortgagee so that, thirty (30) days
prior to the due date for each installment of Impositions, there will be
deposits on hand with Landlord or Mortgagee sufficient to pay such installments
in full. To the extent permitted by applicable law, Landlord or Mortgagee shall
not be required to deposit any such amounts in an interest bearing account. For
the purpose of determining whether Landlord or Mortgagee has on hand sufficient
moneys to pay any particular Imposition at least thirty (30) days prior to the
due date therefor, deposits for each category of Imposition shall be treated
separately, it being the intention that Landlord shall not be obligated to use
moneys deposited for the payment of an item not yet due and payable to the
payment of an item that is due and payable. Notwithstanding the foregoing, it is
understood and agreed that (a) to the extent permitted by applicable law,
deposits provided for hereunder may be held by Landlord or Mortgagee in a single
bank account and commingled with other funds of Landlord or Mortgagee, and (b)
Landlord or Mortgagee, may, if Tenant fails to make any deposit required
hereunder, use deposits made for any one item for the payment of the same or any
other item of Rent. If this Lease shall be terminated by reason of any Event of
Default, all deposits then held by Landlord shall be applied by Landlord on
account of any and all sums due under this Lease; if there is a resulting
deficiency, Tenant shall pay the same, and if there is a surplus, Tenant shall
be entitled to a refund of the surplus.
Section 3.7. If Landlord ceases to have any interest in the Premises,
Landlord shall transfer to the person or entity who owns or acquires such
interest in the Premises from Landlord and is the transferee of this Lease, the
deposits made pursuant to Section 3.6 hereof, subject, however, to the
provisions thereof. Upon such transfer of the Premises, the transferor shall be
deemed to be released from all liability with respect thereto and Tenant agrees
to look to the transferee solely with respect thereto, and the provisions hereof
shall apply to each successive transfer of the said deposits; provided, however,
that transferor shall not be released from liability unless Tenant either
receives said deposits or said deposits continue to be held by Mortgagee for the
benefit of transferee and Tenant.
Section 3.8. The provisions of this Article 3 shall survive the
expiration or earlier termination of this Lease.
ARTICLE 4
USE AND OPERATION OF PREMISES
Section 4.1. The Premises may be used and occupied only for the
purposes set forth in Article A, Section 4. Tenant shall not create or suffer to
exist any public or private nuisance, hazardous or illegal condition or waste on
or with respect to the Premises.
Section 4.2. Except as expressly provided in this Lease, in no event
shall Tenant use any area outside the Building other than for pedestrian and
vehicular ingress and egress to and from the Building, other than for parking in
the areas currently designated for parking, and other than to perform any of
Tenant's obligations under this Lease requiring the use of such area. Tenant and
its employees shall have access to the Premises 24 hours per day, 7 days per
week throughout the Term.
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ARTICLE 5
CONDITION OF PREMISES, ALTERATIONS AND REPAIRS
Section 5.1. Tenant has examined the Premises, is familiar with the
physical condition, expenses, operation and maintenance, zoning, status of title
and use that may be made of the Premises and every other matter or thing
affecting or related to the Premises, and is leasing the same in its "AS IS"
condition. Except as expressly provided to the contrary in this Lease, Landlord
has not made and does not make any representations or warranties whatsoever with
respect to the Premises or otherwise with respect to this Lease. Tenant assumes
all risks resulting from any defects (patent or latent) in the Premises or from
any failure of the same to comply with any governmental law or regulation
applicable to the Premises or the uses or purposes for which the same may be
occupied.
Section 5.2. Tenant shall be solely responsible for obtaining any
services and/or utilities used, consumed or provided in, furnished to or
attributable to the Premises that Landlord has not expressly agreed to provide
to Tenant pursuant to this Lease (all such services and/or utilities are
collectively referred to as "UTILITIES"). Subject to Landlord's right of
reimbursement as provided in Section 5.8 below, Landlord shall keep the Premises
clean and in good condition and repair and Landlord shall make all repairs and
replacements, structural and non-structural, ordinary and extraordinary,
foreseen and unforeseen, and shall perform all maintenance, necessary to
maintain the Premises in good condition and repair, ordinary wear and tear and
damage due to fire or other casualty excepted (the obligations of Landlord in
this sentence are herein referred to as "MAINTENANCE AND REPAIR OBLIGATIONS").
Section 5.3. To the extent not prohibited by law, Tenant hereby waives
and releases all rights now or hereinafter conferred by statute or otherwise
which would have the effect of limiting or modifying any of the provisions of
this Article 5.
Section 5.4. Tenant shall have the right at any time and from time to
time during the Term to make, at its sole cost and expense, changes,
alterations, additions or improvements (collectively, "ALTERATIONS") in or to
the Premises provided that Tenant first obtains Landlord's written consent
thereto, which consent shall not be unreasonably withheld or delayed. Landlord
will be able to withhold its consent, in its sole and absolute discretion, with
respect to any Alterations in or to the Premises which (i) are made to or affect
(A) the structural components of the Building, or (B) the systems of the
Building, (ii) are visible from the exterior of the Building, or (iii) adversely
affect the value of the Building.
Section 5.5. All fixtures, structures and other improvements installed
in or upon the Premises at any time during the Term (excluding, in any event,
Tenant's trade fixtures, furniture, equipment and other movable personal
property) shall become the property of Landlord and shall remain upon and be
surrendered with the Premises unless Landlord, by notice to Tenant no later than
ninety (90) days prior to the Expiration Date (or if this Lease is terminated
earlier, then within thirty (30) days after the effective date of such
termination), elects to have the same removed or demolished by Tenant, in which
event, the same shall be removed from the Premises by Tenant by the Expiration
Date (or if this Lease is terminated earlier, then within thirty (30) days after
the effective date of such termination) at Tenant's expense. Prior to the
commencement of any Work, Landlord will, upon written request by Tenant, notify
Tenant in writing whether Landlord will require such Alterations to be removed
from the Premises prior to the Expiration Date or earlier termination of this
Lease. All property permitted or required to be removed by Tenant at the end of
the Term remaining in the Premises after Tenant's removal shall be deemed
abandoned and may, at the election of Landlord, either be retained as Landlord's
property or may be removed from the Premises by Landlord at Tenant's expense.
Tenant shall be responsible for, and shall reimburse Landlord immediately after
written demand therefor, any damage to the Premises caused in whole or in part
by the removal or demolition of Tenant's fixtures, structures or other
improvements which Tenant is required to remove pursuant to this Section 5.7 or
which Tenant elects under the provisions of this Lease to remove. The provisions
of this Section 5.7 shall survive the expiration or earlier termination of the
Term.
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Section 5.6. In addition to Fixed Rent, Tenant shall pay as Additional
Rent, all Project Expenses (as defined in Section 5.7 below) incurred by
Landlord during the Term. Such payment shall hereafter be referred to as
"TENANT'S EXPENSE PAYMENT". Landlord may, if it elects, either deliver to Tenant
periodic statements of Tenant's Expense Payment or Landlord may estimate the
amount of Tenant's Expense Payment payable by Tenant for any calendar year or
any portion thereof. In the event Landlord elects to estimate Tenant's Expense
Payment for any calendar year, Landlord shall provide written notice of the
estimate of Tenant's Expense Payment for the applicable calendar year and the
monthly installment due for each month during such calendar year at least thirty
(30) days prior to the date such installments become due and payable. Tenant
shall pay to Landlord, on the first day of each calendar month during any
calendar year Landlord elects to estimate Tenant's Expense Payment, the amount
of the applicable monthly installments, without demand. Landlord shall, on or
before the first day of July of each calendar year, determine the actual
Tenant's Expense Payment for the preceding calendar year and provide Tenant with
written notice thereof. If Tenant's actual payments of estimated Tenant's
Expense Payment are less than the actual Project Expenses for such year, then
Tenant shall pay to Landlord the amount of the deficiency within thirty (30)
days from the date of Landlord's notice of deficiency. Alternatively, if
Tenant's actual payments of estimated Tenant's Expense Payments are greater than
the actual Project Expenses for such year, then Landlord shall credit the amount
of the surplus against the next accruing installments of Tenant's Expense
Payment.
Section 5.7. As used in this Lease, the term "PROJECT EXPENSES" shall
mean all direct costs and expenses of ownership (excluding, however, any
Impositions which are payable by Tenant as provided in Article 3 above),
operation, security, protection, replacement, repair and maintenance of the
Premises incurred by Landlord, as determined by sound, accrual basis, accounting
principles consistently applied, and shall include all costs incurred in
connection with the ownership and operation of the parking areas; all Insurance
Costs (as defined in Section 7.3 below); accounting and legal fees; and dues,
taxes and/or assessments imposed by any applicable property owners' association
if any, excepting only those specific costs and expenses that Landlord has
specifically agreed to bear with no reimbursement from Tenant and these costs
and expenses described in the immediately following sentence. Project Expenses
do not include any of the following: (a) interest and principal payments on
loans secured by mortgages or deeds of trust covering all or any portion of the
Premises, and other debt costs, if any, and rental under any ground lease or
other underlying lease, if any, covering all or any portion of the Premises; (b)
real estate broker's commissions payable in connection with this Lease; (c) any
cost or expenditure (or portion thereof) for which Landlord is reimbursed,
whether by insurance proceeds or otherwise (Tenant's Expense Payments are not
reimbursements); (d) all costs incurred by Landlord in connection with the
satisfaction of the Maintenance and Repair Obligations; (e) costs and expenses
incurred in the management of the Premises and/or the administration of
Landlord's rights and obligations under this Lease; (f) costs of improvements
to, or alterations of, the Premises; (g) depreciation; (h) that portion of any
cost or expense which is allocated by Landlord to, or is performed solely for
the benefit of, any property owned or operated by Landlord other than the
Premises; (i) legal, accounting and similar or related costs paid or incurred in
connection with any sale, syndication, financing or refinancing involving the
Building and/or the Premises or any of Landlord's interest therein; (j) any
fees, fines, penalties and/or interest incurred by Landlord as a result of
Landlord's noncompliance with any applicable laws; (k) any costs (including,
without limitation, legal fees and expenses), fees, fines, penalties and/or
interest incurred by Landlord as a result of Landlord's failure to pay any
obligations of Landlord; (l) costs of disputes between Landlord and any third
party regarding matters not related to the Premises; (m) costs of defending any
lawsuits with Mortgagees or ground lessors of Landlord; (n) any debt losses,
rent losses or reserves for bad debt; and (o) costs or expenses related to
Landlord's cleaning, removal, remediation or compliance required due to the
existence of any hazardous or toxic materials in, on or affecting the Building
and/or Land (including, without limitation, Hazardous Substances) unless such
existence is caused by Tenant or its employees, sublessees or contractors.
ARTICLE 6
INSURANCE
Section 6.1. Throughout the Term, Tenant shall, at its own cost and
expense, provide and keep in force, for the benefit of Landlord, Tenant and any
Mortgagee:
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(a) broad form commercial general liability insurance (including
protective liability coverage on operations of independent contractors engaged
in construction and blanket contractual liability insurance) protecting and
indemnifying Landlord, Tenant and any Mortgagee against all claims for damages
to person or property or for loss of life or of property occurring upon, in, or
about the Premises, if any, written on a per-occurrence basis with an aggregate
limit of not less than $2,000,000 and a per-occurrence limit of not less than
$1,000,000, or such greater limits as may be required from time to time by any
Mortgagee or as may be reasonably required from time to time by Landlord
consistent with insurance coverage on properties similarly constructed, occupied
and maintained. Such coverage shall contain endorsements: (i) including
employees of Tenant as additional insureds; (ii) including cross-liability; and
(iii) waiving the insurer's rights of subrogation against Landlord for events of
which Landlord is not, but Tenant is, covered;
(b) property insurance in respect of Tenant's property located at the
Premises, insuring against loss or damage by fire and such other risks as are
now or hereafter embraced by "extended coverage" policy in an amount sufficient
to prevent Landlord and Tenant from becoming co-insurers and in any event in an
amount not less than one hundred percent (100%) of the actual replacement value
thereof as reasonably determined by Tenant from time to time.
(c) worker's compensation insurance (including employers' liability
insurance) covering all persons employed at the Premises by Tenant to the extent
required by the laws of the State in which the Premises are located; and
(d) such other or further insurance, in such amounts and in such form,
as is customarily obtained by tenants at properties similarly constructed,
occupied and maintained and that is available at commercially reasonable rates,
or as otherwise reasonably required by any Mortgagee.
Section 6.2. Whenever under the terms of this Lease Tenant is required
to maintain insurance for the benefit of Landlord, (i) all Landlord Parties (as
defined below) shall be an additional insured in all such liability insurance
policies, and (ii) either Landlord or Mortgagee, as specified in Section 6.3,
shall be named as loss payee in all such casualty insurance policies. In the
event that the Premises shall be subject to a Mortgage, the commercial general
liability insurance shall name the Mortgagee (together with any trustee or
servicer therefor) as an additional insured and all other insurance provided
hereunder shall name the Mortgagee as an additional insured or, as provided in
Section 6.3, loss payee under a standard "non-contributory mortgagee"
endorsement or its equivalent. All policies of insurance shall provide that such
coverage shall be primary and that any insurance maintained separately by
Landlord or the Mortgagee shall be excess insurance only. The original
certificates and legible copies of the original policies (or binders therefor if
the policies have not yet been prepared) shall be delivered to Landlord and any
Mortgagee. All insurance shall contain endorsements to the effect that the act
or omission of Tenant or Mortgagee, any occupancy or use of the Premises for
purposes more hazardous than permitted by such policy, any foreclosure or other
proceedings relating to the Premises or any change in title to or ownership of
the Premises will not invalidate the policy as to Landlord or such Mortgagee. As
used in this Lease, the term "LANDLORD PARTIES" shall mean (i) Landlord, (ii)
any Mortgagee that has been identified to Tenant in a writing sent by Landlord
or its agent or property manager, (iii) their respective shareholders, members,
partners, affiliates and subsidiaries, and (iv) any directors, officers,
employees, agents or contractors of such persons or entities.
Section 6.3. INTENTIONALLY DELETED.
Section 6.4. All of the above-mentioned insurance policies and/or
certificates shall be obtained by Tenant and delivered to Landlord on or prior
to the date hereof, and thereafter as provided for herein, and shall be written
by insurance companies: (i) rated B+/X or better in "Best's Insurance Guide" (or
any substitute guide acceptable to Landlord); (ii) authorized to do business in
the state where the Premises are located; and (iii) of recognized responsibility
and which are satisfactory to Landlord and any Mortgagee. Any deductible amounts
under any casualty insurance policy hereunder shall not exceed $25,000.00 per
occurrence.
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Section 6.5. At least thirty (30) days prior to the expiration of any
policy or policies of such insurance, Tenant shall renew such insurance, by
delivering to Landlord or Mortgagee, within the said period of time, the
original policies or certificates of insurance, endorsed in accordance with
Section 6.2 hereof, together with insurance binders evidencing the coverage
described in this Article 6. All coverage described in this Article 6 shall be
endorsed to provide Landlord and Mortgagee with at least thirty (30) days'
notice of change in terms and at least ten (10) days' notice of cancellation or
termination. If Tenant shall fail to procure the insurance required under this
Article 6 in a timely fashion or to deliver such policies or certificates to
Landlord, Landlord may, at its option, upon written notice to Tenant, procure
the same for the account of Tenant, and the cost thereof shall be paid to
Landlord as Additional Rent.
Section 6.6. Tenant shall not violate, or permit to be violated, any of
the conditions of any of the said policies of insurance, and Tenant shall
perform and satisfy the requirements of the companies writing such policies so
that companies of good standing, reasonably satisfactory to Landlord, shall be
willing to write and/or continue such insurance.
Section 6.7. Tenant shall not carry separate or additional insurance
affecting the coverage described in this Article 6, concurrent in form and
contributing in the event of any loss or damage to the Premises with any
insurance required to be obtained by Tenant under this Lease, unless such
separate or additional insurance shall comply with and conform to all of the
provisions and conditions of this Article. Tenant shall promptly give notice to
Landlord of such separate or additional insurance.
Section 6.8. The insurance required by this Lease, at the option of
Tenant, may be effected by blanket and/or umbrella policies issued to Tenant
covering the Premises and other properties owned or leased by Tenant, provided
that the policies otherwise comply with the provisions of this Lease and
allocate to the Premises the specified coverage, without possibility of
reduction or coinsurance by reason of, or damage to, any other premises named
therein, and if the insurance required by this Lease shall be effected by any
such blanket or umbrella policies, Tenant shall furnish to Landlord or Mortgagee
certified copies or duplicate originals of such policies in place of the
originals, with schedules thereto attached showing the amount of insurance
afforded by such policies applicable to the Premises.
ARTICLE 7
DAMAGE OR DESTRUCTION
Section 7.1. In the event the Building is damaged by fire or other
insured casualty and the insurance proceeds have been made available therefor by
the holder or holders of any mortgages or deeds of trust covering the Building,
the damage shall be repaired by and at the expense of Landlord to the extent of
such insurance proceeds available therefor, provided such repairs can, in
Landlord's sole opinion be made within one hundred eighty (180) days after the
occurrence of such damage without the payment of overtime or other premiums.
Until such repairs are completed, Fixed Rent shall be abated effective as of the
date of such fire or other casualty in proportion to the part of the Building
which is unusable by Tenant in the conduct of its business; provided, however,
if the damage is due to the fault or neglect of Tenant or its employees, agents
or invitees, there shall be no abatement of Fixed Rent unless Landlord has
received loss of rental insurance proceeds intended to replace the Fixed Rent
due hereunder. If repairs cannot, in Landlord's sole opinion reasonably
exercised, be made within one hundred eighty (180) days after the occurrence of
such damage, Landlord may, at its option, make them within a reasonable time,
and in such event, this Lease shall continue in effect and Fixed Rent shall be
abated in the manner provided in the immediately preceding sentence. In the case
of repairs which, in Landlord's opinion reasonably exercised, cannot be made
within such one hundred eighty (180) day period, Landlord shall notify Tenant
within sixty (60) days of the date of occurrence of such damage as to whether or
not Landlord will make such repairs. If (a) Landlord elects not to make such
repairs which cannot be made within such one hundred eighty (180) day period,
(b) Landlord fails to give Tenant written notice of Landlord's intention to make
or not to make such repairs and such failure continues for ten (10) days after
Landlord's receipt of written notice of such failure, or (c) such damage occurs
during the last eighteen (18) months of the Term, then either party may, by
written notice to the other, terminate this Lease as of the date of
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the occurrence of such damage, and Landlord shall have no liability to Tenant
for failure to make such repairs except for abatement of Fixed Rent. Except as
provided in this Section 7.1, there shall be no abatement of Fixed Rent and no
liability of Landlord by reason of any injury to or interference with Tenant's
business or property arising from the making of any repairs, alterations or
improvements in or to any portion of the Building, or in or to fixtures,
appurtenances and equipment located therein, and, in any event, there shall be
no liability of Landlord should repairs require more than one hundred eighty
(180) days for completion. Tenant acknowledges and agrees that (i) Landlord will
not carry insurance of any kind on (1) Tenant's furnishings or furniture, or (2)
any fixtures or equipment removable by Tenant under the provisions of this
Lease, and (ii) Landlord shall not be required to repair any injury or damage
caused by fire or other cause, or to make any repairs or replacements to or of
improvements installed in the Building by or for Tenant, all of which shall be
the sole responsibility of Tenant.
Section 7.2. If Landlord is obligated to repair damage to the Building
pursuant to Section 7.1, Landlord shall use reasonable efforts to complete or
cause the completion of the repairs to the same on or before the expiration of
the Casualty Repair Delivery Period (as defined below in this paragraph).
Notwithstanding anything else to the contrary contained in this Lease, if
Landlord, for any reason whatsoever, cannot complete or cause the completion of
the repair of the applicable damage to the Building such that the Building is
usable by Tenant for the purposes identified in Article A, Section 4 above on or
before the last day of the Casualty Repair Delivery Period, then Landlord shall
not be liable to Tenant for any loss or damage resulting therefrom, but Tenant
shall, as its sole and exclusive remedy, have the right to terminate this Lease
by giving Landlord written notice thereof within thirty (30) days after the
expiration of the Casualty Repair Delivery Period and in any event prior to
Landlord's delivery of possession of the Building to Tenant in such a usable
condition. As used herein, the term "Casualty Repair Delivery Period" shall mean
the period of time beginning on the date the Building has been damaged by fire
or other insured casualty and ending on the last day of the ninth (9th) calendar
month following the date of such damage.
Section 7.3. Landlord covenants and agrees that throughout the Term it
will insure the Building (excluding excavation, foundation, footings and
underground flues and drains) and the machinery, boilers and equipment contained
therein owned by Landlord (excluding any property with respect to which Tenant
is obligated to insure pursuant to the provisions of Article 6 above) against
damage by fire and extended perils coverage in an amount equal to the full
replacement value of such insured portions of the Building. Tenant shall
reimburse Landlord for the costs of such insurance (herein referred to as
"Insurance Costs") within thirty (30) days after Tenant's receipt of written
evidence of the amount of such costs paid by Landlord. Notwithstanding Tenant's
payment of the cost of insurance premiums as provided herein, Tenant
acknowledges that it has no right to receive any proceeds from any such
insurance policies carried by Landlord and that such insurance will be for the
sole benefit of Landlord with no coverage for Tenant for any risk against which
insurance has been obtained.
Section 7.4. All fire, extended coverage and/or damage insurance which
must be carried by Landlord and Tenant shall be endorsed with a subrogation
clause substantially as follows: "This insurance shall not be invalidated should
the insured waive in writing, prior to a loss, any or all right of recovery
against any party for loss occurring to the property described herein." Landlord
and Tenant each hereby waives any rights it may have against the other
(including, but not limited to, a direct action for damages) on account of any
loss or damage occasioned to Landlord or Tenant, as the case may be (WHETHER OR
NOT SUCH LOSS OR DAMAGE IS CAUSED BY THE FAULT, NEGLIGENCE OR OTHER TORTIOUS
CONDUCT, ACTS OR OMISSIONS OF LANDLORD OR TENANT OR THEIR RESPECTIVE OFFICERS,
PARTNERS, DIRECTORS, EMPLOYEES, SERVANTS AGENTS OR INVITEES), to their
respective property, the Premises or its contents arising from any risk covered
by any insurance required to be carried by Tenant and Landlord, respectively,
pursuant to this Lease. Without in any way limiting the foregoing waivers and to
the extent permitted by applicable law, the parties hereto each, on behalf of
their respective insurance companies insuring the property of either Landlord or
Tenant against any such loss, waive any right of subrogation that Landlord or
Tenant or their respective insurers may have against the other party or their
respective officers, directors, employees, agents or invitees and all rights of
their respective insurance companies based upon an assignment from its insured.
Each party to this Lease agrees immediately to give to each such insurance
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company written notification of the terms of the mutual waivers contained in
this Section and to have said insurance policies properly endorsed, if
necessary, to prevent the invalidation of said insurance coverage by reason of
said waivers. The foregoing waivers shall be effective whether or not the
parties maintain the required insurance.
ARTICLE 8
CONDEMNATION
Section 8.1. If the Premises, or a substantial part thereof, shall be
lawfully taken or condemned (or conveyed under threat of such taking or
condemnation) for any public or quasi-public use or purpose, then (i) the term
of this Lease shall terminate on, and not before, the date of the taking of
possession by the condemning authority, and without apportionment of the award,
and (ii) current Rent due hereunder shall be apportioned as of the date of such
termination. In the event a taking or condemnation results in a permanent loss
of adequate parking on the Land or a permanent deprivation of access to the
Premises, then this Lease may be terminated at the election of Tenant, which
election shall be made by Tenant's delivery of written notice thereof to
Landlord within thirty (30) days after the date of such taking or condemnation.
No money or other consideration shall be payable by Landlord to Tenant for the
right of termination, and Tenant hereby waives any right Tenant may have to
share in, and assigns to Landlord Tenant's interest, if any, in, any (1)
condemnation award as a result of such taking or condemnation, (2) judgment for
damages based on such taking or condemnation, or (3) proceeds of any sale made
under any threat of condemnation or taking (the award, damages or proceeds
described in subparts (1) through (3) of this paragraph are herein collectively
referred to as "Landlord's Award").
Section 8.2. If any part of the Premises not constituting a substantial
part of the Premises shall be so taken or condemned (or conveyed under threat of
such taking or condemnation), or if the grade of any street adjacent to the
Building is changed by any competent authority and such taking or change of
grade makes it necessary or desirable to substantially remodel or restore the
Building, Landlord shall have the right to terminate this Lease upon not less
than ninety (90) days notice prior to the date of termination designated in the
notice. In the event this Lease is not terminated by Landlord pursuant to the
preceding sentence, then (a) this Lease shall continue in full force and effect
without abatement or reduction of rental due hereunder except in the event a
portion of the Premises has been taken or condemned, in which case Fixed Rent
shall be equitably adjusted, and (b) Landlord shall, within a reasonable time
and at the sole cost and expense of Landlord to the extent of the applicable
Landlord's Award, restore or remodel the Building and, if applicable, the
Premises.
Section 8.3. Except as provided in this Article 8, there shall be no
reduction of Fixed Rent and no liability of Landlord by reason of any injury to,
or interference with, Tenant's business or property arising from the making of
any repairs, alterations or improvements in or to any portion of the Premises
following a taking or condemnation of the same, or in or to fixtures,
appurtenances and equipment located therein. Notwithstanding anything to the
contrary contained herein, Tenant shall have the right to recover from any
condemning authority, through a separate award which does not reduce Landlord's
Award, any compensation as may be awarded to Tenant on account of moving and
relocation expenses and depreciation to and removal of Tenant's physical
property from the Premises.
ARTICLE 9
ASSIGNMENT AND SUBLETTING
Section 9.1. Except in strict accordance with the provisions of this
Article 9, Tenant shall not sell, assign, sublease or otherwise transfer,
directly or indirectly (each a "TRANSFER"), all or any portion of Tenant's
interest in this Lease or the Premises without Landlord's prior written consent,
which written consent shall not be unreasonably withheld or delayed. Landlord
and Tenant agree that no corporate reorganization of Tenant, or any merger,
consolidation, take-over, buy-out or other change in the corporate structure or
effective voting control of Tenant shall be deemed a prohibited Transfer under
this Section 9.1 so long as (y) Tenant has
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at least the amount of net worth immediately after the transaction as Tenant has
immediately prior to the transaction and (z) Tenant provides written notice to
Landlord describing in reasonable detail the nature of such transaction, the
name, address and state of formation of the surviving entity and the ownership
of Tenant. Any assignment or subletting permitted without Landlord's prior
written consent as provided above (a "PERMITTED TRANSFER WITHOUT LANDLORD
CONSENT") shall not release Tenant from any of its obligations under this Lease.
If the common stock of Tenant or of any corporation which controls Tenant ever
becomes the subject of a public offering, such issuance of shares and/or
subsequent trading of stock in Tenant shall not be deemed a prohibited transfer
under this Section 9.1. For purposes of this Article 9, the terms "CONTROL" or
"CONTROLS" shall mean possession, direct or indirect, of the power to direct or
to cause the direction of, the management and policies of any person or entity,
whether through the ownership of voting securities, or partnership interest, by
contract or otherwise. Without limiting in any way Landlord's right to withhold
its consent on any reasonable grounds, it is agreed that Landlord will not be
acting unreasonably in refusing to consent to an assignment or sublease if, (a)
the proposed assignment or sublease involves a change of use of the Premises
from that specified herein, (b) the proposed assignee or subtenant is not, in
Landlord's reasonable opinion, of reputable or good character (for the purposes
of this Lease, Landlord shall be conclusively deemed to have reasonably
exercised its discretion to withhold its consent to an assignment or subletting
to a person or entity that is not of the character, quality or financial
strength of a tenant to whom Landlord would generally lease space of a
comparable size and quality as the Premises), (c) a Mortgagee does not approve
such assignment or sublease after being requested to approve the same, or (d) in
the case of a subletting, the subletting shall not be expressly subject to all
of the provisions of this Lease and the obligations of Tenant hereunder and
shall not further provide that if Landlord shall recover or come into possession
of the Premises before the expiration of this Lease, Landlord shall have the
right to take over the sublease and to have it become a direct lease with
Landlord, in which case Landlord shall succeed to all of the rights of Tenant,
as sublessor, thereunder and that in such case subtenant shall be bound to
Landlord for the balance of the term of the sublease and shall attorn to and
recognize Landlord as its landlord under the sublease under all of the then
executory terms of the sublease, except that Landlord will not (i) be liable for
any previous acts or omissions of Tenant, as sublessor, (ii) be subject to any
claims of subtenant not expressly set forth in the sublease, (iii) be bound by
any modification of the sublease for which Landlord shall have not expressly
consented, or (iv) be obligated to perform any repairs or other work beyond
Landlord's obligations under this Lease. Tenant acknowledges and agrees (again
without in any way limiting Landlord's right to withhold its consent on
reasonable grounds) that Landlord may also withhold its consent to a Transfer
based on any one or more of the following: (1) Tenant's failure to satisfy its
obligations in Section 9.3 below; (2) at the time thereof an Event of Default
has occurred and is continuing; or (3) the fact that the instrument effecting
the proposed Transfer is not in form and content reasonably satisfactory to
Landlord.
Section 9.2. Notwithstanding the provisions of Section 9.1 above,
Tenant shall not be required to obtain the prior consent of Landlord for any
sublease of a part (but not all) of the Premises, which sublease is ordinary and
incidental to Tenant's business as such business has been run prior to the
inception of this Lease. In the event of a proposed sublease which is either
inconsistent with the ordinary and incidental operations of Tenant's business,
or which does not fall within the foregoing parameters of this Section 9.2, such
shall not be allowed without Landlord's prior written consent in each instance,
which consent shall not be unreasonably withheld or delayed.
Section 9.3. If Tenant shall desire Landlord's consent to a Transfer,
Landlord shall be given not less than thirty (30) days' advance written notice
of the proposed effective date of such Transfer, which notice shall be delivered
to Landlord together with (i) either an executed counterpart or, if unavailable,
a copy of the proposed instrument(s) of the Transfer and (ii) such other
documents and information as Landlord may reasonably request.
Section 9.4. Any consent by Landlord under this Article 9 shall apply
only to the specific transaction thereby authorized and shall not relieve Tenant
from the requirement of obtaining the prior written consent of Landlord to any
further Transfer of this Lease. No Transfer of all or a portion of this Lease
shall release or relieve the transferor from any obligations of Tenant
hereunder, and the transferor shall remain liable for the performance of all
obligations of Tenant hereunder.
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Section 9.5. Tenant shall cause each subtenant permitted pursuant to
this Article 9 (a "SUBTENANT") to comply with its obligations under its
respective sublease, and Tenant shall diligently enforce all of its rights as
the landlord thereunder in accordance with the terms of such sublease and this
Lease.
Section 9.6. The fact that a violation or breach of any of the terms,
provisions or conditions of this Lease results from or is caused by an act or
omission by any of the Subtenants shall not relieve Tenant of Tenant's
obligation to cure the same. Tenant shall take all necessary steps to prevent
any such violation or breach.
Section 9.7. If this Lease is assigned, or if the Premises or any part
thereof is subleased or occupied by anybody other than Tenant, Landlord may,
after the occurrence and during the continuance of an Event of Default by
Tenant, collect Rent from the assignee or Subtenants, and apply the net amount
collected to the Rent herein reserved, but no such assignment, sublease,
occupancy or collection shall be deemed a waiver of this covenant, or the
acceptance of the assignee or Subtenant as tenant, or a release of Tenant from
the further performance by Tenant of the terms, covenants, and conditions on the
part of Tenant to be observed or performed hereunder. After any assignment or
subletting, Tenant's liability hereunder shall continue notwithstanding any
subsequent modification or amendment hereof or the release of any subsequent
tenant hereunder from any liability, to all of which Tenant hereby consents in
advance. The consent by Landlord to any Transfer shall not in any way be
construed to relieve Tenant from obtaining the express written consent of
Landlord to any further Transfer.
Section 9.8. To secure the prompt and full payment by Tenant of the
Rent and the faithful performance by Tenant of all the other terms and
conditions herein contained on its part to be kept and performed, Tenant hereby
assigns, transfers and sets over unto Landlord, subject to the conditions
hereinafter set forth, all of Tenant's right, title and interest in and to all
Subleases and hereby confers upon Landlord, its agents and representatives, a
right of entry in, and sufficient possession of, the Premises to permit and
insure the collection by Landlord of the rentals and other sums payable under
the Subleases, and further agrees that the exercise of said right of entry and
qualified possession by Landlord shall not constitute an eviction of Tenant from
the Premises or any portion thereof and that should said right of entry and
possession be denied Landlord, its agent or representative, Landlord, in the
exercise of said right, may use all requisite force to gain and enjoy the same
without responsibility or liability to Tenant, its servants, employees, guests
or invitees, or any Person whomsoever; provided, however that such assignment
shall become operative and effective only if (a) an Event of Default shall occur
or (b) this Lease and the Term shall be canceled or terminated pursuant to the
terms, covenants and conditions hereof or (c) there occurs repossession under a
dispossess warrant or other re-entry or repossession by Landlord under the
provisions hereof or (d) a receiver for the Premises is appointed, and then only
as to such of the subleases that Landlord may elect to take over and assume. At
any time and from time to time upon Landlord's demand, Tenant promptly shall
deliver to Landlord a schedule of all subleases, setting forth the names of all
Subtenants, with a photostatic copy of each of the subleases. Upon reasonable
request of Landlord, Tenant shall permit Landlord and its agents and
representatives to inspect all subleases affecting the Premises. Tenant
covenants that each sublease shall provide that the Subtenant thereunder shall
be required from time to time, upon request of Landlord or Tenant, to execute,
acknowledge and deliver, to and for the benefit of Landlord, an estoppel
certificate confirming with respect to such sublease the information set forth
in Section 14.1 hereof.
Section 9.9. Tenant covenants and agrees that all subleases hereafter
entered into affecting the Premises shall provide that (a) they are subject to
this Lease, (b) the term thereof should end not less than one (1) day prior to
the Expiration Date hereof, unless Landlord shall consent otherwise, which
consent may be withheld in Landlord's sole discretion, (c) the Subtenants will
not do, authorize or execute any act, deed or thing whatsoever or fail to take
any such action which will or may cause Tenant to be in violation of any of its
obligations under this Lease, (d) the Subtenants will not pay rent or other sums
under the subleases with Tenant for more than one (1) month in advance, (e) the
Subtenants shall give to Landlord at the address and otherwise in the manner
specified in Section 19.8 hereof, a copy of any notice of default by Tenant as
the landlord under the subleases at the same time as, and whenever, any such
notice of default shall be given by the Subtenants to Tenant, and (f) in the
event of the termination or expiration of this Lease prior to the Expiration
Date hereof, any
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such Subtenant, at Landlord's election, shall be obligated to attorn to and
recognize Landlord as the lessor under such Sublease, in which event such
Sublease shall continue in full force and effect as a direct lease between
Landlord and the Subtenant upon all the terms and conditions of such Sublease,
except as hereinafter provided. Any attornment required by Landlord of such
Subtenant shall be effective and self-operative as of the date of any such
termination or expiration of this Lease without the execution of any further
instrument; provided, however, that such Subtenant shall agree, upon the request
of Landlord, to execute and deliver any such instruments in recordable form and
otherwise in form and substance satisfactory to Landlord to evidence such
attornment. With respect to any attornment required by Landlord of any Subtenant
hereunder, (i) at the option of Landlord, Landlord shall recognize all rights of
Tenant as the lessor under such sublease and the Subtenant thereunder shall be
obligated to Landlord to perform all of the obligations of the Subtenant under
such sublease and (ii) Landlord shall have no liability, prior to its becoming
lessor under such Sublease, to such Subtenant nor shall the performance by such
Subtenant of its obligations under the sublease, whether prior to or after any
such attornment, be subject to any defense, counterclaim or setoff by reason of
any default by Tenant in the performance of any obligation to be performed by
Tenant as lessor under such sublease, nor shall Landlord be bound by any
prepayment of more than one (1) month's rent unless such prepayment shall have
been expressly approved in writing by Landlord. The provisions of this Section
9.9 shall survive the expiration or earlier termination of the Term.
Section 9.10. If Tenant assumes this Lease and proposes to assign the
same pursuant to the provisions of Title 11 of the United States Code or any
statute of similar purpose or nature (the "BANKRUPTCY CODE") to any person or
entity who shall have made a bona fide offer to accept an assignment of this
Lease on terms acceptable to Tenant, then notice of such proposed assignment
shall be given to Landlord by Tenant no later than twenty (20) days after
receipt of such offer by Tenant, but in any event no later than ten (10) days
prior to the date that Tenant shall file any application or motion with a court
of competent jurisdiction for authority and approval to enter into such
assumption and assignment. Such notice shall set forth (a) the name and address
of the assignee, (b) all of the terms and conditions of such offer, and (c) the
proposal for providing adequate assurance of future performance by such person
under the Lease, including, without limitation, the assurance referred to in
Section 365 of the Bankruptcy Code. Any person or entity to which this Lease is
assigned pursuant to the provisions of the Bankruptcy Code shall be deemed
without further act or deed to have assumed all of the obligations arising under
this Lease from and after the date of such assignment. Any such assignee shall
execute and deliver to Landlord upon demand an instrument confirming such
assumption.
Section 9.11. The provisions of Sections 9.8, 9.9 and 9.10 hereof shall
survive the expiration or earlier termination of this Lease.
Section 9.12. In no event shall Tenant mortgage, encumber, pledge, grant a
security interest in, collaterally assign or conditionally transfer this Lease
or removable trade fixtures incorporated in or used in connection with the
Premises or any Subleases or any of the rents, issues and profits therefrom,
other than the grant of a security interest in Tenant's leasehold interest.
ARTICLE 10
SUBORDINATION
Section 10.1. This Lease shall be subject and subordinate to all
Mortgages now or hereinafter in effect and to all renewals, modifications,
consolidations, replacements and extensions of any such Mortgages; provided,
however, that the Mortgagee of such Mortgage shall execute and deliver to Tenant
an agreement to the effect that, if there shall be a foreclosure of its
Mortgage, such Mortgagee will not make Tenant a party defendant to such
foreclosure, unless necessary under applicable law for the Mortgagee to
foreclose, or if there shall be a foreclosure of such Mortgage, such Mortgagee
shall not evict Tenant, disturb Tenant's leasehold estate or rights hereunder,
in all events provided that no Event of Default then exists (any such agreement,
or any agreement of similar import, from a Mortgagee being hereinafter called a
"SUBORDINATION, NON-DISTURBANCE, AND ATTORNMENT AGREEMENT" or "SNDA"), and
Tenant shall attorn to the Mortgagee or any successor-in-interest to Landlord or
the Mortgagee. This Section 10.1 shall be self-operative and no further
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instrument of subordination other than an SNDA shall be required to make the
interest of any Mortgagee superior to the interest of Tenant hereunder.
Notwithstanding the previous sentence, however, Tenant shall, together with the
Mortgagee, execute and deliver promptly each SNDA that Landlord may request to
effect such subordination. If Tenant fails to execute and deliver to Landlord
any SNDA delivered to Tenant for Tenant's execution within ten (10) days after
Tenant's receipt of the same, (1) such failure shall constitute an Event of
Default hereunder until such time as it has been delivered to Landlord, (2)
Tenant shall be deemed to have agreed to all of the terms and provisions of such
SNDA, and (3) Tenant shall thereafter be estopped from disclaiming any of the
obligations, benefits and burdens set forth therein including, without
limitation, (i) the subordination of this Lease to any deed of trust, mortgage,
ground lease or similar instruments, (ii) any non-disturbance rights provided to
Tenant therein, and (iii) any attornment agreements of Tenant set forth therein.
If, in connection with the financing of the Premises, any lending institution or
Landlord shall request reasonable modifications of this Lease that do not
increase the monetary obligations of Tenant under this Lease or materially
increase the other obligations of Tenant under this Lease or materially and
adversely affect the rights of Tenant under this Lease, Tenant shall make such
modifications. The standards (i.e., time and manner of giving such consent and
standard of reasonableness, if applicable) of a Mortgagee's consent with respect
to this Lease shall be materially consistent with those to which Landlord is
subject under this Lease. Any Non-Disturbance Agreement may be made on the
condition that neither the Mortgagee nor anyone claiming by, through or under
such Mortgagee shall be:
(a) liable for any act or omission of any prior Landlord (including,
without limitation, the then defaulting Landlord);
(b) subject to any defense or offsets which Tenant may have against any
prior Landlord (including, without limitation, the then defaulting Landlord)
which arise prior to the date such Mortgagee (or someone acquiring at a
foreclosure sale related to the Mortgagee's Mortgage) acquires title to the
Premises;
(c) bound by any payment of Rent which Tenant might have paid for more
than the current month to any prior Landlord (including, without limitation, the
then defaulting Landlord);
(d) bound by any obligation to make any payment to Tenant which was
required to be made prior to the time such Landlord succeeded to any prior
Landlord's interest;
(e) bound by any obligation to perform any work or to make improvements
to the Premises;
(f) bound by any modification, amendment or supplement to this Lease
made without the prior written consent of the Mortgagee; or
(g) bound by any security deposit for Tenant's obligations under this
Lease unless such deposit is actually received by Mortgagee.
If required by any Mortgagee, Tenant promptly shall join in any
Non-Disturbance Agreement to indicate its concurrence with the provisions
thereof and its agreement, in the event of a foreclosure of any Mortgage to
attorn to such Mortgagee, as Tenant's landlord hereunder. Tenant shall promptly
so accept, execute and deliver any Non-Disturbance Agreement proposed by any
Mortgagee which conforms with the provisions of this Section 10.1. Any
Non-Disturbance Agreement may also contain other terms and conditions as may
otherwise be required by any Mortgagee which do not increase Tenant's monetary
obligations or materially and adversely affect the rights or obligations of
Tenant under this Lease.
Section 10.2. Tenant hereby agrees to give to any Mortgagee copies of
all notices given by Tenant of default by Landlord under this Lease at the same
time and in the same manner as, and whenever, Tenant shall give any such notice
of default to Landlord. Such Mortgagee shall have the right to remedy any
default under this Lease, or to cause any default of Landlord under this Lease
to be remedied, and for such purpose Tenant hereby grants such Mortgagee such
period of time as may be reasonable to enable such
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Mortgagee to remedy, or cause to be remedied, any such default in addition to
the period given to Landlord for remedying, or causing to be remedied, any such
default which is a default. Tenant shall accept performance by such Mortgagee of
any term, covenant, condition or agreement to be performed by Landlord under the
Lease with the same force and effect as though performed by Landlord. No default
under the Lease shall exist or shall be deemed to exist (i) as long as such
Mortgagee, in good faith, shall have commenced to cure such default and shall be
prosecuting the same to completion with reasonable diligence, subject to force
majeure, or (ii) if possession of the Premises is required in order to cure such
default, or if such default is not susceptible of being cured by such Mortgagee,
as long as such Mortgagee, in good faith, shall have notified Tenant that such
Mortgagee intends to institute proceedings under the Mortgage and, thereafter,
as long as such proceedings shall have been instituted and shall prosecute the
same with reasonable diligence and, after having obtained possession, prosecutes
the cure to completion with reasonable diligence. The Lease shall not be
assigned (subject to the provisions of Article 9) by Tenant or modified, amended
or terminated without such Mortgagee's prior written consent in each instance.
In the event of the termination of the Lease by reason of any default thereunder
or for any other reason whatsoever except the expiration thereof, upon such
Mortgagee's written request, given within thirty (30) days after any such
termination, Tenant, within fifteen (15) days after receipt of such request,
shall execute and deliver to such Mortgagee or its designee or nominee a new
lease of the Premises for the remainder of the Term of the Lease upon all of the
terms, covenants and conditions of this Lease. Neither such Mortgagee nor its
designee or nominee shall become liable under the Lease unless and until such
Mortgagee or its designee or nominee becomes, and then only for so long as such
Mortgagee or its designee or nominee remains, the fee owner of the Premises.
Such Mortgagee shall have the right, without Tenant's consent, to foreclose the
Mortgage or to accept a deed in lieu of foreclosure of such Mortgage.
ARTICLE 11
OBLIGATIONS OF TENANT
Section 11.1. Tenant shall promptly comply with all laws, ordinances,
orders, rules, regulations, and requirements of all Federal, state, municipal or
other governmental or quasi-governmental authorities or bodies then having
jurisdiction over the Premises (or any part thereof) and/or the use and
occupation thereof by Tenant, whether any of the same relate to or require (i)
structural changes to or in and about the Premises, or (ii) changes or
requirements incident to or as the result of any use or occupation thereof or
otherwise (collectively, the "REQUIREMENTS"), and subject to Article 7, Tenant
shall so perform and comply, whether or not such laws, ordinances, orders,
rules, regulations or requirements shall now exist or shall hereafter be enacted
or promulgated and whether or not the same may be said to be within the present
contemplation of the parties hereto.
Section 11.2. Tenant agrees to give Landlord notice of any law,
ordinance, rule, regulation or requirement enacted, passed, promulgated, made,
issued or adopted by any of the governmental departments or agencies or
authorities hereinbefore mentioned affecting in a material adverse manner (i)
the Premises, (ii) Tenant's use thereof or (iii) the financial condition of
Tenant, a copy of which is served upon or received by Tenant, or a copy of which
is posted on, or fastened or attached to the Premises, or otherwise brought to
the attention of Tenant, by mailing within five (5) business days after such
service, receipt, posting, fastening or attaching or after the same otherwise
comes to the attention of Tenant, a copy of each and every one thereof to
Landlord. At the same time, Tenant will inform Landlord as to the Work which
Tenant proposes to do or take in order to comply therewith. Notwithstanding the
foregoing, however, if such Work would require any Alterations which would, in
Landlord's opinion, reduce the value of the Premises or change the general
character, design or use of the Building or other improvements thereon, and if
Tenant does not desire to contest the same, Tenant shall, if Landlord so
requests, defer compliance therewith in order that Landlord may, if Landlord
wishes, contest or seek modification of or other relief with respect to such
Requirements, so long as Tenant is not put in violation of any law, ordinance,
rule, regulation or requirement enacted, passed, promulgated, made, issued or
adopted by any such governmental departments or agencies or authorities, but
nothing herein shall relieve Tenant of the duty and obligation, at Tenant's
expense, to comply with such Requirements, or such Requirements as modified,
whenever Landlord shall so direct.
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Section 11.3. Except in the case of the gross negligence or willful
misconduct of Landlord or its agents, BUT SPECIFICALLY INCLUDING SUCH PARTY'S
NEGLIGENCE OTHER THAN GROSS NEGLIGENCE, Tenant shall defend, indemnify and save
harmless Landlord, any partners of Landlord, any partners of any partners of
Landlord and any officers, stockholders, directors or employees of any of the
foregoing (collectively, "INDEMNIFIED PARTIES"), from (a) any and all
liabilities, claims, causes of actions, suits, damages and expenses
(collectively, "CLAIMS") arising from or under this Lease or Tenant's use,
occupancy and operations of, in or about the Premises prior to or during the
Term; and (b) all costs, expenses and liabilities incurred, including actual and
customary attorney's fees and disbursements through and including appellate
proceedings, in or in connection with any of such Claims. If any action or
proceeding shall be brought against any of the Indemnified Parties by reason of
any such Claims, Tenant, upon notice from any of the Indemnified Parties, shall
resist and defend such action or proceeding, at its sole cost and expense by
counsel to be selected by Tenant but otherwise satisfactory to such Indemnified
Party in its reasonable discretion. Tenant or its counsel shall keep each
Indemnified Party fully informed at all times of the status of such defense.
Notwithstanding the foregoing, an Indemnified Party may retain its own attorneys
to defend or assist in defending any claim, action or proceeding involving
potential liability in excess of Five Million Dollars ($5,000,000), and Tenant
shall pay the actual and customary fees and disbursements of such attorneys. The
provisions of this Section 11.3 shall survive the expiration or earlier
termination of this Lease.
Section 11.4. If at any time prior to or during the Term (or within the
statutory period thereafter if attributable to Tenant), any mechanic's or other
lien or order for payment of money, which shall have been either created by,
caused (directly or indirectly) by, or suffered against Tenant, shall be filed
against the Premises or any part thereof, Tenant, at its sole cost and expense,
shall cause the same to be discharged by payment, bonding or otherwise, within
ten (10) days after the filing thereof unless such lien or order is contested by
Tenant in good faith and Tenant provides sufficient security or evidence of
financial ability, in each case to the reasonable satisfaction of Landlord, to
pay the amount of such lien or order. Tenant shall, upon notice and request in
writing by Landlord, defend for Landlord, at Tenant's sole cost and expense, any
action or proceeding which may be brought on or for the enforcement of any such
lien or order for payment of money, and will pay any damages and satisfy and
discharge any judgment entered in such action or proceeding and save harmless
Landlord from any liability, claim or damage resulting therefrom. In default of
Tenant's procuring the discharge of any such lien as aforesaid Landlord may,
without notice, and without prejudice to its other remedies hereunder, procure
the discharge thereof by bonding or payment or otherwise, and all cost and
expense which Landlord shall incur shall be paid by Tenant to Landlord as
Additional Rent forthwith.
Section 11.5. Landlord shall not under any circumstances be liable to
pay for any work, labor or services rendered or materials furnished to or for
the account of Tenant upon or in connection with the Premises, and no mechanic's
or other lien for such work, labor or services or material furnished shall,
under any circumstances, attach to or affect the reversionary interest of
Landlord in and to the Premises or any alterations, repairs, or improvements to
be erected or made thereon. Nothing contained in this Lease shall be deemed or
construed in any way as constituting the request or consent of Landlord, either
express or implied, to any contractor, subcontractor, laborer or materialman for
the performance of any labor or the furnishing of any materials for any specific
improvement, alteration to or repair of the Premises or any part thereof, nor as
giving Tenant any right, power or authority to contract for or permit the
rendering of any services or the furnishing of any materials on behalf of
Landlord that would give rise to the filing of any lien against the Premises.
Section 11.6. Neither Landlord nor its agents shall be liable for any
loss of or damage to the property of Tenant or others by reason of casualty,
theft or otherwise, or for any injury or damage to persons or property resulting
from any cause of whatsoever nature, INCLUDING THAT WHICH IS CAUSED BY OR ARISES
BY THE NEGLIGENCE OF LANDLORD OR ITS AGENTS OTHER THAN THEIR GROSS NEGLIGENCE,
unless caused by or due to the gross negligence or willful misconduct of
Landlord, its agents, servants or employees.
Section 11.7. Landlord shall not be required to furnish to Tenant any
facilities or services of any kind whatsoever, including, but not limited to,
water, steam, heat, gas, oil, hot water, and/or electricity, all of which Tenant
represents and warrants that Tenant has obtained from the public utility
supplying the same, at
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Tenant's sole cost and expense. Upon Tenant's written request, however, Landlord
agrees to cooperate with Tenant (at no cost to Landlord) with respect to such
services.
ARTICLE 12
DEFAULT BY TENANT; REMEDIES
Section 12.1. Each of the following shall be deemed an event of default
(an "EVENT OF DEFAULT") and a breach of this Lease by Tenant:
(a) If Tenant shall fail to pay the Fixed Rent or any Tenant's Expense
Payment as and when due hereunder and such failure continues for a period of
five (5) days after written notice of such failure has been delivered to Tenant
(provided, however, that Landlord shall not be required to send more than two
(2) such notices to Tenant during any consecutive twelve (12) month period, and
thereafter it shall be an Event of Default if Tenant shall fail to pay the Fixed
Rent or any Tenant Expense payment when due).
(b) If Tenant shall fail to pay any Additional Rent required to be paid
by Tenant hereunder and such failure continues for a period of five (5) days
after written notice of such failure has been delivered to Tenant (provided,
however, that Landlord shall not be required to send more than two (2) such
notices to Tenant during any consecutive twelve (12) month period, and
thereafter it shall be an Event of Default if Tenant shall fail to pay any
Additional Rent when due).
(c) If Tenant shall default in the performance or observance of any of
the other agreements, conditions, covenants or terms herein contained, or if
such default is of such a nature that it can be remedied, then if such default
shall continue for thirty (30) days after written notice by Landlord to Tenant
(or if such default is of such a nature that it cannot be completely remedied
within said thirty (30) day period, then if Tenant does not agree in writing
within such thirty (30) day period to cure the same, commence and thereafter
diligently prosecute the cure and complete the cure within a reasonable period
of time under the circumstances after such original written notice of default by
Landlord to Tenant, but in any event prior to the time such failure would result
in a violation of applicable laws or a default by Landlord under any Mortgage).
(d) The occurrence and continuance of a Vacation of the Premises (as
hereinafter defined) or a Material Abandonment of the Premises (as hereinafter
defined).
(e) If Tenant shall transfer all or any of its interest in this Lease
without compliance with the provisions of this Lease applicable thereto.
(f) Tenant fails or refuses to execute any subordination agreement
required pursuant to Article 10 or estoppel certificate required pursuant to
Article 14 within ten (10) business days after Tenant's receipt thereof.
(g) Tenant shall fail to maintain any insurance that this Lease
requires Tenant to maintain.
(h) Tenant shall do or permit to be done any act which results in a
lien being filed against the Premises or any improvements of part thereof if
such lien is not released, bonded or otherwise provided for by indemnification
satisfactory to Landlord within thirty (30) days after Tenant first obtains
actual knowledge of such lien.
As used in this Lease, the phrase "VACATION OF THE PREMISES" shall mean vacating
the Premises without providing a reasonable level of security to minimize the
potential for vandalism, or where the coverage of the property insurance under
either or both of Sections 6.1(a) or 6.1(b) is jeopardized as a result thereof,
and the phrase "MATERIAL ABANDONMENT OF THE PREMISES" shall mean the abandonment
by Tenant of the Premises for ten (10) business days during any period of time
in which an Event of Default has occurred and is continuing.
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Section 12.2.
(a) If an Event of Default (i) described in Sections 12.1(c) or (e)
hereof shall occur and Landlord, at any time thereafter, at its option, gives
written notice to Tenant stating that this Lease shall terminate on the date
specified in such notice, which date shall be not less than three (3) days after
the giving of such notice, and if, on the date specified in such notice, Tenant
shall have failed to cure the default which was the basis for the Event of
Default, or (ii) described in Sections 12.1(a), (b), (d) or (f) hereof shall
occur, then all rights of Tenant under this Lease shall terminate and Tenant
immediately shall quit and surrender the Premises, which termination shall not
relieve Tenant from any liability then or thereafter accruing hereunder.
(b) If an Event of Default described in Sections 12.1(a) or (b) hereof
shall occur, or this Lease shall be terminated as provided in Section 12.2(a)
hereof, Landlord, without notice, and with or without court proceedings, (i) may
re-enter and repossess the Premises using such force for that purpose as may be
necessary without being liable to indictment, prosecution or damages therefor or
(ii) may dispossess Tenant by summary proceedings or otherwise, which re-entry
and repossession by Landlord shall not relieve Tenant from any liability then or
thereafter accruing hereunder, except that Tenant shall be entitled to any
credit for rent received from any reletting of the Premises or the value of the
Premises pursuant to Section 12.3(c) or (d).
Section 12.3. If this Lease shall be terminated as provided in Section
12.2(a) hereof and/or Tenant shall be dispossessed by summary proceedings or
otherwise as provided in Section 12.2(b) hereof:
(a) Tenant shall pay to Landlord all Rent payable under this Lease by
Tenant to Landlord to the date upon which this Lease shall have been terminated
or to the date of re-entry upon the Premises Landlord, as the case may be.
(b) Landlord may repair and alter the Premises in such manner as
Landlord may deem necessary or advisable without relieving Tenant of any
liability under this Lease or otherwise affecting any such liability, and/or let
or relet the Premises or any parts thereof for the whole or any part of the
remainder of the Term or for a longer period, in Landlord's name or as agent of
Tenant, and out of any rent and other sums collected or received as a result of
such reletting Landlord shall: (i) first, pay to itself the cost and expense of
terminating this Lease, re-entering, retaking, repossessing, repairing and/or
altering the Premises, or any part thereof, and the cost and expense of removing
all persons and property therefrom, including in such costs, market rate
brokerage commissions, actual and customary legal expenses and attorneys' fees
and disbursements, (ii) second, pay to itself the cost and expense sustained in
securing any new tenants and other occupants, including in such costs, market
rate brokerage commissions, actual and customary legal expenses and attorneys'
fees and disbursements and other expenses of preparing the Premises for
reletting, and, if Landlord shall maintain and operate the Premises, the cost
and expense of operating and maintaining the Premises, and (iii) third, pay to
itself any balance remaining on account of the liability of Tenant to Landlord.
Landlord in no way shall be responsible or liable for any failure to relet the
Premises or any part thereof, or for any failure to collect any rent due on any
such reletting, and no such failure to relet or to collect rent shall operate to
relieve Tenant of any liability under this Lease or to otherwise affect any such
liability;
(c) Tenant shall be liable for and shall pay to Landlord, as damages,
any deficiency (referred to as "DEFICIENCY"), between the Rent reserved in this
Lease for the period which otherwise would have constituted the unexpired
portion of the Term and the net amount, if any, of rents collected under any
reletting effected pursuant to the provisions of Section 12.3(b) hereof for any
part of such period, first deducting from the rents collected under any such
reletting all of the payments to Landlord described in Section 12.3(b) hereof;
any such Deficiency shall be paid in installments by Tenant on the days
specified in this Lease for payment of installments of Rent, and Landlord shall
be entitled to recover from Tenant each Deficiency installment as the same shall
arise, and no suit to collect the amount of the Deficiency for any installment
period shall prejudice Landlord's right to collect the Deficiency for any
subsequent installment period by a similar proceeding; and
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(d) whether or not Landlord shall have collected any Deficiency
installments as aforesaid, Landlord shall be entitled to recover from Tenant,
and Tenant shall pay to Landlord, on demand, in lieu of any further
Deficiencies, as and for liquidated and agreed final damages (it being agreed
that it would be impracticable or extremely difficult to fix the actual damage),
a sum equal to the amount by which the Rent reserved in this Lease for the
period which otherwise would have constituted the unexpired portion of the Term
exceeds the then fair and reasonable rent value of the Premises for the same
period, both discounted present worth at the rate of the then applicable rate of
interest on United States Treasury Securities having terms to maturity most
closely matching the unexpired portion of the Term, less the aggregate amount of
Deficiencies theretofore collected by Landlord pursuant to the provisions of
Section 12.3(c) hereof for the same period; it being agreed that before
presentation of proof of such liquidated damages to any court, commission or
tribunal, if the Premises, or any part thereof, shall have been relet by
Landlord for the period which otherwise would have constituted the unexpired
portion of the Term, or any part thereof, the amount of rent reserved upon such
reletting shall be deemed, prima facie, to be the fair and reasonable rental
value for the part or the whole of the Premises so relet during the term of the
reletting.
Section 12.4. Subject to credits pursuant to Section 12.3(c) and (d)
above, no termination of this Lease pursuant to Section 12.2(a) hereof, and no
taking possession of and/or reletting the Premises, or any part thereof,
pursuant to Sections 12.2(b) and 12.3(b) hereof, shall relieve Tenant of its
liabilities and obligations hereunder, all of which shall survive such
expiration, termination, repossession or reletting.
Section 12.5. To the extent not prohibited by law, Tenant hereby waives
and releases all rights now or hereafter conferred by statute or otherwise which
would have the effect of limiting or modifying any of the provisions of this
Article 12. Tenant shall execute, acknowledge and deliver any instruments which
Landlord may request, whether before or after the occurrence of an Event of
Default, evidencing such waiver or release.
Section 12.6. The Rent payable by Tenant hereunder and each and every
installment thereof, and all costs, actual and customary attorneys' fees and
disbursements and other expenses which may be incurred by Landlord in enforcing
the provisions of this Lease on account of any delinquency of Tenant in carrying
out the provisions of this Lease shall be and they hereby are declared to
constitute a valid lien upon the interest of Tenant in this Lease and in the
Premises.
Section 12.7. Suit or suits for the recovery of damages, or for a sum
equal to any installment or installments of Rent payable hereunder or any
Deficiencies or other sums payable by Tenant to Landlord pursuant to this
Article 12, may be brought by Landlord from time to time at Landlord's election,
and nothing herein contained shall be deemed to require Landlord to await the
date whereon this Lease or the Term would have expired by limitation had there
been no Event of Default by Tenant and termination.
Section 12.8. Nothing contained in this Article 12 shall limit or
prejudice the right of Landlord to prove and obtain as liquidated damages in any
bankruptcy, insolvency, receivership, reorganization or dissolution proceeding
an amount equal to the maximum allowed by a statute or rule of law governing
such proceeding and in effect at the time when such damages are to be proved,
whether or not such amount shall be greater than, equal to or less than the
amount of the damages referred to in any of the preceding Sections of this
Article 12.
Section 12.9. No receipt of moneys by Landlord from Tenant after
termination of this Lease, or after the giving of any notice of the termination
of this Lease shall reinstate, continue or extend the Term or affect any of the
right of Landlord to enforce the payment of Rent payable by Tenant hereunder or
thereafter falling due, or operate as a waiver of the right of Landlord to
recover possession of the Premises by proper remedy, except as herein otherwise
expressly provided, it being agreed that after the service of notice to
terminate this Lease or the commencement of any suit or summary proceedings, or
after a final order or judgment for the possession of the Premises, Landlord may
demand, receive and collect any monies due or thereafter falling due without in
any manner affecting such notice, proceedings, order, suit or judgment, all such
monies collected being deemed payments on account of tenant's liability
hereunder.
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Section 12.10. Except as otherwise expressly provided herein or as
prohibited by applicable law, Tenant hereby expressly waives the service of any
notice of intention to re-enter provided for in any statute, or of the
institution of legal proceedings to that end, and Tenant, for and on behalf of
itself and all persons claiming through or under Tenant, also waives any and all
right of redemption provided by any law or statute now in force or hereafter
enacted or otherwise, or re-entry or repossession or to restore the operation of
this Lease in case Tenant shall be dispossessed by a judgment or by warrant of
any court or judge or in case of re-entry or repossession by Landlord or in case
of any expiration or termination of this Lease, and Landlord and Tenant waive
and shall waive trial by jury in any action, proceeding or counterclaim brought
by either of the parties hereto against the other on any matter whatsoever
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant, Tenant's use or occupancy of the Premises, or any claim of
injury or damage.
Section 12.11. No failure by Landlord to insist upon the strict
performance of any covenant, agreement, term or condition of this Lease or to
exercise any right or remedy consequent upon a breach thereof, and no acceptance
of full or partial Rent during the continuance of any such breach, shall
constitute a waiver of any such breach or of such covenant, agreement, term or
condition. No covenant, agreement, term or condition of this Lease to be
performed or complied with by Tenant, and no breach thereof, shall be waived,
altered or modified except by a written instrument executed by Landlord. No
waiver of any breach shall affect or alter this Lease, but each and every
covenant, agreement, term and condition of this Lease shall continue in full
force and effect with respect to any other then existing or subsequent breach
thereof.
Section 12.12. In the event of any breach or threatened breach by
Tenant of any of the covenants, agreements, terms or conditions contained in
this Lease, Landlord shall be entitled to a decree compelling performance of any
of the provisions hereof, and shall have the right to invoke any rights and
remedies allowed at law or in equity or by statute or otherwise as though
re-entry, summary proceedings, and other remedies were not provided for in this
Lease.
Section 12.13. Tenant shall pay to Landlord all costs and expenses,
including, without limitation, attorneys' fees and disbursements, incurred by
Landlord in any action or proceeding to which Landlord may be made a party by
reason of any act or omission of Tenant. Tenant also shall pay to Landlord all
costs and expenses, including, without limitation, actual and customary
attorneys' fees and disbursements, incurred by Landlord in enforcing any of the
covenants and provisions of this Lease and incurred in any action brought by
Landlord against Tenant on account of the provisions hereof, and all such costs,
expenses and attorneys' fees and disbursements may be included in and form a
part of any judgment entered in any proceeding brought by Landlord against
Tenant on or under this Lease. All of the sums paid or obligations incurred by
Landlord as aforesaid, with interest and costs, shall be paid by Tenant to
Landlord on demand.
Section 12.14. If an Event of Default shall occur under this Lease and
Tenant shall fail to cure the same, Landlord may (a) perform the same for the
account of Tenant and/or (b) make any expenditure or incur any obligation for
the payment of money in connection with any obligation owed to Landlord,
including, but not limited to, reasonable attorneys' fees and disbursements in
instituting, prosecuting or defending any action or proceeding, with interest
thereon at the Default Rate and such amounts shall be deemed to be Additional
Rent hereunder and shall be paid by Tenant to Landlord immediately upon demand
therefor. Default Rate shall have the meaning ascribed to it in Article B of
this Lease; provided, however, that for purposes of this Article 12, such
Default Rate shall never exceed the maximum non-usurious rate permitted by
applicable law.
Section 12.15. If Tenant shall fail to pay any installment of Fixed
Rent when due or any Additional Rent within ten (10) days after the date when
such payment is due, Tenant shall pay to Landlord, in addition to such
installment of Fixed rent or such Additional Rent, as the case may be, interest
on the amount unpaid at the Default Rate, computed from the date such payment
was due to and including the date of payment. If an Event of Default shall
occur, Tenant agrees that Landlord shall not be liable for any damages suffered
by Tenant as a result of Landlord's exercising its remedies under Section 12.2
CAUSED BY THE NEGLIGENCE OF LANDLORD OR OTHERWISE.
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ARTICLE 13
NO WAIVER
Section 13.1. No receipt of moneys by Landlord from Tenant after the
termination or cancellation of this Lease shall reinstate, continue or extend
the term, or affect any notice theretofore given to Tenant, or operate as a
waiver of the right of Landlord to enforce the payment of Fixed Rent or
Additional Rent then due, or thereafter falling due, or operate as a waiver of
the right of Landlord to recover possession of the Premises by proper suit,
action, proceeding or remedy; it being agreed that, after the service of notice
to terminate or cancel this Lease, or the commencement of suit, action or
summary proceedings, or any other remedy, or after a final order or judgment for
the possession of the Premises, Landlord may demand, receive and collect any
moneys due, or thereafter falling due, without, in any manner whatsoever,
affecting such notice, proceeding, suit, action, order or judgment; and any and
all such moneys collected shall be deemed to be payments on account of the use
and occupation of the Premises or, at the election of Landlord, on account of
Tenant's liability hereunder.
Section 13.2. The failure of Landlord or Tenant to enforce any
agreement, condition, covenant or term, by reason of its breach by Tenant or
Landlord, as the case may be, shall not be deemed to void, waive or affect the
right of Landlord or Tenant to enforce the same agreement, condition, covenant
or term on the occasion of a subsequent default or breach.
Section 13.3. The specific remedies to which Landlord may resort under
the terms of this Lease are cumulative and are not intended to be exclusive of
any other remedies or means of redress to which Landlord may be lawfully
entitled in case of any breach or threatened breach by Tenant of any of the
terms, covenants and conditions of this Lease. The failure of Landlord or Tenant
to insist in any one or more cases upon the strict performance of any of the
terms, covenants and conditions of this Lease, or to exercise any right or
remedy herein contained, shall not be construed as a waiver or relinquishment
for the future performance of such terms, covenants and conditions. The receipt
by Landlord, or payment by Tenant, of Rent with knowledge of the breach of any
of such terms, covenants and conditions shall not be deemed a waiver of such
breach. The acceptance of any check or payment bearing or accompanied by any
endorsement, legend or statements shall not, of itself, constitute any change in
or termination of this Lease. No surrender of the Premises by Tenant (prior to
any termination of this Lease) shall be valid unless consented to in writing by
Landlord. In addition to the other remedies in this Lease provided, Landlord or
Tenant shall be entitled to the restraint by injunction of the violation or
attempted or threatened violation of any of the terms, covenants and conditions
of this Lease or to a decree compelling performance of any of such terms,
covenants and conditions.
ARTICLE 14
ESTOPPEL CERTIFICATE
Section 14.1. Tenant agrees that it shall, at any time and from time to
time upon not less than ten (10) days' prior notice by Landlord execute,
acknowledge and deliver to Landlord a statement in writing certifying that this
Lease is unmodified and in full force and effect (or if there have been any
modifications, that the Lease is in full force and effect as modified and
stating the modifications), the dates to which the Fixed Rent and Additional
Rent have been paid, and stating whether or not Landlord is in default in
keeping, observing or performing any term, covenant, agreement, provision,
condition or limitation contained in this Lease and, if in default, specifying
each such default, the Commencement Date and Expiration Date for the current
Term and any other matters reasonably requested by Landlord; it being intended
that any such statement delivered pursuant to this Article 14 may be relied upon
by Landlord or any prospective purchaser of the Premises or any Mortgagee
thereof or any assignee of any Mortgage upon the Premises.
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ARTICLE 15
QUIET ENJOYMENT
Section 15.1. Tenant, upon payment of the Rent herein reserved and upon
the due performance and observance of all the covenants, conditions and
agreements herein contained on Tenant's part to be performed and observed, shall
and may at all times during the Term peaceably and quietly have, hold and enjoy
the Premises without any manner of suit, trouble or hindrance of and from any
person claiming by, through or under Landlord, subject, nevertheless, to the
terms and provisions of this Lease. No failure by Landlord to comply with the
foregoing covenant shall give Tenant any right to cancel or terminate this Lease
or to xxxxx, reduce or make a deduction from or offset against the Fixed Rent or
any Additional Rent, or to fail to perform any other obligation of Tenant
hereunder.
ARTICLE 16
SURRENDER
Section 16.1. Tenant shall, on the last day of the Term, or upon the
sooner termination of the Term, quit and surrender to Landlord the Premises
vacant, free of all equipment, furniture and other movable personal property of
Tenant, and in the same good order and condition as on the Commencement Date,
and Tenant shall remove or demolish all of the fixtures, structures and other
improvements which Landlord shall have elected to cause Tenant to remove
pursuant to and in accordance with Section 5.7 hereof. Tenant's obligation to
observe and perform this covenant shall survive the expiration or earlier
termination of the Term.
Section 16.2. Upon the expiration of the Term, all Fixed Rent and
Additional Rent and other items payable by Tenant under this Lease shall be
apportioned to the date of termination.
Section 16.3. Tenant acknowledges that possession of the Premises must
be surrendered to Landlord at the expiration or sooner termination of the term
of this Lease. Tenant agrees to indemnify Landlord against and save Landlord
harmless from all costs, claims, loss or liability excluding consequential
damages) resulting from the failure or delay by Tenant in so surrendering the
Premises, including, without limitation, any claims made by any succeeding
tenant founded on such failure or delay. The parties recognize and agree that
the damage to Landlord resulting from any failure by Tenant to timely surrender
possession of the Premises as aforesaid will be extremely substantial, will
exceed the amount of the Fixed Rent theretofore payable hereunder, and will be
impossible to accurately measure. Tenant therefore agrees that if possession of
the Premises is not surrendered to Landlord upon the expiration or sooner
termination of the Term, then Tenant shall pay to Landlord, as liquidated
damages for each month and for each portion of any month during which Tenant
holds over in the Premises after the expiration or sooner termination of the
Term, in addition to any sums payable pursuant to the foregoing indemnity, a sum
equal to the higher of the then fair market rental value of the Premises, taking
into account the effect of all material factors reasonably relevant to such
determination, or one and one-half (1 1/2) times the aggregate of the Fixed Rent
which was payable under this Lease with respect to the last month of the Term
hereof. Nothing herein contained shall be deemed to permit Tenant to retain
possession of the Premises after the expiration or sooner termination of the
Term. If Tenant holds over in possession after the expiration or termination of
the Term, such holding over shall not be deemed to extend the Term or renew this
Lease, but the tenancy thereafter shall continue as a tenancy from month to
month upon the terms and conditions of this Lease at the Fixed Rent as herein
increased. Tenant hereby waives the benefit of any law or statute in effect in
the state where the Premises is located which would contravene or limit the
provisions set forth in this Section 16.3. This provision shall survive the
expiration or earlier termination of this Lease.
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ARTICLE 17
ACCESS
Section 17.1. Landlord shall at all times during the Term have the
right and privilege to enter the Premises at reasonable times during business
hours for the purpose of inspecting the same or for the purpose of showing the
same to prospective purchasers or Mortgagees thereof. Landlord shall also have
the right and privilege at all times during the Term to post notices of
nonresponsibility for work performed by or on behalf of Tenant.
Section 17.2. Landlord shall at all times during the Term have the
right to enter the Premises or any part thereof, following reasonable notice
from Landlord and so long as Landlord uses its reasonable best efforts to not
unduly interfere with Tenant's normal business operations, for the purpose of
making such repairs or Alterations therein as Landlord deems necessary or
advisable, but such right of access shall not be construed as obligating
Landlord to make any repairs to or replacements to the Premises or as obligating
Landlord to make any inspection or examination of the Building. Notwithstanding
the foregoing, in the event of an emergency, Landlord shall have the right to
enter the Premises or any part thereof without prior notice to Tenant.
ARTICLE 18
ENVIRONMENTAL MATTERS
Section 18.1. Tenant will not use, generate, manufacture, produce,
store, release, discharge or dispose of on, under, from or about the Premises or
transport to or from the Premises any Hazardous Substance and will use its best
efforts not to allow or suffer any other person or entity to do so.
Section 18.2. Tenant shall keep and maintain the Premises in compliance
with, and shall use its best efforts not to cause, permit or suffer the Premises
to be in violation of any Environmental Law (as defined below). Landlord
represents and warrants to Tenant that Landlord has no knowledge, nor has
Landlord received written notice from any governmental authority since Landlord
acquired the Premises, of any existing or threatened violation of any
Environmental Laws relating to the Premises.
Section 18.3. Tenant shall give prompt written notice to Landlord of:
(a) becoming aware of any use, generation, manufacture, production,
storage, release, discharge or disposal of any Hazardous Substance on, under,
from or about the Premises or the migration thereof to or from other property;
(b) the commencement, institution or threat of any proceeding, inquiry
or action by or notice from any local, state or federal governmental authority
with respect to the use or presence of any Hazardous Substance on the Premises
or the migration thereof from or to other property;
(c) all claims made or threatened by any third party against Tenant or
the Premises relating to any damage, contribution, cost recovery, compensation,
loss or injury resulting from any Hazardous Substance;
(d) Tenant's discovery of any occurrence or condition on any real
property adjoining or in the vicinity of the Premises that could cause the
Premises or any part thereof to be subject to any restrictions on the ownership,
occupancy, transferability or use of the Premises under any Environmental Law,
or any regulation adopted in accordance therewith, or to be otherwise subject to
any restrictions on the ownership, occupancy, transferability or use of the
Premises under any Environmental Law; and
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(e) obtaining knowledge of any incurrence of expense by any
governmental authority or others in connection with the assessment, containment
or removal of any Hazardous Substance located on, under, from or about the
Premises or any property adjoining or in the vicinity of the Premises.
Section 18.4. Landlord shall have the right, but not the obligation, to
join and participate in, as a party if it so elects, any legal proceedings or
actions initiated with respect to the Premises in connection with any
Environmental Law and have its actual and customary attorneys' fees in
connection therewith paid by Tenant or be defended by Tenant from and against
any such proceedings or actions with counsel chosen by Landlord (provided that
Landlord and Tenant shall attempt, in good faith, to agree on one counsel to
represent both Landlord and Tenant, if in Landlord's good faith determination
such joint representation is feasible or appropriate under the circumstances),
and shall have the right to make inquiry of and disclose all information to
appropriate governmental authorities when advised by counsel that such
disclosure may be required under applicable law.
Section 18.5. Without Landlord's prior written consent, which consent
shall not be unreasonably withheld or delayed, Tenant shall not take any
remedial action in response to the presence of any Hazardous Substance on,
under, from or about the Premises, nor enter into any settlement, consent or
compromise which might, in Landlord's reasonable judgment, impair the value of
Landlord's interest in the Premises under this Lease; provided, however, that
Landlord's prior consent shall not be necessary if the presence of Hazardous
Substance on, under, from or about the Premises either poses an immediate threat
to the health, safety or welfare of any individual or is of such a nature that
an immediate remedial response is necessary and it is not practical or possible
to obtain Landlord's consent before taking such action. In such event Tenant
shall notify Landlord as soon as practicable of any action so taken. Landlord
agrees not to withhold its consent, where such consent is required hereunder, if
either (i) a particular remedial action is ordered by a court or any agency of
competent jurisdiction, or (ii) Tenant establishes to the reasonable
satisfaction of Landlord that there is no reasonable alternative to such
remedial action which would result in less impairment of Landlord's security
hereunder.
Section 18.6. Tenant shall protect, indemnify and hold harmless
Landlord and each Mortgagee, their respective directors, officers, partners
employees, agents, successors and assigns from and against any and all claim,
loss, damage, cost, expense, liability, fines, penalties, charges,
administrative and judicial proceedings and orders, judgments, remedial action
requirements, enforcement actions of any kind (including, without limitation,
attorneys' fees and costs) directly or indirectly arising out of or attributable
to, in whole or in part, the breach of any of the covenants, representations and
warranties of this Article 18 or the use, generation, manufacture, production,
storage, release, threatened release, discharge, disposal, or presence of a
Hazardous Substance on, under, from or about the Premises caused by Tenant or
any employees, agents, licensees, sublessees, contractors or subcontractors of
Tenant during the Term, or any other activity carried on or undertaken on or off
the Premises during the Term by Tenant, any employees, agents, licensees,
sublessees, contractors or subcontractors of Tenant, in connection with the
handling, treatment, removal, storage, decontamination, clean-up, transport or
disposal of any Hazardous Substance at any time located or present on, under,
from or about the Premises, including, without limitation: (i) all consequential
damages; (ii) the costs of any required or necessary repair, cleanup or
detoxification of the Premises and the preparation and implementation of any
closure, remedial or other required plans including, without limitation: (A) the
costs of removal or remedial action incurred by the United States Government or
the state in which the Premises are located, or response costs incurred by any
other person, or damages from injury to, destruction of, or loss of natural
resources, including the costs of assessing such injury, destruction or loss,
incurred pursuant any Environmental Law; (B) the clean-up costs, fines, damages
or penalties incurred pursuant to the provisions of applicable state law; and
(C) the cost and expenses of abatement, correction or clean-up, fines, damages,
response costs or penalties which arise from the provisions of any other
statute, state or federal; and (iii) liability for personal injury or property
damage, including damages assessed for the maintenance of the public or private
nuisance, response costs or for the carrying on of an abnormally dangerous
activity.
The foregoing indemnity shall further apply to any residual
contamination on, under, from or about the Premises, or affecting any natural
resources arising in connection with the use, generation,
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manufacturing, production, handling, storage, transport, discharge or disposal
of any such Hazardous Substance, and irrespective of whether any of such
activities were or will be undertaken in accordance with Environmental Law or
other applicable laws, regulations, codes and ordinances. This indemnity is
intended to be operable under 42 U.S.C. Section 9607(e)(1), and any successor
section thereof and shall survive expiration or earlier termination of this
Lease and any transfer of all or a portion of the Premises by Tenant.
The foregoing indemnity shall in no manner be construed to limit or
adversely affect Landlord's rights under this Article 18, including, without
limitation, Landlord's rights to approve any Remedial Work (as defined below) or
the contractors and consulting engineers retained in connection therewith.
Notwithstanding anything to the contrary contained in this Lease, in no event
will Tenant have any liability or obligation under this Lease or with respect to
the Premises for Hazardous Substances existing in, on, under or about the
Premises on the Commencement Date or any violation of Environmental Laws prior
to or existing on the Commencement Date.
Section 18.7. In the event that any investigation, site monitoring,
containment, cleanup, removal, restoration or other remedial work of any kind or
nature (the "REMEDIAL WORK") is required by any applicable local, state or
federal law or regulation, any judicial order, or by any governmental entity or
person because of, or in connection with, the current or future presence,
suspected presence, release or suspected release of a Hazardous Substance in or
into the air, soil, groundwater, surface water or soil vapor at, on, about,
under or within the Premises (or any portion thereof), Tenant shall within
thirty (30) days after written demand for performance thereof by Landlord (or
such shorter period of time as may be required under any applicable law,
regulation, order or agreement), commence to perform, or cause to be commenced,
and thereafter diligently prosecute to completion within such period of time as
may be required under any applicable law, regulation, order or agreement, all
such Remedial Work at Tenant's sole expense in accordance with the requirements
of any applicable governmental authority or Environmental Law. All Remedial Work
shall be performed by one or more contractors, approved in advance in writing by
Landlord, and under the supervision of a consulting engineer approved in advance
in writing by Landlord. All costs and expenses of such Remedial Work shall be
paid by Tenant, including, without limitation, the charges of such contractor(s)
and/or the consulting engineer, and Landlord's actual and customary attorneys'
fees and costs incurred in connection with monitoring or review of such Remedial
Work. In the event Tenant shall fail to timely commence, or cause to be
commenced, or fail to complete the Remedial Work within the time required above,
Landlord may, but shall not be required to, cause such Remedial Work to be
performed and all costs and expenses thereof, or incurred in connection
therewith shall become part of the indebtedness secured hereby.
Section 18.8. All costs and expenses incurred by Landlord under this
Article 18 shall be immediately due and payable as Additional Rent upon demand
and shall bear interest at the Default Rate from the date of notice of such
payment by Landlord and the expiration of any grace period provided herein until
repaid.
Section 18.9. "ENVIRONMENTAL LAWS" shall mean any federal, state or
local law, statute, ordinance or regulation pertaining to health, industrial
hygiene, hazardous waste or the environmental conditions on, under, from or
about the Premises, including, without limitation, the laws listed in the
definition of Hazardous Substances below.
Section 18.10. "HAZARDOUS SUBSTANCES" shall mean any element, compound,
chemical mixture, contaminant, pollutant, material, waste or other substance
which is defined, determined or identified as a "hazardous substance",
"hazardous waste" or "hazardous material" under any federal, state or local
statute, regulation or ordinance applicable to a Real Property, as well as any
amendments and successors to such statutes and regulations, as may be enacted
and promulgated from time to time, including, without limitation, the following:
(i) the Comprehensive Environmental Response, Compensation and Liability Act of
1980 (codified in scattered sections of 26 U.S.C., 33 U.S.C., 42 U.S.C. and 42
U.S.C. Section 9601 et seq.); (ii) the Resource Conservation and Recovery Act of
1976 (42 U.S.C. Section 6901 et. seq.); (iii) the Hazardous Materials
Transportation Act (49 U.S.C. Section 1801 et. seq.); (vi) the Toxic Substances
Control Act (15 U.S.C. Section 2601 et. seq.); (v) the Clean Air Act (33 U.S.C.
Section 1251 et. seq.); (vi) the Clean Air Act (42 U.S.C.Section 7401 et. seq.);
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(vii) the Safe Drinking Water Act (21 U.S.C. Section 349; 42 U.S.C. Section 201
and Section 300f et. seq.); (viii) the National Environmental Policy Act of 1969
(42 U.S.C. Section 3421); (ix) the Superfund Amendment and Reauthorization Act
of 1986 (codified in scattered sections of 10 U.S.C., 29 U.S.C., 33 U.S.C. and
42 U.S.C.); and (x) Title III of the Superfund Amendment and Reauthorization Act
(40 U.S.C. Section 1101 et. seq.).
Section 18.11. All representations, warranties, covenants and
indemnities of Tenant in this Article 18 shall continue to be binding upon
Tenant, and its successors and assigns, after the expiration or earlier
termination of this Lease.
ARTICLE 19
MISCELLANEOUS PROVISIONS
Section 19.1. It is mutually agreed by and between Landlord and Tenant
that the respective parties shall and they hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Lease, Tenant's use or occupancy of the Premises, and/or any
claim of injury or damage excluding any claim for personal injury or property
damage.
Section 19.2. Tenant and the other parties occupying a part of the
Premises pursuant to a lease or license arrangement with Tenant may place a sign
on the Premises to indicate the nature of the business of Tenant and such
parties. The sign shall be lawful under applicable sign codes and subdivision
covenants.
Section 19.3.
(a) The term "LANDLORD" as used herein shall mean only the owner or the
mortgagee in possession for the time being of the Premises, so that in the event
of any sale, transfer or conveyance of the Premises Landlord shall be and hereby
is entirely freed and relieved of all agreements, covenants and obligations of
Landlord thereafter accruing hereunder, and it shall be deemed and construed
without further agreement between the parties or their successors in interest or
between the parties and the purchaser, transferee or grantee at any such sale,
transfer or conveyance that such purchaser, transferee or grantee has assumed
and agreed to carry out any and all agreements, covenants and obligations of
Landlord hereunder.
(b) The term "TENANT" as used herein shall mean the tenant named
herein, and from and after any valid assignment or transfer in whole of said
Tenant's interest under this Lease pursuant to the provisions of Article 9,
shall mean only the assignee or transferee thereof; but the foregoing shall not
release the assignor or transferor from liability under this Lease.
(c) The words "ENTER", "RE-ENTER", "ENTRY" and "RE-ENTRY" as used in
this Lease shall not be restricted to their technical legal meaning.
(d) The use herein of the neuter pronoun in any reference to Landlord
or Tenant shall be deemed to include any individual Landlord or Tenant, and the
use herein of the words "SUCCESSOR AND ASSIGNS" or "SUCCESSORS OR ASSIGNS" of
Landlord or Tenant shall be deemed to include the heirs, executors,
administrators, representatives and assigns of any individual Landlord or
Tenant.
Section 19.4. The headings herein are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
or intent of this Lease nor in any way affect this Lease.
Section 19.5. This Lease shall be governed by and construed in
accordance with the laws of the state in which the Premises are located.
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Section 19.6. This Lease contains the entire agreement between the
parties and may not be extended, renewed, terminated or otherwise modified in
any manner except by an instrument in writing executed by the party against whom
enforcement of any such modification is sought. All prior understandings and
agreements between the parties and all prior working drafts of this Lease are
merged in this Lease, which alone expresses the agreement of the parties. The
parties agree that no inferences shall be drawn from matters deleted from any
working drafts of this Lease.
Section 19.7. The agreements, terms, covenants and conditions herein
shall bind and inure to the benefit of Landlord and Tenant and their respective
heirs, personal representatives, successors and, except as is otherwise provided
herein, their assigns.
Section 19.8. Notice whenever provided for herein shall be in writing
and shall be given either by personal delivery, overnight express mail or by
certified or registered mail, return receipt requested, to Landlord and Tenant
at their respective addresses set forth in Article A above, or to such other
persons or at such other addresses as may be designated from time to time by
written notice from either party to the other. Notices shall be deemed given (i)
when delivered personally if delivered on a business day (or if the same is not
a business day, then the next business day after delivery), (ii) three (3)
business days after being sent by United States mail, registered or certified
mail, postage prepaid, return receipt requested or (iii) if delivery is made by
Federal Express or a similar, nationally recognized overnight courier service
for 9:00 a.m. delivery, then on the date of delivery (or if the same is not a
business day, then the next business day after delivery), if properly sent and
addressed in accordance with the terms of this Section 19.8.
Section 19.9. If any provision of this Lease shall be invalid or
unenforceable, the remainder of the provisions of this Lease shall not be
affected thereby and each and every provision of this Lease shall be enforceable
to the fullest extent permitted by law.
Section 19.10. Tenant represents and warrants to Landlord that Tenant
has not dealt with any real estate broker in connection with this Lease. Tenant
agrees to indemnify Landlord and save Landlord harmless from any and all claims
for brokerage commissions by any other person, firm, corporation or other entity
claiming to have brought about this Lease transaction. Landlord represents and
warrants to Tenant that Landlord has not dealt with any real estate broker in
connection with this Lease. Landlord agrees to indemnify Tenant and save Tenant
harmless from any and all claims for brokerage commissions by any other person,
firm, corporation or other entity claiming to have brought about this Lease
transaction. The provisions of this Section 19.10 shall survive the expiration
or earlier termination of this Lease.
Section 19.11. Tenant is and shall be in exclusive control and
possession of the Premises, and Landlord shall not, in any event whatsoever, be
liable for any injury or damage to any property or to any person happening in,
on or about the Premises, nor for any injury or damage to any property of
Tenant, or of any other person or persons contained therein unless the same is
caused by Landlord's negligent acts or omissions. The provisions hereof,
including without limitation Article 17, permitting Landlord to enter and
inspect the Premises are made for the purpose of enabling Landlord to be
informed as to whether Tenant is complying with the agreements, terms, covenants
and conditions hereof, and if Landlord so desires, to do such acts as Tenant
shall fail to do.
Section 19.12. A memorandum of this Lease as set forth on Exhibit "B"
attached hereto and incorporated herein by this reference shall be recorded. The
memorandum of lease shall incorporate the basic terms and conditions hereof but
shall delete any statement or mention of the rental payments.
Section 19.13. The parties took equal part in drafting this Lease and
no rule of construction that would cause any of the terms hereof to be construed
against the drafter shall be applicable to the interpretation of this Lease.
Section 19.14. In the event of a default by Tenant, following the
expiration of the applicable cure period, if any, Tenant shall and hereby does
appoint Landlord the attorney-in-fact of Tenant, irrevocably, to
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execute and deliver any documents provided for in Section 14.1 for and in the
name of Tenant, such power, being coupled with an interest, being irrevocable.
Section 19.15. Time is strictly of the essence with respect to each and
every term and provision of this Lease.
Section 19.16. The time within which either party hereto shall be
required to perform any act under this Lease, other than the payment of money,
shall be extended by a period of time equal to the number of days during which
performance of such act is delayed by strikes, lockouts, acts of God,
governmental restrictions, failure or inability to secure materials or labor by
reason of priority or similar regulation or order of any governmental or
regulatory body, enemy action, civil disturbance, fire, unavoidable causalities
or any other cause beyond the reasonable control of either party hereto (but
excluding delays due to financial inability) (all of the foregoing are herein
collectively called "FORCE MAJEURE DELAYS"). The provisions of this Section
shall not apply to nor operate to excuse Tenant from the payment of Rent
strictly in accordance with this Lease. If Landlord shall be in default under
this Lease and, if as a consequence of such default, Tenant shall recover a
money judgement against Landlord, such judgment shall be satisfied only out of
right, title and interest of Landlord in the Premises as the same may then be
encumbered and neither Landlord nor any person or entity comprising Landlord
shall be liable for any deficiency. In no event shall Tenant have the right to
levy execution against any property of Landlord nor any person or entity
comprising Landlord other than its interests in the Premises as herein expressly
provided. Notwithstanding anything to the contrary contained herein, in no event
shall Landlord be liable for consequential or special damages for a breach of or
default under this Lease.
Section 19.17.
ARTICLE 20
LANDLORD'S ADDITIONAL TERMINATION RIGHT
Section 20.1. If, during the Term, Landlord intends to sell the
Premises to third party that will occupy the Building after the closing of such
sale, Landlord may terminate this Lease by giving Tenant at least six (6) months
advanced written notice thereof (the "TERMINATION NOTICE"). In the Termination
Notice, Landlord shall identify the date on which this Lease shall terminate,
and such date shall become the Expiration Date. After any termination of this
Lease by Landlord pursuant to this Section 21.1, the parties hereto shall have
no further rights or obligations under this Lease after the revised Expiration
Date except those that expressly survive a termination of this Lease.
ARTICLE 21
SUBORDINATION TO SENIOR DEBT
Section 21.1. Tenant's obligations under this Lease are and at all
times hereafter will be junior and subordinate in right of payment and exercise
of remedies to the indefeasible prior payment in full in cash of all obligations
owed in respect of the Senior Debt (as defined in Section 22.2 below). The
subordination of the obligations under this Lease is for the benefit of all
holders of Senior Debt from time to time, whether such Senior Debt is
outstanding on the date hereof or incurred, created or arising hereafter. Upon
the occurrence and during the continuance of any default or event of default
under any Senior Debt, Tenant will have no obligation to make, and Landlord will
not accept or receive or take any action to collect, any payment of any portion
of the obligations under this Lease until all obligations with respect to such
Senior Debt have been indefeasibly discharged in full in cash. Should any
payment, distribution, security, or proceeds thereof be received by Landlord
contrary to the terms hereof, Landlord shall immediately deliver the same to the
holders of the Senior Debt in precisely the form received (except for
endorsement or assignment of Landlord where necessary), for application on or to
secure the Senior Debt, whether it is due or not due, and until so delivered the
same shall be held in trust by Landlord as property of the holders of the Senior
Debt. Nothing in this section shall prohibit Landlord from receiving and
retaining amounts due to Landlord hereunder, provided that at the
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time such amount is paid to Landlord there shall not have occurred or be
continuing any default or event of default of which Landlord has received notice
under any Senior Debt.
Section 21.2. For purposes hereof, "SENIOR DEBT" means (i) all
indebtedness and obligations of Marketing Specialists Corporation, a Delaware
corporation ("MSC"), or Tenant in favor of any bank, trust company, insurance
company or other institutional lender providing financing to MSC or Tenant or
entering into swap or hedging agreements with MSC or Tenant, including without
limitation all indebtedness and obligations under that certain Amended and
Restated Credit Agreement dated August 18, 1999 among MSC, the lenders party
thereto and First Union National Bank, as agent for the lenders, including any
guaranty thereof by Tenant, as the same may be amended, restated, refinanced,
supplemented or otherwise modified from time to time (the "FIRST UNION CREDIT
AGREEMENT"), and all Senior Obligations as defined under the First Union Credit
Agreement, (ii) if so elected by Tenant, all indebtedness and obligations under
that certain Indenture dated as of December 19, 1997, among MSC, as successor by
merger to Richmont Marketing Specialists, Inc., the subsidiaries of MSC party
thereto and Chase Bank of Texas, N.A., as successor-in-interest to Texas
Commerce Bank National Association, as trustee, including any guaranty thereof
by Tenant, as the same may be amended, restated, refinanced, supplemented or
otherwise modified from time to time (the "INDENTURE"), and (iii) if so elected
by Tenant, any other Senior Indebtedness as defined in the Indenture.
LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY THAT THE PREMISES
ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL PURPOSE AND, EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED IN THIS LEASE, TENANT'S OBLIGATION TO PAY RENT HEREUNDER IS
NOT DEPENDENT UPON THE CONDITION OF THE PREMISES OR THE PERFORMANCE BY LANDLORD
OF ITS OBLIGATIONS HEREUNDER, AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
THIS LEASE, TENANT SHALL CONTINUE TO PAY FIXED RENT AND ALL ADDITIONAL RENT,
WITHOUT ABATEMENT, SETOFF OR DEDUCTION NOTWITHSTANDING ANY BREACH BY LANDLORD OF
ITS DUTIES OR OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED.
[THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK]
32
36
The parties hereto have executed this Lease as of the day and year
first above set forth.
TENANT:
MARKETING SPECIALISTS SALES COMPANY,
a Texas corporation
By:
----------------------------------------
Name:
---------------------------------
Title:
--------------------------------
LANDLORD:
RCPI OFFICE PROPERTIES, LLC, a Texas
limited liability company
By: Richmont Capital Partners I, L.P., a
Delaware limited partnership, its
sole member
By: J.R. Investments Corp., its managing
general partner
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
33
37
EXHIBIT "A"
DESCRIPTION OF THE LAND
[to be attached]
A-1
38
EXHIBIT "B"
RCPI OFFICE PROPERTIES, LLC, a Delaware limited liability company
("LANDLORD"), and MARKETING SPECIALISTS SALES COMPANY, a Texas corporation
("TENANT"), have entered into that certain Lease (the "LEASE") dated as of
February 17, 2000, for the lease of property located at 0000 X. 00xx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000-0000. This Exhibit "B" (this "EXHIBIT") is attached to
the Lease. Except to the extent otherwise indicated herein, the initially
capitalized terms used in this Exhibit shall have the meanings assigned to them
in the Lease.
MEMORANDUM OF LEASE
The Lease is for a term of twelve (12) months and will commence on
February 17, 2000.
The Premises includes the real property located in Maricopa County,
Arizona and more particularly described in the Exhibit A attached hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of
Lease on the 17th day of February, 2000.
TENANT:
MARKETING SPECIALISTS SALES COMPANY,
a Texas corporation
By:
----------------------------------------
Name:
---------------------------------
Title:
--------------------------------
LANDLORD:
RCPI OFFICE PROPERTIES, LLC, a Texas
limited liability company
By: Richmont Capital Partners I, L.P., a
Delaware limited partnership, its
sole member
By: J.R. Investments Corp., its managing
general partner
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
C-1
