EXHIBIT 10.66
LEASE AGREEMENT
DATED 3/15/00
BETWEEN
HIGH PROPERTIES
"LANDLORD"
AND
THE XXXX. XXXX CIRCULATING COMPANY, LLC
"TENANT"
RELATING TO
0000 XXXXXXXX XXXXXXX XXXX
XXXXXXXXX, XXXXXXXXXXXX 00000
LEASE AGREEMENT
PART I - BASIC LEASE INFORMATION
This Lease Agreement (this "Lease") is made and executed this 15th day of
March, 2000, by and between HIGH PROPERTIES, a Pennsylvania limited partnership
(herein called "Landlord') and THE XXXX. XXXX CIRCULATING COMPANY, LLC, a
Delaware limited liability company (herein called "Tenant").
This Lease consists of the following two parts: Part I which sets forth
terms defined in this Lease (and certain obligations under the Lease) and which
is sometimes referred to as the "Basic Lease Information," and Part II which
provides the terms and conditions of this Lease and which is sometimes referred
to as the Lease Terms and Conditions. Part I and Part II collectively, are
referred to as this "Lease." Capitalizes terms not otherwise defined in this
Part I - Basic Lease Information shall have the meaning provided in Part II of
the Lease.
The Basic Lease Information is as follows:
1. Landlord: HIGH PROPERTIES ,a Pennsylvania limited partnership.
2. Tenant: THE XXXX. LEVY CIRCULATING COMPANY, LLC
3. Permitted Use: Distribution and Storage of Magazines
4. Campus: Greenfield Corporate Center, located in the Township
of East Lampeter, County of Lancaster, State of
Pennsylvania.
5. Building: Building 40 of the Campus located at 0000 Xxxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxx.
6. Premises: The Premises consist of the entire Building and the
terms "Building" and "Premises" shall have the same
meaning wherever used in this Lease.
7. Tenant Improvements: Those improvements to be completed by Landlord in
accordance with the Work Agreement attached hereto
as Exhibit B.
Construction of approximately 2,000 to 4,000 square
feet of office space, per Exhibit B. The Lease shall
be contingent upon Landlord and Tenant mutually
agreeing on an acceptable floor plan within thirty
(30) days. Additionally, Landlord will provide an
additional $150,000.00 toward Tenant Improvements.
This amount is to be fully amortized over the
initial lease term at a rate of 12%. The
improvements to be funded through this allowance
must be reviewed and approved by Landlord at
Landlord's discretion.
8. Term: Five (5) Years - with a cancellation option after
year four (4). Penalty shall be equal to all
unamortized costs of Tenant improvements and
commissions. Landlord shall require six (6) months
advance written notice.
9. Term Commencement: July 1, 2000, except as otherwise provided in
Section 2.2 of Part II of this Lease Tenant and
Tenant's subcontractor will have access to the
Premises no later than June 1, 2000 in order to
begin installation of furniture, fixture and
equipment
10. Expiration Date: August 31, 2005
11. Rentable Area of Building: 105,600 Square Feet
12. Rentable Area of Premises: 105,600 Square Feet
13. Tenant's Share: 100.00 Percent (100%)
(For pro-ration of Additional
Rent)
14. Monthly Base Rent: July 1, 2000 to August 31,2000 - NO RENT DUE
September 1, 2000 to August 31, 2001 - $35,024.00 -
$3.98 psf
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September 1, 2001 to August 31, 2002 - $35,904.00 -
$4.08 psf
September 1, 2002 to August 31, 2003 - $36,784.00 -
$4.18 psf
September 1, 2003 to August 31, 2004 - $37,664.00 -
$4.28 psf
September 1, 2004 to August 31, 2005 - $38,544.00 -
$4.38 psf
15. Base Rent Over Term: $2,207,040.00
16. Base Year: Not Applicable
17. Additional Rent: All amounts and charges require to be paid by Tenant
hereunder (other than Base Rent) as described more
particularly in Section 5.2 of Part II of this
Lease.
18. Rent: Includes both the Base Rent and Additional Rent to
be paid by Tenant hereunder.
19. Security Deposit: $35,024.00
20. Landlord Address for Notices: HIGH PROPERTIES
c/o High Associates, Ltd.
0000 Xxxxxxx Xxxx Xxx
X.X. Xxx 00000
Xxxxxxxxx, XX 00000-0000
21. Tenant's Address for Notices: THE XXXX. LEVY CIRCULATING COMPANY, LLC
Attn: General Counsel
0000 X. Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
22. Rent Payment/Address: Payable to:
High Associates, Ltd.
X.X. Xxx 0000, X-0000
Xxxxxxxxxxxx, XX 00000-0000
23. Commissions: Broker's commission to be paid to:
Equis Corporation
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
24. Calculation of Rentable Area: Single-Tenant Building. The Premises are part of a
building which is leased entirely by Tenant.
"Rentable Area" has been calculated to include the
entire building and all of the land on which it is
located.
25. Condition of Premises: Landlord shall improve the Premises with certain
improvements described more particularly in the Work
Agreement attached to the Lease as Exhibit B. Such
improvements are referred to in the Work Agreement
and in the Part II of the Lease as the "Tenant
Improvements." Except as may be expressly provided
in the Work Agreement, Tenant acknowledges that
neither Landlord nor any of Landlord's Affiliates
(as defined in Section 15(c) of Part II of the
Lease), nor any of their agents, have made any
representations, warranties or covenants, either
express or implied, with respect to the Premises,
the Building, the Common Areas (as defined in
Section 1.3 of Part II of the Lease), or the Campus,
or the condition of any of the foregoing except as
provided for in this Lease.
26. Payment of Operating Expenses: Tenant shall pay Tenant's Share (as defined herein)
of annual Operating Expenses (as defined in Section
6.3 of Part II of the Lease)
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27. Payment of Utilities: All charges for utilities used or incurred by Tenant
at the Premises, including without limitation heat,
water, sewer, gas and electricity, shall be included
as part of the Operating Expenses. Notwithstanding
the foregoing, if any of such utilities are
separately metered to the Premises, the charges for
such utilities shall not be included in the
Operating Expenses but shall be paid fully by
Tenant. Landlord shall determine whether such
amounts are to be paid by Tenant directly to the
utility provided or to Landlord.
28. Responsibility for HVAC Systems: Tenant, at Tenant's sole cost and expense, shall
perform all maintenance, repair and replacement of
the HVAC Systems (as defined in Section 7.2 of Part
II of the Lease) serving the Premises, including
without limitation the scheduled maintenance set
forth on Exhibit C to the Lease. To ensure
performance of routine maintenance, Landlord shall
procure and keep in effect, at the sole cost of
Tenant to be paid as Additional Rent, a standard
preventative maintenance contract with a contractor
selected by Landlord who shall perform the scheduled
maintenance set forth on Exhibit C to the Lease.
Tenant, shall however, be given a one (1) year
warranty on all HVAC, electrical, and plumbing
systems on any repairs or replacements excluding
light bulbs, and the HVAC preventative maintenance
contract.
29. Obligation for Snow Removal Landlord shall mow lawns, maintain and replace
and Grounds Maintenance: shrubbery, weed where appropriate, and remove snow
and ice from walkways, roadways, and parking areas
in accordance with the minimum requirements
specified on Exhibit D to the Lease. The cost of
such services shall be included as an Operating
Expense.
30. Exhibits and Riders: Exhibit A - Depiction of The Premises
Exhibit B - Work Agreement (If Any)
Exhibit C - Specifications for HVAC Maintenance
Agreement
Exhibit D - Minimum Lawn Care and Snow Removal
Requirements
Exhibit E - Rules and Regulations
Exhibit F - Special Lease Terms (If Any)
31. Contingency: This lease agreement is contingent upon Landlord
receiving an acceptable Lease Termination Agreement
from current tenant by March 15, 2000
IN WITNESS WHEREOF, and intending to be legally bound, Landlord and Tenant
have caused this Part I of the Lease to be signed by their duly authorized
officers or agents under seal, as of the date set forth above.
(Signature Page to Follow)
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LANDLORD
HIGH PROPERTIES
a Pennsylvania Limited Partnership
By: High General Corporation,
sole General Partner
Date 3/15/00 By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Print Name: Xxxx X. Xxxxxxxxxx
Title: Vice President-Operations
TENANT
THE XXXX. LEVY CIRCULATING COMPANY, LLC
a Delaware limited liability company
Date 3/15/00 By: /s/ X.X. Xxxxx
------------------------------------
Print Name: X.X. Xxxxx
Title: Vice Pres,
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
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LEASE AGREEMENT
PART II - LEASE TERMS AND CONDITIONS
1. PREMISES.
1.1. Lease of Premises. Landlord hereby leases to Tenant, and Tenant
accepts such lease from Landlord, under the terms and conditions set forth in
this Lease, the Premises which are identified in the Basic Lease Information.
The Premises are part of the Building identified in the Basic Lease Information.
1.2. Rentable Area. The total Rentable Area of the Building and the
Rentable Area of the Premises are as provided in the Basic Lease Information.
Such figures have been calculated in accordance with the procedure set forth in
the Basic Lease Information. Tenant acknowledges and agrees that the Rentable
Area of the Building and the Rentable Area of the Premises stated in the Basic
Lease Provisions are approximations only and that the amounts so stated are
accepted as final and binding upon Tenant and Landlord for all purposes of this
Lease. Rentable Area of the Premises has been determined in accordance with the
following definition:
1.3. Common Areas. During the Term of the Lease, Tenant, and its
agents, employees and invitees, shall have the right to use, in common with all
others granted such rights by Landlord, in a proper and lawful manner, (a) the
common sidewalks, access roads, parking areas and other outdoor areas within the
Campus and (b) the common entranceways, lobbies, restrooms, hallways, elevators
and buildings systems serving the Building of which the Premises are a part of
like amenities collectively, the "Common Areas"). Such use shall be subject to
the terms of this Lease and to such reasonable rules and regulations as Landlord
may from time to time establish with respect thereto, including without
limitation, the reservation of any particular parking spaces or parking areas or
other portions of the Common Areas for the exclusive use of other tenants of the
Campus.
1.4. Landlord's Reserved Rights in Common Areas. Landlord reserves the
right from time to time, provided that Tenant's use and enjoyment of the
Premises or the type or quality of services provided by Landlord under this
Lease is not substantially and adversely affected thereby, to (a) install, use,
maintain, repair and replace pipes, ducts, conduits, wires and appurtenant
meters and equipment for service to other parts of the Building above the
ceiling surface, below the floor surfaces, within the walls and in the central
core areas, and to relocate any pipes, ducts, conduit, wires and appurtenant
meters in the Premises which are so located or located elsewhere outside the
Premises; (b) make changes to the Common Areas including without limitation
changing the location, size, shape and number of driveways, entrances, parking
spaces, parking areas, loading and unloading areas, ingress, egress, direction
of traffic, landscaped areas and walkways; provided such changes do not
materially and adversely affect Tenant's Permitted Use of the Premises; (c)
close temporarily all or any portion of the Common Areas and/or the Building in
order to perform any of the foregoing or any of the Landlord's obligations under
this Lease, so long as reasonable access to the Premises remains available
during normal business hours; and (d) alter, relocate, expand and/or add
structures and improvements to, or remove same from, all or any portion of the
Common Areas.
2. IMPROVEMENTS.
2.1. Condition of Premises. The Premises shall be delivered by
Landlord to Tenant in the condition stated in the Basic Lease Information
2.2. Completion and Delivery. The Premises shall be deemed Ready for
Occupancy when the Tenant Improvements have been Substantially Completed (as
hereafter defined). The term "Substantially Completed" when used in this Lease
shall mean the earlier of (i) the date of issuance of a certificate of occupancy
(temporary or permanent) for the Premises by the municipality in which the
Premises are located, (ii) or if no certificate of occupancy is required, the
date when Landlord's architect or general contractor certifies that the Tenant
Improvements are Substantially Completed, which certification shall be
conclusive and binding upon Landlord and Tenant, or (iii) the date on which
Tenant takes possession of the Premises. The Tenant Improvements shall be deemed
Substantially Completed notwithstanding the fact that minor details of
construction, mechanical adjustments or decorations (items normally referred to
as "punch list" items) which do not materially interfere with Tenant's use of
the Premises (as determined by Landlord in the exercise of its reasonable
judgment) remain to be performed in accordance with the Work Agreement. Landlord
shall give Tenant reasonable advance notice of the date on which Landlord
expects the Tenant Improvements to be Substantially Completed and the Premises
to be Ready for Occupancy.
3. TERM. Tenant shall have and hold the Premises for the term set forth in
Basic Lease Information, beginning on the Term Commencement Date and ending at
11:59 p.m. on the Term Expiration Date, both as specified in the Basic Lease
Information. In the event that Landlord is constructing the Tenant Improvements
and the Tenant Improvements are not Substantially Completed by the date set
forth in the Basic Lease Information, then the Term Commencement Date and the
Term Expiration Date shall be modified in accordance with the following:
(a) If the Premises are Substantially Completed prior to the Term
Commencement Date, and the Tenant takes possession of the Premises, the Term
Commencement Date shall be the earlier of (i) the date the Tenant takes
possession of the Premises, or (ii) the Term Commencement Date defined in the
Basic Lease Information. The Term Expiration Date shall be the date specified in
the Basic Lease Information.
(b) If the Premises are Substantially Completed after the Term
Commencement Date specified in the Basic Lease Information, the Term
Commencement Date shall be the date the Premises are Substantially Completed.
The Term Expiration Date shall be extended for the period of said delay. If the
Substantially Completed
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Date is on a day which is other than the first day of a calendar month, rent (as
hereafter defined) for said month shall be pro-rated based on a thirty (30) day
month and the Term Expiration Date shall be further extended to the end of the
calendar month after the Initial Term is completed. Landlord shall not be liable
for any damage caused by any delay in the delivery of the Premises, nor shall
this lease be void or voidable, except to the extent otherwise provided in the
Work Agreement, Tenant shall not be liable for any rent until such time as the
Premises are Ready for Occupancy . Warehouse area, excluding the office area, is
to be delivered on July 15, 2000. If Landlord fails to deliver on this date,
Landlord shall have thirty (30) days additionally to deliver, at which time if
Landlord fails to deliver, Tenant may terminate the Lease.
4. SECURITY DEPOSIT.
4.1. Requirement for Security Deposit. Simultaneously with the
execution of the Lease, Tenant shall deposit with Landlord as security for the
payment and performance by Tenant of all of Tenant's obligations under this
Lease the amount specified in the Basic Lease Information.
4.2. Return of Security Deposit. Within a reasonable time following
the expiration of this Lease, not to exceed sixty (60) days, Landlord shall
return the Security Deposit to Tenant (provided that Tenant is not in default
under this Lease), less such portion thereof as Landlord shall have used to make
good any default by Tenant with respect to any of Tenant's obligations under
this Lease.
4.3. Deductions from Security Deposit. In the event of any default by
Tenant hereunder, Landlord shall have the right from time to time to apply all
or any portion of the Security Deposit to the performance of Tenant's
unperformed obligations but shall not be obligated to do so. If Landlord does so
apply any portion of the Security Deposit, Tenant, upon demand by Landlord,
shall immediately pay to Landlord a sufficient amount to restore the Security
Deposit to its original amount. Tenant's failure to fully restore the Security
Deposit within ten (10) business days of Landlord's demand shall, without
further notice or demand, constitute an Event of Default (as hereafter defined).
Use by Landlord of the Security Deposit, or any portion thereof, to satisfy any
of Tenant's obligations hereunder shall not constitute Landlord's waiver of
Tenant's default with respect to such nonperformance for which amounts are
expended, nor prevent Landlord from exercising any other remedies available to
Landlord.
4.4. Transfer of Security Deposit. In the event of the sale or
transfer of Landlord's interest in the Premises, Landlord shall transfer the
Security Deposit (or the remaining balance thereof) to such purchaser or
transferee, whereupon Landlord shall be released from all liability to Tenant
for the return of the Security Deposit. Tenant shall look only to the party then
landlord for the return of the Security Deposit.
5. RENT
5.1. Base Rent. The annual base rent (the "Base Rent") for the
Premises shall be as set forth in the Basic Lease Information. Tenant shall pay
Base Rent in the monthly installments set forth in the Basic Lease Information,
in advance, on the first day of each calendar month during the Term; provided,
however, that the Base Rent for the first month of the Term shall be paid upon
the signing of the Lease.
5.2. Additional Rent. In addition to Base Rent, Tenant shall pay all
sums of money or other charges required to be paid by Tenant under this Lease as
additional rent (the "Additional Rent"), whether or not same are expressly
designated in this Lease as Additional Rent. All Additional Rent shall be due
and payable with each monthly installment of the Base Rent unless otherwise
provided herein.
5.3. Manner of Payment. Base Rent and Additional Rent (together,
"Rent") payable under this Lease shall be paid in lawful money of the United
States of America without prior notice or demand therefore, and without
deduction, defense, counterclaim, setoff or abatement whatsoever. Rent shall be
paid to Landlord at the address designated for Rent in the Basic Lease
Information or such other address as Landlord may notify Tenant in accordance
with the procedure for notice set forth in this Lease.
5.4. Interest on Delinquent Payments. If any payment or Rent is not
paid within ten (10) business days of its due date, Tenant shall pay interest on
such delinquent payment, from the original due date of such delinquent payment,
and on any late charge from the due date of such late charge, at an interest
rate (the "Interest Rate") equal to the lesser of (a) one and one-half percent
(1.5%) per month, or (b) the maximum rate permitted by applicable law, until
such amounts are paid in full. This Section 5.4 shall not relieve Tenant from
its obligation to pay Rent at the times and in the manners herein specified.
Acceptance by Landlord of interest shall not constitute a waiver of Tenant's
default with respect to said delinquent payment, nor prevent Landlord from
exercising any other rights or remedies available to Landlord.
6. OPERATING EXPENSES.
6.1. Payments as Additional Rent. Tenant shall pay Tenant's Share (as
defined in the Basic Lease Information) of Operating Expenses (as hereafter
defined) as specified in the Basic Lease Information. Such amounts shall be
deemed Additional Rent due from Tenant to Landlord hereunder.
6.2. Determination of Amounts Due.
(a) Landlord shall have the right, as its discretion, to make
reasonable estimates (and to revise any estimate from time to time, which may be
more frequently than annually, as it shall deem necessary) of the amounts of
Additional Rent to become due for Tenant's Share of Operating Expenses in any
calendar year, and to require Tenant to pay such estimated amounts in equal
monthly installments due as required by Section 5.3 on the first day of each
calendar month. Interest shall accrue thereon when and as required by Section
5.4. Whenever an estimate of Additional Rent for Operating Expenses shall be
revised as aforesaid, Landlord shall have the right to increase the monthly
installments thereafter to be paid. Alternatively, Landlord shall have the right
to xxxx Tenant at the end of each
7
calendar year, or as such intervals during the applicable calendar year as
Landlord deems appropriate, for Tenant's Share of Operating Expenses incurred at
the time of billing. In such case , Tenant shall have thirty (30) business days
after receipt of Landlord's invoice to pay such Additional Rent, after which
time interest at the Interest Rate shall accrue.
(b) At the end of each calendar year, Landlord shall cause the
actual amounts incurred as Operating Expenses for such calendar year and
Tenant's Share thereof due as Additional Rent to be computed, and a
reconciliation statement thereof shall be sent to Tenant. Excessive payments
received from Tenant shall be credited toward subsequent payments due as
Tenant's Share of Operating Expenses (with any net excess at the end of this
Lease being returned to Tenant provided Tenant is not in default hereunder), and
deficits shall be paid by Tenant on the next due date for payment of Operating
Expenses set by Landlord, (with any net deficiency at the end of this Lease to
be paid by Tenant within ten (10) business days after Landlord's demand therefor
or, at Landlord's option, deducted from the Security Deposit).
(c) Unless, within ninety (90) days after Tenant's receipt of
Landlord's reconciliation statement described above, Tenant notifies Landlord
that it disagrees with Landlord's calculation, specifying in detail the basis
for such assertion ("Tenant's Dispute Notice"), Landlord's reconciliation
statement provided to Tenant shall be conclusive and binding upon Tenant for the
period represented thereby. If Tenant timely sends Tenant's Dispute Notice to
Landlord, Tenant, at Tenant's expense, shall have sixty (60) days from the
giving of Tenant's Dispute Notice to audit the books and records maintained by
Landlord for the calculation of Operating Expenses for the year in question.
Tenant's right to audit may be conducted directly by Tenant or by an independent
certified public accountant but, in either case, shall be conducted only at the
location where Landlord maintains its books and records and only during
Landlord's normal business hours of operation. Any adjustment required following
such review shall be made in accordance with Subsection (b) above. Tenant's
failure to conduct such audit within such sixty (60) day period shall be deemed
a waiver of Tenant's right to do so, in which case Landlord's reconciliation
statement shall be conclusive and binding for such calendar year.
(d) Tenant shall promptly notify Landlord of the result of any
audit so conducted by Tenant. Upon Landlord's receipt of notice that Tenant
claims an adjustment to Tenant is due (an "Overcharge Notice"), Landlord shall
notify Tenant in writing thirty (30) days of receipt of the Overcharge Notice
whether or not it agrees with the determination set forth in the Overcharge
Notice. Landlord's failure to timely notify Tenant that it disagrees with the
Overcharge Notice ("Landlord's Dispute Notice") shall be treated as if Landlord
provided notice to Tenant that it disagreed with such Overcharge Notice. If
Landlord agrees with the Overcharge Notice, adjustment shall be made as provided
in Subsection (b) above. If Landlord provides Tenant with a Landlord Dispute
Notice, then Landlord and Tenant, as soon as reasonably practical thereafter,
shall endeavor to resolve the disputed charge. If they are unable to do so
within thirty (30) days of Landlord's Dispute Notice, then Landlord and Tenant
shall select an independent arbitrator approved by the American Arbitration
Association, on whom they reasonable agree, to resolve the dispute, which
determination shall be final and binding on the parties. The cost of the
arbitrator shall be prorated and paid by the parties based on the percentage of
the disputed amount that the arbitrator awards to each party or otherwise as
directed by the arbitrator.
6.3. Definition of Operating Expenses.
(a) When used in this Lease, "Operating Expenses" shall mean all
expenses and costs of ownership, operation, management, maintenance, repair,
replacement and safety of the Building and the Common Areas, including without
limitation: (1) Real Estate Taxes (as hereafter defined); (2) premiums for
insurance maintained by Landlord; (3) costs of repairs and maintenance to the
Building, including periodic maintenance of the heating, ventilating and cooling
systems; (4) charges for heat, water, sewer, gas, electricity and other utility
services not otherwise separately metered to tenants; (5) janitorial and
sanitation services, extermination, window washing, and trash removal (including
any fines assessed to Landlord for recyclables not properly sorted); (6) costs
of snow removal, lawn maintenance and landscaping; (7) costs for fire and
security alarm systems and other security measures including policing of parking
areas; (8) management fees payable to the managing agent for the Building and
the Campus (provided, however, that if the management fees are paid to any
affiliate of Landlord, then the amount thereof to be included in Operating
Expenses shall not exceed such amounts as is customarily being charged for
similar services rendered to comparable buildings in the geographical market
within which the Campus is located); (9) Essential Capital improvements (as
hereafter provided in Subsection d); (10) cost of elevator operation and
maintenance, if any; (11) personal property taxes levied on or attributable to
personal property uses in connection with the operation, management, maintenance
or repair of the Common Areas or the Building; (12) costs of licenses, permits
and similar fees and charges related to operation, maintenance, repair,
replacement or registration of the Building or the Campus (including with
respect to any underground or above-ground storage tanks), other than any of the
foregoing related to tenant improvements; (13) wages, salaries, bonuses and like
expenses for management and security personnel; (14) costs of supplies,
materials and equipment (including rental fees) used in connection with the
operation, management, maintenance or repair of the Common Areas or the
Building; and (15) without limiting any of the foregoing, such other expenses or
charges which, in accordance with sound accounting and management principles
generally accepted with respect to a first-class building or corporate park,
would be constructed as an Operating Expense. (The foregoing list is intended as
an illustration of items which might be included as Operating Expenses and shall
not be construed as Landlord's commitment or obligation to provide same).
(b) Operating Expenses shall not include (1) costs incurred for
the account of, separately billed to, and paid by specific tenants; (2) repairs
or replacements to the extend that the cost of the same is recovered by
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Landlord pursuant to original construction warranties; and (3) Landlord's cost
of tenant leasehold improvements, lease commissions and legal fees arising from
lease disputes.
(c) For purposes herein, "Real Estate Taxes" shall consist of (1)
all real estate taxes relating to the Building and/or the Common Areas; (2) all
charges which may be levied in lieu of real estate taxes; (3) all assessments
for municipal improvements and other governmental charges of any kind and nature
for public improvements, services, benefits, or any other purpose; and (4) all
assessments against the Building and/or the Common Areas pursuant to any
covenants, restrictions or easement agreements affecting the Building and/or the
Common Areas which became payable during the Term (or which became payable after
the expiration or earlier termination hereof and are attributable in whole or in
part to any period during the Term hereof), together with all costs and expenses
incurred by Landlord in good faith in contesting, resisting, or appealing any
such taxes or assessments, including, without limitation, legal fees.
(d) If, during any year, Landlord shall make an expenditure for a
capital improvement which is an "Essential Capital Improvement" as hereafter
defined, the annual amortization of such expenditure (determined by dividing the
cost of such expenditure by the useful life of the improvement determined by
Landlord in its reasonable discretion), plus any interest or financing charges
thereon, shall be deemed an Operating Expense for each year of such amortization
period. "Essential Capital Improvement" as used herein means any of the
following: (1) an energy savings device, a labor savings device or other
installation, improvement, upgrade or replacement which reduces or is intended
to reduce Operating Expenses, whether voluntarily undertaken or required by any
governmental authority having jurisdiction, (2) any installation, improvement,
upgrade or replacement required by any governmental authority having
jurisdiction or Board of Fire underwriters (or similar governing body) and which
Landlord is obligated to provide, and (3) an installation or improvement which
directly enhances the safety of the occupants of the Campus or tenants of the
Building generally, whether voluntarily undertaken or required by any
governmental authority having jurisdiction.
(e) To the extent practicable, all Operating Expenses will be
accounted for and attributed separately for the Building and for the other
tenant-occupied buildings of the Campus. To the extent such allocation of an
item of Operating Expenses is not practicable, allocations will be made among
the Building and other tenant-occupied buildings of the Campus proportionately
among all thereof (based upon the respective square footage of each as
determined by Landlord) or equally among all thereof or in such other
proportions as reasonably may be determined by Landlord in the exercise of
prudent management practices, which determination shall be conclusive and
binding upon tenant.
7. UTILITIES, HVAC SYSTEMS AND SERVICES.
7.1. Utilities.
(a) Tenant shall pay all charges for utilities used or incurred
by Tenant at the Premises as specified in the Basic Lease Information.
(b) If Tenant shall require electricity or install electrical
equipment, including but not limited to electrical heating, refrigeration
equipment, electronic data processing machines, or other machines or equipment
which will in any way increase the amount of the electricity usually furnished
for use as general office space, or if Tenant shall attempt to use the Premises
in such a manner that the services to be furnished by Landlord would be required
during periods other than or in addition to normal business hours, which are
7:30 a.m. to 6:00 p.m., Monday through Friday, excluding holidays, Tenant will
obtain prior written approval therefore from Landlord (and Landlord may require
the installation of a separate sub-meter) and Tenant will pay for the resulting
additional direct expense, including the expense resulting from the installation
of such equipment and meters as Additional Rent promptly upon being billed
therefore.
7.2. Heating, Ventilation and Air Conditioning Systems. Per the basic
lease information, Tenant shall receive a one (1) year warranty on repairs and
replacement of plumbing, HVAC, and electrical, excluding the preventative
maintenance agreement and light bulb replacement. Tenant shall have the
obligation for maintenance, repair and replacement of the heating, ventilating
and air conditioning systems (the "HVAC Systems') serving the Premises as
specified in the Basic Lease Information.
7.3. Snow Removal and Lawn Maintenance. Landlord shall have the
obligations for snow removal and ground maintenance to the Premises as specified
in the Basic Lease Information.
7.4. Interruption of Services. Landlord reserves the right, without
any liability to Tenant, and without being in default of this Lease, to
interrupt or suspend service of any of the heating, ventilating, air
conditioning, electric, sanitary, or other system serving the Premises or the
Building, or any other services required to be performed by Landlord under this
Lease, whenever and for so long as may be necessary by reason of accident,
emergencies, strikes or the making of repairs or changes which Landlord is
required by this Lease or by law to make or otherwise deems advisable, or by
reason of difficulty in securing proper supplies of fuel, steam, water,
electricity, labor or supplies, or by reason of any other caused beyond
Landlord's control, including without limitation mechanical failure of building
systems and governmental restrictions on the use of materials or the use of any
of such systems. In each instance, however, Landlord shall exercise reasonable
efforts to eliminate the cause of interruption and to effect restoration of
service, and shall give Tenant reasonable notice not less than five (5) business
days, when practicable, prior to the commencement off such interruption and
anticipated duration thereof. Landlord shall not be liable for any damages to
Tenant resulting from Landlord's failure or inability to deliver services as
provided herein, unless such interruption of service exceeds five (5) business
days, and is due solely to the negligence of the Landlord, at which Time Tenant
shall be entitled to a rent abatement as Tenant's sole remedy. Without limiting
the generality of the
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foregoing, Tenant shall not be entitled to terminate this Lease nor to receive
any diminution or abatement of Rent or other compensation or damages nor shall
this Lease or any of the obligations of Tenant be affected or reduced by reason
of any such interruption, stoppage or suspension of any such systems or services
unless such interruption of service exceeds five (5) business days, and is due
solely to the negligence of the Landlord, at which Time Tenant shall be entitled
to a rent abatement as Tenant's sole remedy.
8. REPAIRS AND MAINTENANCE.
8.1. Repairs. Tenant, at Tenant's sole cost and expense, shall
maintain in good repair the Premises and every part thereof, including without
limitations doors (personal and vehicle), exterior windows, waste disposal and
plumbing systems, dedicated HVAC Systems and all other mechanical elements and
building systems serving the Premises, excluding only the following which
Landlord shall maintain in good repair: roof, foundation, exterior walls,
downspouts and gutters. Tenant shall promptly perform all repairs in a good and
workmanlike manner. To the extent repairs are required to any structural
components or building systems serving the Premises, Tenant shall adhere to all
procedures for Alterations set forth in Section 13 of this Lease.
8.2. Clean Condition. Tenant shall keep the premises in a clean,
sanitary, orderly and safe condition to the reasonable satisfaction of Landlord
and in accordance with any rules and regulations from time to time in effect
during the Term of this Lease. No outside storage of any kind shall be
permitted, and Landlord, without prior notice to Tenant, shall have the right to
remove any items so stored and to xxxx Tenant for the cost of removal and
storage as Additional Rent.
8.3. Janitorial and Trash Service. Tenant, at Tenant's sole cost and
expense, shall perform all janitorial services for the Premises to Landlord's
reasonable satisfaction and in such manner so as to maintain the Premises as a
first-class building. Tenant shall promptly remove all trash from the Premises
to the dumpster designated by Landlord for Tenant's use and shall comply with
all laws, regulations and ordinances relating to recycling and disposal of trash
generated by Tenant at the Premises.
9. USE AND COMPLIANCE WITH LAWS.
9.1. Permitted Use. Tenant shall use the Premises only for the
Permitted Use set forth in the Basic Lease Information and uses incidental
thereto. Tenant shall not permit the Premises to be vacant nor shall Tenant
permit the Premises to be used for any illegal purpose or in any manner which
would tend to damage any portion thereof or interfere or obstruct the rights of
other tenants or occupants of the Building.
9.2. Insurance Risks. Tenant shall not conduct any activity or permit
any activity to be conducted or place any equipment in or about the Premises or
the Building which would in any way increase the rate of fire insurance or other
insurance on the Building.
9.3. Compliance with Applicable Laws. Landlord shall turn over to the
Tenant, the Premises in compliance with all applicable building codes. Tenant
shall comply with all applicable laws, regulations, ordinances, and directives
of the Federal Government, state and municipality in which the Premises are
located as well as all judicial orders and the requirements of any Board of Fire
Underwriters (or any other body exercising similar functions) as are in effect
during the Term of this Lease, including without limitations, those relating to
hazardous materials or substances, and occupational safety and health, and, at
Tenant's sole cost and expense, shall perform any act or obligation arising from
or as is necessary to achieve such compliance. At all times during this Lease,
Tenant shall maintain and comply with all permits, licenses or other
authorizations required by any governmental authority or agency for Tenant's
occupancy or operations at the Premises.
9.4. Americans With Disabilities Act. In amplification of Tenant's
obligations under Section 9.3 above and not in limitation thereof. Tenant shall
be fully responsible for compliance with the Americans With Disabilities Act of
1990, as amended from time to time (the "ADA"), and for all alterations required
to be made to the Premises due to changes in or regulations under the ADA or
judicial interpretations of the requirements of the ADA or changes in Tenant's
use of the Premises or in the nature of Tenant's conduct of business at the
Premises (including, but not limited to, any changes in use or business conduct
arising out of a sublease or assignment or resulting in the Premises being
deemed a "place of public accommodation" under the ADA) or Alterations made by
Tenant. Landlord, at time of Tenant's occupancy, shall provide to Tenant the
Premises in compliance with all applicable building codes, including but not
limited to, Title III of the ADA.
9.5. Hazardous Materials.
(a) In amplification of Landlord and Tenant's obligations under
Section 9.3 above and not in limitation thereof, Landlord and Tenant shall
comply with all applicable environmental laws, orders, regulations, ordinances
and directives now existing or hereafter enacted (the "Environmental Laws") and,
at Tenant's sole cost and expense, shall perform any act or obligation arising
from or as is necessary to achieve such compliance.
(b) Landlord and Tenant shall not cause or permit any portion of
the premises or the Building to be used for the production, storage, deposit or
disposal of Hazardous Materials (as hereafter defined), nor shall tenant permit
Hazardous Materials to ever be placed or located upon the Premises or the
Building except in such de minimis quantities of the types commonly used in
office and cleaning supplies, provided that same are at all times used, kept and
stored in full compliance with the Environmental Laws. As used herein,
"Hazardous Materials" means all substances or pollutants which are declared to
be or regulated as hazardous, toxic, dangerous or polluting substances under the
Environmental Laws at any time during the Term of this Lease, including, without
limitation, asbestos, polychlorinated biphenyl's (PCBs), urea formaldehyde foam
insulation, and petroleum products and by-products.
(c) Landlord and Tenant shall promptly notify the other party of
any actual or threatened lien against the Premises and/or the Building of which
each party becomes aware pursuant to any of the Environmental
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Laws. Tenant, at Tenant's sole cost and expense, shall promptly discharge and
remove any lien arising from Tenant's violation of any of the Environmental
Laws, such action to be completed within thirty (30) days after Tenant first
receives notice of such lien or violation, or such shorter period of time if
required, (1) by the governmental agency enforcing the correction of such
violation, or (2) to prevent the holder of any such lien from forcing the sale
of the Premises and/or the Building.
(d) To the best of Landlord's knowledge, there has been no
adverse environmental impact that has occurred on the Premises.
9.6. Tanks. Tenant shall not bury nor place any underground or
above-ground storage tanks at the Premises and/or the Building or the land on
which same is located.
9.7. Landlord's Inquiries and Inspection. Tenant shall promptly and
accurately respond in writing to all inquiries made by landlord (including
without limitation requests for documents) pertaining to Tenant's obligations
under this Lease or use of the Premises. Landlord and any authorized agent or
contractor hired by Landlord may enter the Premises at any time and from time to
time for purposes of inspecting same and conducting tests thereupon as Landlord
deems reasonably necessary to determine that Tenant is in compliance with this
Lease, but Landlord shall not be obligated to do so. Unless an emergency exists,
as determined by Landlord in its sole discretion. Landlord shall notify Tenant
least five (5) business days in advance of any such inspection or testing and,
to the extent practicable, shall conduct any such inspection or testing in such
manner so as to minimize unreasonable interference with Tenant's business. The
cost of such investigation and inspection shall be included as an Operating
expense unless it is determined that Tenant is in noncompliance with this Lease,
in which case such costs shall be paid solely by tenant as Additional Rent
within thirty (30) business days of Landlord's demand therefore, after which
time interest at the Interest Rate shall be shall be applied.
9.8. Notice of Violations. Tenant shall promptly notify Landlord of
any violation of any applicable law which is alleged to have been committed at
the Premises and shall forward to Landlord copies of any written communications,
complains, citations or other notices relating to the condition of the Premises
or compliance with applicable laws (an "Action Notice"). Tenant promptly respond
to any Action Notice, cure any violation of applicable laws and have dismissed
any legal action commenced against Tenant or the Premises to the satisfaction of
Landlord. Prior to undertaking same, however, Tenant shall propose to Landlord
its intended courses of action and proceed only with Landlord's approval of
same, which shall not be deemed to be Landlord's guarantee that such action is
appropriate nor impose any liability on same for Landlord.
9.9. Indemnification. In amplification of Tenant's obligations under
Section 15 and not in limitation thereof, Tenant shall indemnify, defend (with
legal counsel selected by Tenant, but subject to Landlord's reasonable approval)
and hold harmless Landlord from and against any and all claims, legal or
equitable, damages for personal injury (including death) or harm to property
(real or personal), liabilities, penalties, fines and costs (including without
limitation, investigation and remediation costs, sums paid in private rights of
action or in settlement of claims, legal fees, consultant fees and expert fees)
and damages in the nature of loss of use of the Premises or the Building, or
loss of a sale of the Building, or rent received on leasing the Building arising
out of or in any way connected to any condition caused or created by Tenant's
failure to comply with its obligations under this Section 9. Landlord shall
indemnify, defend (with legal counsel selected by Landlord) and hold harmless
Tenant from and against any and all claims, legal or equitable, damages for
personal injury (including death) or harm to property (real or personal),
liabilities, penalties, fines and costs (including without limitation,
investigation and remediation costs, sums paid in private rights of action or in
settlement of claims, legal fees, consultant fees and expert fees) and damages
in the nature of loss of use of the Premises due to environmental impact caused
to the Premises by Landlord.
9.10. Survival. The provisions of this Section 9 shall survive the
scheduled expiration or earlier termination of this Lease, and, Tenant shall
perform all of its obligations hereby required, Tenant shall continue to pay
rent, even though this Lease may have been terminated.
10. INSURANCE.
10.1. Tenant's Required Coverage.
(a) Tenant, at Tenant's sole cost and expense, shall carry and
maintain during the Term of this Lease the following types of insurance, in the
amounts and form hereinafter provided:
(1) Public Liability and Property Damage. Comprehensive
public liability insurance with a combined single limit of not less than one
million dollars ($1,000,000) (with inflation endorsement) or such larger amount
as may hereafter be reasonably requested from time to time by Landlord, insuring
against any all liability with respect to the Premises or arising out of
Tenant's maintenance, use or occupancy thereof.
(2) Tenant's Property and Improvements. Insurance providing
protection against any peril included within the classification of "Fire and
Extended Coverage," together with insurance against sprinkler damage, theft,
vandalism and malicious mischief, covering all property owed by Tenant which is
located at the Premises, including the Tenant Improvements, Tenant's trade
fixtures, merchandise and personal property from time to time in, or upon the
Premises, and all personal property of others in Tenant's possession, in an
amount not less than the full replacement cost thereof without deduction for
depreciation as may be customarily carried by tenants of similar properties as
Landlord may reasonable require from time to time.
(b) Policy Form. All policies of insurance required to be carried
by Tenant hereunder shall be issued by insurance companies with general
policyholders' rating of not less than A and a financial rating of AAA or better
as rated in the most current available "Best's Insurance Guide" and qualified to
do business in the state or municipality in which the Premises is located. All
policies shall be in form and content acceptable to Landlord and
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shall name Landlord and such other persons or entities as Landlord specifies
from time to time as additional insureds. Each policy shall provide (1) that
Landlord, although named as additional insured, shall nevertheless be entitled
to recovery under said policy from any loss occasioned by reason of the acts or
negligence of Tenant or Tenant's officers, employees or agents, and (2) the
company writing said policy shall give to Landlord written notice not less than
twenty (20) days in advance of any modification, cancellation or nonrenewal of
such insurance coverage. All policies shall be written as primary policies, not
contributing with, and not in excess of coverage which landlord may carry.
(c) Delivery of Policies. Certified copies of such policies of
insurance or certificates thereof shall be delivered to Landlord no latter than
ten (10) days prior to Tenant's possessions of the Premises, and thereafter no
later than thirty (30) days prior to the expiration of the term of such policy.
As often as any such policy shall expire or terminate, renewal or additional
policies shall be procured and maintained by Tenant in like manner and to like
extent. Tenant shall permit Landlord at all reasonable times to inspect the
policies of insurance required to be maintained by Tenant hereunder.
(d) Blanket Policy. Notwithstanding anything to the contrary
contained within this Section 10, Tenant's obligations to carry the insurance
herein required may be provided through a blanket policy of insurance carried
and maintain by tenant; provided, however, that (1) Landlord and others
hereinabove mentioned shall be named as an additional insured hereunder as their
interest may appear, (2) the coverage afforded landlord will not be reduced or
diminished by reason of the use of such blanket policy of insurance, and (3) the
requirements set forth herein are satisfied.
10.2. Landlord's Required Coverage. Landlord shall procure and
maintain in full force and effect during the Term of this Lease, a nonassessable
policy of fire insurance, which insurance shall include protection against those
occurrences covered by standard "extended coverage" clause. The cost of such
insurance shall be an Operating expense. If, however, the annual premiums
charged to Landlord for such insurance exceed the standard premium rates because
of Tenant's operations or equipment upon the Premises, then tenant shall pay
such additional premium amounts as Additional Rent. If, however, as a result of
Tenant's operations or equipment upon the premises, landlord is unable to obtain
such insurance coverage, Landlord shall have the right to terminate this Lease
effective on such date as landlord's coverage shall expire, be canceled or
nonrenewed.
10.3. Waiver of Subrogation.
(a) Tenant, for itself and any party claiming through or under
Tenant by way of subrogation or otherwise, hereby waives any claims against
landlord and/or Landlord's Affiliates (as defined in Section 15(c) for loss or
damage to property covered by insurance maintained by tenant or any party making
its claim through or under Tenant, even if such loss or damages shall have been
caused solely by the fault or negligence of Landlord or any of Landlord's
Affiliates or anyone for whom they may be responsible.
(b) Landlord, for itself and any party claiming through or under
Landlord by way of subrogation or otherwise, hereby waives any claim against
Tenant, its officers, directors, partners, shareholders or employees, for loss
or damage to property covered by insurance maintain by Landlord or any party
making its claim through or under Landlord, even if such loss or damage shall
have been caused by the fault or negligence of Tenant or anyone for whom Tenant
may be responsible. Such waiver shall not, however, be deemed to prevent
Landlord from declaring Tenant in default of this Lease if the action or
omission giving rise to the loss or damage also shall constitute a default under
this Lease.
(c) The waivers made pursuant to this section 10.3 shall apply
not only to loss or damage occurring on the premises; but for loss or damage to
property which may occur in the Building, the Common Areas and the Campus. Such
waivers shall be effective, however. Only of and with respect to any loss or
damage occurring during such time as the insured party's policy or policies of
insurance covering said loss or damage shall contain a waiver of the insurer's
right of subrogation and a provision to the effect that such waiver shall not
adversely affect or impair said insurance or prejudice the right of the insured
to recover thereunder (the "Validation Provision"). Landlord and Tenant shall
cause their respective insurers to include in their respective policies a
Validation Provision which has the same effect as the foregoing.
(d) The obligations of this Section 10.3 are mutual and shall be
effective only during such times as Landlord and Tenant have in effect policies
of property casualty insurance which include a Validation Provision. Each party
shall deliver to the other evidence reasonably satisfactory to the requesting
party of the required coverage (with Validation Provision) within ten (10)
business days of the other party's request therefor. If the waivers created by
this Section 10.3 shall be determined to contravene any law with respect to
exculpatory agreements and are thereby rendered unenforceable, the liability of
the party in question shall be deemed not released but shall be secondary to the
other's insurer.
11. FIRE OR CASUALTY.
11.1. Insured Casualty.
(a) In case of damage to the Premises by a risk insured against
by Landlord, Landlord, unless it shall otherwise elect as hereinafter provided,
shall repair the Premises to substantially the condition which existed prior to
such damage, with reasonable dispatch after receiving from Tenant written notice
that damage has occurred, but without obligation to do so until Landlord has
received confirmation from its insurance carrier and all mortgagees holding
mortgages on the Building that adequate insurance proceeds will be available for
repair or reconstruction. Landlord's restoration, however, shall be of only
those portions of the Premises which were initially provided at Landlord's
expense, and restoration of items within the Premises which were not provide at
Landlord's expense shall be Tenant's obligation.
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(b) If damage to the Premises exceeds fifty percent (50%) of its
fair market value prior to such damage, as determined by a reputable fire
adjuster or contractor selected by Landlord or Landlord's insurer (the "Damage
Estimate"), then either party may terminate this Lease in the manner herein
provided, in which event all Rent shall xxxxx and this Lease terminate as of the
date said damage occurred. Tenant shall notify Landlord in writing of its
decision to terminate this Lease within thirty (30) days after delivery of the
Damage Estimate to Tenant ("Tenant's Notice Period"). Tenant's failure to
terminate this Lease by written notice of termination delivered to Landlord
within Tenant's Notice Period shall be conclusively construed as Tenant's
agreement for this Lease to continue; subject, however , to Landlord's right to
terminate this Lease by written notice delivered to Tenant within thirty (30)
days after the expiration of Tenant's Notice Period. If neither party terminates
this Lease, then Landlord shall commence restoration, and Rent shall xxxxx to
the extent described in Subsection (c) below.
(c) If the damages are such as to render the Premises
untenantable, as reasonably determined by Landlord and Tenant, Rent shall xxxxx
in proportion to the portion of the Premises affected by such damage or of which
Tenant has been deprived use as a result of such damage or reconstruction, as
reasonably determined by Landlord. Such abatement shall commence as of the date
of such damage and end when restoration of the Premises is Substantially
Completed (as defined in Section 2.2 hereof) or Tenant's business is totally or
partially resumed, whichever is earlier.
11.2. Uninsured Casualty. If damage or destruction of all or any
portion of the Premises and/or the Building is not fully covered by insurance
proceeds received by Landlord, Landlord shall have the right to terminate this
Lease by written notice of termination delivered to Tenant within thirty (30)
days after Landlord has been notified in writing that said damage of destruction
is not covered by insurance. In such case, this Lease shall terminate as of the
date specified in Landlord's notice to Tenant.
11.3. Mortgagee's Right. If the holder of any indebtedness secured by
a mortgage covering the Building requires that the insurance proceeds be applied
to such indebtedness, then Landlord shall have the right to terminate this Lease
by writing notice of determination delivered to Tenant within thirty (30) days
after such requirement has been made in writing upon Landlord. In such case,
this Lease shall terminate as of the date specified in Landlord's notice to
Tenant.
11.4. Damage Near End of Term. Notwithstanding any provision of this
Lease to the contrary, Landlord shall not have any obligation whatsoever to
repair, reconstruct or restore the Premises when the damage or destruction
occurs during the last year of the Term of this Lease (including any exercised
renewal thereof) unless Tenant exercises a renewal option at time of damage or
destruction, and, in such event where tenant has not exercised an option,
Landlord shall have the option to terminate this Lease in which case Rent shall
xxxxx as of the date said damage occurred.
11.5. Tenant's Compensation/Liability. In no case shall Tenant be
compensated by Landlord for damages or loss in the use of the Premises or for
any inconvenience occasioned by such damage or restoration, Notwithstanding
Section 10.3, if any damage is caused by the negligence or improper conduct of
Tenant or any of Tenant's employees, agents, contractors, licensees or invitees,
Tenant shall be responsible for all damages not covered by insurance, limited to
not to exceed five thousand dollars ($5,000) unless such damage was caused
solely by the negligence or improper conduct of Landlord, its affiliates,
subsidiaries or assignees, at which time Landlord's sole liability shall be
Tenant's deductible not to exceed five thousand dollars ($5,000).
12. EMINENT DOMAIN.
12.1 Termination Rights. If such portion of the Premises and/or the
Building is condemned or taken by any governmental body or by any other body or
agency possessing the power of condemnation as, in the reasonable determination
of Landlord and Tenant, substantially impairs the use or occupancy by Tenant of
the Premises or Landlord's ability to perform its obligations under this Lease
(a "Substantial Taking"), then either party shall have the right to terminate
this Lease effective as of the date that possession is required to be
surrendered to said authority. If Landlord determines that a Substantial Taking
is to occur, then Landlord shall so notify Tenant in writing. Either party shall
then have the right to terminate this Lease by written notice delivered to the
other within sixty (60) days after delivery of Landlord's notice to Tenant of a
Substantial Taking. The failure to Tenant or Landlord to deliver termination
notice within the time limit set forth above shall be conclusively constructed
as such party's agreement for this Lease to continue.
12.2. Repair and Rent Adjustment. If a Substantial Taking is not to
occur or if neither party terminates this Lease under subsection 12.1 above,
Landlord shall promptly restore the Premises and/or the Building to
substantially the same condition prior to such condemnation (less the portion
thereof lost in such condemnation), but without obligation to do so until
Landlord receives the compensation awarded to Landlord on account of such taking
and confirmation from all mortgagees holding mortgages on the Building that the
award shall be made available to Landlord for restoration. In the event the
compensation awarded to Landlord is inadequate to fully cover the cost of
necessary repairs or restorations, Landlord may terminate this Lease. If this
Lease is not terminated by Landlord, then Base Rent and Tenant's Share shall be
proportionately reduced by the portion of the Premises and/or Building of which
Tenant shall have been deprived on account of said condemnation, as reasonable
determined by Landlord, such adjustment to be effective as of the date
possession is required to be surrendered to the condemning authority.
12.3. Temporary Condemnation. If such condemnation or taking is for
temporary use only, this Lease shall continue in full force and effect so long
as such taking does not exceed sixty (60) days, and Tenant shall continue to
comply with all of the provisions hereof, except as such compliance shall be
rendered impossible or impracticable by reason of such temporary taking. Rent
shall xxxxx during the course of a temporary taking of the
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Premises or a portion thereof to the extent and for the period of time that the
Premises or portion thereof so taken shall have been rendered untenantable.
12.4. Condemnation Awards. Tenant shall not be entitled to receive any
part of any award or awards that may be made to or received by Landlord relating
to loss of the Premises and/or the Building, or any part thereof.
Notwithstanding the foregoing, Tenant, at its sole cost and expense, may pursue
independent proceedings against the public authority exercising the power of
condemnation to prove and establish any damage tenant may have sustained
relating to Tenant's business and relocation expenses.
12.5. Mortgagee's Rights. If the holder of any indebtedness secured by
a mortgage covering the Building requires that the condemnation proceeds be
applied to such indebtedness, then Landlord shall have the right to terminate
this Lease by written notice of termination delivered to Tenant within thirty
(30) days after such requirement has been made in writing upon Landlord. In such
case, this Lease shall terminate as of the date specified in Landlord's notice
to Tenant.
13. ALTERATIONS.
13.1. Consent Required.
(a) Tenant shall not make any interior alterations, additions or
improvements to the Premises exceeding $20,000 in value, including without
limitation the building systems ("Alteration" or "Alterations") without the
prior written consent of Landlord which Landlord may not unreasonably withhold,
condition or delay. Landlord may withhold permission in Landlord's sole
discretion for any exterior modification. In no event shall any Alteration
weaken the structure of or impair the Building of which the Premises are a part.
(b) In connection with any request for Landlord's consent, Tenant
shall deliver to Landlord full and complete plans and specifications of the
proposed Alterations. By approving any request for an Alteration, Landlord does
not expressly or implicitly covenant or warrant that the plans and
specifications for such Alteration are accurate, safe or sufficient, or that the
same comply with any applicable laws, or ordinances, building codes, zoning
requirements and like regulations (the "Building Standards"). Tenant shall be
solely responsible for compliance with the Building Standards and for obtaining
all necessary permits and governmental approvals, including a Certificate of
Occupancy upon completion of the Alterations, if required by the municipality in
which the Premises are located. All Alterations (and restoration of the Premises
following removal of same when permitted or required hereunder) shall be done in
a good and workmanlike manner in compliance with the Building Standards and
conditions of any permits and approvals.
(c) Tenant shall reimburse Landlord for Landlord's expenses
incurred (including any reasonable engineering, architectural or legal fees) in
connection with reviewing any request by Tenant to make any Alteration and/or
coordinating the construction or removal of such Alteration.
13.2. Removal at Lease Termination. All Alterations shall remain on
the Premises at the termination of this Lease and shall become the property of
Landlord, unless Landlord at the time it consented to the Alteration, required
same to be the termination of this Lease. In such case, Tenant, at Tenant's sole
cost and expense, shall remove the Alteration and repair all damage resulting
from such removal and shall restore the affected areas to a condition reasonably
compatible with the remainder of the Premises as determined by Landlord or, at
Landlord's option, shall pay to Landlord all costs necessary to accomplish such
removal and restoration.
13.3. Contractors and Lien Waivers.
(a) Any contractors employed by tenant to construct any
Alterations or restoration of the Premises shall be approved by Landlord in
writing and shall carry contractor's liability insurance which covers Landlord
as additional insured, covering bodily injury in such amounts as may be
customary and appropriate for the Alteration undertaken, as reasonably
determined by Landlord. Tenant shall provide proof of such insurance acceptable
to Landlord prior to commencement of any work on the Premises.
(b) Prior to commencement of any Alterations, Tenant shall
procure waivers of mechanics liens from all contractors and copies of said
waivers shall be delivered to landlord prior to construction commencement.
Tenant shall promptly pay and discharge all claims for labor done or supplies
furnished to Premises.
14. SIGNS AND APPEARANCE OF PREMISES.
14.1. Signs. Landlord shall provide one outside sign per building
which shall include the name of Tenant. Landlord shall letter the entrance door
to the Premises with the name of Tenant.
14.2. Exterior. Tenant shall not place or cause to be placed on the
exterior of the Premises, or visible from the exterior of the Premises, or upon
the roof or on any exterior door or wall or on any part of the Common Areas, any
sign, awning, canopy, marquee, advertising matter, decoration, lettering, or any
other thing of any kind (exclusive of the signs, if any, which may be provided
for in the Tenant Improvements), without the prior written consent of Landlord.
14.3. Interior. Except as otherwise provided in this Section 14,
Tenant shall have the right, at its sole cost and expense, to maintain within
the interior of the Premises all signs and advertising matter customary or
appropriate in the conduct of Tenant's business; provided, however, that Tenant
shall, upon demand of Landlord, immediately remove any sign, advertisement,
decoration, lettering or notice which Tenant has placed or permitted to be
placed in , upon, or about the Premises which is visible from the exterior of
the Premises, and which Landlord deems objectionable or offensive in Landlord's
sole discretion. If Tenant fails or refuses to do so, Landlord may enter upon
the Premises and remove same at Tenant's sole cost and expense. Tenant shall
maintain such signs in a neat, clear and orderly conditions.
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14.4. Sign Removal for Maintenance. Landlord shall have the right at
any time and from time to time to remove any sign (interior or exterior) in
order to paint or make repairs or alterations to the Premises. Landlord shall
have the right to charge Tenant for all costs incurred by Landlord to remove
Tenant's signs at the termination or earlier expiration of this Lease and to
restore the areas affected by such sign removal to a condition which is
compatible with the remainder of the Premises, in Landlord's reasonable
discretion.
14.5. Windows. Tenant shall, at all times, maintain the interior
windows of the Premises in a neat, clean and orderly condition. Landlord, at
Tenant's expense, shall replace any broken window glass, (exterior or interior)
with comparable quality materials.
14.6. General Appearance. Tenant acknowledges the appearance of the
Premises affects the value of other nearby real estate and that Landlord has a
direct economic interest in the appearance of the Premises. The appropriateness
of such items, being a matter of aesthetic judgment, shall be entirely within
the discretion of Landlord, and there shall not be any standard or requirement
of equity between the Premises and other real estate owned by Landlord.
15. NON-LIABILITY AND INDEMNIFICATION OF LANDLORD.
(a) Release. Tenant hereby agrees that Landlord and Landlord's
Affiliates, shall not be liable to Tenant, and hereby releases Landlord and
Landlord's Affiliates for all liabilities to Tenant, for injury to any person
(including bodily damage or death) or damage to any property (including real or
personal property, whether by theft or any other casualty) happening in any
manner in, on or about the Premises, the Building or the Common Areas from any
cause whatsoever, unless caused solely by the gross negligence or willful
misconduct of Landlord or Landlord's Affiliates, but neither Landlord nor
Landlord's Affiliates shall be liable to Tenant for any such damage or loss to
the extent that Tenant is compensated therefor by Tenant's insurance or would
have been compensated therefore under policies which Tenant is required to carry
under this Lease. Landlord shall, however, reimburse Tenant for Tenant's
deductible not to exceed five thousand dollars ($5,000) in the event that
Landlord was negligent in its actions. In no event, however, shall Landlord or
Landlord's Affiliates be liable for consequential damages or for any loss or
damage caused by or attributable to other tenants. Tenant agrees to the
foregoing and makes the foregoing release on behalf of Tenant and any party
claiming a right or interest through Tenant, including without limitation
Tenant's agents, contractors, subcontractors, employees, licensees or invitees
(collectively, "Tenant's Agents").
(b) Indemnification. Tenant shall indemnify, defend (with legal
counsel selected by Tenant, but subject to Landlord's reasonable approval), and
hold harmless Landlord and Landlord's Affiliates from and against all liability
whatsoever which may be imposed upon, incurred by, or asserted against Landlord
and/or Landlord's Affiliates by reason of any of the following which shall occur
during the Term of this Lease, or during any period prior to the Lease
Commencement Date or after the expiration of this Lease when Tenant may have
been given possession of, or access to the Premises, the Building, the Common
Ares or any other part of the Campus: (1) use of the Premises, the Building, the
Common Areas, or any other part of the Campus by Tenant or Tenant's Agents; (2)
any repairs or Alterations or other work or act done in, on or about the
Premises (including without limitation as a result of defect in design, material
or workmanship) made by, or at the direction of Tenant or Tenant's Agents,
except if such work or act is done or performed by Landlord or Landlord's
Affiliates or contractors or subcontractors hired by Landlord or any of
Landlord's Affiliates; (3) any negligence or wrongful act or omission on the
part of Tenant or Tenant's Agents; (4) any accident, injury or damage to persons
(including bodily injury and death ) or property (real or personal) occurring
in, or about the Premises, but not if caused solely by the gross negligence or
willful misconduct of Landlord and/or Landlord's Affiliates unless covered by
insurance Tenant is required hereunder to provide; and (5) any failure on the
part of Tenant to perform or comply with any provision of this Lease. Without
limiting the generality of
the foregoing, Tenant's obligations hereunder shall include all damages,
obligations, penalties, fines, liens, claims, reasonable fees for legal counsel
selected by Landlord, investigation costs, remediation costs and all other
reasonable costs and expenses incurred by Landlord, or by its agents, employees,
contractors or subcontractors. Tenant shall not settle or compromise any such
liability for which indemnification is sought hereunder without first obtaining
Landlord's prior written consent, which Landlord may withhold in its sole
discretion.
(c) When used in this Lease, the term Landlord's Affiliates shall
mean any entity affiliated with High Properties through common ownership
(including without limitation High Associates, Ltd., High Construction and High
Investors), Landlord's property manager, and their respective partners,
officers, directors, shareholders, and employees.
(d) This Section 15 shall survive the termination of this Lease
with respect to any damage, injury, death or claim occurring before such
termination, irrespective of when such claim is presented against Landlord.
16.ASSIGNMENT AND SUBLEASING.
16.1. General Provisions.
(a) Tenant shall not sell, assign, transfer, mortgage, pledge, or
sublease the Premises, or any part thereof, nor permit occupancy of the Premises
by any party other than Tenant, without Landlord's prior written consent which
Landlord may not be unreasonably withheld, conditioned, or delayed. Tenant
acknowledges, however, that it shall not be unreasonable for Landlord to
withhold permission to any proposed use involved with alcohol, tobacco, fire
arms, weapons of war, and/or pornography (as defined in Section 17.6 contained
herein). For purposes of this Lease, any merger, consolidation, or sale or
transfer of a controlling interest in Tenant (being 51% or more,
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whether accomplished in a single transaction or in a series of transactions) or
a sale of substantially all of the assets of Tenant shall be deemed an
assignment of this Lease. All of the foregoing events described in this Section
shall be deemed to be a "Transfer."
(b) In the event that Landlord's consent is requested, Tenant
shall deliver to landlord its request in writing along with notice as to (1) the
identity, business and financial condition of the proposed subtenant or
assignee, (2) the terms and conditions of the proposed sublease or assignment,
and (3) the nature of the use of the Premises proposed by such assignee or
subtenant. Tenant shall deliver such further information as Landlord may request
to make its decision.
(c) In response to each request for Landlord's consent to a
Transfer as evidenced by a sublease agreement, signed by the subleasee, Landlord
shall have the option to terminate this lease, provided, however, that if such
Transfer shall be a sublease, termination shall apply only to the portion of the
Premises for which Tenant has requested Landlord's consent to sublease. Landlord
may exercise such option by notice to Tenant ("Landlord's Termination Notice")
delivered within sixty (60) days of Tenant's request for Landlord's consent.
Landlord's failure to timely deliver Landlord's Termination Notice shall be
deemed Landlord's waiver of such rights with respect to Tenant's request then
under consideration. Tenant shall have ten (10) days after receipt of Landlord's
Termination Notice to notify Landlord in writing that Tenant rescinds its
request for Landlord's consent to a Transfer, in which case this Lease shall
continue in full force and effect. Tenant's failure to timely deliver such
notice shall be deemed Tenant's ascent to Landlord's Termination Notice, in
which case this Lease shall continue in full force and effect. Tenant's failure
to timely deliver such notice shall be deemed Tenant's assent to Landlord's
Termination Notice, in which case the Lease shall terminate as of the effective
date intended by Tenant for such Transfer, provided, however, that if such
Transfer shall be a sublease, termination shall be with respect only to the
portion of the Premises for which Tenant has requested Landlord's consent to
sublease.
(d) In the event that Landlord consents to any Transfer, Landlord
shall be provide with a written agreement evidencing same which is acceptable in
form and content to Landlord and by which the transferee assumes all obligations
of Tenant hereunder. At Landlord's option, upon any transfer, (1) any amounts to
be paid to Tenant in excess of Rent due hereunder shall be paid to Landlord
without Landlord's application of same to Rent, and (2) the transferee shall
remit directly to Landlord all rental amounts due or any consideration paid to
Tenant on account of such transfer when as and due to be paid to Tenant. The
foregoing shall apply to any Transfer, even if Landlord has not consented
thereto, but application thereof by Landlord shall not be deemed to release
Tenant of liability for failure to obtain Landlord's consent or otherwise be
deemed to prejudice Landlord's rights hereunder.
(e) No Transfer shall relieve Tenant of any obligation under this
Lease, and any purported Transfer undertaken without Landlord's consent shall be
void. Landlord's consent to any Transfer shall not constitute a waiver of the
necessity of such consent to any subsequent Transfer of Tenant's interest.
(f) Tenant shall pay all of Landlord's reasonable cost and
expenses (including reasonable fees for legal counsel) in connection with any
request for Landlord's consent required hereby.
16.2. Bankruptcy Considerations.
(a) The prohibitions in this Lease against assignment or sublease
by Tenant shall be construed to include assignments by operation of law or by
voluntary assignment or for the benefit of creditors or which might otherwise be
affected or accomplished by bankruptcy, receivership, attachment, execution or
other judicial process or proceeding. If any assignment for the benefit of its
creditors shall be made by Tenant, or if a voluntary of involuntary petition in
bankruptcy or for reorganization and such petition shall not be dismissed within
one hundred twenty (120) days, or for an arrangement shall be filed by or
against Tenant, or if Tenant shall be adjudicated a bankrupt or insolvent, or if
a receiver is appointed for Tenant or for all or a substantial part of its
property, or if any such assignment or transfer by operation or law shall occur,
then and in any such event, Landlord shall have the option to immediate
terminate this Lease by written notice to Tenant.
(b) Notwithstanding the foregoing, if Tenant, as a debtor in
possession (the "DIP"), or a trustee for the estate in bankruptcy of Tenant (the
"Trustee"), assumes this Lease and propose to assign this Lease, or sublet the
Premises (or any portion thereof), pursuant to the provisions of the Federal
Bankruptcy Code, 11 U.D.C. Section 101 et seq., as amended from time to time
(the "Bankruptcy Code"), to any person, partnership, corporation, or other
entity (the "Proposed Assignee") who shall have made a bona fide offer to accept
an assignment of this Lease or a subletting on terms acceptable to the DIP or
the Trustee, then such assumption of this Lease and any such assignment or
sublease shall be subject to all of the following:
(1) The DIP or the Trustee, as the case may be, shall give
Landlord written notice, immediately after receipt by the DIP or the Trustee, as
the case may be, of any offer to accept an assignment or subletting of this
Lease, but in any event no later than ten (10) days to the prior to the date
that the DIP or the Trustee as the case may be, shall make application to a
court of competent jurisdiction for authority and approval to enter into such
assumption and assignment or subletting, which notice shall set forth: (i) the
name and address of the Proposed Assignee: (ii) all of the terms and conditions
of the Proposed Assignee's offer; and (iii) the adequate assurance to be
provided to Landlord to assure the Proposed Assignee's future performance under
this Lease, including, without limitation, the assurances referred to in Section
365 (b) (3) of the Bankruptcy Code. Landlord, upon receipt of such notice, shall
have the prior right and option, to be exercised by notice to the DIP or the
Trustee, as the case may be, given at any time prior to the effective date of
such proposed assignment or sublease, to accept an assignment or sublease of
this Lease by any other assignee or sublessee acceptable to Landlord, upon the
same terms and conditions
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and for the same consideration, if any, as the bona fide offer made by the
Proposed Assignee, less any brokerage commissions which may be payable out of
the consideration to be paid by such person for the assignment of this Lease.
(2) If the Rent agreed upon between the DIP or the Trustee,
as the case may be, and the Proposed Assignee under any proposed assignment or
sublease of the Premises (or any part thereof) is greater than the Rent that
Tenant must pay Landlord hereunder for that portion of the Premises that is
subject to such proposed assignment or sublease, or if any consideration shall
be received by the DIP or the Trustee, as the case may be, in connection with
any such proposed assignment or sublease, then all such excess rental or such
consideration, and any and all other moneys or other considerations payable to
otherwise to be delivered in connection with such proposed assignment or
sublease, shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord, and shall not constitute property of the DIP,
the Trustee, or of the estate of Tenant, as the case may be, within the meaning
of the Bankruptcy Code. Any and all moneys or other considerations constituting
Landlord's property under the proceeding sentence not paid or delivered to
Landlord shall be held in trust for the benefit of Landlord and shall be
promptly paid or turned over to Landlord.
(3) 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 and each of the conditions and provisions hereof on and after the date of
such assignment. Any such assignee shall, upon the request of Landlord,
forthwith execute and deliver to Landlord an instrument, in form and substance
acceptable to Landlord, confirming such assumption.
(4) Any proposed assignment of this Lease or sublease by the
DIP or the Trustee, as the case may be, pursuant to provisions of the Bankruptcy
Code shall provide adequate assurance of future performance under this Lease by
the Proposed Assignee, which adequate assurance shall include, as a minimum, the
following: (i) any Proposed Assignee of this Lease shall deliver to Landlord a
security deposit in an amount equal to at least three (3) months Rent accruing
under this Lease; (ii) an audited financial statement, dated no later than six
(6) months prior to the effective date of such proposed assignment or sublease,
which financial statement shall show the Proposed Assignee to have a net worth
equal to at least twelve (12) months Rent accruing under this Lease, or, in the
alternative, the proposed Assignee shall provide a guarantor of such Proposed
Assignee's obligations under the assignment of this Lease, which guarantor shall
provide an audited financial statement meeting the above requirements and
execute and deliver to Landlord a guaranty agreement in form and substance
acceptable to Landlord; and (iii) any Proposed Assignee shall grant to Landlord
a security interest in favor of Landlord in all furniture, fixtures, and other
personal property to be used by the Proposed Assignee on the Premises.
(c) Nothing contained in this Section shall be deemed a waiver of
Landlord's other rights or remedies under this Lease in the event of any default
by Tenant, nor shall the acceptance by Landlord of any Proposed Assignee
constitute a waiver of Landlord's right to exercise any remedy hereunder for any
default by Tenant, the Trustee or the Proposed Assignee. This Section shall only
govern the Trustee and Tenant as DIP, and any assignment or sublease pursuant to
such assumption, in the event of a proceeding under the Bankruptcy Code; it
shall not apply to any assignment or sublease other than pursuant to the
provisions of the Bankruptcy Code, nor shall it in any way limit Landlord's
rights to damages or other relief in a proceeding under the Bankruptcy Code. The
requirements set forth in this Section for the assumption and any assignment or
sublease of this Lease in a proceeding under the Bankruptcy Code are intended by
Landlord and Tenant to define the minimum acceptable requirements for any
assumption of this Lease and any subsequent assignment or sublease thereof and
shall not constitute a waiver of, or in any way limit, Landlord's rights to
petition a court of competent jurisdiction in a proceeding under the Bankruptcy
Code for relief and protection in addition to that set forth herein.
17. DEFAULT OF TENANT.
17.1 Events of Default. In addition to defaults specified in other
sections of this Lease, the occurrence of any of the following shall be a
default by Tenant, and each shall constitute an "Event of Default" hereunder
without notice from Landlord unless expressly required herein:
(a) Tenant shall fail to pay Rent on its due date or shall fail to
make any other payment when required pursuant to this Lease WITHIN FIVE (5)
BUSINESS DAYS OF THE FIRST DAY OF EACH CALENDAR MONTH (regardless of
whether or not any legal or formal demand has been made therefore);
(b) Tenant shall fail to pay Rent when due for three (3) or more
occasions in any twelve (12) consecutive calendar month period (provided,
however, that the foregoing shall not be construed as a limitation on
Subsection (a) above or otherwise prejudice Landlord's right to hold Tenant
in default for failure to pay Rent when due);
(c) Tenant shall violate or fail to perform any of the terms,
conditions, covenants or agreements herein made by Tenant (other than those
set forth in subsections 17.1(a), (b) and (d)-(h) inclusive or where
expressly declared to be an immediate default in other sections of this
Lease) within thirty (30) days of written notice from Landlord; OR AS
OTHERWISE PROVIDED FOR IN THIS LEASE.
(d) Tenant shall abandon or vacate any substantial portion of the
Premises, whether or not Tenant is in default of the payments of Rent
hereunder, and such abandonment or vacation shall continue for a period of
five (5) business days after written notice thereof to Tenant by Landlord,
which may be accomplished by sending notice to last known address of Tenant
and posting notice on the door of the Premises:
(e) Tenant shall be adjudicated a bankrupt or file a voluntary
petition in any bankruptcy or insolvency proceeding, or if any involuntary
petition in any bankruptcy or insolvency proceeding shall be
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filed against Tenant and not discharged by Tenant within ONE HUNDRED TWENTY
(120) DAYS from the date of filing;
(f) Tenant shall make or consent to an assignment for the benefit of
creditors or a common law composition of creditors, without the prior
written consent of Landlord;
(g) A receiver or trustee shall be appointed for all or substantially
all of Tenant's assets; and/or
(h) Tenant shall make a transfer in fraud of creditors.
17.2. Remedies. Upon the occurrence of any Event of Default, Landlord
shall have the following rights and remedies which shall be cumulative and are
in addition to any other remedies available by law or equity:
(a) Lease Termination. Landlord shall have the right to
immediately terminate this Lease and all rights of Tenant hereunder, in which
event Tenant shall immediately surrender the Premises to Landlord. If Tenant
fails to do so, Landlord may, without notice and without prejudice to any other
remedy Landlord may have, enter upon and take possession of the Premises and
expel or remove Tenant and its effects without being liable to prosecution or
any claim for damages therefor; and Tenant shall indemnify Landlord for all loss
and damages which Landlord may suffer by reason of such termination, whether
through inability to relet the Premises or otherwise, including loss of Rent for
the remainder of the Term and any exercised renewals.
(b) Lease Termination and Rent acceleration. Landlord shall have
the right to immediately terminate this Lease and all rights of Tenant hereunder
and to accelerate Rent in which event Tenant shall be liable for the total of:
(1) any unpaid Rent which had accrued at the time of such termination, plus (2)
Base Rent for the then entire unexpired Term of this Lease along with all
amounts due as Additional Rent for the then entire unexpired Term of this Lease
which shall be capable of precise determination at the time of Landlord's
election to recover accelerated Rent; (3) Landlord's good faith estimate of all
other amounts due as Additional Rent for the then entire unexpired Term of this
Lease which shall not be capable of precise determination as aforesaid (and for
such purposes no estimate of any such component of Additional Rent shall be less
than the amount which would have been due if each such component continued at
the highest monthly rate or amount in effect during the twelve months
immediately preceding the Event of Default). For purposes of such calculation
the Term of this Lease shall be the Term originally stated in the Basic Lease
Information along with any exercised renewals thereof, taken without regard to
any early termination of the Term by virtue of an Event of Default. Tenant also
shall pay any other amount necessary to compensate Landlord for all damages
proximately caused by Tenant's failure to perform Tenant's obligations under
this Lease or which in the ordinary course of events would be likely to result
therefrom. Rent which accrued through the date of the Event of Default, shall
include interest thereon at the Interest Rate, and accelerated Rent thereafter
due shall accrue interest at the Interest Rate until paid in full.
(c) Option to Rent.
(1) Landlord, without terminating this Lease, shall have the
right to enter upon and take possession of the Premises without being liable to
prosecution or any claim for damages therefore, and Landlord may relet the
Premises or any part thereof for such Rent and upon such terms as Landlord deems
appropriate in its sole discretion under the circumstances, (the "Mitigating
Rent") with the right to make alterations and improvements to the Premises
required by any new tenant as to place the Premises in a first-class rentable
condition. If an amount equal to the full Rent which would have been paid by
Tenant hereunder, plus the REASONABLE expenses incurred by Landlord in
connection with such reletting, including without limitation, costs of cleaning,
painting, repairing or refitting the Premises, advertising, broker fees,
municipal fees and legal fees for preparation and negotiation of the replacement
lease (the "Relet Charges"), shall not be realized by Landlord in connection
with such reletting, Tenant shall remain liable for all damages sustained by
Landlord, including without limitation, any deficiency between the Mitigating
Rent and the Rent and Relet Charges.
(2) Should that portion of the amounts received by Landlord
as the Mitigating Rent during any month be less than the Rent payable during
that month by Tenant hereunder, then Tenant shall pay such deficiency to
Landlord immediately upon Landlord's demand therefor, and such amount shall
accrue interest at the Interest Rate from the date of demand until paid in full.
Landlord shall have the right to bring suit for collection of Rent on a monthly
basis without prejudice to Landlord's right to enforce collection of Rent for
any subsequent month or, at Landlord's option, may be deferred until the
expiration of the Term of this Lease, in which event Tenant hereby agrees that
the cause of action shall not be deemed to have accrued until the date of the
scheduled expiration of the Term of this Lease.
(3) Notwithstanding any provision hereof to the contrary
Landlord has no statutory obligation or duty to relet or attempt to relet the
Premises, and Landlord's failure to relet the Premises shall not release or
affect Tenant's liability hereunder. LANDLORD, WILL HOWEVER, USE COMMERCIALLY
REASONABLE EFFORTS TO RELET THE PREMISES. TENANT ACKNOWLEDGES THAT LANDLORD MAY
HAVE COMPETING PROPERTIES AVAILABLE AND NOTHING CONTAINED HEREIN SHALL OBLIGATE
LANDLORD TO PLACE THE TENANT'S PREMISES IN A HIGH POSITION FOR LET. Without in
any way limiting the foregoing, Landlord shall have no obligation to relet the
Premises or any portion thereof in preference or priority to any other space
Landlord may have available for rent in the Building or the Campus, and, If
Landlord endeavors or does rent the Premises or any portion thereof, it shall do
so to further its own interest and shall not act as agent for Tenant with regard
to any economic interest which Tenant may otherwise claim with respect to the
Premises unless Landlord, by supplemental written agreement, is contracted by
Tenant to do so.
(d) Dispossession. The provisions of this Section 17 shall
automatically operate as a notice to quit (any notice to quit, or of Landlord's
intention to re-enter, being hereby expressly waived), and Landlord
18
may proceed to recover possession under and by virtue of the Laws of the
Commonwealth of Pennsylvania or by such other proceedings, including re-entry
and possession, as may be applicable.
(e) Confession of Judgment.
(1) FOLLOWING AN ADDITIONAL THIRTY (30) DAYS NOTICE TO
TENANT AND upon the expiration of the Term of this Lease or surrender hereof as
provided in this Lease, it shall be lawful for any attorney to appear as
attorney for Tenant as well as for all persons claiming by, through or under
Tenant and to sign an agreement for entering in any competent court an amicable
action in ejectment against Tenant and all persons claiming by, through or under
Tenant and therein confess judgment for the recovery by Landlord of possession
of the Premises, for which this Lease shall be its sufficient warrant,
whereupon, if Landlord so desires, a writ of possession or other appropriate
writ under the rules of civil procedure then in effect may issue forthwith,
without any prior writ or proceedings; provided, however, if for any reason
after such action shall have been commenced, the same shall be determined and
the possession of the Premises remain in or be restored to Tenant, Landlord
shall have the right for the same default and upon any subsequent default or
defaults, or upon the termination of this Lease under any of the Terms of this
Lease to bring one or more further amicable action or actions as hereinbefore
set forth to recover possession of the Premises and confess judgment for the
recovery of possession of the Premises as hereinabove provided.
(2)In any amicable action of ejectment and/or for Rent,
Landlord shall first cause to be filed in such action an affidavit made by it or
someone acting for it, setting forth the facts necessary to authorize the entry
of judgment, of which facts such affidavit shall be conclusive. If a true copy
of this Lease (and the truth of the copy asserted in such affidavit shall be
sufficient evidence) be filed in such action, it shall not be necessary to file
the original as a warrant of attorney, any rule of Court, custom or practice to
the contrary notwithstanding. Tenant hereby releases to Landlord and to any and
all attorneys who may appear for Tenant all procedural errors in said
proceedings and all liability therefor. If proceedings shall be commenced by
Landlord to recover possession under the Acts of Assembly and Rules of Civil
Procedure, either at the end of the Term or earlier termination of this Lease,
or for nonpayment of Rent or any other reason, Tenant waives the right to any
notice to remove which may be required by the Landlord and Tenant Act of 1951,
as amended (or any similar or successor law), and agrees that ten (10) days
notice shall be sufficient where a longer period may be statutorily specified.
(f) Waiver of Redemption Rights. AFTER DUE PROCESS OF LAW, Tenant
hereby expressly waives any and all rights of redemption granted by and under
any present or future law in the event this Lease is terminated or Tenant is
evicted or dispossessed following an Event of Default.
(g) Removal of Contents by Landlord. Landlord shall have the
right, with or without terminating this Lease, to re-enter the Premises and
remove all persons and property from the Premises. All property removed by
Landlord may be stored in a public warehouse or elsewhere at the cost of and for
the amount of Tenant, without service of notice or resort to legal process (all
of which Tenant expressly waives), and Landlord shall have no liability
whatsoever to Tenant therefor, including without limitation liability for
trespass or conversion. No re-entry or taking possession of the Premises by
Landlord pursuant to this Section 17 shall be construed as an acceptance of a
surrender of the Premises or an election to terminate this Lease unless a
written notice of such intention is given to Tenant or unless the termination
thereof is decreed by a court of competent jurisdiction and Tenant's liability
under this Lease shall continue until the Term and any exercised renewal option
would have expired and such termination not occurred.
(h) Sale of Tenant's Property. AFTER DUE PROCESS OF LAW, Landlord
may sell at public or private sale, all or any part of Tenant's property
recovered by Landlord in accordance with the foregoing Section with or without
having such property at sale. At any such sale, Landlord or its assigns may
purchase unless otherwise prohibited by law. The proceeds from any such
disposition, less any and all expenses (including legal fees) connected with the
taking of possession, holding and selling of Tenant's property, first shall be
paid from the proceeds realized on such sale and the balance applied to amounts
due to Landlord hereunder. Any surplus shall be paid to Tenant or as otherwise
required by law, and Tenant shall remain responsible for any deficiencies. In
connection herewith, Landlord shall have any and all of the remedies afforded to
secured parties under the provisions of the Uniform Commercial Code, as codified
in Pennsylvania.
17.3 No Waiver. No waiver by Landlord of any breach of any covenant,
condition or agreement herein contained shall operate as a waiver of such
covenant, condition, or agreement, or of any subsequent breach thereof. No
payment by Tenant or receipt by Landlord of a lesser amount than the monthly
installment of Rent herein stipulated shall be deemed to be other than on
account of Rent, nor shall any endorsement or statement on any check or letter
accompanying a check for payment of Rent be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such Rent or to pursue any other remedy provided
in this Lease. Payment received by Landlord when Tenant is in arrears shall be
applied as Landlord determined. No re-entry by Landlord and no acceptance by
Landlord of keys from Tenant shall be considered an acceptance of a surrender of
this Lease.
17.4 Right of Landlord to Cure Tenant's Default. Whenever Tenant
defaults in the making of any payment required hereinunder or in the doing of
any act herein required to be made or done by Tenant, then Landlord, without
prior notice to Tenant, may make such payment or do such act on Tenant's behalf
but shall not be required to do so. All costs incurred by Landlord to satisfy
Tenant's obligations, including without limitation payment of any penalty or
fine which may be imposed as a result of Tenant's failure or violation, shall be
paid by Tenant as Additional Rent within ten (10) business days of Landlord's
demand for reimbursement (unless otherwise expressly provided herein), after
which time interest shall be applied at the Interest Rate. The making of such
payment or the taking of
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such action by Landlord shall not operate to cure or waive such default by
Tenant nor prevent Landlord from exercising any other remedy available to
Landlord.
17.5 Collection Expenses. If Landlord consults an attorney or
collection agency for the collection of any sums due from Tenant or otherwise in
connection with Tenant's performance hereunder, Tenant, whether or not
proceedings are instituted, shall reimburse Landlord for the reasonable fees for
legal counsel and court costs, if any, incurred by Landlord within thirty (30)
business days of Landlord's demand for reimbursement (unless otherwise expressly
provided herein), after which time interest shall be applied at the Interest
Rate.
17.6 Use Restriction and Inspection Rights. Tenant shall not use more
than four percent (4%) of the total cubic footage of the (Premises) at any one
time for the storage, maintenance or distribution of Adult Materials. For
purposes of this paragraph, "Adult Materials" shall mean magazines, newspapers
or other periodicals, calendars, posters, or other printed or photographic
material including CD videos, whose sales are restricted prohibiting sale to
minors. Landlord may inspect the Premises from time to time upon commercially
reasonable notice and during normal hours of operation. In the event that
Landlord determines that Tenant has violated this provision, Tenant shall have a
two (2) week cure period to comply with this provision. The tenant shall only be
given two (2) cure periods over a twelve (12) consecutive month period. If the
Tenant remains in default of this provision after the cure period or is in
default of this section when a cure period is not required to be given, then
Landlord may impose a fine of $10, 000, but not more frequently than one (1)
time per week during the non-compliance period, payment of which shall be due
simultaneously with the next rent payment from Tenant. In the event Tenant's
non-compliance continues for a period of thirty (30) days beyond the applicable
cure period, Landlord may enter premise, seize, remove and destroy the "Adult
Materials" without compensation or liability to Tenants, terminate this Lease as
provided under Section 17 Default of Tenant and seek the remedies set forth
under that section.
18. SURRENDER AT LEASE TERMINATION. Upon the scheduled expiration or
earlier termination of this Lease, Tenant shall promptly surrender to Landlord
the Premises, together with all building apparatus, machinery, replacements to
mechanical and other systems serving the Premises, Alterations and fixtures
(other than Tenant's trade fixtures) situated thereon, except for items which
Landlord, in writing, may have permitted or required Tenant to remove at the
termination of this Lease. Tenant shall return the Premises in substantially the
same condition as the Premises were delivered to Tenant at the commencement of
this Lease, reasonable wear and tear accepted. Prior to surrendering the
Premises, Tenant, at Tenant's expense, shall have all carpets vacuumed, all
vinyl floors mopped and all unfinished floors broom-cleaned.
19. HOLDING OVER. In the event that Tenant shall not immediately surrender
the Premises on the scheduled expiration or forfeiture earlier termination of
this Lease, then, in addition to all remedies available to Landlord for Tenant's
default, Tenant, as a result of such holding over, shall become a tenant at
will, at One hundred fifty percent (150%) the monthly installment of Base Rent
due for the last month of the Term of this Lease together with all Additional
Rent due hereunder, and otherwise upon the terms, conditions, covenants and
agreements of this Lease, except for provisions which by their terms have
expired. Tenant also shall be liable to Landlord for all damages which Landlord
suffers because of any holding over by Tenant (without Landlord's consent), and
Tenant shall indemnify Landlord against all claims made by any other tenant or
prospective tenant against Landlord resulting from delay in delivering
possession of the Premises to such other tenant or prospective tenant. The
indemnification outlined here shall only take effect ninety (90) days after
Tenant's scheduled expiration.
20. SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT.
20.1 Estoppel Certificate. Within fifteen (15) days after Landlord's
request, Tenant shall provide an estoppel certificate in recordable form
certifying (if such be the case) that this Lease is in full force and effect and
that there are no defenses or offsets thereto, or stating those claimed by
Tenant, along with such other information as Landlord reasonably may request.
Tenant's failure to deliver such statement within the time required shall be
conclusive evidence of Tenant's certification that this Lease is in full force
and effect, that there are no defenses or offsets thereto, and of such other
information as Landlord has reasonable requested.
20.2 Attornment. Tenant shall attorn to any mortgagee or purchaser of
the Premises.
20.3 Subordination. Tenant's rights hereunder are subordinate to the
lien of any mortgage or mortgages, or to the lien resulting from any other
method of financing or refinancing, or to any ground lease, now or hereafter in
force against the land of which the Premises are a part, and to all advances
made or hereunder to be made upon the security thereof. Regardless of the
self-operating provision of this Section, if a prospective mortgagee requests
Tenant to sign a subordination agreement, Tenant shall do so promptly. Landlord
shall make reasonable attempts on Tenant's behalf to obtain a Non-disturbance
Agreement from Lender on Lender's Form which shall be commercially reasonable.
20.4 Rights of Mortgagee. In the event of any act or omission of
Landlord which would give Tenant the right to cancel or terminate this Lease, or
to claim a total or partial eviction, Tenant shall not exercise such right (a)
until it has given written notice of such act or omission to the holder of each
mortgage and ground lease whose name and address shall have been furnished
previously to Tenant in writing, and (b) until a reasonable period for remedying
such act or omission shall have elapsed following the giving of such notice,
which reasonable period shall not be less than the period to which Landlord
would be entitled under this Lease.
21. SUBDIVISION AND EASEMENTS. Tenant's use of the Premises and the Common
Areas, if any, shall be subject to all covenants, conditions, easements and
restrictions now or hereafter affecting or encumbering the land on which same
are located. Landlord reserves the right to (a) subdivide the land on which the
Building is located, (b) alter the boundaries of the land on which the Building
is located, and (c) grant easements on the land on which the
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Building is located, and dedicate for public use portions thereof; provided,
however that no such grant or dedication shall materially interfere with
Tenant's use of the Premises or materially reduce the type or quality of
services provided by Landlord under this Lease. Tenant hereby consents, and
subordinates this Lease, to such subdivision, boundary revision, and/or grant or
dedication of easements and agrees from time to time, at Landlord's request, to
execute, acknowledge and deliver to Landlord, in accordance with Landlord's
instructions, all documents or instruments necessary to effectuate Tenant's
consent thereto.
22. ADDITIONAL INSTRUMENTS. Tenant, at the request of Landlord, shall
execute such additional instruments and further assurances as Landlord's
mortgagee may request from time to time or as may be required by Landlord.
23. LIMITED ATTORNEY-IN-FACT. In the event Tenant shall fail to execute any
such instruments or certificates to carry out the intent of Subsections 20.1,
20.2, 20.3, 20.4, 21 or 22 within fifteen (15) days of Landlord's written
request to execute such instruments or certificates, then Tenant hereby
irrevocably appoints Landlord as attorney-in-fact for Tenant with full power and
authority to execute and deliver in the name of Tenant any such instruments or
certificates.
24. LANDLORD'S COVENANT OF QUIET ENJOYMENT. Landlord covenants and warrants
that Tenant, and all those claiming through Tenant, shall have quiet and
peaceable enjoyment of the Premises by and through Landlord provided Tenant, and
all those claiming through Tenant, are not in default of this Lease.
25. LANDLORD RIGHT OF ENTRY. Landlord shall have the right, during the last
six (6) months of the Term, to place on any portion of the Premises signs or
billboards indicating that the Premises are "For Sale" or "For Rent", but such
signs shall be of such size and so placed as not to materially interfere with
Tenant's occupancy. At all times during this Lease, Landlord, upon reasonable
notice to Tenant at a time permitted by Tenant, shall be admitted to the
Premises at reasonable hours of the day to view the Premises, including without
limitation, the right to show the Premises to prospective purchasers,
mortgagees, tenants or contractors.
26.
27. RULES AND REGULATIONS. At all times during the Term, Tenant shall
comply with all rules and regulations for the Building as set forth in Exhibit E
attached hereto and made a part hereof, together with such amendments and
supplements thereto as Landlord may from time to time reasonably adopt. Tenant
shall at all times comply and cause its officers, employees, contractors,
invitees and licensees to comply with any rules and regulations as Landlord may
from time to time adopt.
28.
29. CORPORATE/PARTNERSHIP AUTHORITY. Tenant represents that the undersigned
officer(s) or partner(s) have been duly authorized to enter into this Lease and
that the execution and consummation of this Lease by Tenant does not and shall
not violate any provision of any bylaws, certificate of incorporation,
partnership agreement, or other agreement, order, judgment, governmental
regulation or any other obligations to which Tenant is a party or is subject.
30. BROKER. Tenant warrants that it has had no discussion, negotiations
and/or other dealings with any real estate broker or agent other than the broker
identified in the Basic Lease Information, if any ("Broker"), in connection with
the negotiation of this Lease. Tenant knows of no other real estate broker or
agent who is or may be entitled to any commission or finder's fee in connection
with this Lease. Tenant agrees to indemnify, defend and hold Landlord harmless
from and against any and all claims, demands, losses, liabilities, lawsuits,
judgments, costs and expenses (including without limitation, fees for legal
counsel and costs) with respect to any leasing commission or equivalent
compensation alleged to be owing on account of Tenant's discussions,
negotiations and/or dealings with any real estate broker or agent other than
Broker. This Section is not intended to benefit any third parties and shall not
be deemed to give any rights to brokers or finders. Landlord shall pay any
commission owing to Broker with respect to this Lease pursuant to a separate
agreement or agreements entered with Broker.
31. CHANGE IN OWNERSHIP. In the event that the Building of which the
Premises is a part is sold, or in the event of any change of legal title or
equitable ownership thereof, all obligations and rights of Landlord hereunder
shall be transferred to such purchaser or assignee, and Landlord's obligations
shall terminate and Landlord shall be released and relived from all liability
and responsibility to Tenant. Tenant shall look solely to such purchaser or
assignee for the performance of said obligations or for the enforcement thereof.
Each purchaser of assignee shall in turn have like privileges of sale,
assignment and release.
32. SUCCESSORS AND ASSIGNS. This Lease shall inure to the benefit of and
shall bind the heirs, successors and permitted assigns of the parties hereto to
the extent that such rights hereunder may succeed and be assigned according to
the terms hereof.
33. DESCRIPTIVE HEADINGS. The descriptive headings of the sections are
inserted for convenience only and shall not control or affect the meaning or
construction of any of its provision.
34. SERVICE OF NOTICE. All notices, demands of communications required by
this Lease shall be in writing and shall be effective only if sent by United
States certified mail, return receipt requested or overnight mail deposited with
a nationally recognized carrier with a receipt therefore. Notices shall be
addressed to the other party at the addresses set forth in the Basic Lease
Information, or at such other address as either party may have furnished to the
other in accordance with this Section. Any notice so provided shall be deemed to
have been delivered upon the earlier of (a) actual receipt, or (b) two (2) days
after mailing by certified mail, return receipt requested, or (c) one (1) day
after depositing with a nationally recognized carrier.
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35. SEVERABILITY. If any term, covenant, condition of provision of this
Lease, or the application thereof to any person or circumstance, shall to any
extent be held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, covenants, conditions or provisions
of this Lease, or the application thereof to any person or circumstance, shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated.
36. TIME. Time is of the essence of every provision hereto. Notwithstanding
the foregoing, Landlord shall not be liable for any delays caused by events
beyond Landlord's control ("Force Majeure"), and any time limit provided herein
or in the Work Agreement, if any, for the amount of any delay attributable to
Force Majeure automatically shall be extended for the amount of any delay
attributable to Force Majeure. Force Majeure shall include without limitation
acts of God, strikes, lock-outs, riot or civil commotion, acts of war, fire or
other casualty, requirements of governing authorities or inability to obtain
necessary governmental permits and approvals.
37. ENTIRE AGREEMENT AND GOVERNING LAW. This Lease is the entire agreement
of Landlord and Tenant and shall be governed and construed in accordance with
the laws of the Commonwealth of Pennsylvania. This Lease shall not be amended
unless by written agreement signed by Landlord and Tenant.
38. CONSOLIDATION AND COUNTERPARTS. This Part II along with the
accompanying Part I constitute one agreement and may be signed in any number of
counterparts, each of which shall be an original and all of which together
constitute one agreement binding on the parties hereto.
39. WAIVER OF TRIAL BY JURY. LANDLORD AND TENANT EACH WAIVE TRIAL BY JURY
IN ANY ACTION,PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES
AGAINST THE OTHER ON ANY MATTER WHATSOVER ARISING OUT OF OR IN ANY WAY CONNECTED
WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE AND
OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM OF INJURY OR DAMAGE, EVENT LANDLORD
COMMENCES ANY SUMMARY PROCEEDING FOR NONPAYMENT OF RENT, TENANT SHALL NOT
INTERPOSE ANY FRIVOLUS COUNTERCLAIM OF WITHOUT MERIT OR DESCRIPTION IN ANY SUCH
PROCEEDING FOR THE PURPOSE OF DELAYING ANY SUCH ACTION; HOWEVER, TENANT SHALL
NOT BE DEEMED TO HAVE BREACHED THIS SECIOTN MERELY BECAUSE IT DOES NOT PREVAIL
ON SUCH COUNTERCLAIM.
(Signature page to follow.)
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IN WITNESS WHEREOF, and intending to be legally bound, Landlord and Tenant
have caused this Lease to be signed by their duly authorized officers or agents
under seal, the day and year first above written.
LANDLORD
HIGH PROPERTIES,
a Pennsylvania Limited Partnership
By: High General Corporation,
sole General Partner
Date 3/15/00 Title: /s/ Xxxx X. Xxxxxxxxxx
---------------------------------
Print Name: Xxxx X. Xxxxxxxxxx
Title: Vice President-Operations
TENANT
THE XXXX. XXXX CIRCULATING COMPANY, LLC
a Delaware limited liability company
Date 3/15/00 By: /s/ XX Xxxxx
------------------------------------
Title: Vice Pres
23
RIDER
OPTION #1 TO LEASE FOR AN ADDITIONAL FIVE (5) YEAR TERM
Tenant shall have the option, so long as Tenant is not in default, to lease
the Demised Premises for one additional term of five (5) years(s) at an adjusted
lease price. The adjusted price above referred to shall be Fair Market Value to
be negotiated prior to the end of the original term with annual escalations as
agreed to by Landlord and Tenant.
The option shall be exercised by Tenant giving Landlord written notice six
(6) months prior to the end of the current Lease Term. If this option is
exercised by Tenant, Landlord shall retain the security deposit and it shall be
as set forth in the lease.
LANDLORD
HIGH PROPERTIES,
a Pennsylvania Limited Partnership
By: High General Corporation,
sole General Partner
Date 3/15/00 Title: /s/ Xxxx X. Xxxxxxxxxx
---------------------------------
Print Name: Xxxx X. Xxxxxxxxxx
Vice President-Operations
TENANT
THE XXXX. XXXX CIRCULATING COMPANY, LLC
a Delaware limited liability company
By: /s/ XX Xxxxx
------------------------------------
Title: Vice Pres
24
RIDER
OPTION #2 TO LEASE FOR AN ADDITIONAL FIVE (5) YEAR TERM
Tenant shall have the option, so long as Tenant is not in default, to lease
the Demised Premises for one additional term of five (5) years(s) at an adjusted
lease price. The adjusted price above referred to shall be Fair Market Value to
be negotiated prior to the end of the original term with annual escalations as
agreed to by Landlord and Tenant.
The option shall be exercised by Tenant giving Landlord written notice six
(6) months prior to the end of the current Lease Term. If this option is
exercised by Tenant, Landlord shall retain the security deposit and it shall be
as set forth in the lease.
LANDLORD
HIGH PROPERTIES,
a Pennsylvania Limited Partnership
By: High General Corporation,
sole General Partner
Date 3/15/00 Title: /s/ Xxxx X. Xxxxxxxxxx
---------------------------------
Print Name: Xxxx X. Xxxxxxxxxx
Vice President-Operations
TENANT
THE XXXX. XXXX CIRCULATING COMPANY, LLC
a Delaware limited liability company
By: /s/ XX Xxxxx
------------------------------------
Title: Vice Pres
25
