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Exhibit 10.5
LEASE AGREEMENT
by and between
BAC (MO) QRS 14-10, INC.
a Delaware corporation
as LANDLORD
and
THE XXXXXXXX XXXXXX COMPANY
a Missouri corporation,
as TENANT
Premises: 0000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx
Dated as of: November 24, 1998
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TABLE OF CONTENTS
Page
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Parties............................................................... 1
1. Demise of Premises................................................ 1
2. Certain Definitions............................................... 1
3. Title and Condition............................................... 7
4. Use of Leased Premises; Quiet Enjoyment........................... 8
5. Term.............................................................. 8
6. Basic Rent........................................................ 8
7. Additional Rent................................................... 9
8. Net Lease; Non-Terminability...................................... 10
9. Payment of Impositions............................................ 10
10. Compliance with Laws and Easement Agreements; Environmental
Matters.......................................................... 11
11. Liens; Recording.................................................. 13
12. Maintenance and Repair............................................ 13
13. Alterations and Improvements...................................... 14
14. Permitted Contests................................................ 14
15. Indemnification................................................... 15
16. Insurance......................................................... 17
17. Casualty and Condemnation......................................... 19
18. Termination Events................................................ 20
19. Restoration....................................................... 21
20. Procedures Upon Purchase.......................................... 22
21. Assignment and Subletting; Prohibition Against Leasehold
Financing........................................................ 23
22. Events of Default................................................. 24
23. Remedies and Damages Upon Default................................. 26
24. Notices........................................................... 28
25. Estoppel Certificate.............................................. 29
26. Surrender......................................................... 29
27. No Merger of Title................................................ 29
28. Books and Records................................................. 29
29. Determination of Value............................................ 30
30. Non-Recourse as to Landlord....................................... 31
31. Financing......................................................... 32
32. Subordination, Non-Disturbance and Attornment..................... 32
32. Tax Treatment; Reporting.......................................... 33
33. Right of First Refusal............................................ 33
34. Miscellaneous..................................................... 35
EXHIBITS
Exhibit "A" - Premises
Exhibit "B" - Machinery and Equipment
Exhibit "C" - Schedule of Permitted Encumbrances
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Exhibit "D" - Rent Schedule
Exhibit "E" - Financial Covenants
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LEASE AGREEMENT, made as of this 24th day of November, 1998, between
BAC (MO) QRS 14-10, INC., a Delaware corporation ("Landlord"), with an address
c/o W. P. Xxxxx & Co., Inc., 00 Xxxxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, and THE XXXXXXXX XXXXXX COMPANY, a Missouri corporation ("Tenant"), with
an address at 0000 Xxxx Xxxxxxxxxx Xxxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000.
In consideration of the rents and provisions herein stipulated to be
paid and performed, Landlord and Tenant hereby covenant and agree as follows:
1. Demise of Premises. Landlord hereby demises and lets to Tenant,
and Tenant hereby takes and leases from Landlord, for the term and upon the
provisions hereinafter specified, the following described property
(collectively, the "Leased Premises"): (a) the premises described in Exhibit "A"
hereto, together with the Appurtenances (collectively, the "Land"); (b) the
buildings, structures and other improvements now or hereafter constructed on the
Land (collectively, the "Improvements"); and (c) the fixtures, machinery,
equipment and other property described in Exhibit "B" hereto (collectively, the
"Equipment").
2. Certain Definitions.
"Acquisition Cost" shall mean $6,021,000.
"Additional Rent" shall mean Additional Rent as defined in
Paragraph 7.
"Adjoining Property" shall mean sidewalks, driveways, curbs,
gores and vault spaces adjoining any of the Leased Premises and for which
Landlord has legal responsibility to repair, replace or maintain.
"Alterations" shall mean all changes, additions, improvements
or repairs to, all alterations, reconstructions, renewals, replacements or
removals of and all substitutions or replacements for any of the Improvements or
Equipment, both interior and exterior, structural and non-structural, and
ordinary and extraordinary.
"Appurtenances" shall mean all tenements, hereditaments,
easements, rights-of-way, rights, privileges in and to the Land, including (a)
easements over other lands granted by any Easement Agreement and (b) any
streets, ways, alleys, vaults, gores or strips of land adjoining the Land.
"Assignment" shall mean any assignment of rents and leases
from Landlord to a Lender which (a) encumbers any of the Leased Premises and (b)
secures Landlord's obligation to repay a Loan, as the same may be amended,
supplemented or modified from time to time.
"Basic Rent" shall mean Basic Rent as defined in Paragraph
6.
"Basic Rent Payment Dates" shall mean the Basic Rent
Payment Dates as defined in Paragraph 6.
"Business Day" shall mean any day except Saturday, Sunday and
holidays on which national banks located in the State are closed for business.
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"Casualty" shall mean any injury to or death of any person or
any loss of or damage to any property (including the Leased Premises) included
within or related to the Leased Premises or arising from the Adjoining Property.
"Commencement Date" shall mean Commencement Date as defined
in Paragraph 5.
"Condemnation" shall mean a Taking.
"Condemnation Notice" shall mean notice or knowledge of the
institution of or intention to institute any proceeding for Condemnation.
"Costs" of a Person or associated with a specified transaction
shall mean all reasonable costs and expenses incurred by such Person or
associated with such transaction, including without limitation, attorneys' fees
and expenses, court costs, brokerage fees, escrow fees, title insurance
premiums, mortgage commitment fees, mortgage points, recording fees and transfer
taxes, as the circumstances require.
"Covenants" shall mean the covenants and agreements
described on Exhibit "E".
"CPI" shall mean CPI as defined in Exhibit "D" hereto.
"Default Termination Amount" shall mean the Default
Termination Amount as defined in Paragraph 23(a)(iii).
"Default Rate" shall mean the Default Rate as defined in
Paragraph 7(a)(iv).
"Easement Agreement" shall mean any conditions, covenants,
restrictions, easements, declarations, licenses and other agreements listed as
Permitted Encumbrances or as may hereafter affect the Leased Premises.
"Environmental Law" shall mean (i) whenever enacted or
promulgated, any applicable federal, state, local law, statute, ordinance, rule,
regulation, license, permit, authorization, approval, consent, court order,
judgment, decree, injunction, code, requirement or agreement with any
governmental entity having jurisdiction over Landlord, Tenant or the Leased
Premises, (x) relating to pollution (or the cleanup thereof), or the protection
of air, water vapor, surface water, groundwater, drinking water supply, land
(including land surface or subsurface), plant, aquatic and animal life from
injury caused by a Hazardous Substance or (y) concerning exposure to, or the
use, containment, storage, recycling, reclamation, reuse, treatment, generation,
discharge, transportation, processing, handling, labeling, production, disposal
or remediation of Hazardous Substances, Hazardous Conditions or Hazardous
Activities, in each case as amended and as now or hereafter in effect, and (ii)
any common law or equitable doctrine (including, without limitation, injunctive
relief and tort doctrines such as negligence, nuisance, trespass and strict
liability) that may impose liability or obligations or injuries or damages due
to or threatened as a result of the presence of, exposure to, or ingestion of,
any Hazardous Substance. The term Environmental Law includes, without
limitation, the federal Comprehensive Environmental Response Compensation and
Liability Act of 1980, the Superfund Amendments and Reauthorization Act, the
federal Water Pollution Control Act, the federal Clean Air Act, the federal
Clean Water Act, the federal Resources Conservation and Recovery Act of 1976
(including the Hazardous and Solid Waste Amendments to RCRA), the federal Solid
Waste Disposal Act, the federal Toxic Substance Control Act, the federal
Insecticide, Fungicide and Rodenticide Act, the federal Occupational Safety and
Health Act of
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1970, the federal National Environmental Policy Act and the federal Hazardous
Materials Transportation Act, each as amended and as now or hereafter in effect
and any similar state or local Law.
"Environmental Violation" shall mean (a) any direct or
indirect discharge, disposal, spillage, emission, escape, pumping, pouring,
injection, leaching, release, seepage, filtration or transporting of any
Hazardous Substance at, upon, under, onto or within the Leased Premises, or from
the Leased Premises to the environment, in violation of any Environmental Law or
in excess of any reportable quantity established under any Environmental Law or
which could result in any liability to Landlord, Tenant or Lender, any Federal,
state or local government or any other Person for the costs of any removal or
remedial action or natural resources damage or for bodily injury or property
damage, (b) any deposit, storage, dumping, placement or use of any Hazardous
Substance at, upon, under or within the Leased Premises or which extends to any
Adjoining Property in violation of any Environmental Law or in excess of any
reportable quantity established under any Environmental Law or which could
result in any liability to any Federal, state or local government or to any
other Person for the costs of any removal or remedial action or natural
resources damage or for bodily injury or property damage, (c) the abandonment or
discarding of any barrels, containers or other receptacles containing any
Hazardous Substances in violation of any Environmental Laws, (d) any activity,
occurrence or condition which could result in any liability, cost or expense to
Landlord or Lender or any other owner or occupier of the Leased Premises, or
which could result in a creation of a lien on the Leased Premises under any
Environmental Law, or (e) any violation of or noncompliance with any
Environmental Law.
"Equipment" shall mean the Equipment as defined in Paragraph
1.
"Event of Default" shall mean an Event of Default as defined
in Paragraph 22(a).
"Fair Market Value" shall mean the higher of (a) the fair
market value of the Leased Premises as of the Relevant Date as if unaffected and
unencumbered by this Lease or (b) the fair market value of the Leased Premises
as of the Relevant Date as affected and encumbered by this Lease. For all
purposes of this Lease, Fair Market Value shall be determined in accordance with
the procedure specified in Paragraph 29.
"Fair Market Value Date" shall mean the date when the Fair
Market Value is determined in accordance with Paragraph 29.
"Federal Funds" shall mean federal or other immediately
available funds which at the time of payment are legal tender for the payment of
public and private debts in the United States of America.
"Hazardous Activity" means any activity, process, procedure or
undertaking which directly or indirectly (i) procures, generates or creates any
Hazardous Substance; (ii) causes or results in (or threatens to cause or result
in) the release, seepage, spill, leak, flow, discharge or emission of any
Hazardous Substance into the environment (including the air, ground water,
watercourses or water systems), (iii) involves the containment or storage of any
Hazardous Substance; or (iv) would cause the Leased Premises or any portion
thereof to become a hazardous waste treatment, recycling, reclamation,
processing, storage or disposal facility within the meaning of any Environmental
Law.
"Hazardous Condition" means any condition which would support
any claim or liability under any Environmental Law, including the presence of
underground storage tanks.
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"Hazardous Substance" means (i) any substance, material,
product, petroleum, petroleum product, derivative, compound or mixture, mineral
(including asbestos), chemical, gas, medical waste, or other pollutant, in each
case whether naturally occurring, man-made or the by-product of any process,
that is toxic, harmful or hazardous or acutely hazardous to the environment or
public health or safety as determined under any Environmental Law or (ii) any
substance supporting a claim under any Environmental Law, whether or not defined
as hazardous as such under any Environmental Law. Hazardous Substances include,
without limitation, any toxic or hazardous waste, pollutant, contaminant,
industrial waste, petroleum or petroleum-derived substances or waste, radon,
radioactive materials, asbestos, asbestos containing materials, urea
formaldehyde foam insulation, lead and polychlorinated biphenyls as determined
under any Environmental Law.
"Impositions" shall mean the Impositions as defined in
Paragraph 9(a).
"Improvements" shall mean the Improvements as defined in
Paragraph 1.
"Indemnitee" shall mean an Indemnitee as defined in
Paragraph 15.
"Insurance Requirements" shall mean the requirements of all
insurance policies required to be maintained in accordance with this Lease.
"Land" shall mean the Land as defined in Paragraph 1.
"Law" shall mean any constitution, statute, rule of law, code,
ordinance, order, judgment, decree, injunction, rule, regulation, policy,
requirement or administrative or judicial determination, even if unforeseen or
extraordinary, of every duly constituted governmental authority, court or
agency, now or hereafter enacted or in effect.
"Lease" shall mean this Lease Agreement.
"Lease Year" shall mean, with respect to the first Lease Year,
the period commencing on the Commencement Date and ending at midnight on the
last day of the twelfth (12th) consecutive calendar month following the month in
which the Commencement Date occurred, and each succeeding twelve (12) month
period during the Term.
"Leased Premises" shall mean the Leased Premises as defined
in Paragraph 1.
"Legal Requirements" shall mean the requirements of all
present and future Laws (including but not limited to Environmental Laws and
Laws relating to accessibility to, usability by, and discrimination against,
disabled individuals) and all covenants, restrictions and conditions now or
hereafter of record which may be applicable to Tenant or to any of the Leased
Premises, or to the use, manner of use, occupancy, possession, operation,
maintenance, alteration, repair or restoration of any of the Leased Premises,
even if compliance therewith necessitates structural changes or improvements or
results in interference with the use or enjoyment of any of the Leased Premises.
"Lender" shall mean any person or entity (and their respective
successors and assigns) which may, after the date hereof, make a Loan to
Landlord or is the holder of any Note.
"Loan" shall mean any loan made by one or more Lenders to
Landlord, which loan is secured by a Mortgage and an Assignment and evidenced by
a Note.
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"Monetary Obligations" shall mean Rent and all other sums
payable by Tenant under this Lease to Landlord, to any third party on behalf of
Landlord or to any Indemnitee.
"Mortgage" shall mean any mortgage or deed of trust from
Landlord to a Lender which (a) encumbers any of the Leased Premises and (b)
secures Landlord's obligation to repay a Loan, as the same may be amended,
supplemented or modified.
"Net Award" shall mean (a) the entire award payable to
Landlord or Lender by reason of a Condemnation whether pursuant to a judgment or
by agreement or otherwise, or (b) the entire proceeds of any insurance required
under clauses (i), (ii) (to the extent payable to Landlord or Lender), (iv), (v)
or (vi) of Paragraph 16(a), as the case may be, less any third party expenses
incurred by Landlord and Lender in collecting such award or proceeds.
"Note" shall mean any promissory note evidencing Landlord's
obligation to repay a Loan, as the same may be amended, supplemented or
modified.
"Offer Amount" shall mean the greater of (a) Fair Market Value
or (b) the sum of the Acquisition Cost and any Prepayment Premium which Landlord
will be required to pay in prepaying any Loan with proceeds of the Offer Amount.
"Partial Casualty" shall mean any Casualty which does not
constitute a Termination Event.
"Partial Condemnation" shall mean any Condemnation which does
not constitute a Termination Event.
"Permitted Encumbrances" shall mean those covenants,
restrictions, reservations, liens, conditions and easements and other
encumbrances, other than any Mortgage or Assignment, listed on Exhibit "C"
hereto (but such listing shall not be deemed to revive any such encumbrances
that have expired or terminated or are otherwise invalid or unenforceable).
"Person" shall mean an individual, partnership, association,
corporation or other entity.
"Prepayment Premium" shall mean any payment (other than a
payment of principal and/or interest which Landlord is required to make under a
Note or a Mortgage) by reason of any prepayment by Landlord of any principal due
under a Note or Mortgage, and which may be (in lieu of such prepayment premium
or prepayment penalty) a "make whole" clause requiring a prepayment premium in
an amount sufficient to compensate the Lender for the loss of the benefit of the
Loan due to a prepayment.
"Present Value" of any amount shall mean such amount
discounted by a rate per annum which is the lower of (a) the Prime Rate at the
time such present value is determined or (b) eight percent (8%) per annum.
"Prime Rate" shall mean the annual interest rate as published,
from time to time, in The Wall Street Journal as the "Prime Rate" in its column
entitled "Money Rate". The Prime Rate may not be the lowest rate of interest
charged by any "large U.S. money center commercial banks" and Landlord makes no
representations or warranties to that effect. In the event The Wall Street
Journal ceases publication or ceases to publish the "Prime Rate" as described
above, the Prime Rate shall be the average per annum discount rate (the
"Discount Rate") on ninety-one (91) day bills ("Treasury Bills") issued from
time to time by the United States Treasury at its most recent auction, plus
three hundred (300) basis points. If no such 91-
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day Treasury Bills are then being issued, the Discount Rate shall be the
discount rate on Treasury Bills then being issued for the period of time closest
to ninety-one (91) days.
"Relevant Amount" shall mean the Termination Amount or the
Default Termination Amount, as the case may be.
"Relevant Date" shall mean (a) the date immediately prior to
the date on which the applicable Condemnation Notice is received, in the event
of a Termination Notice under Paragraph 18 which is occasioned by a Taking, (b)
the date immediately prior to the date on which the applicable Casualty occurs,
in the event of a Termination Notice under Paragraph 18 which is occasioned by a
Casualty, (c) the date when Fair Market Value is redetermined, in the event of a
redetermination of Fair Market Value pursuant to Paragraph 20(c), (d) the date
immediately prior to the Event of Default giving rise to the need to determine
Fair Market Value in the event Landlord provides Tenant with notice of its
intention to require Tenant to make a termination offer under Paragraph
23(a)(iii), or (e) the date which Tenant exercise its right of first refusal
under Paragraph 35(d).
"Rent" shall mean, collectively, Basic Rent and Additional
Rent.
"Sales Contract" shall mean Sales Contract as defined in
Paragraph 35.
"Site Assessment" shall mean a Site Assessment as defined
in Paragraph 10(c).
"State" shall mean the State of Missouri.
"Surviving Obligations" shall mean any obligations of Tenant
under this Lease, actual or contingent, which arise on or prior to the
expiration or prior termination of this Lease or which survive such expiration
or termination by their own terms.
"Taking" shall mean (a) any taking or damaging of all or a
portion of any of the Leased Premises (i) in or by condemnation or other eminent
domain proceedings pursuant to any Law, general or special, or (ii) by reason of
any agreement with any condemnor in settlement of or under threat of any such
condemnation or other eminent domain proceeding, or (iii) by any other means, or
(b) any de facto condemnation. The Taking shall be considered to have taken
place as of the later of the date actual physical possession is taken by the
condemnor, or the date on which the right to compensation and damages accrues
under the law applicable to the Leased Premises.
"Term" shall mean the Term as defined in Paragraph 5.
"Termination Amount" shall mean the greater of (a) Fair Market
Value or (b) the sum of the Acquisition Cost and any Prepayment Premium which
Landlord will be required to pay in prepaying any Loan with proceeds of the
Termination Amount.
"Termination Date" shall mean Termination Date as defined
in Paragraph 18.
"Termination Event" shall mean a Termination Event as
defined in Paragraph 18.
"Termination Notice" shall mean Termination Notice as
defined in Paragraph 18(a).
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3. Title and Condition.
(a) The Leased Premises are demised and let subject to (i) the
Mortgage and Assignment presently in effect, (ii) the rights of any Persons in
possession of the Leased Premises, (iii) the existing state of title of any of
the Leased Premises, including any Permitted Encumbrances, (iv) any state of
facts which an accurate survey or physical inspection of the Leased Premises
might show, (v) all Legal Requirements, including any existing violation of any
thereof, and (vi) the condition of the Leased Premises as of the commencement of
the Term, without representation or warranty by Landlord.
(b) Tenant acknowledges that the Leased Premises is in good
condition and repair at the inception of this Lease. LANDLORD LEASES AND WILL
LEASE AND TENANT TAKES AND WILL TAKE THE LEASED PREMISES AS IS. TENANT
ACKNOWLEDGES THAT LANDLORD (WHETHER ACTING AS LANDLORD HEREUNDER OR IN ANY OTHER
CAPACITY) HAS NOT MADE AND WILL NOT MAKE, NOR SHALL LANDLORD BE DEEMED TO HAVE
MADE, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF
THE LEASED PREMISES, INCLUDING ANY WARRANTY OR REPRESENTATION AS TO (i) ITS
FITNESS, DESIGN OR CONDITION FOR ANY PARTICULAR USE OR PURPOSE, (ii) THE QUALITY
OF THE MATERIAL OR WORKMANSHIP THEREIN, (iii) THE EXISTENCE OF ANY DEFECT,
LATENT OR PATENT, (iv) LANDLORD'S TITLE THERETO, (v) VALUE, (vi) COMPLIANCE WITH
SPECIFICATIONS, (vii) LOCATION, (viii) USE, (ix) CONDITION, (x) MERCHANTABILITY,
(xi) QUALITY, (xii) DESCRIPTION, (xiii) DURABILITY, (xiv) OPERATION, (xv) THE
EXISTENCE OF ANY HAZARDOUS SUBSTANCE, HAZARDOUS CONDITION OR HAZARDOUS ACTIVITY
OR (xvi) COMPLIANCE OF THE LEASED PREMISES WITH ANY LAW OR LEGAL REQUIREMENT;
AND ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY TENANT. TENANT ACKNOWLEDGES
THAT THE LEASED PREMISES IS OF ITS SELECTION AND TO ITS SPECIFICATIONS AND THAT
THE LEASED PREMISES HAS BEEN INSPECTED BY TENANT AND IS SATISFACTORY TO IT. IN
THE EVENT OF ANY DEFECT OR DEFICIENCY IN ANY OF THE LEASED PREMISES OF ANY
NATURE, WHETHER LATENT OR PATENT, LANDLORD SHALL NOT HAVE ANY RESPONSIBILITY OR
LIABILITY WITH RESPECT THERETO OR FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES
(INCLUDING STRICT LIABILITY IN TORT). THE PROVISIONS OF THIS PARAGRAPH 3(b) HAVE
BEEN NEGOTIATED, AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY
WARRANTIES BY LANDLORD, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE LEASED
PREMISES, ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OR ANY OTHER LAW NOW
OR HEREAFTER IN EFFECT OR ARISING OTHERWISE.
(c) Tenant represents to Landlord that Tenant has examined the
title to the Leased Premises prior to the execution and delivery of this Lease
and has found the same to be satisfactory for the purposes contemplated hereby.
Tenant acknowledges that (i) fee simple title (both legal and equitable) is in
Landlord and that Tenant has only the leasehold right of possession and use of
the Leased Premises as provided herein, (ii) to the best of its knowledge and
belief, the Improvements conform to all material Legal Requirements and all
Insurance Requirements, (iii) all easements necessary or appropriate for the use
or operation of the Leased Premises have been obtained, (iv) all contractors and
subcontractors who have performed work on or supplied materials to the Leased
Premises have been fully paid, and all materials and supplies have been fully
paid for, (v) the Improvements have been fully completed in all material
respects in a workmanlike manner of first class quality, and (vi) all Equipment
necessary or appropriate for the use or operation of the Leased Premises has
been installed and is presently fully operative in all material respects.
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(d) Landlord hereby assigns to Tenant, without recourse or
warranty whatsoever, all assignable warranties, guaranties, indemnities and
similar rights (collectively, "Warranties") which Landlord may have against any
manufacturer, seller, engineer, contractor or builder in respect of any of the
Leased Premises. Such assignment shall remain in effect until an Event of
Default occurs or until the expiration or earlier termination of this Lease,
whereupon such assignment shall cease and all of Warranties, guaranties,
indemnities and other rights shall automatically revert to Landlord. Tenant
shall enforce the Warranties in accordance with their respective terms.
4. Use of Leased Premises; Quiet Enjoyment.
(a) Tenant may occupy and use the Leased Premises for offices
and the manufacturing of soaps, lotions, cosmetics, health and beauty aids, and
personal hygiene products and for no other purpose without the prior written
consent of Landlord which shall not be unreasonably withheld, delayed or
conditioned. Tenant shall not use or occupy or permit any of the Leased Premises
to be used or occupied, nor do or permit anything to be done in or on any of the
Leased Premises, in a manner which would or might (i) violate any Law or Legal
Requirement, (ii) make void or voidable or cause any insurer to cancel any
insurance required by this Lease, or make it difficult or impossible to obtain
any such insurance at commercially reasonable rates, (iii) make void or
voidable, cancel or cause to be cancelled or release any warranty, guaranty or
indemnity, (iv) cause structural injury to any of the Improvements or (v)
constitute a public or private nuisance or waste.
(b) Subject to the provisions hereof, so long as no Event of
Default has occurred and is continuing, Tenant shall quietly hold, occupy and
enjoy the Leased Premises throughout the Term, without any hindrance, ejection
or molestation by Landlord or anyone claiming by, through or under Landlord,
with respect to matters that arise after the date hereof, provided that Landlord
or its agents may enter upon and examine any of the Leased Premises at such
reasonable times as Landlord may select and upon reasonable notice to Tenant
(except in the case of an emergency, in which no notice shall be required) for
the purpose of inspecting the Leased Premises, verifying compliance or
non-compliance by Tenant with its obligations hereunder and the existence or
non-existence of an Event of Default or event which with the passage of time
and/or notice would constitute an Event of Default, showing the Leased Premises
to prospective Lenders and purchasers and taking such other action with respect
to the Leased Premises as is permitted by any provision hereof.
5. Term.
Subject to the provisions hereof, Tenant shall have
and hold the Leased Premises for an initial term (such term, as extended or
renewed in accordance with the provisions hereof, being called the "Term")
commencing on the date hereof (the "Commencement Date") and ending on the last
day of the one hundred eightieth (180th) calendar month next following the date
hereof.
If an Event of Default occurs, then Landlord shall
have the right during the remainder of the Term then in effect and, in any
event, Landlord shall have the right during the last year of the Term, to (i)
advertise the availability of the Leased Premises for sale or reletting and to
erect upon the Leased Premises signs indicating such availability and (ii) show
the Leased Premises to prospective purchasers or tenants or their agents at such
reasonable times as Landlord may select.
6. Basic Rent. Tenant shall pay to Landlord, as annual rent for the
Leased Premises during the Term, the amounts determined in accordance with
Exhibit "D" hereto ("Basic Rent"), commencing on the first day of December, 1998
and continuing on the first day
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of each December, March, June and September thereafter during the Term (each
such day being a "Basic Rent Payment Date"). Each such rental payment shall be
made either (a) to Landlord at its address set forth above or to such one other
Person, at such address and as Landlord may direct by fifteen (15) days' prior
written notice to Tenant, and (b) by a check delivered on or before the
applicable Basic Rent Payment Date or by wire transfer on or before each Basic
Rent Payment Date. Pro rata Basic Rent for the period from the date hereof
through the last day of the month hereof shall be paid on the Commencement Date.
7. Additional Rent.
(a) Tenant shall pay and discharge, as additional rent
(collectively, "Additional Rent"):
(i) except as otherwise specifically provided herein,
all costs and expenses of Tenant, Landlord and any other Persons specifically
referenced herein which are incurred in connection or associated with (A) the
ownership, use, non-use, occupancy, possession, operation, condition, design,
construction, maintenance, alteration, repair or restoration of any of the
Leased Premises, (B) the performance of any of Tenant's obligations under this
Lease, (C) any sale or other transfer of any of the Leased Premises to Tenant
under this Lease, (D) any Condemnation proceedings, (E) the adjustment,
settlement or compromise of any insurance claims involving or arising from any
of the Leased Premises, (F) the prosecution, defense or settlement of any
litigation involving or arising from any of the Leased Premises, this Lease, or
the sale of the Leased Premises by Tenant to Landlord, (G) the exercise or
enforcement by Landlord, its successors and assigns, of any of its rights under
this Lease, (H) any amendment to or modification or termination of this Lease
made at the request of Tenant, (I) Costs of Landlord's counsel incurred in
connection with any act undertaken by Landlord (or its counsel) at the request
of Tenant, or incurred in connection with any act of Landlord performed on
behalf of Tenant, (J) the reasonable third party Costs of Landlord incurred in
connection with any act undertaken by Landlord at the request of Tenant or
Tenant's failure to act promptly in an emergency situation, and (K) any other
items specifically required to be paid by Tenant under this Lease;
(ii) after the date all or any portion of any
installment of Basic Rent is due and not paid, an amount equal to five percent
(5%) of the amount of such unpaid installment or portion thereof, provided,
however, that with respect to the first late payment of all or any portion of
any installment of Basic Rent in any consecutive twelve (12) month period, the
Late Charge shall not be due and payable unless the Basic Rent has not been paid
within five (5) days' following the due date thereof;
(iii) a sum equal to any additional sums (including any
late charge, default penalties, interest and fees of Lender's counsel) which are
payable by Landlord to any Lender under any Note by reason of Tenant's late
payment or non-payment of Basic Rent or by reason of an Event of Default; and
(iv) interest at the rate (the "Default Rate") of three
percent (3%) over the Prime Rate per annum on the following sums until paid in
full: (A) all overdue installments of Basic Rent from the respective due dates
thereof, (B) all overdue amounts of Additional Rent relating to obligations
which Landlord shall have paid on behalf of Tenant, from the date of payment
thereof by Landlord, and (C) all other overdue amounts of Additional Rent, from
the date when any such amount becomes overdue.
(b) Tenant shall pay and discharge (i) any Additional Rent
referred to in Paragraph 7(a)(i) when the same shall become due, provided that
amounts which are billed to Landlord or any third party, but not to Tenant,
shall be paid within thirty (30) days after
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Landlord's demand for payment thereof, and (ii) any other Additional Rent,
within thirty (30) days after Landlord's demand for payment thereof.
(c) In no event shall amounts payable under Paragraph
7(a)(ii), (iii) and (iv) exceed the maximum amount permitted by applicable Law.
8. Net Lease; Non-Terminability.
(a) This is a net lease and all Monetary Obligations shall be
paid without notice or demand and without set-off, counterclaim, recoupment,
abatement, suspension, deferment, diminution, deduction, reduction or defense
(collectively, a "Set-Off").
(b) Except as otherwise expressly provided herein, this Lease
and the rights of Landlord and the obligations of Tenant hereunder shall not be
affected by any event or for any reason, including the following: (i) any damage
to or theft, loss or destruction of any of the Leased Premises, (ii) any
Condemnation, (iii) Tenant's acquisition of ownership of any part of the Leased
Premises other than pursuant to an express provision of this Lease, (iv) any
default on the part of Landlord hereunder or under any Note, Mortgage or
Assignment, (v) any latent or other defect in any of the Leased Premises, (vi)
the breach of any warranty of any seller or manufacturer of any of the
Equipment, (vii) any violation of any provision of this Lease by Landlord,
(viii) the bankruptcy, insolvency, reorganization, composition, readjustment,
liquidation, dissolution or winding-up of, or other proceeding affecting
Landlord, (ix) the exercise of any remedy, including foreclosure, under any
Mortgage or Assignment, (x) any action with respect to this Lease (including the
disaffirmance hereof) which may be taken by Landlord, any trustee, receiver or
liquidator of Landlord or any court under the Federal Bankruptcy Code or
otherwise, (xi) any interference with Tenant's use of the Leased Premises, (xii)
market or economic changes or (xiii) any other cause, whether similar or
dissimilar to the foregoing, any present or future Law to the contrary
notwithstanding.
(c) The obligations of Tenant hereunder shall be separate and
independent covenants, conditions and agreements, all Monetary Obligations shall
continue to be payable in all events (or, in lieu thereof, Tenant shall pay
amounts equal thereto), and the obligations of Tenant hereunder shall continue
unaffected unless the requirement to pay or perform the same shall have been
terminated pursuant to an express provision of this Lease. All Rent payable by
Tenant hereunder shall constitute "rent" for all purposes (including Section
502(b)(6) of the Federal Bankruptcy Code). The covenants of this Lease shall run
with the land and all covenants of Tenant shall be deemed and construed to be
"conditions" as well as "covenants" as though the words specifically expressing
or importing covenants and conditions are used in each instance.
(d) Except as otherwise expressly provided herein, Tenant
shall have no right and hereby waives all rights which it may have under any Law
(i) to quit, terminate or surrender this Lease or any of the Leased Premises, or
(ii) to any Set-Off of any Monetary Obligations.
9. Payment of Impositions.
(a) Tenant shall, before interest or penalties are due
thereon, pay and discharge all taxes (including real and personal property,
franchise, sales and rent taxes), all charges for any easement or agreement
maintained for the benefit of any of the Leased Premises, all assessments and
levies, all permit, inspection and license fees, all rents and charges for
water, sewer, utility and communication services relating to any of the Leased
Premises, all ground rents and all other public charges whether of a like or
different nature, even if unforeseen or extraordinary, imposed upon or assessed
against (i) Tenant, (ii) Tenant's leasehold interest in the
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Leased Premises, (iii) any of the Leased Premises, and (iv) Landlord as a result
of or arising in respect of the acquisition, ownership, occupancy, leasing, use,
possession or sale of any of the Leased Premises, any activity conducted on any
of the Leased Premises, or the Rent, (collectively, the "Impositions");
provided, that nothing herein shall obligate Tenant to pay (A) income, excess
profits or other taxes of Landlord (or Lender) which are determined on the basis
of Landlord's (or Lender's) net income or net worth (unless such taxes are in
lieu of or a substitute for any other tax, assessment or other charge upon or
with respect to the Leased Premises which, if it were in effect, would be
payable by Tenant under the provisions hereof or by the terms of such tax,
assessment or other charge), (B) any estate, inheritance, succession, gift or
similar tax imposed on Landlord or (C) any capital gains tax imposed on Landlord
in connection with the sale of the Leased Premises to any Person. If any
Imposition may be paid in installments without interest or penalty, Tenant shall
have the option to pay such Imposition in installments; in such event, Tenant
shall be liable only for those installments which accrue or become due and
payable during the Term. Tenant shall prepare and file all tax reports required
by governmental authorities which relate to the Impositions. Tenant shall
deliver to Landlord (1) copies of all settlements and notices pertaining to the
Impositions which may be issued by any governmental authority within ten (10)
Business Days after Tenant's receipt thereof, (2) receipts for payment of all
taxes required to be paid by Tenant hereunder within thirty (30) days after the
due date thereof and (3) receipts for payment of all other Impositions within
ten (10) Business Days after Landlord's request therefor.
(b) Landlord shall have the right following the occurrence of
an Event of Default or if required by Lender, to require Tenant to pay to
Landlord an additional monthly sum (each an "Escrow Payment") sufficient to pay
the Escrow Charges (as hereinafter defined) as they become due (provided that
Landlord shall request that the Lender not require the escrow described herein
unless an Event of Default exists). As used herein, "Escrow Charges" shall mean
real estate taxes on the Leased Premises or payments in lieu thereof and
premiums on any insurance required by this Lease. Landlord shall determine the
amount of the Escrow Charges and of each Escrow Payment based on the most recent
charges for Escrow Charges. As long as the Escrow Payments are being held by
Landlord the Escrow Payments shall not be commingled with other funds of
Landlord or other Persons and interest thereon shall accrue for the benefit of
Tenant from the date such monies are received and invested until the date such
monies are disbursed to pay Escrow Charges. Landlord shall apply the Escrow
Payments to the payment of the Escrow Charges in such order or priority as
Landlord shall determine or as required by law. If at any time the Escrow
Payments theretofore paid to Landlord shall be insufficient for the payment of
the Escrow Charges, Tenant, within thirty (30) days after Landlord's demand
therefor, shall pay the amount of the deficiency to Landlord.
10. Compliance with Laws and Easement Agreements; Environmental
Matters.
(a) Tenant shall, at its expense, comply with and conform to,
and cause the Leased Premises and any other Person occupying any part of the
Leased Premises to comply with and conform to, all Insurance Requirements and
Legal Requirements (including all applicable Environmental Laws). Tenant shall
not at any time (i) cause, permit or suffer to occur any Environmental Violation
or (ii) permit any sublessee, assignee or other Person occupying the Leased
Premises under or through Tenant to cause, permit or suffer to occur any
Environmental Violation and, at the request of Landlord or Lender, Tenant shall
promptly remediate or undertake any other appropriate response action to correct
any existing Environmental Violation, however immaterial.
(b) Tenant, at its sole cost and expense, will at all times
promptly and faithfully abide by, discharge and perform all of the covenants,
conditions and agreements contained in any Easement Agreement on the part of
Landlord or the occupier to be kept and
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performed thereunder. Neither party will alter, modify, amend or terminate any
Easement Agreement, give any consent or approval thereunder, or enter into any
new Easement Agreement without, in each case, the prior written consent of the
other party.
(c) Upon prior written notice from Landlord, Tenant shall
permit such persons as Landlord may designate ("Site Reviewers") to visit the
Leased Premises and perform environmental site investigations and assessments
("Site Assessments") on the Leased Premises for the purpose of determining
whether there exists on the Leased Premises any Environmental Violation or any
condition which could result in any Environmental Violation. Such Site
Assessments may include both above and below the ground testing for any
Environmental Violation and such other tests as may be necessary, in the opinion
of the Site Reviewers, to conduct the Site Assessments. Tenant shall supply to
the Site Reviewers such historical and operational information regarding the
Leased Premises as may be reasonably requested by the Site Reviewers to
facilitate the Site Assessments, and shall make available for meetings with the
Site Reviewers appropriate personnel having knowledge of such matters.
Notwithstanding anything in this Paragraph 10(c) to the contrary, in no event
shall Landlord designate Site Reviewers to visit the Leased Premises for the
purpose of performing Site Assessments more than once in any calendar year
unless Landlord has reasonable cause to believe that an Environmental Violation
exists or unless required by a Lender or by prospective purchaser or Lender. The
cost of performing and reporting Site Assessments if an Environmental Violation
exists or in connection with the initial Loan shall be paid by Tenant (subject
to the limitation in Paragraph 31 hereof); otherwise, the cost of performing and
reporting Site Assessments shall be paid by Landlord.
(d) If an Environmental Violation occurs or is found to exist
and, in Landlord's reasonable judgment, the cost of remediation of, or other
response action with respect to, the same is likely to exceed $100,000, Tenant
shall provide to Landlord, within forty five (45) days after Landlord's request
therefor, adequate financial assurances that Tenant will effect such remediation
in accordance with applicable Environmental Laws. Such financial assurances
shall be a bond or letter of credit reasonably satisfactory to Landlord in form
and substance and in an amount equal to or greater than Landlord's reasonable
estimate, based upon a Site Assessment performed pursuant to Paragraph 10(c), of
the anticipated cost of such remedial action.
(e) Notwithstanding any other provision of this Lease, if an
Environmental Violation occurs or is found to exist and the Term would otherwise
terminate or expire, then, at the option of Landlord, the Term shall be
automatically extended beyond the date of termination or expiration and this
Lease shall remain in full force and effect beyond such date until the earlier
to occur of (i) the completion of all remedial action in accordance with
applicable Environmental Laws or (ii) the date specified in a written notice
from Landlord to Tenant terminating this Lease.
(f) If Tenant fails to correct or commence to correct any
Environmental Violation which occurs or is found to exist within thirty (30)
days after written notice from Landlord, Landlord shall have the right (but no
obligation) to take any and all actions as Landlord shall deem necessary or
advisable in order to cure such Environmental Violation.
(g) Tenant shall notify Landlord promptly after becoming aware
of any Environmental Violation (or alleged Environmental Violation) or
noncompliance with any of the covenants contained in this Paragraph 10 and shall
forward to Landlord promptly after receipt thereof copies of all orders,
reports, notices, permits, applications or other communications relating to any
such violation or noncompliance.
(h) All future leases, subleases or concession agreements
relating to the Leased Premises entered into by Tenant shall contain covenants
of the other party not to at
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any time (i) cause any Environmental Violation to occur or (ii) permit any
Person occupying the Leased Premises through said subtenant or concessionaire to
cause any Environmental Violation to occur.
(i) No later than January 10, 1999 Tenant shall provide to
Landlord evidence that the stained soil in the transformer area has been removed
satisfactorily and properly disposed of and shall provide to Landlord no later
than December 10, 1998 exhibits to the Xxxxxxx report that have not previously
been provided to Landlord.
11. Liens; Recording.
(a) Tenant shall not, directly or indirectly, create or permit
to be created or to remain and shall promptly discharge or remove any lien, levy
or encumbrance on any of the Leased Premises or on any Rent or any other sums
payable by Tenant under this Lease, other than any Mortgage or Assignment, the
Permitted Encumbrances and any mortgage, lien, encumbrance or other charge
created by or resulting solely from any act or omission of Landlord. NOTICE IS
HEREBY GIVEN THAT LANDLORD SHALL NOT BE LIABLE FOR ANY LABOR, SERVICES OR
MATERIALS FURNISHED OR TO BE FURNISHED TO TENANT OR TO ANYONE HOLDING OR
OCCUPYING ANY OF THE LEASED PREMISES THROUGH OR UNDER TENANT, AND THAT NO
MECHANICS' OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH
TO OR AFFECT THE INTEREST OF LANDLORD IN AND TO ANY OF THE LEASED PREMISES.
LANDLORD MAY AT ANY TIME, AND AT LANDLORD'S REQUEST TENANT SHALL PROMPTLY, POST
ANY NOTICES ON THE LEASED PREMISES REGARDING SUCH NON-LIABILITY OF LANDLORD.
(b) Tenant shall execute, deliver and record, file or register
(collectively, "record") all such instruments as may be required or permitted by
any present or future Law in order to evidence the respective interests of
Landlord and Tenant in the Leased Premises, and shall cause a memorandum of this
Lease (or, if such a memorandum cannot be recorded, this Lease), and any
supplement hereto or thereto, to be recorded in such manner and in such places
as may be required or permitted by any present or future Law in order to protect
the validity and priority of this Lease.
12. Maintenance and Repair.
(a) Tenant shall at all times maintain the Leased Premises and
the Adjoining Property in as good repair and appearance as they are in on the
date hereof and fit to be used for their intended use in accordance with the
better of (i) the practices generally recognized as then acceptable by other
companies in its industry or (ii) practices observed by Tenant with respect to
the other real properties owned or operated by it, and, in the case of the
Equipment, in as good mechanical condition as it was on the later of the date
hereof or the date of its installation, except for ordinary wear and tear.
Tenant shall take every other action necessary or appropriate for the
preservation and safety of the Leased Premises. Tenant shall promptly make all
Alterations of every kind and nature, which may be required to comply with the
foregoing requirements of this Paragraph 12(a). Landlord shall not be required
to make any Alteration, or to maintain any of the Leased Premises or Adjoining
Property in any way, and Tenant hereby expressly waives any right which may be
provided for in any Law now or hereafter in effect to make Alterations at the
expense of Landlord or to require Landlord to make Alterations. Any Alteration
made by Tenant pursuant to this Paragraph 12 shall be made in conformity with
the provisions of Xxxxxxxxx 00.
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00
(x) If any Improvement, now or hereafter constructed, shall
(i) encroach upon any setback or any property, street or right-of-way adjoining
the Leased Premises, (ii) violate the provisions of any restrictive covenant
affecting the Leased Premises, (iii) hinder or obstruct any easement or
right-of-way to which any of the Leased Premises is subject or (iv) impair the
rights of others in, to or under any of the foregoing, Tenant shall, promptly
after receiving notice or otherwise acquiring knowledge thereof, either (A)
obtain from all necessary parties waivers or settlements of all claims,
liabilities and damages resulting from each such encroachment, violation,
hindrance, obstruction or impairment, whether the same shall affect Landlord,
Tenant or both, or (B) take such action as shall be necessary to remove all such
encroachments, hindrances or obstructions and to end all such violations or
impairments, including, if necessary, making Alterations.
13. Alterations and Improvements.
(a) Tenant shall have the right, without having obtained the
prior written consent of Landlord and Lender and provided that no Event of
Default then exists, to make Alterations or a series of related Alterations
that, as to any such Alterations or series of related Alterations, do not cost
in excess of $300,000 and (ii) to install Equipment in the Improvements or
accessions to the Equipment that, as to such Equipment or accessions, do not
cost in excess of $300,000, so long as at the time of construction or
installation of any such Equipment or Alterations no Event of Default exists and
the value and utility of the Leased Premises is not diminished thereby. If the
cost of any Alterations, series of related Alterations, Equipment or accessions
thereto is in excess of $300,000, the prior written approval of Landlord and
Lender shall be required, such approval not to be unreasonably withheld or
delayed. Tenant shall not construct upon the Land any additional buildings
without having first obtained the prior written consent of Landlord and Lender.
(b) If Tenant makes any Alterations pursuant to this Paragraph
13 or as required by Paragraph 12 or 17 (such Alterations and actions being
hereinafter collectively referred to as "Work"), whether or not Landlord's
consent is required, then (i) the market value of the Leased Premises shall not
be lessened by any such Work or its usefulness impaired, (ii) all such Work
shall be performed by Tenant in a good and workmanlike manner, (iii) all such
Work shall be expeditiously completed in compliance with all Legal Requirements,
(iv) all such Work shall comply with the Insurance Requirements, (v) if any such
Work involves the replacement of Equipment or parts thereto, all replacement
Equipment or parts shall have a value and useful life equal to the greater of
(A) the value and useful life on the date hereof of the Equipment being replaced
or (B) the value and useful life of the Equipment being replaced immediately
prior to the occurrence of the event which required its replacement, (vi) Tenant
shall promptly discharge or remove all liens filed against any of the Leased
Premises arising out of such Work, (vii) Tenant shall procure and pay for all
permits and licenses required in connection with any such Work, (viii) all such
Work shall be the property of Landlord and shall be subject to this Lease, and
Tenant shall execute and deliver to Landlord any document requested by Landlord
evidencing the assignment to Landlord of all estate, right, title and interest
(other than the leasehold estate created hereby) of Tenant or any other Person
thereto or therein, and (ix) Tenant shall comply, to the extent requested by
Landlord or required by this Lease, with the provisions of Paragraph 19(a), if
such Work involves restoration of the Leased Premises.
14. Permitted Contests. Notwithstanding any other provision of this
Lease, Tenant shall not be required to (a) pay any Imposition, (b) discharge or
remove any lien referred to in Paragraph 11 or 13 or (c) take any action with
respect to any encroachment, violation, hindrance, obstruction or impairment
referred to in Paragraph 12(b) (such non-compliance with the terms hereof being
hereinafter referred to individually as a "Permitted Violation", and
collectively as "Permitted Violations"), so long as at the time of such contest
no Event of Default exists and so long as Tenant shall contest, in good faith,
the existence, amount or validity thereof,
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the amount of the damages caused thereby, or the extent of its or Landlord's
liability therefor by appropriate proceedings which shall operate during the
pendency thereof to prevent or stay (i) the collection of, or other realization
upon, the Permitted Violation so contested, (ii) the sale, forfeiture or loss of
any of the Leased Premises or any Rent to satisfy or to pay any damages caused
by any Permitted Violation, (iii) any interference with the use or occupancy of
any of the Leased Premises, (iv) any interference with the payment of any Rent,
or (v) the cancellation of any insurance policy or a statement by the carrier
that coverage will be denied. Tenant shall provide Landlord security which is
satisfactory, in Landlord's reasonable judgment, to assure that such Permitted
Violation is corrected, including all Costs, interest and penalties that may be
incurred or become due in connection therewith. While any proceedings which
comply with the requirements of this Paragraph 14 are pending and the required
security is held by Landlord, Landlord shall not have the right to correct any
Permitted Violation thereby being contested unless Landlord is required by law
to correct such Permitted Violation and Tenant's contest does not prevent or
stay such requirement as to Landlord. Each such contest shall be promptly and
diligently prosecuted by Tenant to a final conclusion, except that Tenant, so
long as the conditions of this Paragraph 14 are at all times complied with, has
the right to attempt to settle or compromise such contest through negotiations.
Tenant shall pay any and all losses, judgments, decrees and Costs in connection
with any such contest and shall, promptly after the final determination of such
contest, fully pay and discharge the amounts which shall be levied, assessed,
charged or imposed or be determined to be payable therein or in connection
therewith, together with all penalties, fines, interest and Costs thereof or in
connection therewith, and perform all acts the performance of which shall be
ordered or decreed as a result thereof. No such contest shall subject Landlord
to the risk of any civil or criminal liability.
15. Indemnification.
(a) Tenant shall pay, protect, indemnify, defend, save and
hold harmless Landlord, Lender and all other Persons described in Paragraph 30
(each an "Indemnitee") from and against any and all liabilities, losses, damages
(including punitive damages), penalties, Costs (including attorneys' fees and
costs), causes of action, suits, claims, demands or judgments of any nature
whatsoever, howsoever caused, without regard to the form of action and whether
based on strict liability, negligence or any other theory of recovery at law or
in equity [(unless caused by the gross negligence (if such indemnification is
permitted under applicable Law) or negligence (if indemnification against gross
negligence is not so permitted) or willful misconduct of the Indemnitee seeking
indemnification], arising from (i) any matter pertaining to the acquisition (or
the negotiations leading thereto), ownership, use, non-use, occupancy,
operation, condition, design, construction, maintenance, repair or restoration
of the Leased Premises or Adjoining Property, (ii) any casualty in any manner
arising from the Leased Premises or Adjoining Property, whether or not
Indemnitee has or should have knowledge or notice of any defect or condition
causing or contributing to said casualty, (iii) any violation by Tenant of any
provision of this Lease, any contract or agreement to which Tenant is a party,
any Legal Requirement or any Permitted Encumbrance or any encumbrance Tenant
consented to or the Mortgage or Assignment or (iv) any alleged, threatened or
actual Environmental Violation, including (A) liability for response costs and
for costs of removal and remedial action incurred by the United States
Government, any state or local governmental unit or any other Person, or damages
from injury to or destruction or loss of natural resources, including the
reasonable costs of assessing such injury, destruction or loss, incurred
pursuant to Section 107 of CERCLA, or any successor section or act or provision
of any similar state or local Law, (B) liability for costs and expenses of
abatement, correction or clean-up, fines, damages, response costs or penalties
which arise from the provisions of any of the other Environmental Laws and (C)
liability for personal injury or property damage arising under any statutory or
common-law tort theory, including damages assessed for the maintenance of a
public or private nuisance or for carrying on of a dangerous activity.
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(b) In case any action or proceeding is brought against any
Indemnitee by reason of any such claim, (i) Tenant may, except in the event of a
conflict of interest or a dispute between Tenant and any such Indemnitee or
during the continuance of an Event of Default, retain its own counsel and defend
such action (it being understood that Landlord may at its expense, except as
provided below, employ counsel of its choice to monitor the defense of any such
action) and (ii) such Indemnitee shall notify Tenant to resist or defend such
action or proceeding by retaining counsel reasonably satisfactory to such
Indemnitee, and such Indemnitee will cooperate and assist in the defense of such
action or proceeding if reasonably requested so to do by Tenant. In the event of
a conflict of interest or dispute or during the continuance of an Event of
Default, Landlord shall have the right to select counsel reasonably satisfactory
to Tenant, and the cost of such counsel shall by paid by Tenant.
(c) The obligations of Tenant under this Paragraph 15 shall
survive any termination, expiration or rejection in bankruptcy of this Lease for
a period of five (5) years, except that with respect to any alleged
environmental violation the obligations of Tenant shall survive without any
limitation as to time.
(d) (i) In the event that any claim or demand for which Tenant
would be liable to Landlord hereunder is asserted against or sought to be
collected from Landlord by a third party, Landlord shall with reasonable
promptness give notice (the "Claim Notice") to Tenant of such claim or demand,
specifying the nature of and specific basis for such claim or demand and the
amount or the estimated amount thereof to the extent then feasible (which
estimate shall not be conclusive of the final amount of such claim and demand).
Tenant shall not be obligated to indemnify Landlord with respect to any such
claim or demand if Landlord fails to notify Tenant thereof in accordance with
the provisions of this Paragraph 15 and, as a result of such failure, Tenant's
ability to defend against the claim or demand is materially prejudiced. Tenant
shall have ten (10) days from its receipt of the Claim Notice (the "Notice
Period") to notify Landlord (i) whether or not it disputes the liability of
Tenant to Landlord hereunder with respect to such claim or demand, and (ii)
whether or not it desires, at the cost and expense of Tenant, to defend Landlord
against such claim or demand; provided, however, that Landlord is hereby
authorized, but is not obligated, prior to and during the Notice Period, to file
any motion, answer or other pleading that it shall deem necessary or appropriate
to protect its interests or those of Tenant. If Tenant notifies Landlord within
the Notice Period that it desires to defend Landlord against such claim or
demand, Tenant shall, subject to the last sentence of this paragraph (i), have
the right to control the defense against the claim by all appropriate
proceedings and any settlement negotiations. If Landlord desires to participate
in, but not control, any such defense or settlement, it may do so at its sole
cost and expense. If Tenant fails to respond to Landlord within the Notice
Period, elects not to defend Landlord, or after electing to defend fails to
commence or reasonably pursue such defense, then Landlord shall have the right,
but not the obligation, to undertake or continue the defense of, and to
compromise or settle (exercising reasonable business judgment), the claim or
other matter all on behalf, for the account and at the risk of Tenant.
(ii) If requested by Tenant, Landlord agrees, at
Tenant's expense, to cooperate with Tenant and its counsel in contesting any
third party claim or demand which Tenant elects to contest, or, if appropriate
and related to the claim in question, in making any counterclaim against the
person asserting the third party claim or demand, or any cross-complaint against
any person. Except as expressly provided in paragraph (i) above, no claim as to
which indemnification is sought under this Paragraph 15 may be settled without
the consent of Tenant.
(iii) If Landlord should have a claim against Tenant
hereunder which does not involve a claim or demand being asserted against or
sought to be collected from it by a third party, Landlord shall send a Claim
Notice with respect to such claim to Tenant. If
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Tenant disputes such claim, such dispute shall be resolved by litigation in an
appropriate court of competent jurisdiction.
16. Insurance.
(a) Tenant shall maintain the following insurance on or in
connection with the Leased Premises:
(i) Insurance against physical loss or damage to the
Improvements and Equipment as provided under a standard "All Risk" property
policy including but not limited to flood (if the Leased Premises is in a flood
zone) and earthquake coverage in amounts not less than the actual replacement
cost of the Improvements and Equipment. Such policies shall contain Replacement
Cost and Agreed Amount Endorsements and shall contain deductibles not more than
$25,000 per occurrence.
(ii) Commercial General Liability Insurance (including
but not limited to Incidental Medical Malpractice and Host Liquor Liability) and
Business Automobile Liability Insurance (including Non-Owned and Hired
Automobile Liability) against claims for personal and bodily injury, death or
property damage occurring on, in or as a result of the use of the Leased
Premises, in an amount not less than $10,000,000 per occurrence/annual aggregate
and all other coverage extensions that are usual and customary for properties of
this size and type provided, however, that the Landlord shall have the right to
require such higher limits as may be reasonable and customary for properties of
this size and type.
(iii) Workers' compensation insurance covering all
persons employed by Tenant in connection with any work done on or about any of
the Leased Premises for which claims for death, disease or bodily injury may be
asserted against Landlord, Tenant or any of the Leased Premises or, in lieu of
such Workers' Compensation Insurance, a program of self-insurance complying with
the rules, regulations and requirements of the appropriate agency of the State.
(iv) Comprehensive Boiler and Machinery Insurance on any
of the Equipment or any other equipment on or in the Leased Premises, in an
amount not less than $5,000,000 per accident for damage to property. Such
policies shall include at least $50,000 per accident for Off-Premises Service
Interruption, Expediting Expenses, Ammonia Contamination, and Hazardous
Materials Clean-Up Expense and may contain a deductible not to exceed $25,000.
(v) Business Income/Extra Expense Insurance at limits
sufficient to cover 100% of the period of indemnity not less than one year from
time of loss. Such insurance shall name Landlord as loss payee solely with
respect to Rent payable to or for the benefit of Landlord as its interest
appears under this Lease.
(vi) During any period in which substantial Alterations
at the Leased Premises are being undertaken, builder's risk insurance covering
the total completed value including any "soft costs" with respect to the
Improvements being altered or repaired (on a completed value, non-reporting
basis), replacement cost of work performed and equipment, supplies and materials
furnished in connection with such construction or repair of Improvements or
Equipment, together with such "soft cost" endorsements and such other
endorsements as Landlord may reasonably require and general liability, worker's
compensation and automobile liability insurance with respect to the Improvements
being constructed, altered or repaired.
(vii) Such other insurance (or other terms with respect
to any insurance required pursuant to this Paragraph 16, including without
limitation amounts of coverage, deductibles, form of mortgagee clause) on or in
connection with any of the Leased
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Premises as Landlord or Lender may reasonably require, which at the time is
usual and commonly obtained in connection with properties similar in type of
building size, use and location to the Leased Premises.
(b) The insurance required by Paragraph 16(a) shall be written
by companies which have a Best's rating of A:X or above and are admitted in, and
approved to write insurance policies by, the State Insurance Department for the
State. The insurance policies (i) shall be for a minimum term of at least one
(1) year and such terms as Landlord may reasonably approve and (ii) shall be in
amounts sufficient at all times to satisfy any coinsurance requirements thereof.
The insurance referred to in Paragraphs 16(a)(i), 16(a)(iv) and 16(a)(vi) shall
name Landlord as Owner and Lender as loss payee and Tenant as its interest may
appear. The insurance referred to in Paragraph 16(a)(ii) shall name Landlord and
Lender as additional insureds, and the insurance referred to in Paragraph
16(a)(v) shall name Landlord as insured and Lender and Landlord as loss payee.
If said insurance or any part thereof shall expire, be withdrawn, become void,
voidable, unreliable or unsafe for any reason, including a breach of any
condition thereof by Tenant or the failure or impairment of the capital of any
insurer, or if for any other reason whatsoever said insurance shall become
reasonably unsatisfactory to Landlord, Tenant shall immediately obtain new or
additional insurance reasonably satisfactory to Landlord.
(c) Each insurance policy referred to in clauses (i), (iv),
(v) and (vi) of Paragraph 16(a) shall contain standard non-contributory
mortgagee clauses in favor of and acceptable to Lender. Each policy required by
any provision of Paragraph 16(a), except clause (iii) thereof, shall provide
that it may not be cancelled substantially modified or allowed to lapse on any
renewal date except after thirty (30) days' prior notice to Landlord and Lender.
Each such policy shall also provide that any loss otherwise payable thereunder
shall be payable notwithstanding (i) any act or omission of Landlord or Tenant
which might, absent such provision, result in a forfeiture of all or a part of
such insurance payment, (ii) the occupation or use of any of the Leased Premises
for purposes more hazardous than those permitted by the provisions of such
policy, or (iii) any foreclosure or other action or proceeding taken by Lender
pursuant to any provision of the Mortgage, Note, Assignment or other document
evidencing or securing the Loan upon the happening of an event of default
therein.
(d) Tenant shall pay as they become due all premiums for the
insurance required by Paragraph 16(a), shall renew or replace each policy and
deliver to Landlord evidence of the payment of the full premium therefor or
installment then due at least thirty (30) days prior to the expiration date of
such policy, and shall promptly deliver to Landlord all original certificates of
insurance or, if requested by Lender, certified copies of policies.
(e) Anything in this Paragraph 16 to the contrary
notwithstanding, any insurance which Tenant is required to obtain pursuant to
Paragraph 16(a) may be carried under a "blanket" or umbrella policy or policies
covering other properties or liabilities of Tenant, provided that such "blanket"
or umbrella policy or policies otherwise comply with the provisions of this
Paragraph 16 and provided further that Tenant shall provide to Landlord a
Statement of Values which shall be reviewed annually and amended as necessary
based on Replacement Cost Valuations. The original or a certified copy of each
such "blanket" or umbrella policy shall promptly be delivered to Landlord.
(f) Tenant shall promptly comply with and conform to (i) all
provisions of each insurance policy required by this Paragraph 16 and (ii) all
requirements of the insurers thereunder applicable to Landlord, Tenant or any of
the Leased Premises or to the use, manner of use, occupancy, possession,
operation, maintenance, alteration or repair of any of the Leased Premises, even
if such compliance necessitates Alterations or results in interference with the
use or enjoyment of any of the Leased Premises.
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(g) Tenant shall not carry separate insurance concurrent in
form or contributing in the event of a Casualty with that required in this
Paragraph 16 unless (i) Landlord and Lender are included therein as named
insureds, with loss payable as provided herein, and (ii) such separate insurance
complies with the other provisions of this Paragraph 16. Tenant shall
immediately notify Landlord of such separate insurance and shall deliver to
Landlord the original policies thereof.
(h) All policies shall contain effective waivers by the
carrier against all claims for insurance premiums against Landlord and shall
contain full waivers of subrogation against the Landlord.
(i) All proceeds of any insurance required under Paragraph
16(a) shall be payable as follows:
(i) Proceeds payable under clauses (ii), (iii) and (iv)
of Paragraph 16(a) and proceeds attributable to the general liabilities coverage
of Builder's Risk insurance under clause (vi) of Paragraph 16(a) shall be
payable to the Person entitled to receive such proceeds.
(ii) All proceeds of insurance payable under clauses
(ii), (iii), (iv), (v) and (vii) of Paragraph 16(a) and proceeds attributable to
the general liability coverage provisions of Builder's Risk insurance under
clause (vi) of Paragraph 16(a) shall be payable to Landlord or, if required by
the Mortgage, to Lender.
(iii) Proceeds of insurance required under clause (i) of
Paragraph 16(a) and proceeds attributable to Builder's Risk insurance (other
than its general liability coverage provisions) under clause (vi) of Paragraph
16(a) shall be payable to Landlord (or Lender) and applied as set forth in
Paragraph 17. Tenant shall apply the Net Award to restoration of the Leased
Premises in accordance with the applicable provisions of this Lease.
17. Casualty and Condemnation.
(a) If any Casualty occurs to the Leased Premises, Tenant
shall give Landlord and Lender immediate notice thereof. So long as no Event of
Default exists Tenant is hereby authorized to adjust, collect and compromise all
claims under any of the insurance policies required by Paragraph 16(a) (except
public liability insurance claims payable to a Person other than Tenant,
Landlord or Lender) and to execute and deliver on behalf of Landlord all
necessary proofs of loss, receipts, vouchers and releases required by the
insurers and Landlord shall have the right to join with Tenant therein. Any
final adjustment, settlement or compromise or any such claim shall be subject to
the prior written approval of Landlord, and Landlord shall have the right to
prosecute or contest, or to require Tenant to prosecute or contest, any such
claim, adjustment, settlement or compromise. If an Event of Default exists,
Tenant shall not be entitled to adjust, collect or compromise any such claim or
to participate with Landlord in any adjustment, collection and compromise of the
Net Award payable in connection with a Casualty. Tenant agrees to sign, upon the
request of Landlord, all such proofs of loss, receipts, vouchers and releases.
Each insurer is hereby authorized and directed to make payment under said
policies, including return of unearned premiums, directly to Landlord or, if
required by the Mortgage, to Lender instead of to Landlord and Tenant jointly,
and Tenant hereby appoints each of Landlord and Lender as Tenant's
attorneys-in-fact to endorse any draft therefor. The rights of Landlord under
this Paragraph 17(a) shall be extended to Lender if and to the extent that any
Mortgage so provides.
(b) Tenant, immediately upon receiving a Condemnation Notice,
shall notify Landlord and Lender thereof. So long as no Event of Default exists,
Tenant is authorized
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to collect, settle and compromise the amount of any Net Award and Landlord shall
have the right to join with Tenant herein. If an Event of Default exists,
Landlord shall be authorized to collect, settle and compromise the amount of any
Net Award and Tenant shall not be entitled to participate with Landlord in any
Condemnation proceeding or negotiations under threat thereof or to contest the
Condemnation or the amount of the Net Award therefor. No agreement with any
condemnor in settlement or under threat of any Condemnation shall be made by
Tenant without the written consent of Landlord. Subject to the provisions of
this Paragraph 17(b) and Paragraph 17(c), Tenant hereby irrevocably assigns to
Landlord any award or payment to which Tenant is or may be entitled by reason of
any Condemnation, whether the same shall be paid or payable for Tenant's
leasehold interest hereunder or otherwise; but nothing in this Lease shall
impair Tenant's right to any award or payment on account of Tenant's trade
fixtures, equipment or other tangible property which is not part of the
Equipment, moving expenses or loss of business, if available, to the extent that
and so long as (i) Tenant shall have the right to make, and does make, a
separate claim therefor against the condemnor and (ii) such claim does not in
any way reduce either the amount of the award otherwise payable to Landlord for
the Condemnation of Landlord's fee interest in the Leased Premises or the amount
of the award (if any) otherwise payable for the Condemnation of Tenant's
leasehold interest hereunder. The rights of Landlord under this Paragraph 17(b)
shall also be extended to Lender if and to the extent that any Mortgage so
provides.
(c) If any Partial Casualty (whether or not insured against)
or Partial Condemnation shall occur, this Lease shall continue, notwithstanding
such event, and there shall be no abatement or reduction of any Monetary
Obligations. Promptly after such Partial Casualty or Partial Condemnation,
Tenant, as required in Paragraphs 12(a) and 13(b), shall commence and diligently
continue to restore the Leased Premises as nearly as possible to their value,
condition and character immediately prior to such event (assuming the Leased
Premises to have been in the condition required by this Lease). So long as no
Event of Default exists, any Net Award up to and including $300,000 shall be
paid by Landlord to Tenant and Tenant shall restore the Leased Premises in
accordance with the requirements of Paragraphs 12(a) and 13(b) of this Lease.
Any Net Award in excess of $300,000 shall (unless such Casualty resulting in the
Net Award is a Termination Event) be made available by Landlord (or Lender, if
required by the terms of any Mortgage) to Tenant for the restoration of any of
the Leased Premises pursuant to and in accordance with the provisions of
Paragraph 19 hereof. If any Casualty or Condemnation which is not a Partial
Casualty or Partial Condemnation shall occur, Tenant shall comply with the terms
and conditions of Paragraph 18.
18. Termination Events.
(a) If (i) the entire Leased Premises shall be taken by a
Taking or (ii) any substantial portion of the Leased Premises shall be taken by
a Taking or all or any substantial portion of the Leased Premises shall be
damaged or destroyed by a Casualty and, in such case, Tenant certifies and
covenants to Landlord that it will forever abandon operations at the Leased
Premises (each of the events described in the above clauses (i) and (ii) shall
hereinafter be referred to as a "Termination Event"), then (x) in the case of
(i) above, Tenant shall be obligated, within thirty (30) days after Tenant
receives a Condemnation Notice and (y) in the case of (ii) above, Tenant shall
have the option, within thirty (30) days after Tenant receives a Condemnation
Notice or thirty (30) days after the Casualty, as the case may be, to give to
Landlord written notice of the Tenant's exercise of its option to terminate this
Lease (a "Termination Notice") in the form described in Paragraph 18(b).
(b) A Termination Notice shall contain (i) notice of Tenant's
intention to terminate this Lease on the first Basic Rent Payment Date which
occurs at least sixty (60) days after the Fair Market Value Date (the
"Termination Date"), (ii) a binding and irrevocable offer of Tenant to pay to
Landlord the Termination Amount and (iii) if the Termination Event is an event
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described in Paragraph 18(a)(ii), the certification and covenants described
therein and a certified resolution of the Board of Directors of Tenant
authorizing the same. Promptly upon the delivery to Landlord of a Termination
Notice, Landlord and Tenant shall commence to determine the Fair Market Value.
(c) If Landlord shall reject such offer to terminate this
Lease by written notice to Tenant (a "Rejection"), which Rejection shall contain
the written consent of Lender, not later than thirty (30) days following the
Fair Market Value Date, then this Lease shall terminate on the Termination Date;
provided that, if Tenant has not satisfied all Monetary Obligations and all
other obligations and liabilities under this Lease which have arisen on or prior
to the Termination Date (collectively, "Remaining Obligations") on the
Termination Date, then Landlord may, at its option, extend the date on which
this Lease may terminate to a date which is no later than the first Basic Rent
Payment Date after the Termination Date on which Tenant has satisfied all
Remaining Obligations. Upon such termination (i) all obligations of Tenant
hereunder shall terminate except for any Surviving Obligations, (ii) Tenant
shall immediately vacate and shall have no further right, title or interest in
or to any of the Leased Premises and (iii) the Net Award shall be retained by
Landlord. Notwithstanding anything to the contrary hereinabove contained, if
Tenant shall have received a Rejection and, on the date when this Lease would
otherwise terminate as provided above, Landlord shall not have received the full
amount of the Net Award payable by reason of the applicable Termination Event,
then the date on which this Lease is to terminate automatically shall be
extended to the first Basic Rent Payment Date after the receipt by Landlord of
the full amount of the Net Award provided that, if Tenant has not satisfied all
Remaining Obligations on such date, then Landlord may, at its option, extend the
date on which this Lease may terminate to a date which is no later than the
first Basic Rent Payment Date after such date on which Tenant has satisfied all
such Remaining Obligations.
(d) Unless Tenant shall have received a Rejection not later
than the thirtieth (30th) day following the Fair Market Value Date, Landlord
shall be conclusively presumed to have accepted such offer. If such offer is
accepted by Landlord then, on the Termination Date, Tenant shall pay to Landlord
the Termination Amount and all Remaining Obligations and, if requested by
Tenant, Landlord shall (i) convey to Tenant the Leased Premises or the remaining
portion thereof, if any, and (ii) pay to or assign to Tenant Landlord's entire
interest in and to the Net Award, all in accordance with Paragraph 20.
19. Restoration.
(a) Landlord (or Lender if required by any Mortgage) shall
hold Net Award in excess of $300,000 in a fund (the "Restoration Fund") and
disburse amounts from the Restoration Fund only in accordance with the following
conditions:
(i) prior to commencement of restoration, (A) the
architects, contracts, contractors, plans and specifications for the restoration
shall have been approved by Landlord, and (B) Landlord and Lender shall be
provided with acceptable performance and payment bonds which insure satisfactory
completion of and payment for the restoration, are in an amount and form and
have a surety reasonably acceptable to Landlord, and name Landlord and Lender as
additional dual obligees;
(ii) at the time of any disbursement, no Event of
Default shall exist and no mechanics' or materialmen's liens shall have been
filed against any of the Leased Premises and remain undischarged;
(iii) disbursements shall be made from time to time
in an amount not exceeding the cost of the work completed since the last
disbursement, upon receipt of (A)
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satisfactory evidence, including architects' certificates, of the stage of
completion, the estimated total cost of completion and performance of the work
to date in a good and workmanlike manner in accordance with the contracts, plans
and specifications, (B) waivers of liens, (C) contractors' and subcontractors'
sworn statements as to completed work and the cost thereof for which payment is
requested, (D) a satisfactory bringdown of title insurance and (E) other
evidence of cost and payment so that Landlord can verify that the amounts
disbursed from time to time are represented by work that is completed, in place
and free and clear of mechanics' and materialmen's lien claims;
(iv) each request for disbursement shall be accompanied
by a certificate of Tenant, signed by the president or a vice president of
Tenant, describing the work for which payment is requested, stating the cost
incurred in connection therewith, stating that Tenant has not previously
received payment for such work and, upon completion of the work, also stating
that the work has been fully completed and complies with the applicable
requirements of this Lease;
(v) Landlord may retain ten percent (10%) of the
restoration fund until the restoration is fully completed;
(vi) if the Restoration Fund is held by Landlord, the
Restoration Fund shall not be commingled with Landlord's other funds and shall
bear interest at a rate agreed to by Landlord and Tenant; and
(vii) such other reasonable conditions as Landlord or
Lender may impose.
(b) Prior to commencement of restoration and at any time
during restoration, if the estimated cost of completing the restoration work
free and clear of all liens, as reasonably determined by Landlord, exceeds the
amount of the Net Award available for such restoration, the amount of such
excess shall, upon demand by Landlord, be paid by Tenant to Landlord to be added
to the Restoration Fund. Any sum so added by Tenant which remains in the
Restoration Fund upon completion of restoration shall be refunded to Tenant. For
purposes of determining the source of funds with respect to the disposition of
funds remaining after the completion of restoration, the Net Award shall be
deemed to be disbursed prior to any amount added by Tenant.
(c) If any sum remains in the Restoration Fund after
completion of the restoration and any refund to Tenant pursuant to Paragraph
19(b), such sum shall be retained by Landlord or, if required by a Note or
Mortgage, paid by Landlord to a Lender. If such sum is paid to Lender, then
Landlord shall use reasonable efforts to cause each installment of Basic Rent
thereafter payable to be reduced in the same amount as payments are reduced
under any Note if the Loan corresponding to such Note is reamortized to reflect
such payment, in each case until such remaining sum has been applied in full or
until the Term has expired, whichever occurs first. Upon the expiration of the
Term, any portion of the remaining sum which has not been so applied shall be
retained by Landlord.
20. Procedures Upon Purchase.
(a) If the Leased Premises is purchased by Tenant pursuant to
any provision of this Lease, Landlord need not convey any better title thereto
than that which was conveyed to Landlord, and Tenant shall accept such title,
subject, however, to the Permitted Encumbrances and to all other liens,
exceptions and restrictions on, against or relating to any of the Leased
Premises and to all applicable Laws, but free of the lien of and security
interest created by any Mortgage or Assignment and liens, exceptions and
restrictions on, against or
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relating to the Leased Premises which have been created by or resulted solely
from acts of Landlord after the date of this Lease, unless the same are
Permitted Encumbrances or customary utility easements benefiting the Leased
Premises or were created with the concurrence of both Landlord and Tenant or as
a result of a default by Tenant under this Lease.
(b) Upon the date fixed for any such purchase of the Leased
Premises pursuant to any provision of this Lease (any such date the "Purchase
Date"), Tenant shall pay to Landlord, or to any Person to whom Landlord directs
payment, the Relevant Amount therefor specified herein, in Federal Funds, less
any credit of the Net Award received and retained by Landlord or a Lender
allowed against the Relevant Amount, and Landlord shall deliver to Tenant (i) a
special warranty deed which describes the premises being conveyed and conveys
the title thereto as provided in Paragraph 20(a), (ii) such other instruments as
shall be necessary to transfer to Tenant or its designee any other property (or
rights to any Net Award not yet received by Landlord or a Lender) then required
to be sold by Landlord to Tenant pursuant to this Lease and (iii) any Net Award
received by Landlord, not credited to Tenant against the Relevant Amount and
required to be delivered by Landlord to Tenant pursuant to this Lease; provided,
that if any Monetary Obligations accruing up to the Purchase Date remain
outstanding on such date, then Landlord may deduct from the Net Award the amount
of such Monetary Obligations; and further provided, that if any event has
occurred which, in Landlord's reasonable judgment, is likely to subject any
Indemnitee to any liability which Tenant is required to indemnify against
pursuant to Paragraph 15, then an amount shall be deducted from the Net Award
which, in Landlord's reasonable judgment, is sufficient to satisfy such
liability, which amount shall be deposited in an escrow account with a financial
institution reasonably satisfactory to Landlord and Tenant pending resolution of
such matter. If on the Purchase Date any Monetary Obligations accruing up to the
Purchase Date remain outstanding and no Net Award is payable to Tenant by
Landlord or the amount of such Net Award is less than the amount of the Monetary
Obligations, then Tenant shall pay to Landlord on the Purchase Date the amount
of such Monetary Obligations. Upon the completion of such purchase, this Lease
and all obligations and liabilities of Tenant hereunder shall terminate, except
any Surviving Obligations.
(c) If the completion of such purchase shall be delayed after
(i) the Termination Date, in the event of a purchase pursuant to Paragraph 18
or, (ii) the date scheduled for such purchase, in the event of a purchase under
any other provision of this Lease then (x) Rent shall continue to be due and
payable until completion of such purchase and (y) at Landlord's sole option,
Fair Market Value shall be redetermined and the Relevant Amount payable by
Tenant pursuant to the applicable provision of this Lease shall be adjusted to
reflect such redetermination.
(d) Any prepaid Monetary Obligations paid to Landlord shall be
prorated as of the Purchase Date, and the prorated unapplied balance shall be
deducted from the Relevant Amount due to Landlord; provided, that no
apportionment of any Impositions shall be made upon any such purchase.
21. Assignment and Subletting; Prohibition against Leasehold
Financing.
(a) Except as specifically provided in Paragraph 1,
subparagraphs (b), (c) and (d) of Exhibit E, Tenant may not assign this Lease,
voluntarily or involuntarily, whether by operation of law or otherwise, or
sublet any of the Leased Premises at any time to any other Person without the
prior written consent of Landlord, which consent, in the event of an assignment,
may be withheld by Landlord for any or no reason.
(b) If Tenant assigns all its rights and interest under this
Lease, the assignee under such assignment shall expressly assume all the
obligations of Tenant hereunder, actual or contingent, including obligations of
Tenant which may have arisen on or prior to the
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date of such assignment and whether actual or contingent, which remain
unsatisfied or unperformed by a written instrument delivered to Landlord at the
time of such assignment. Each sublease of any of the Leased Premises shall be
subject and subordinate to the provisions of this Lease. No assignment or
sublease shall affect or reduce any of the obligations of Tenant hereunder, and
all such obligations shall continue in full force and effect as obligations of a
principal and not as obligations of a guarantor, as if no assignment or sublease
had been made. No assignment or sublease shall impose any additional obligations
on Landlord under this Lease.
(c) Tenant shall, within ten (10) days after the execution and
delivery of any assignment or sublease consented to by Landlord, deliver a
duplicate original copy thereof to Landlord which, in the event of an
assignment, shall be in recordable form.
(d) As security for performance of its obligations under this
Lease, Tenant hereby grants, conveys and assigns to Landlord all right, title
and interest of Tenant in and to all subleases now in existence or hereafter
entered into for any or all of the Leased Premises, any and all extensions,
modifications and renewals thereof and all rents, issues and profits therefrom.
Landlord hereby grants to Tenant a license to collect and enjoy all rents and
other sums of money payable under any sublease of any of the Leased Premises,
provided, however, that Landlord shall have the absolute right at any time upon
notice to Tenant and any subtenants or at any time following the occurrence of
an Event of Default to revoke said license and to collect such rents and sums of
money and to retain the same. Tenant shall not consent to, cause or allow any
modification or alteration of any of the terms, conditions or covenants of any
of the subleases or the termination thereof, without the prior written approval
of Landlord, which consent shall not be unreasonably withheld, nor shall Tenant
accept any rents more than thirty (30) days in advance of the accrual thereof
nor do nor permit anything to be done, the doing of which, nor omit or refrain
from doing anything, the omission of which, will or could be a breach of or
default in the terms of any of the subleases.
(e) Tenant shall not have the power to mortgage, pledge or
otherwise encumber its interest under this Lease or any sublease of the Leased
Premises, and any such mortgage, pledge or encumbrance made in violation of this
Paragraph 21 shall be void and of no force and effect.
(f) Landlord may sell or transfer the Leased Premises at any
time without Tenant's consent to any third party (each a "Third Party
Purchaser"). In the event of any such transfer, Tenant shall attorn to any Third
Party Purchaser as Landlord so long as such Third Party Purchaser and Landlord
notify Tenant in writing of such transfer. At the request of Landlord, Tenant
will execute such documents confirming the agreement referred to above and such
other agreements as Landlord may reasonably request, provided that such
agreements do not increase the liabilities and obligations of Tenant hereunder.
22. Events of Default.
(a) The occurrence of any one or more of the following (after
expiration of any applicable cure period as provided in Paragraph 22(b)) shall,
at the sole option of Landlord, constitute an "Event of Default" under this
Lease:
(i) a failure by Tenant to make any payment of any
Monetary Obligation, regardless of the reason for such failure;
(ii) a failure by Tenant duly to perform and
observe, or a violation or breach of, any other provision hereof not
otherwise specifically mentioned in this Paragraph 22(a);
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(iii) any representation or warranty made by Tenant
herein or in any certificate, demand or request made pursuant hereto proves
to be incorrect, now or hereafter, in any material respect;
(iv) a default beyond any applicable cure period or
at maturity by Tenant in any payment of principal or interest on any obligations
for borrowed money having an original principal balance of $2,000,000 or more in
the aggregate, or in the performance of any other provision contained in any
instrument under which any such obligation is created or secured (including the
breach of any covenant thereunder), (x) if such payment is a payment at maturity
or a final payment, or (y) if an effect of such default is to cause such
obligation to become due prior to its stated maturity;
(v) The breach of any Covenant or condition shall
occur;
(vi) Tenant shall (A) voluntarily be adjudicated a
bankrupt or insolvent, (B) seek or consent to the appointment of a receiver or
trustee for itself or for the Leased Premises, (C) file a petition seeking
relief under the bankruptcy or other similar laws of the United States, any
state or any jurisdiction, (D) make a general assignment for the benefit of
creditors, or (E) be unable to pay its debts as they mature;
(vii) a court shall enter an order, judgment or
decree appointing, without the consent of Tenant, a receiver or trustee for it
or for any of the Leased Premises or approving a petition filed against Tenant
which seeks relief under the bankruptcy or other similar laws of the United
States, any state or any jurisdiction, and such order, judgment or decree shall
remain undischarged or unstayed ninety (90) days after it is entered;
(viii) the Leased Premises shall have been vacated or
abandoned;
(ix) Tenant shall be liquidated or dissolved or shall
begin proceedings towards its liquidation or dissolution;
(x) the estate or interest of Tenant in any of the
Leased Premises shall be levied upon or attached in any proceeding and such
estate or interest is about to be sold or transferred or such process shall not
be vacated or discharged within ninety (90) days after it is made;
(xi) a failure by Tenant to perform or observe, or a
violation or breach of, or a misrepresentation by Tenant under any provision of
any Assignment or any other document between Tenant and Lender, if such failure,
violation, breach or misrepresentation gives rise to a default beyond any
applicable cure period with respect to any Loan; or
(xii) a failure by Tenant to maintain in effect any
other license or permit necessary for the use, occupancy or operation of the
Leased Premises.
(b) No notice or cure period shall be required in any one or
more of the following events: (A) the occurrence of an Event of Default under
clause, (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi) or (xii), of
Paragraph 22(a); (B) the default consists of a failure to pay Basic Rent, a
failure to provide any insurance required by Paragraph 16 or an assignment or
sublease entered into in violation of Paragraph 21; or (C) the default is such
that any delay in the exercise of a remedy by Landlord could reasonably be
expected to cause irreparable harm to Landlord. If the default consists of the
failure to pay any Monetary Obligation (except Basic Rent) under clause (i) of
Paragraph 22(a), the applicable cure period shall be five (5) Business Days from
the date on which notice is given. If the default consists of the failure to pay
any Basic Rent under clause (i) of Paragraph 22(a), the applicable cure period
shall be five (5)
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Business Days from the date on which notice is given, but Landlord shall not be
obligated to give notice of, or allow any cure period for, any such default more
than one time within any Lease Year. If the default consists of a default under
clause (ii) of Paragraph 22(a), other than the events specified in clauses (B)
and (C) of the first sentence of this Paragraph 22(b), the applicable cure
period shall be thirty (30) days from the date on which notice is given or, if
the default cannot be cured within such thirty (30) day period and delay in the
exercise of a remedy would not (in Landlord's reasonable judgment) cause any
material adverse harm to Landlord or any of the Leased Premises, the cure period
shall be extended for the period required to cure the default (but such cure
period, including any extension, shall not in the aggregate exceed ninety (90)
days), provided that Tenant shall commence to cure the default within the said
thirty-day period and shall actively, diligently and in good faith proceed with
and continue the curing of the default until it shall be fully cured.
23. Remedies and Damages Upon Default.
(a) If an Event of Default shall have occurred and is
continuing, Landlord shall have the right, at its sole option, then or at any
time thereafter, to exercise its remedies and to collect damages from Tenant in
accordance with this Paragraph 23, subject in all events to applicable Law,
without demand upon or notice to Tenant except as otherwise provided in
Paragraph 22(b) and this Paragraph 23.
(i) Landlord may give Tenant notice of Landlord's
intention to terminate this Lease on a date specified in such notice. Upon such
date, this Lease, the estate hereby granted and all rights of Tenant hereunder
shall expire and terminate. Upon such termination, Tenant shall immediately
surrender and deliver possession of the Leased Premises to Landlord in
accordance with Paragraph 26. If Tenant does not so surrender and deliver
possession of the Leased Premises, Landlord may re-enter and repossess the
Leased Premises, with legal process, or by summary proceedings, ejectment or any
other lawful means or procedure. Upon or at any time after taking possession of
the Leased Premises, Landlord may, by peaceable means or legal process, remove
any Persons or property therefrom. Landlord shall be under no liability for or
by reason of any such entry, repossession or removal. Notwithstanding such entry
or repossession, Landlord may (A) exercise the remedy set forth in and collect
the damages permitted by Paragraph 23(a)(iii) or (B) collect the damages set
forth in Paragraph 23(b)(i) or 23(b)(ii).
(ii) After repossession of the Leased Premises pursuant
to clause (i) above, Landlord shall have the right to relet any of the Leased
Premises to such tenant or tenants, for such term or terms, for such rent, on
such conditions and for such uses as Landlord in its reasonable discretion may
determine, and collect and receive any rents payable by reason of such
reletting. Landlord may make such Alterations in connection with such reletting
as it may deem advisable in its reasonable discretion. Notwithstanding any such
reletting, Landlord may collect the damages set forth in Paragraph 23(b)(ii).
(iii) Landlord may, upon notice to Tenant, require
Tenant to make an irrevocable offer to terminate this Lease upon payment to
Landlord of an amount (the "Default Termination Amount") specified in the next
sentence. The "Default Termination Amount" shall be the greatest of (A) the Fair
Market Value of the Leased Premises, (B) the sum of the Acquisition Cost and
Prepayment Premium which Landlord will be required to pay in prepaying any Loan
with proceeds of the Default Termination Amount or (C) an amount equal to the
Present Value of the entire Basic Rent from the date of such purchase to the
date on which the Term would expire. Upon such notice to Tenant, Tenant shall be
deemed to have made such offer and shall, if requested by Landlord, within ten
(10) days following such request deposit with Landlord as payment against the
Default Termination Amount the amount described in (B) above and Landlord and
Tenant shall promptly commence to determine Fair Market Value.
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Within thirty (30) days after the Fair Market Value Date, Landlord shall accept
or reject such offer. If Landlord accepts such offer then, on the tenth (10th)
Business Day after such acceptance, Tenant shall pay to Landlord the Default
Termination Amount and, at the request of Tenant, Landlord will convey the
Leased Premises to Tenant or its designee in accordance with Paragraph 20. Any
rejection by Landlord of such offer shall have no effect on any other remedy
Landlord may have under this Lease.
(iv) Landlord may declare by notice to Tenant the entire
Basic Rent (in the amount of Basic Rent then in effect) for the remainder of the
then current Term to be immediately due and payable. Tenant shall immediately
pay to Landlord all such Basic Rent discounted to its Present Value, all accrued
Rent then due and unpaid, all other Monetary Obligations which are then due and
unpaid and all Monetary Obligations which arise or become due by reason of such
Event of Default (including any Costs of Landlord). Upon receipt by Landlord of
all such accelerated Basic Rent and Monetary Obligations, this Lease shall
remain in full force and effect and Tenant shall have the right to possession of
the Leased Premises from the date of such receipt by Landlord to the end of the
Term, and subject to all the provisions of this Lease, including the obligation
to pay all increases in Basic Rent and all Monetary Obligations that
subsequently become due, except that no Basic Rent which has been prepaid
hereunder shall be due thereafter during the Term.
(b) The following constitute damages to which Landlord shall
be entitled if Landlord exercises its remedies under Paragraph 23(a)(i) or
23(a)(ii):
(i) If Landlord exercises its remedy under Paragraph
23(a)(i) but not its remedy under Paragraph 23(a)(ii) (or attempts to exercise
such remedy and is unsuccessful in reletting the Leased Premises) then, upon
written demand from Landlord, Tenant shall pay to Landlord, as liquidated and
agreed final damages for Tenant's default and in lieu of all current damages
beyond the date of such demand (it being agreed that it would be impracticable
or extremely difficult to fix the actual damages), an amount equal to the
Present Value of the excess, if any, of (A) all Basic Rent from the date of such
demand to the date on which the Term is scheduled to expire hereunder in the
absence of any earlier termination, re-entry or repossession over (B) the then
fair market rental value of the Leased Premises for the same period. Tenant
shall also pay to Landlord all of Landlord's Costs in connection with the
repossession of the Leased Premises and any attempted reletting thereof,
including all brokerage commissions, legal expenses attorneys' fees, employees'
expenses, costs of Alterations and expenses and preparation for reletting.
(ii) If Landlord exercises its remedy under Paragraph
23(a)(i) or its remedies under Paragraph 23(a)(i) and 23(a)(ii), then Tenant
shall, until the end of what would have been the Term in the absence of the
termination of the Lease, and whether or not any of the Leased Premises shall
have been relet, be liable to Landlord for, and shall pay to Landlord, as
liquidated and agreed current damages all Monetary Obligations which would be
payable under this Lease by Tenant in the absence of such termination less the
net proceeds, if any, of any reletting pursuant to Paragraph 23(a)(ii), after
deducting from such proceeds all of Landlord's Costs (including the items listed
in the last sentence of Paragraph 23(b)(i) hereof) incurred in connection with
such repossessing and reletting; provided, that if Landlord has not relet the
Leased Premises, such Costs of Landlord shall be considered to be Monetary
Obligations payable by Tenant. Tenant shall be and remain liable for all sums
aforesaid, and Landlord may recover such damages from Tenant and institute and
maintain successive actions or legal proceedings against Tenant for the recovery
of such damages. Nothing herein contained shall be deemed to require Landlord to
wait to begin such action or other legal proceedings until the date when the
Term would have expired by its own terms had there been no such Event of
Default.
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(c) Notwithstanding anything to the contrary herein contained,
in lieu of or in addition to any of the foregoing remedies and damages, Landlord
may exercise any remedies and collect any damages available to it at law or in
equity. If Landlord is unable to obtain full satisfaction pursuant to the
exercise of any remedy, it may pursue any other remedy which it has hereunder or
at law or in equity.
(d) Landlord shall not be required to mitigate any of its
damages hereunder unless required to by applicable Law. If any Law shall validly
limit the amount of any damages provided for herein to an amount which is less
than the amount agreed to herein, Landlord shall be entitled to the maximum
amount available under such Law.
(e) No termination of this Lease, repossession or reletting of
the Leased Premises, exercise of any remedy or collection of any damages
pursuant to this Paragraph 23 shall relieve Tenant of any Surviving Obligations.
(f) WITH RESPECT TO ANY REMEDY OR PROCEEDING OF LANDLORD OR
TENANT HEREUNDER, LANDLORD AND TENANT WAIVE ANY RIGHT TO A TRIAL BY JURY.
(g) Upon the occurrence of any Event of Default, Landlord
shall have the right (but no obligation) to perform any act required of Tenant
hereunder and, if performance of such act requires that Landlord enter the
Leased Premises, Landlord may enter the Leased Premises for such purpose.
(h) No failure of Landlord (i) to insist at any time upon the
strict performance of any provision of this Lease or (ii) to exercise any
option, right, power or remedy contained in this Lease shall be construed as a
waiver, modification or relinquishment thereof. A receipt by Landlord of any sum
in satisfaction of any Monetary Obligation with knowledge of the breach of any
provision hereof shall not be deemed a waiver of such breach, and no waiver by
Landlord of any provision hereof shall be deemed to have been made unless
expressed in a writing signed by Landlord.
(i) Tenant hereby waives and surrenders, for itself and all
those claiming under it, including creditors of all kinds, (i) any right and
privilege which it or any of them may have under any present or future Law to
redeem any of the Leased Premises or to have a continuance of this Lease after
termination of this Lease or of Tenant's right of occupancy or possession
pursuant to any court order or any provision hereof, and (ii) the benefits of
any present or future Law which exempts property from liability for debt or for
distress for rent.
(j) Except as otherwise provided herein, all remedies are
cumulative and concurrent and no remedy is exclusive of any other remedy. Each
remedy may be exercised at any time an Event of Default has occurred and is
continuing and may be exercised from time to time. No remedy shall be exhausted
by any exercise thereof.
24. Notices. All notices, demands, requests, consents, approvals,
offers, statements and other instruments or communications required or permitted
to be given pursuant to the provisions of this Lease shall be in writing and
shall be deemed to have been given and received for all purposes when delivered
in person or by Federal Express or other reliable 24-hour delivery service or
five (5) business days after being deposited in the United States mail, by
registered or certified mail, return receipt requested, postage prepaid,
addressed to the other party at its address stated above or when delivery is
refused. A copy of any notice given by Tenant to Landlord shall simultaneously
be given by Tenant to Xxxx Xxxxx Xxxx & XxXxxx, 0000 Xxx Xxxxxxx Xxxxx,
Xxxxxxxxxxxx, XX 00000, Attention: Chairman, Real Estate Department. A copy of
any notice given by Landlord to Tenant shall simultaneously be given by
Landlord to
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Xxxxxxx, Mag & Fizzell, P.C., 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xx. Xxxxx, \
Missouri 63102, Attention: Xxxx Xxxxxx, Esq. For the purposes of this Paragraph,
any party may substitute another address stated above (or substituted by a
previous notice) for its address by giving fifteen (15) days' notice of the new
address to the other party, in the manner provided above.
25. Estoppel Certificate. At any time upon not less than ten (10)
days' prior written request by either Landlord or Tenant (the "Requesting
Party") to the other party (the "Responding Party"), the Responding Party shall
deliver to the Requesting Party a statement in writing, executed by an
authorized officer of the Responding Party, certifying (a) that, except as
otherwise specified, this Lease is unmodified and in full force and effect, (b)
the dates to which Basic Rent, Additional Rent and all other Monetary
Obligations have been paid, (c) that, to the knowledge of the signer of such
certificate and except as otherwise specified, no default by either Landlord or
Tenant exists hereunder, (d) such other matters as the Requesting Party may
reasonably request, and (e) if Tenant is the Responding Party that, except as
otherwise specified, there are no proceedings pending or, to the knowledge of
the signer, threatened, against Tenant before or by any court or administrative
agency which, if adversely decided, would materially and adversely affect the
financial condition and operations of Tenant. Any such statements by the
Responding Party may be relied upon by the Requesting Party, any Person whom the
Requesting Party notifies the Responding Party in its request for the
Certificate is an intended recipient or beneficiary of the Certificate, any
Lender or their assignees and by any prospective purchaser or mortgagee of any
of the Leased Premises. Any certificate required under this Paragraph 25 and
delivered by Tenant shall state that, in the opinion of each person signing the
same, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to the subject matter of such certificate,
and shall briefly state the nature of such examination or investigation.
26. Surrender. Upon the expiration or earlier termination of this
Lease, Tenant shall peaceably leave and surrender the Leased Premises to
Landlord in the same condition in which the Leased Premises was at the
commencement of this Lease, except as repaired, rebuilt, restored, altered,
replaced or added to as permitted or required by any provision of this Lease,
and except for ordinary wear and tear and damage by Casualty which results in a
Termination Event. Upon such surrender, Tenant shall (a) remove from the Leased
Premises all property which is owned by Tenant or third parties other than
Landlord and (b) repair any damage caused by such removal. Property not so
removed shall become the property of Landlord, and Landlord may thereafter cause
such property to be removed from the Leased Premises. The cost of removing and
disposing of such property and repairing any damage to any of the Leased
Premises caused by such removal shall be paid by Tenant to Landlord upon demand.
Landlord shall not in any manner or to any extent be obligated to reimburse
Tenant for any such property which becomes the property of Landlord pursuant to
this Paragraph 26.
27. No Merger of Title. There shall be no merger of the leasehold
estate created by this Lease with the fee estate in any of the Leased Premises
by reason of the fact that the same Person may acquire or hold or own, directly
or indirectly, (a) the leasehold estate created hereby or any part thereof or
interest therein and (b) the fee estate in any of the Leased Premises or any
part thereof or interest therein, unless and until all Persons having any
interest in the interests described in (a) and (b) above which are sought to be
merged shall join in a written instrument effecting such merger and shall duly
record the same.
28. Books and Records.
(a) Tenant shall keep adequate records and books of account
with respect to the finances and business of Tenant generally and with respect
to the Leased Premises, in accordance with generally accepted accounting
principles ("GAAP") consistently applied, and shall permit Landlord and Lender
by their respective agents, accountants and attorneys, upon
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reasonable notice to Tenant, to visit and inspect the Leased Premises and
examine (and make copies of) the records and books of account and to discuss the
finances and business with the officers of Tenant, at such reasonable times as
may be requested by Landlord. Upon the request of Lender or Landlord (either
telephonically or in writing), Tenant shall provide the requesting party with
copies of any information to which such party would be entitled in the course of
a personal visit.
(b) Tenant shall deliver to Landlord and to Lender within one
hundred twenty (120) days of the close of each fiscal year, annual audited
financial statements of Tenant prepared by a nationally recognized firm of
independent certified public accountants. Tenant shall also furnish to Landlord
within sixty (60) days after the end of each of the three remaining quarters
unaudited financial statements and all other quarterly reports of Tenant,
certified by Tenant's chief financial officer, and all filings, if any, of Form
10-K, Form 10-Q and other required filings with the Securities and Exchange
Commission pursuant to the provisions of the Securities Exchange Act of 1934, as
amended, or any other Law. All annual financial statements shall be accompanied
(i) by an opinion of said accountants stating that (A) there are no
qualifications as to the scope of the audit and (B) the audit was performed in
accordance with GAAP and (ii) by the affidavit of the president or a vice
president of Tenant, dated within five (5) Business Days of the delivery of such
statement, stating that (C) the affiant knows of no Event of Default, or event
which, upon notice or the passage of time or both, would become an Event of
Default which has occurred and is continuing hereunder or, if any such event has
occurred and is continuing, specifying the nature and period of existence
thereof and what action Tenant has taken or proposes to take with respect
thereto and (D) except as otherwise specified in such affidavit, that Tenant has
fulfilled all of its obligations under this Lease which are required to be
fulfilled on or prior to the date of such affidavit.
29. Determination of Value.
(a) Whenever a determination of Fair Market Value is required
pursuant to any provision of this Lease, such Fair Market Value shall be
determined in accordance with the following procedure:
(i) Landlord and Tenant (or Third Party Purchaser with
respect to a determination under clause (D) below) shall endeavor to agree upon
such Fair Market Value within thirty (30) days after the date (the "Applicable
Initial Date"") on which (A) Tenant provides Landlord with notice of its
intention to terminate this Lease and purchase the Leased Premises pursuant to
Paragraph 18, (B) Landlord provides Tenant with notice of its intention to
redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides
Tenant with notice of Landlord's intention to require Tenant to make an offer to
terminate this Lease pursuant to Paragraph 23(a)(iii) or (D) Landlord receives a
Sales Contract acceptable to Landlord as described in the fourth paragraph of
Paragraph 35(a). Upon reaching such agreement, the parties shall execute an
agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement
within thirty (30) days after the Applicable Initial Date, Tenant shall within
fifty (50) days after the Applicable Initial Date select an appraiser and notify
Landlord in writing of the name, address and qualifications of such appraiser.
Within twenty (20) days following Landlord's receipt of Tenant's notice of the
appraiser selected by Tenant, Landlord shall select an appraiser and notify
Tenant of the name, address and qualifications of such appraiser. Such two
appraisers shall endeavor to agree upon Fair Market Value based on a written
appraisal made by each of them (and given to Landlord by Tenant) as of the
Relevant Date. If such two appraisers shall agree upon a Fair Market Value, the
amount of such Fair Market Value as so agreed shall be binding and conclusive
upon Landlord and Tenant.
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(iii) If such two appraisers shall be unable to agree
upon a Fair Market Value within twenty (20) days after the selection of an
appraiser by Landlord, then such appraisers shall advise Landlord and Tenant of
their respective determination of Fair Market Value and shall select a third
appraiser to make the determination of Fair Market Value. The selection of the
third appraiser shall be binding and conclusive upon Landlord and Tenant.
(iv) If such two appraisers shall be unable to agree
upon the designation of a third appraiser within ten (10) days after the
expiration of the twenty (20) day period referred to in clause (iii) above, or
if such third appraiser does not make a determination of Fair Market Value
within twenty (20) days after his selection, then such third appraiser or a
substituted third appraiser, as applicable, shall, at the request of either
party hereto, be appointed by the President or Chairman of the American
Arbitration Association in New York, New York. The determination of Fair Market
Value made by the third appraiser appointed pursuant hereto shall be made within
twenty (20) days after such appointment.
(v) If a third appraiser is selected, Fair Market Value
shall be the average of the determination of Fair Market Value made by the third
appraiser and the determination of Fair Market Value made by the appraiser
(selected pursuant to Paragraph 29(a)(ii) hereof) whose determination of Fair
Market Value is nearest to that of the third appraiser. Such average shall be
binding and conclusive upon Landlord and Tenant.
(vi) All appraisers selected or appointed pursuant to
this Paragraph 29(a) shall (A) be independent qualified MAI appraisers (B) have
no right, power or authority to alter or modify the provisions of this Lease,
(C) utilize the definition of Fair Market Value hereinabove set forth above, and
(D) be registered in the State if the State provides for or requires such
registration. The Cost of the procedure described in this Paragraph 29(a) above
shall be borne by Tenant.
(b) If, by virtue of any delay, Fair Market Value is not
determined by the expiration or termination of the then current Term, then the
date on which the Term would otherwise expire or terminate shall be extended to
the date specified for termination in the particular provision of this Lease
pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b)
of the definition of Fair Market Value, the appraisers shall add (a) the present
value of the Rent for the remaining Term (with assumed increases in the CPI to
be determined by the appraisers) using a discount rate (which may be determined
by an investment banker retained by each appraiser) based on the
creditworthiness of Tenant and (b) the present value of the Leased Premises as
of the end of such Term. The appraisers shall further assume that no default
then exists under the Lease, that Tenant has complied (and will comply) with all
provisions of the Lease, and that Tenant has not violated (and will not violate)
any of the Covenants.
30. Non-Recourse as to Landlord (a). Anything contained herein to
the contrary notwithstanding, any claim based on or in respect of any liability
of Landlord under this Lease shall be enforced only against the Leased Premises
and not against any other assets, properties or funds of (i) Landlord, (ii) any
director, officer, member, general partner, shareholder, limited partner,
beneficiary, employee or agent of Landlord or any general partner of Landlord or
any of its members or general partners (or any legal representative, heir,
estate, successor or assign of any thereof), (iii) any predecessor or successor
partnership or corporation (or other entity) of Landlord or any of its general
partners, shareholders, officers, directors, members, employees or agents,
either directly or through Landlord or its general partners, shareholders,
officers, directors, employees or agents or any predecessor or successor
partnership
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or corporation (or other entity), or (iv) any Person affiliated with any of the
foregoing, or any director, officer, employee or agent of any of the foregoing.
(b) Notwithstanding the foregoing limitation of liability, Tenant
shall have all rights and remedies available at law or in equity for any breach
of this Lease by Landlord which rights and remedies shall be limited, however,
by the terms of Paragraph 8 and by the foregoing Paragraph 30 (a).
31. Financing.
(a) Tenant agrees to pay, within thirty (30) days following
written request from Landlord, all reasonable costs and expenses incurred by
Landlord in connection with the financing of the initial Loan, not to exceed
$100,000 in the aggregate, including any "points" or commitment fees, survey and
title costs and the fees and expenses of Landlord's and Lender's counsel.
(b) If Landlord desires to obtain or refinance any Loan,
Tenant shall negotiate in good faith with Landlord concerning any request made
by any Lender or proposed Lender for changes or modifications in this Lease. In
particular, Tenant shall agree, upon request of Landlord, to supply any such
Lender with such notices and information as Tenant is required to give to
Landlord hereunder and to extend the rights of Landlord hereunder to any such
Lender and to consent to such financing if such consent is requested by such
Lender. Tenant shall provide any other consent or statement and shall execute
any and all other documents that such Lender requires in connection with such
financing, including any environmental indemnity agreement and subordination,
non-disturbance and attornment agreement, so long as the same do not materially
adversely affect any right, benefit or privilege of Tenant under this Lease or
materially increase Tenant's obligations under this Lease. Such subordination,
nondisturbance and attornment agreement may require Tenant to confirm that (a)
Lender and its assigns will not be liable for any misrepresentation, act or
omission of Landlord and (b) Lender and its assigns will not be subject to any
counterclaim, demand or offset which Tenant may have against Landlord.
32. Subordination, Non-Disturbance and Attornment. This Lease and
Tenant's interest hereunder shall be subordinate to any Mortgage or other
security instrument hereafter placed upon the Leased Premises by Landlord, and
to any and all advances made or to be made thereunder, to the interest thereon,
and all renewals, replacements and extensions thereof, provided that any such
Mortgage or other security instrument (or a separate instrument in recordable
form duly executed by the holder of any such Mortgage or other security
instrument and delivered to Tenant) shall provide for the recognition of this
Lease and all Tenant's rights hereunder unless and until an Event of Default
exists or Landlord shall have the right to terminate this Lease pursuant to any
applicable provision hereof.
33. Financial Covenants
(a) Tenant hereby covenants and agrees to comply with all the
covenants and agreements described in Exhibit "E" hereto.
(b) If Tenant intends to take any action or, with respect to
Paragraph 1, subparagraphs (b), (c) or (d) of Exhibit "E", has knowledge that
such action is intended to be taken by another Person, or such action occurs
(such action, an "Intended Transaction) that would result in a breach of any
Covenant set forth in Paragraph 1, subparagraphs (b), (c) or (d) of Exhibit "E"
attached hereto then, immediately following the date on which Tenant determines
that it will undertake or has knowledge that another Person intends to undertake
an Intended Transaction, Tenant shall notify Landlord of such Intended
Transaction not less than thirty (30)
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days prior to the Intended Transaction, or if the Intended Transaction occurs
without the prior knowledge of Tenant, immediately following the Intended
Transaction, Tenant shall submit to Landlord and Lender a description thereof
specifying the Intended Transaction, together with a rejectable offer from
Tenant to purchase the Leased Premises (as required by, and in accordance with,
the provisions of this Paragraph 33 Financial Covenants. Tenant shall make an
offer to purchase the Leased Premises no later than the date (the "Intended
Transaction Closing Date") on which the Intended Transaction will occur for a
purchase price equal to the Offer Amount. If such offer is accepted by Landlord,
Tenant shall purchase the Leased Premises within the time prescribed for such
purchase (as provided in this Paragraph 33) and otherwise in accordance with the
provisions of Paragraph 20 of this Lease.
(c) If Landlord shall reject such offer by notice to Tenant,
such notice to contain the written consent of Lender to such rejection, not
later than the thirtieth (30th) day following receipt of such offer by Landlord,
then the Lease shall remain in full force and effect and the Intended
Transaction shall be deemed waived or acceptable by Landlord and Lender,
respectively, and the waiver or acceptance shall remain in effect for the
balance of the Term with respect to the specific Intended Transaction. No
rejection of an offer under this Paragraph 33 shall be effective for any purpose
unless consented to in writing by Lender.
(d) Unless Landlord shall have rejected such offer by the
foregoing notice to Tenant not later than the thirtieth (30th) day following
receipt of Tenant's offer by Landlord, Landlord shall be conclusively presumed
to have accepted such offer. If such offer is accepted by Landlord, Tenant shall
pay to Landlord the Offer Amount on the Intended Transaction Closing Date
(except that if the Fair Market Value of the Leased Premise shall not yet have
been determined, Tenant shall pay to Landlord an amount equal to 110% of the
Acquisition Cost on the Intended Transaction Closing Date (which shall be held
in an interest bearing account) and any excess of the Fair Market Value of the
Leased Premises over such sum shall be paid by Tenant to Landlord within ten
(10) days of the determination of such Fair Market Value) and, provided that no
Rent or any other charge is due and unpaid under the Lease as of the Intended
Transaction Closing Date, and Tenant is otherwise in compliance with the terms
of this Lease, Landlord shall convey to Tenant the Leased Premises in accordance
with the provision of Paragraph 20 of the Lease.
34. Tax Treatment; Reporting. Landlord and Tenant each acknowledge
that each shall treat this transaction as a true lease for state law purposes
and shall report this transaction as a Lease for Federal income tax purposes.
For Federal income tax purposes each shall report this Lease as a true lease
with Landlord as the owner of the Leased Premises and Equipment and Tenant as
the lessee of such Leased Premises and Equipment including: (1) treating
Landlord as the owner of the property eligible to claim depreciation deductions
under Section 167 or 168 of the Internal Revenue Code of 1986 (the "Code") with
respect to the Leased Premises and Equipment, (2) Tenant reporting its Rent
payments as rent expense under Section 162 of the Code, and (3) Landlord
reporting the Rent payments as rental income.
35. Right of First Refusal.
(a) Except as otherwise provided in subparagraph (g) of this
Paragraph 35, and provided an Event of Default does not then exist, if Landlord
shall enter into a contract for the sale (the "Sale Contract") of the Leased
Premises with a Third Party Purchaser, which Sale Contract must be conditioned
upon Tenant's failure to exercise its right under this Xxxxxxxxx 00, Xxxxxxxx
shall give written notice to Tenant of the Sale Contract, together with a copy
of the executed Sale Contract and the name and business address of the Third
Party Purchaser.
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(b) For a period of fifteen (15) days following receipt of
such notice, Tenant shall have the right and option, exercisable by written
notice to Landlord given within said fifteen (15) day period, to elect to
purchase the Leased Premises at the purchase price and upon all the terms and
conditions set forth in such Sale Contract except that no contingencies
contained in such Sale Contract as to environmental assessments, engineering
studies, inspection of the Leased Premises, availability of financing, sale of
other property, state of the title to or encumbrances on the Leased Premises, or
any other condition or contingency to the Third Party Purchaser's obligation to
purchase the Leased Premises which pertains to the condition of the Leased
Premises, the Third Party Purchaser's ability to take certain action or any
other factor beyond the control of Landlord, shall apply to Tenant's obligation
to purchase the Leased Premises under this Paragraph 35, and Tenant shall be
obligated to purchase the Leased Premises without any such condition or
contingency. If, at the expiration of the aforesaid fifteen (15) day period,
Tenant shall have failed to exercise the aforesaid option, Landlord may sell the
Leased Premises to such Third Party Purchaser upon the terms set forth in such
Sale Contract.
(c) For the purposes of this paragraph 35, any Sale Contract
which is received by Landlord between the tenth (10th) and eleventh (11th)
anniversaries of the date of this Lease shall be acceptable to Landlord if the
terms of such contract provide (i) for a purchase price for an amount equal to
or greater than the greater of (A) Fair Market Value (which shall be determined
in accordance with the procedure set forth in Paragraph 29 of this Lease, except
that references to Tenant in Paragraphs 29(a) and (b) hereof shall mean the
Third Party Purchaser) or (B) the Acquisition Cost plus Prepayment Premium, (ii)
that the Third Party Purchaser pays all costs in connection with such purchase,
(iii) that such purchase price is payable in cash at the closing of the sale of
the Leased Premises and (iv) the closing date for such purchase will occur
within sixty (60) days prior to the eleventh (11th) anniversary of the date of
this Lease and (iv) title will be conveyed subject to the matters specified in
Paragraph 20(a).
(d) Except as otherwise specifically provided herein, the
closing date for any purchase of the Leased Premises by Tenant pursuant to this
Paragraph 35 shall be the earlier to occur of (i) ninety (90) days after the
date of Tenant's notice to Landlord of its intention to purchase the Leased
Premises upon the terms of a Sale Contract with a Third Party Purchaser or (ii)
the closing date provided in such Sale Contract. At such closing Landlord shall
convey the Leased Premises to Tenant in accordance with, and Tenant shall pay to
Landlord the purchase price and other consideration set forth in, the applicable
contract.
(e) Tenant shall have the right during the Term to exercise
the foregoing right of first refusal upon (i) each proposed sale of the Leased
Premises prior to the eleventh (11th) anniversary of the date of this Lease and
(ii) one (1) time after the eleventh (11th) anniversary of the date of this
Lease; provided, that if, following compliance with the procedure described in
Paragraph 35(b), a Third Party Purchaser does not purchase the Leased Premises,
such event shall not count as an exercise of Tenant's right of first refusal.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, IF TENANT FAILS TO EXERCISE THE RIGHT
OF FIRST REFUSAL GRANTED PURSUANT TO THIS PARAGRAPH 35, AFTER THE ELEVENTH
(11TH) ANNIVERSARY OF THE DATE OF THIS LEASE AND THE SALE TO THE THIRD PARTY
PURCHASER IS CONSUMMATED OR IF THIS LEASE TERMINATES OR THE TERM EXPIRES, SUCH
RIGHT SHALL TERMINATE AND BE NULL AND VOID AND OF NO FURTHER FORCE AND EFFECT.
IN SUCH EVENT TENANT SHALL EXECUTE A QUITCLAIM DEED AND SUCH OTHER DOCUMENTS AS
LANDLORD SHALL REASONABLY REQUEST EVIDENCING THE TERMINATION OF ITS RIGHT OF
FIRST REFUSAL.
(f) If Tenant does not exercise its right of first refusal to
purchase the Leased Premises and the Leased Premises are transferred to a Third
Party Purchaser, Tenant will attorn to any Third Party Purchaser as Landlord so
long as such Third Party Purchaser and
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Landlord notify Tenant in writing of such transfer. At the request of Landlord,
Tenant will execute such documents confirming the agreement referred to above
and such other agreements as Landlord may reasonably request, provided that such
agreements do not increase the liabilities and obligations of Tenant hereunder.
(g) The provisions of this Paragraph 35 shall not apply to or
prohibit (i) any mortgaging, subjection to deed of trust or other hypothecation
of Landlord's interest in the Leased Premises, (ii) any sale of the Leased
Premises pursuant to a private power of sale under or judicial foreclosure of
any Mortgage or other security instrument or device to which Landlord's interest
in the Leased Premises is now or hereafter subject, (iii) any transfer of
Landlord's interest in the Leased Premises to a Lender, beneficiary under deed
of trust or other holder of a security interest therein or their designees by
deed in lieu of foreclosure, (iv) any transfer of the Leased Premises to any
governmental or quasi-governmental agency with power of condemnation, (v) any
transfer of the Leased Premises to any affiliate of Landlord or to any entity
for whom W.P. Xxxxx & Co., Inc., W.P. Xxxxx Incorporated or any of their
affiliates provides management services or investment advice, (vi) any Person to
whom Landlord sells all or substantially all of its assets, or (vii) any
transfer of the Leased Premises to any of the successors or assigns of any of
the Persons referred to in the foregoing clauses (i) through (iv).
36. Miscellaneous.
(a) The paragraph headings in this Lease are used only for
convenience in finding the subject matters and are not part of this Lease or to
be used in determining the intent of the parties or otherwise interpreting this
Lease.
(b) As used in this Lease, the singular shall include the
plural and any gender shall include all genders as the context requires and the
following words and phrases shall have the following meanings: (i) "including"
shall mean "including without limitation"; (ii) "provisions" shall mean
"provisions, terms, agreements, covenants and/or conditions"; (iii) "lien" shall
mean "lien, charge, encumbrance, title retention agreement, pledge, security
interest, mortgage and/or deed of trust"; (iv) "obligation" shall mean
"obligation, duty, agreement, liability, covenant and/or condition"; (v) "any of
the Leased Premises" shall mean "the Leased Premises or any part thereof or
interest therein"; (vi) "any of the Land" shall mean "the Land or any part
thereof or interest therein"; (vii) "any of the Improvements" shall mean "the
Improvements or any part thereof or interest therein"; (viii) "any of the
Equipment" shall mean "the Equipment or any part thereof or interest therein";
and (ix) "any of the Adjoining Property" shall mean "the Adjoining Property or
any part thereof or interest therein".
(c) Any act which Landlord is permitted to perform under this
Lease may be performed at any time and from time to time by Landlord or any
person or entity designated by Landlord. Each appointment of Landlord as
attorney-in-fact for Tenant hereunder is irrevocable and coupled with an
interest. Except as otherwise specifically provided herein, Landlord shall not
unreasonably withhold or delay its consent whenever such consent is required
under this Lease for any reason. Time is of the essence with respect to the
performance by Landlord or Tenant of its obligations under this Lease.
(d) Landlord shall in no event be construed for any purpose to
be a partner, joint venturer or associate of Tenant or of any subtenant,
operator, concessionaire or licensee of Tenant with respect to any of the Leased
Premises or otherwise in the conduct of their respective businesses.
(e) This Lease and any documents which may be executed by
Tenant on or about the effective date hereof at Landlord's request constitute
the entire agreement between the parties and supersede all prior understandings
and agreements, whether written or
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oral, between the parties hereto relating to the Leased Premises and the
transactions provided for herein. Landlord and Tenant are business entities
having substantial experience with the subject matter of this Lease and have
each fully participated in the negotiation and drafting of this Lease.
Accordingly, this Lease shall be construed without regard to the rule that
ambiguities in a document are to be construed against the drafter.
(f) This Lease may be modified, amended, discharged or waived
only by an agreement in writing signed by the party against whom enforcement of
any such modification, amendment, discharge or waiver is sought.
(g) The covenants of this Lease shall run with the land and
bind Tenant, its successors and assigns and all present and subsequent
encumbrancers and subtenants of any of the Leased Premises, and shall inure to
the benefit of Landlord, its successors and assigns. If there is more than one
Tenant, the obligations of each shall be joint and several.
(h) If any one or more of the provisions contained in this
Lease shall for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Lease, but this Lease shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
(i) This Lease shall be governed by and construed and enforced
in accordance with the Laws of the State.
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
duly executed under seal as of the day and year first above written.
LANDLORD:
BAC (MO) QRS 14-10, INC.
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx,
Executive Vice President
ATTEST: TENANT:
THE XXXXXXXX XXXXXX COMPANY
a Missouri corporation
By: By: /s/ Xxxx X. Xxxxxxxxxxx
-------------------------------- --------------------------------
Xxxx X. Xxxxxxxxxxx,
Title: Vice President and Chief
---------------------------- Financial Officer
[Corporate Seal]
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EXHIBIT A
PREMISES
42
EXHIBIT A
A tract of land being part of Section 1 of Page Industrial Center, a
Subdivision according to the plat thereof recorded in Plat Book 87 page 9 of
the St. Louis County Records in Township 46 North, Range 6 East, St. Louis
County, Missouri, and being more particularly described as follows: Beginning
at the intersection of the North line of said Section 1 of Page Industrial
Center with the West line of Page Industrial Boulevard, 40 feet wide; thence
Southwardly along said West line of Page Industrial Boulevard South 07 degrees
32 minutes 27 seconds West 612.03 feet to a point; thence Westwardly along the
North line of said property conveyed to Xxxxx Xxxxxxx and wife by deed recorded
in Book 1187 page 56 of the St. Louis County Records and along the North line
of property conveyed to The Xxxxxxxx Xxxxxx Company by deed recorded in Book
7850 page 1864 of the St. Louis County Records and along the North line of
property conveyed to Xxxxxx Xxxxxxxxx and wife by deed recorded in Book 6754
page 886 of the St. Louis County Records, North 82 degrees 29 minutes 36
seconds West 600.78 feet to a point in the East line of property conveyed to
General Electric Company by deed recorded in Book 4201 page 217 of the St.
Louis County Records; thence Northwardly along said East line of the General
Electric Company and along the East line of property conveyed to Sun Chemical
Corporation by deed recorded in Book 4293 page 283 of the St. Louis County
Records, North 07 degrees 28 minutes 00 seconds East 618.09 feet to a point in
the South line of property conveyed to P.B. Joint Venture by deed recorded in
Book 7831 page 1661 of the St. Louis County Records; thence Eastwardly along
the North line of aforesaid Section 1 of Page Industrial Center being also
along the South line of the following properties, said P.B. Joint Venture
Property, property conveyed to Xxxxxx X. Xxxx and wife by deed recorded in Book
7853 page 68 of the St. Louis County Records, property conveyed to Xxxxxxx
Xxxxxx, Xx. and wife by deed recorded in Book 7494 page 1166 of the St. Louis
County Records, property conveyed to Xxxx X. Xxxx and Xxxxx X. Budderndeyer by
deed recorded in Book 7276 page 304 of the St. Louis County Records and Lot 3
of Center Gardens, a subdivision according to plat thereof recorded as Daily
No. 207 on May 6, 1959, in the St. Louis County Records, South 81 degrees 55
minutes 01 seconds East 601.61 feet to the point of beginning.
43
EXHIBIT B
MACHINERY AND EQUIPMENT
All fixtures, machinery, apparatus, equipment, fittings and appliances of every
kind and nature whatsoever now or hereafter affixed or attached to or installed
in any of the Leased Premises (except as hereafter provided), including all
electrical, anti-pollution, heating, lighting (including hanging fluorescent
lighting), incinerating, power, air cooling, air conditioning, humidification,
sprinkling, plumbing, lifting, cleaning, fire prevention, fire extinguishing and
ventilating systems, devices and machinery and all engines, pipes, pumps, tanks
(including exchange tanks and fuel storage tanks), motors, conduits, ducts,
steam circulation coils, blowers, steam lines, compressors, oil burners,
boilers, doors, windows, loading platforms, lavatory facilities, stairwells,
fencing (including cyclone fencing), passenger and freight elevators, overhead
cranes and garage units, together with all additions thereto, substitutions
therefor and replacements thereof required or permitted by this Lease, but
excluding all personal property and all trade fixtures, machinery, office,
manufacturing and warehouse equipment which are not necessary to the operation,
as buildings, of the buildings which constitute part of the Leased Premises.
44
EXHIBIT C
PERMITTED ENCUMBRANCES
45
EXHIBIT C
1. Defects, liens, encumbrances, adverse claims or other matters, if any,
created, first appearing in the public records or attaching subsequent to the
effective date hereof but prior to the date the proposed insured acquires for
value of record the estate or interest or mortgage thereon covered by.
2. Rights or claims of parties in possession not shown by the public
records.
3. Easements, or claims of easements, not shown by the public records.
4. Discrepancies, conflicts in boundary lines, shortage in area,
encroachments, and any facts which a correct survey and inspection of the
premises would disclose and which are not shown by the public records.
5. Any lien, or right to a lien, for services, labor, or material
heretofore or hereafter furnished, imposed by law and not shown by the public
records.
6. Taxes or assessments which are not shown as existing liens by the
records of any taxing authority that levies taxes or assessments on real
property or by the public records.
7. All assessments and taxes for the year 1998 and all subsequent years
for the County of St. Louis and City of Overland.
8. Building lines, easements, covenants and restrictions established by
the plat recorded in Plat Book 87 page 9.
9. Covenants and restrictions contained in the instrument recorded in Book
3974 page 130, including a provision for subdivision assessments.
10. Subdivision Assessments, if any.
11. Easement granted to St. Louis County Water Company, by instrument
recorded in Book 3925 page 100.
12. Easement granted to Union Electric Company, by instrument recorded in
Book 4125 page 300 and Book 4227 page 122.
13. Easement granted to The Metropolitan St. Louis Sewer District, by
instrument recorded in Book 4581 page 352.
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14. Easement granted to Chicago, Rock Island and Pacific Railroad Company,
for construction, operation, and maintenance of railroad tracks by instrument
recorded in Book 5600 page 234.
15. Any lien or right to a lien filed by a licensed real estate broker,
real estate sales person or state certified real estate appraiser, pursuant to
the provision of the Commercial Real Estate Brokers and State Certified Real
Estate Appraisers Lien Act.
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EXHIBIT D
BASIC RENT PAYMENTS
1. Basic Rent. Subject to the adjustments provided for in Paragraphs 2,
3 and 4 below, Basic Rent payable in respect of the Term shall be $649,750 per
annum, payable, quarterly in advance on each Basic Rent Payment Date, in equal
installments of $162,437.50 each.
2. CPI Adjustments to Basic Rent. The Basic Rent shall be subject to
adjustment, in the manner hereinafter set forth, for increases in the index
known as United States Department of Labor, Bureau of Labor Statistics, Consumer
Price Index, All Urban Consumers, United States City Average, All Items,
(1982-84=100)("CPI") or the successor index that most closely approximates the
CPI. If the CPI shall be discontinued with no successor or comparable successor
index, Landlord and Tenant shall attempt to agree upon a substitute index or
formula, but if they are unable to so agree, then the matter shall be determined
by arbitration in accordance with the rules of the American Arbitration
Association then prevailing in New York City. Any decision or award resulting
from such arbitration shall be final and binding upon Landlord and Tenant and
judgment thereon may be entered in any court of competent jurisdiction. In no
event will the Basic Rent as adjusted by the CPI adjustment be less than the
Basic Rent in effect for the two (2) year period immediately preceding such
adjustment.
3. Effective Dates of CPI Adjustments. Basic Rent shall not be adjusted
to reflect changes in the CPI until the second (2nd) anniversary of the Basic
Rent Payment Date on which the first full quarterly installment of Basic Rent
shall be due and payable (the "First Full Basic Rent Payment Date"). As of the
second (2nd) anniversary of the First Full Basic Rent Payment Date and on each
second (2nd) anniversary of the First Full Basic Rent Payment Date thereafter
during the Term and, if the initial Term is, Basic Rent Payment Date, Basic Rent
shall be adjusted to reflect increases in the CPI during the most recent two (2)
year period immediately preceding each of the foregoing dates (each such date
being hereinafter referred to as the "Basic Rent Adjustment Date").
4. Method of Adjustment for CPI Adjustment.
(a) As of each Basic Rent Adjustment Date when the average CPI
determined in clause (i) below exceeds the Beginning CPI (as defined in this
Paragraph 4(a)), the Basic Rent in effect immediately prior to the applicable
Basic Rent Adjustment Date shall be multiplied by a fraction, the numerator of
which shall be the difference between (i) the average CPI for the three (3) most
recent calendar months (the "Prior Months") ending prior to such Basic Rent
Adjustment Date for which the CPI has been published on or before the
forty-fifth (45th) day preceding such Basic Rent Adjustment Date and (ii) the
Beginning CPI, and the denominator of which shall be the Beginning CPI. The
product of such multiplication shall be added to the Basic Rent in effect
immediately prior to such Basic Rent Adjustment Date. As used herein, "Beginning
CPI" shall mean the average CPI for the three (3) calendar months corresponding
to the Prior Months, but occurring two (2) years earlier. If the average CPI
determined in clause (i) is the same or less than the Beginning CPI, the Basic
Rent will remain the same for the ensuing two (2) year period.
(b) Effective as of a given Basic Rent Adjustment Date, Basic
Rent payable under this Lease until the next succeeding Basic Rent Adjustment
Date shall be the Basic Rent in effect after the adjustment provided for as of
such Basic Rent Adjustment Date.
(c) Notice of the new annual Basic Rent shall be delivered to
Tenant on or before the thirtieth (30th) day preceding each Basic Rent
Adjustment Date, but any failure to do so by Landlord shall not be or be deemed
to be a waiver by Landlord of Landlord's rights to
48
collect such sums. Tenant shall pay to Landlord, within thirty (30) days after a
notice of the new annual Basic Rent is delivered to Tenant, all amounts due from
Tenant, but unpaid, because the stated amount as set forth above was not
delivered to Tenant at least thirty (30) days preceding the basic Rent
Adjustment Date in question.
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EXHIBIT E
FINANCIAL COVENANTS
1. Corporate Existence; Control; Mergers, Etc.
(a) Borrower shall maintain its corporate existence, rights
and franchises in full force and effect in its jurisdiction of incorporation.
Borrower shall, and shall cause its Subsidiaries to, qualify and remain
qualified as a foreign corporation in each jurisdiction in which failure to
receive or retain such qualification would have a material adverse effect on the
business, operations or financial condition of the enterprise comprised of the
Borrower and their respective Subsidiaries taken as a whole.
(b) At no time during the Term shall any Person other than a
Person who owns Voting Interests in Tenant as of the date hereof or an Affiliate
of such Person acquire directly or indirectly more than 50% of any class of
Borrower's Voting Interest.
(c) Borrower shall not consolidate with or merge with any
other Person without having first obtained the prior written consent of
Landlord. Borrower shall submit to Landlord not less than sixty (60) days prior
to the date of the proposed merger or consolidation (the "Event") information
regarding the following with respect to the proposed Event: (the "Review
Criteria"): (a) a financial pro forma of Borrower immediately following the
Event and after having given effect thereto, (b) the senior management team of
Borrower and (c) the operating history and financials of the Person with whom
the Borrower will merge or consolidate. Landlord shall review such information
and shall approve or disapprove the Event no later than the thirtieth (30th) day
following receipt of all such information, and Landlord shall be deemed to have
acted reasonably in granting or withholding consent if such grant or disapproval
is based on its review of the Review Criteria applying prudent business
judgment.
(d) Borrower shall not, in a single transaction or series of
related transactions, sell or convey, transfer, abandon or lease all or
substantially all of its assets to any Person.
2. Credit Agreement Covenants. Borrower shall not, and shall not
permit any of its Subsidiaries to, take any action or permit or suffer to exist
any state of facts in contravention of any of the covenants set forth in
Sections 7.1(i), 7.2(a), 7.2(j), 7.2(k) or 7.2(n) (the "Credit Agreement
Covenants") or any breach of the financial covenants set forth in Section 7.2(i)
(the "Financial Covenants") of the Revolving Credit and Term Loan Agreement
dated June 19, 1996 between Mercantile Bank of St. Louis National Association
("Mercantile") and Fleet Capital Association ("Lenders") with Mercantile, as
agent, and Borrower, as amended, (the "Credit Agreement") or the applicable
provisions of the credit agreement that replaces the Credit Agreement (the
"Senior Credit Agreement") pertaining to the matters addressed in the Credit
Agreement Covenants and to any financial covenants that replace the Financial
Covenants (the "Replacement Financial Covenants") which need not pertain to the
same financial covenants as the Financial Covenants, as the case may be, (as
amended or waived by the Lenders from time to time) in the same manner and to
the same effect as if the terms of the Credit Agreement Covenants and Financial
Covenants or applicable provisions of the Senior Credit Agreement including the
Replacement Financial Covenants were set forth in full herein, and after giving
effect to any modification, amendment or waiver of the Credit Agreement
Covenants, Senior Credit Agreement, Financial Covenants or Replacement Financial
Covenants as the case may be, a copy of which has been delivered to Landlord,
and for such purpose such terms of the Credit Agreement Covenants, Financial
Covenants or applicable provisions of the Senior Credit Agreement, as the case
may be, and such other provisions and definitions of the Credit Agreement or
Senior Credit Agreement, as the case may be as are expressly referenced therein
and amendments, modifications and waivers thereto are incorporated herein by
reference; it being expressly agreed by Landlord, that without any further
action on the part of Landlord, that
50
the covenants referenced in this Section 2 will be modified automatically to
reflect all amendments, modifications and waivers to the Credit Agreement or the
Senior Credit Agreement, as the case may be made by the Senior Lender. Likewise,
Landlord agrees that in the event the Required Lenders under the Credit
Agreement or Senior Credit Agreement waive any noncompliance by Borrower and/or
any of its Subsidiaries with any of the Credit Agreement Covenants, Financial
Covenants or Replacement Financial Covenants, then Landlord shall automatically
and irrevocably be deemed to have waived such noncompliance hereunder as well.
If at any time Borrower shall not be subject to the Credit Agreement or any
Senior Credit Agreement that contains covenants pertaining to the matters
addressed in the Credit Agreement Covenants or addressed in the Financial
Covenants or most recent Replacement Financial Covenants, as the case may be,
Borrower shall, and shall cause each of its Subsidiaries to, comply with each of
the covenants set forth in the most recent Senior Credit Agreement pertaining to
the matters addressed in the Credit Agreement Covenants and Financial Covenants
or most recent Replacement Financial Covenants, as the case may be, in the same
manner and to the same effect as if the applicable provisions of such Senior
Credit Agreement were set forth in full herein, it being the intent and
agreement of Landlord and Borrower that, at all times during the Term, Borrower
shall be subject to covenants pertaining to the matters addressed in the Credit
Agreement Covenants and to the Financial Covenants or most recent Replacement
Financial Covenants, as the case may be.
3. Definitions. In addition to the terms defined elsewhere in this
Lease or Schedule I hereto, when used in this Exhibit E, the following terms
shall have the following meanings (such meanings shall be equally applicable to
the singular and plural forms of the terms used, as the context requires):
"Borrower" shall mean the Tenant when such term is used in Exhibit E.
"Capital Expenditure" shall mean any expenditure which, in accordance
with generally accepted accounting principles consistently applied, is or should
be capitalized on the balance sheet of the Person making the same.
"Capitalized Lease" shall mean any lease which, in accordance with
generally accepted accounting principles consistently applied, is or should be
capitalized on the balance sheet of the lessee.
"Consolidated EBITDA" shall mean on any date the Borrower's and its
Consolidated Subsidiaries' net income (exclusive of any extraordinary gains or
losses) plus interest expense, plus expenses for income taxes, plus
depreciation, plus amortization, all for the twelve month period included in any
such calculation and ending on the date of any such calculation, all as
determined on a consolidated basis in accordance with generally accepted
accounting principles in effect as of the date of this Agreement, consistently
applied; provided, however, that the foregoing calculation, the non-cash charges
recorded by the Borrower under generally accepted accounting principles in
connection with the award by Borrower of exercisable stock options, shall be
added back to consolidated EBITDA for the purpose of making any such calculation
with respect to any twelve-month period during which such charge was incurred.
"Consolidated Fixed Charges" shall mean the sum of all of the
Borrower's and its Consolidated Subsidiaries' payments of principal scheduled
within the specified period of any such calculation on all borrowed money
Indebtedness (other than on the Term Loans made under the Credit Agreement, but
specifically including principal payments scheduled during such period on any
Subordinated Debt unless any such Subordinate Debt scheduled principal payment
is deferred by agreement of Borrower and the holder of such Subordinate Debt),
plus interest paid during such specified period, including without limitation,
interest charges during such
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51
period under any Capitalized Leases, plus all income taxes paid during the
specified period of such calculation, plus Capital Expenditures made during the
specified period of any such calculation (other than that portion of any Capital
Expenditures which were financed by the Seller or lessor in the case of a
Capitalized Lease, including the lease of Borrower's premises located at 0000
Xxxx Xxxxxxxxxx Xxxxxxxxx, Xx. Xxxxx, Xxxxxxxx if characterized as Capitalized
Lease of the capital asset acquired with such Capital Expenditure).
"Consolidated Senior Funded Debt" shall mean, at any date, all of the
Borrower's and its Consolidated Subsidiaries' borrowed money Indebtedness
outstanding on any such date, including, without limitation, amounts due under
any Capitalized Leases (other than amounts due under the lease of Borrower's
premises located at 0000 Xxxx Xxxxxxxxxx Xxxxxxxxx, Xx. Xxxxx, Xxxxxxxx), minus
any Subordinated Debt outstanding as of such date.
"Consolidated Subsidiaries" shall mean with respect to any Person at
any date, any Subsidiary or other entity the assets and liabilities of which are
or should be consolidated with those of such Person in its consolidated
financial statements as of such date in accordance with generally accepted
accounting principles consistently applied.
"Guarantee" by any Person shall mean any obligation, contingent or
otherwise, of such Person guaranteeing any Indebtedness of any other Person or
in any manner providing for the payment of any Indebtedness of any other Person
or otherwise protecting the holder of such Indebtedness against loss (whether by
agreement to keep-well, to purchase assets, goods, securities or services, or to
take-or-pay or otherwise); provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb shall have a correlative meaning.
"Indebtedness" of any person shall mean and include, without
duplication, any and all indebtedness (principal, interest, fees and other
amounts), liabilities and obligations of such Person which in accordance with
generally accepted accounting principles in effect as of the date of this Lease,
consistently applied are or should be classified upon a balance sheet of such
Person as liabilities of such Person, and in any event shall include all (i)
obligations of such Person for borrowed money or which have been incurred in
connection with the acquisition of Property, (ii) obligations secured by any
Lien or other charge upon any Property owned by such Person, provided that if
such Person has not assumed or become liable for the payment of such
obligations, such obligations shall still be included in Indebtedness but the
determination of the amount of Indebtedness evidenced by such obligations shall
be limited to the book value of such Property, (iii) obligations created or
arising under any conditional sale or other title retention agreement with
respect to any Property acquired by such Person, provided that if the rights and
remedies of the seller, lender or lessor in the event of default under such
agreement are limited solely to repossession or sale of such Property, such
obligations shall still be included in Indebtedness but the determination of the
amount of Indebtedness evidenced by such obligations shall be limited to the
book value of such Property, (iv) all Guarantees and other contingent
indebtedness, liabilities and obligations of such Person whether or not
reflected on the balance sheet of such Person and (v) all obligations of such
Person as lessee under any Capitalized Lease.
"Lien" shall mean any interest in Property securing any obligation owed
to, or a claim by, a Person other than the owner of the Property, whether such
interest is based on common law, statute or contract, including, without
limitation, any security interest, mortgage, deed of trust, pledge,
hypothecation, judgment lien or trust receipt and any lease, consignment or
bailment for security purposes. The term "Lien" shall include reservations,
exceptions, encroachments, easements, rights-of-way, covenants, conditions,
restrictions, leases and other title exceptions and encumbrances affecting
Property.
"Notes" shall mean the Revolving Credit Notes and the Term Notes.
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"Property" shall mean any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible. Properties shall
mean the plural of Property. For purposes of this Lease, the Borrower and each
Subsidiary of the Borrower shall be deemed to be the owner of any Property which
it has acquired or holds subject to a conditional sale agreement, financing
lease or other arrangement pursuant to which title to the Property has been
retained by or vested in some other Person for security purposes.
"Revolving Credit Notes" shall mean each of the Revolving Credit Notes
of the Borrower to be executed and delivered to each of the Lenders pursuant to
Section 3.1(a) of the Credit Agreement, as the same may from time to time be
amended, modified, extended or renewed.
"Senior Lender" shall mean the Lenders under the Credit Agreement or
the lender or lenders under the Senior Credit Agreement, as the case may be.
"Subsidiary" shall mean, with respect to any Person, any corporation of
which fifty percent (50%) or more of the issued and outstanding capital stock
entitled to vote for the election of directors (other than by reason of default
in the payment of dividends) is at the time owned directly or indirectly by such
Person.
"Subordinated Debt" shall mean any borrowed money Indebtedness of
Borrower which has been duly subordinated by the holder thereof to all of
Borrower's Obligations under this Lease and Subordinated Debt permitted under
the terms of the Credit Agreement.
"Term Notes" shall mean each of the Term Loan Promissory Notes of the
Borrower to be executed and delivered to each of the Lenders pursuant to Section
3.2 of the Credit Agreement, as the same may from time to time be amended,
modified, extended or renewed.
"Voting Interests" shall mean shares of stock of a corporation or other
interests in other types of Person having ordinary voting power to elect the
board of directors of such corporation or similarly direct or control the
management of such other Person.
If, at any time or from time to time, the Credit Agreement Covenants
shall be amended or replaced by comparable covenants in a Senior Credit
Agreement or the Financial Covenants shall be amended or replaced by Replacement
Financial Covenants (which need not be comparable) the relevant definitions in
this Section 3 shall likewise be added, amended or replaced, as the case may be.
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