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EXHIBIT 10.61
* * * * * * * * * * * * * * * * * * * *
Lease
0000 XXXX XXXXXX XXXXXX,
XXXXX XXXXX, XXXXX XXXXXX 00000
* * * * * * * * * * * * * * * * * * * *
Between
HOUSEHOLD CREDIT SERVICES, INC.
(Tenant)
and
SPECIALIZED CARD SERVICES, INC.
(Landlord)
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TABLE OF CONTENTS
PAGE
1. LEASE AGREEMENT/TERM/OPTIONS 2
A. Demise 2
B. Extension Option. 2
C. Termination Option 2
2. RENT/TAXES 3
A. Types of Rent 3
(1) Base Rent 3
(2) Additional Rent 3
(3) Rent 3
B. Taxes 3
C. Computation of Base Rent and Rent Adjustments 4
(1) Prorations. 4
(2) Default Interest. 4
(3) Base Rent Increases Based Upon CPI Adjustments. 4
3. PREPARATION AND CONDITION OF PREMISES; POSSESSION AND SURRENDER OF
PREMISES 5
A. Condition of Premises. 5
B. Tenant's Possession. 5
C. Maintenance. 5
D. Warranties/Claims Against Third Parties 6
4. ALTERATIONS AND REPAIRS 6
A. Landlord's Consent and Conditions. 6
B. Damage to Systems. 7
C. No Liens. 8
D. Ownership of Improvements. 8
E. Removal at Termination. 8
5. USE OF PREMISES 9
6. GOVERNMENTAL REQUIREMENTS. 9
7. WAIVER OF CLAIMS; INDEMNIFICATION; INSURANCE. 9
A. Waiver of Claims. 9
B. Indemnification. 9
C. Tenant's Insurance. 10
D. Insurance Certificates 11
8. FIRE AND OTHER CASUALTY 11
A. Termination. 11
B. Restoration. 12
9. EMINENT DOMAIN. 12
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10. RIGHTS RESERVED TO LANDLORD. 12
A. Name 12
B. Signs. 12
C. Window Treatments. 12
D. Keys 13
E. Access 13
F. Preparation for Reoccupancy 13
G. Heavy Articles 13
H. Show Premises 13
I. Use of Lockbox 13
J. Repairs and Alterations 13
K. Landlord's Agents 14
L. Other Actions. 14
11. TENANT'S DEFAULT. 14
A. Rent Default. 14
B. Assignment/Sublease or Hazardous Substances Default. 14
C. Other Performance Default. 14
D. Credit Default. 14
12. LANDLORD REMEDIES 15
A. Termination of Lease or Possession. 15
B. Lease Termination Damages. 15
C. Possession Termination Damages. 15
D. Landlord's Remedies Cumulative. 15
E. WAIVER OF TRIAL BY JURY. 16
F. Litigation Costs. 16
13. SURRENDER. 16
14. HOLDOVER. 16
15. SUBORDINATION TO GROUND LEASES AND MORTGAGES 17
A. Subordination 17
B. Termination of Ground Lease or Foreclosure of Mortgage 17
C. Notice and Right to Cure 17
D. Non-disturbance Agreement 17
E. Definitions 18
F. Litigation With Current Mortgagee 18
16. ASSIGNMENT AND SUBLEASE. 18
A. In General. 18
B. Landlord's Consent. 19
C. Procedure. 19
D. Change of Management or Ownership. 19
E. Excess Payments. 19
F. Recapture. 19
17. CONVEYANCE BY LANDLORD 20
18. ESTOPPEL CERTIFICATE 20
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19. FORCE MAJEURE 20
21. NOTICES 20
A. Landlord. 20
B. Tenant. 21
22. QUIET POSSESSION 21
23. REAL ESTATE BROKER 21
24. MISCELLANEOUS 21
A. Successors and Assigns. 21
B. Date Payments Are Due. 21
C. Meaning of 21
D. Time of the Essence. 22
E. No Option. 22
F. Severability. 22
G. Governing Law. 22
H. Lease Modification. 22
I. No Oral Modification. 22
J. Landlord's Right to Cure. 22
K. Captions. 22
L. Authority. 22
M. Landlord's Enforcement of Remedies. 22
N. Entire Agreement. 22
O. Landlord's Title. 22
P. Singular and Plural 23
Q. No Recording by Tenant. 23
R. Intentionally Omitted. 23
S. No Construction Against Drafting Party. 23
T. Survival. 23
U. Rent Not Based on Income. 23
V. Building Manager and Service Providers. 23
W. Late Charge and Interest on Late Payments 23
X. Intentionally Omitted 23
25. HAZARDOUS SUBSTANCES 24
26. EXCULPATION 25
27. GUARANTY 25
28. LANDLORD'S DEFAULT 25
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LEASE
THIS LEASE (the "Lease") is made as of September 30, 2000 (the
"Commencement Date") between Specialized Card Services, Inc., a South Dakota
Corporation (the "Landlord") and the Tenant as named in the Schedule below. The
term "Premises" means the buildings (the "Buildings") including personalty
leased by Landlord to Tenant located thereon and identified in Appendix B (the
"Scheduled Personal Property") and the land, including improvements thereon (the
"Land") located at 0000 Xxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxx Xxxxxx, described in
the Schedule and legally described on Appendix A.
The following schedule (the "Schedule") is an integral part of this
Lease. Terms defined in this Schedule shall have the same meaning throughout the
Lease.
SCHEDULE
1. TENANT: Household Credit Services, Inc., a Delaware corporation
2. PREMISES: Approximately 158,000 square feet of space representing the
entire Buildings commonly known as 2200 Xxxxxx, Sioux Falls, South
Dakota
3. SECURITY DEPOSIT: None
4. TENANT'S REAL ESTATE BROKER FOR THIS LEASE: None
5. LANDLORD'S REAL ESTATE BROKER FOR THIS LEASE: None
6. TERM: Beginning on the Commencement Date and ending on the last day of
the month in which the fourteenth (14th) anniversary of the
Commencement Date occurs (the "Termination Date").
7. GUARANTOR: Household Finance Corporation
8. BASE RENT:
Annual
Period Base Rent
------ ---------
Commencement Date through the last day of the Fourth $1,000,000
(4th) Lease Year
First day of the Fifth (5th) Lease Year through the $2,000,000, plus
Termination Date CPI Adjustment, as defined in
Section 2C(3)
9. LEASE YEAR. "Lease Year" means each consecutive twelve-month period
beginning with the Commencement Date, except that if the Commencement
Date is not the first day of a calendar month, then the first Lease
Year shall be the period from the Commencement Date through the final
day of the twelve months after the first day of the following month,
and each subsequent Lease Year shall be the twelve months following
the prior Lease Year.
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1. LEASE AGREEMENT/TERM/OPTIONS.
A. Demise. On the terms stated in this Lease, Landlord leases the
Premises to Tenant, and Tenant leases the Premises from Landlord, for the Term
beginning on the Commencement Date and ending on the Termination Date unless
extended or sooner terminated pursuant to this Lease.
B. Extension Option. Subject to Subsections (2) and (3) below, Tenant
may at its option extend the Term of this Lease for the entire Premises for two
(2) periods of five years each (each, a "Renewal Term") upon the same terms
contained in this Lease, except for the amount of Base Rent payable during the
Renewal Term. Tenant shall have no additional extension options.
(1) The Base Rent during each Renewal Term shall be the
greater of (i) the Base Rent applicable to the last day of the final
Lease Year of the Term or the Renewal Term as the case may be, or (ii)
the amount set forth in clause (i), above, adjusted for CPI as set
forth in Section 2C(3).
(2) To exercise its option, Tenant must deliver a binding
notice to Landlord not less than twelve (12) months prior to the
proposed commencement of the applicable Renewal Term. If Tenant fails
to give either binding notice timely, Tenant will be deemed to have
waived its option to extend.
(3) Tenant's option to extend this Lease is subject to the
conditions that: (i) on the date that Tenant delivers its binding
notice exercising its option to extend and on the last day of the Term,
Tenant is not in default under this Lease without regard to the
expiration of any applicable notice and cure periods, and (ii) Tenant
shall not have assigned this Lease, or sublet any portion of the
Premises under a sublease which is in effect at any time during the
final 12 months prior to the Renewal Term except to an Affiliate as
provided in Section 16 hereof.
C. Termination Option. Tenant may at its option terminate this Lease in
its entirety (the "Termination Option") effective as of the first day of the
thirty-first (31st) month of the Lease Term (the "Early Termination Date") by
delivering written notice of its intent to terminate this Lease (the
"Termination Notice") to Landlord on or before the date that is fifteen (15)
months prior to the Early Termination Date (the "Termination Notice Date"). If
Tenant fails to deliver its Termination Notice timely, Tenant will be deemed to
have waived such Termination Option. If there are any uncured defaults by Tenant
under this Lease as of the date Tenant delivers the Termination Notice or as of
the Early Termination Date, the Termination Option shall be void, and the Lease
shall remain in effect subject, however, to all of Landlord's rights and
remedies as regards any such defaults. If Tenant properly exercises its
Termination Option, this Lease shall terminate as of the Early Termination Date.
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2. RENT/TAXES
A. Types of Rent. Tenant shall pay all Rent in the form of a check or
automatic ACH through an account designated by Landlord payable to the order of
Landlord, at the following address:
x/x XXXX
Xxxxx 000
0000 XxXxxx Xxxxx
Xxxxxx, XX 00000
Attention: Treasurer
or in such other manner as Landlord may notify Tenant:
(1) Base Rent in monthly installments in advance, each equal
to one-twelfth (1/12) of the Base Rent for the applicable Lease Year,
the first monthly installment payable concurrently with the execution
of this Lease and thereafter on or before the first day of each month
of the Term. If the Term commences on a day other than the first day of
a calendar month, or ends one a day other than the last day of a
calendar month, then the Base Rent for such partial months shall be
prorated on a daily basis based upon the actual number of days in such
month.
(2) Additional Rent in the amount of all costs, expenses,
liabilities, and amounts which Tenant is required to pay under this
Lease, excluding Base Rent, but including any interest for late payment
of any item of Rent.
(3) Rent as used in this Lease means Base Rent and Additional
Rent. Tenant's agreement to pay Rent is an independent covenant, with
no right of setoff, deduction or counterclaim of any kind, except in
the event of a default by Landlord under Section 3C hereof.
B. Taxes. Tenant shall pay prior to the due date all Taxes applicable
to the Premises directly to the applicable taxing authority and shall provide
evidence of such payment promptly to the Landlord. "Taxes" means any and all
taxes, assessments and charges of any kind, general or special, ordinary or
extraordinary, levied against the Premises, which Landlord shall pay or become
obligated to pay in connection with the ownership, leasing, renting, management,
use, occupancy, control or operation of the Premises or of the personal
property, fixtures, machinery, equipment, systems and apparatus used in
connection therewith. Taxes shall include real estate taxes, personal property
taxes, sewer rents, water rents, special or general assessments, transit taxes,
ad valorem taxes, and any tax now or hereafter levied on the rents hereunder or
the interest of Landlord under this Lease (the "Real Estate Taxes"). For any
year, the amount to be included in Taxes from taxes or assessments payable in
installments, shall be the amount of the
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installments (with any interest) due and payable during such year. Taxes shall
not include any net federal, state or municipal income (except Real Estate
Taxes), capital, stock, succession, transfer, franchise, gift, estate or
inheritance tax, except to the extent that such tax shall be imposed in lieu of
any portion of Taxes.
Landlord shall pay Tenant the amount of any refund or other adjustment
to any Taxes by the taxing authority paid to Landlord and applicable to a year
in which the Tenant is responsible for and has paid the Taxes. Any refund or
credit attributable to the overpayment of real estate taxes imposed on the
Premises for any year during a partial Lease Year for which both Landlord and
Tenant are liable for the payment of Taxes (the "Shared Refund") (net of contest
costs, including reasonable attorney's fees) shall be ratably shared by the
parties based on the date of the Commencement Date and Termination Date of this
Lease, as the case may be, and the party receiving such refund or rebate shall
promptly pay over to the other its ratable share of such refund or rebate. The
provisions of this Section 1B shall survive the expiration or termination of
this Lease. Following Tenant's waiver of its Termination Option or its failure
to timely exercise its Termination Option pursuant to Section 1C herein, Tenant
shall have whatever rights Landlord may have to contest or appeal the Taxes or
assessed valuation of the Premises with respect to any ad valorem real estate
taxes payable by Tenant pursuant to this Lease. If Tenant elects to exercise
such contest or appeal rights, Landlord shall cooperate reasonably with Tenant
to obtain the reduction in such Taxes or assessed valuation, at Tenant's
reasonable expense. If Tenant elects not to exercise such contest or appeal
rights, Landlord shall have the right, but not the obligation, to contest or
appeal the Taxes or assessed valuation of the Property with respect to such ad
valorem real estate taxes, at Landlord's reasonable expense.
C. Computation of Base Rent and Rent Adjustments.
(1) Prorations. If this Lease begins on a day other than the
first day of a month, the Base Rent and Taxes shall be prorated for
such partial month based on the actual number of days in such month. If
this Lease begins on a day other than the first day, or ends on a day
other than the last day of the fiscal year Taxes shall be prorated for
the applicable fiscal year.
(2) Default Interest. Any sum due from Tenant to Landlord not
paid when due shall bear interest from the date due until paid at the
lesser of the highest rate of interest allowed by applicable law or
eighteen percent (18%) per annum.
(3) Base Rent Increases Based Upon CPI Adjustments. Base Rent
shall increase beginning with the Fifth (5th) Lease Year (first day of
the 49th full month) and as of the first day in each successive Lease
Year by an amount equal to fifty percent (50%) of the increase in the
Consumer Price Index during the preceding twelve (12) months;
compounded annually, on a cumulative basis from the beginning of the
Fourth Lease Year. In no event, however, shall Base Rent be decreased.
"Consumer Price Index" means the Consumer Price Index for All Urban
Consumers (Revised Series (CPI-U) All
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Items, U.S. City Average (1982-1984 equals 100) of the United States
Department of Labor, Bureau of Labor Statistics. If the manner in which
the Consumer Price Index is calculated shall be revised, Landlord shall
make an adjustment in such revised index so as to produce results
equivalent, as nearly as possible, to those which would have been
obtained if the Consumer Price Index had not been so revised. If the
Consumer Price Index shall become unavailable to the public because
publications is discontinued or otherwise, Landlord will substitute
therefor a comparable index based upon changes in the cost of living or
purchasing power of the of the consumer dollar published by any other
governmental agency or, if no such index shall be available, then a
comparable index published by a major bank or other financial
institution or by a university or a recognized financial publication.
(4) Miscellaneous. So long as Tenant is in default of any
obligation under this Lease, Tenant shall not be entitled to any
refund of any amount from Landlord. If this Lease is terminated for
any reason prior to the annual determination of any portion of the
Taxes or installments thereof and all Taxes prorated pursuant to
Section 3C(1), either party shall pay the full amount due to the other
within fifteen (15) days after notice of the amount when it is
determined.
3. PREPARATION AND CONDITION OF PREMISES; POSSESSION AND SURRENDER OF
PREMISES.
A. Condition of Premises. Landlord is leasing the Premises to Tenant
"as is", without any obligation to alter, remodel, improve, repair or decorate
any part of the Premises.
B. Tenant's Possession. Tenant's taking possession of any portion of
the Premises shall be conclusive evidence that the Premises were in good order,
repair and condition when Tenant took possession except for latent defects
(provided that claims for any such latent defects shall be deemed waived unless
Tenant has given Landlord written notice of the existence of such latent defects
on or prior to the date thirty (30) months after the Commencement Date). If
Landlord authorizes Tenant to take possession of any part of the Premises prior
to the Commencement Date for purposes of doing business, all terms of this Lease
shall apply to such pre-Term possession, including Base Rent at the rate set
forth for the First Lease Year in the Schedule, prorated for any partial month.
C. Maintenance. Throughout the Term, except for Landlord's Maintenance
Obligations, Tenant shall maintain the Premises in their condition as of the
Commencement Date, loss or damage caused by the elements, ordinary wear, and
fire and other casualty excepted, in accordance with all applicable laws,
ordinances, codes, regulations and insurance requirements ("Governmental
Requirements") and generally accepted maintenance practices for comparable
buildings and at the termination of this Lease, or Tenant's right to possession,
Tenant shall return the Premises to Landlord in broom-clean condition. To the
extent Tenant fails to perform either obligation, Landlord may, but need not,
restore the Premises to such condition and
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Tenant shall pay the cost thereof. Landlord's sole obligations as regards
maintenance of the Premises shall be to maintain the structural walls and
foundation of the Building (excluding painting) in accordance with all
Governmental Requirements ("Landlord's Maintenance Obligations").
D. Warranties/Claims Against Third Parties. With respect to latent
defects and maintenance for which Tenant is responsible, Landlord shall use
commercially reasonable efforts to cooperate with Tenant in enforcing any
applicable warranties or guaranties that Landlord has, provided that Tenant
shall reimburse Landlord for any costs incurred by Landlord with respect to the
foregoing. With respect to latent defects and maintenance (structural walls and
foundation) for which Landlord is responsible, Tenant shall use commercially
reasonable efforts to cooperate with Landlord in enforcing any applicable
warranties or guaranties that Tenant has, provided that Landlord shall reimburse
Tenant for any costs incurred by Tenant with respect to the foregoing.
Each party (the "Cooperating Party") shall use commercially reasonable
efforts to cooperate with the other party (the "Claiming Party") with respect to
a lawsuit brought by the Claiming Party against a third party to the extent that
the Cooperating Party is in privity with such third party, provided that, the
Claiming Party shall pay all costs and expenses, including without limitation,
reasonable attorneys' fees, incurred by the Cooperating Party.
4. ALTERATIONS AND REPAIRS.
A. Landlord's Consent and Conditions.
Except in compliance with Tenant's obligation to maintain the Premises
as set forth in Section 3C, Tenant shall not make any improvements or
alterations to the Premises (the "Work") without in each instance submitting
plans and specifications for the Work to Landlord and obtaining Landlord's prior
written consent unless (a) the cost thereof is less than $100,000, (b) such Work
does not impact the base structural components or systems of the Building, (c)
such Work does not impact structural components or systems or underground
facilities of the parking areas and other exterior components on the Land, and
(d) such Work is not visible from outside the Premises. Tenant shall pay
Landlord's reasonable charges for review of the plans and all other items
submitted by Tenant. Landlord will be deemed to be acting reasonably in
withholding its consent for any Work which adversely impacts the base structural
components or systems of the Building. Landlord's charges for review of plans
shall be reasonable so long as: (i) with respect to structural work, such
charges are based upon usual and customary fees for such services charged by
responsible Landlord's of properties similar in use, design and age to the
Premises and (ii) with respect to non-structural work, such charges do not
exceed $500, which amount shall be increased beginning with the Fifth (5th)
Lease Year and on the first day of each successive Lease Year by the increase in
the CPI during the preceding twelve (12) months. Landlord hereby grants
preliminary approval for the expansion of the cafeteria and construction of an
exercise room in the Premises; provided that, Landlord shall be entitled to
reasonably
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review the plans and specifications with respect to such improvements and Tenant
shall perform all such work in compliance with the requirements set forth in
this Section 4A.
Tenant shall reimburse Landlord for actual costs incurred for review of
the plans and all other items submitted by Tenant. Tenant shall pay for the cost
of all Work. All Work shall become the property of Landlord upon its
installation, except for Tenant's trade fixtures and for items which Landlord
requires Tenant to remove at Tenant's cost at the termination of the Lease
pursuant to Section 4E.
The following requirements shall apply to all Work:
(1) Prior to commencement, Tenant shall furnish to Landlord
building permits and certificates of insurance satisfactory to
Landlord.
(2) Tenant shall perform all Work so as to maintain peace and
harmony among other contractors serving the Premises and shall avoid
interference with other work to be performed or services to be rendered
in the Premises.
(3) The Work shall be performed in a good and workmanlike
manner, meeting the standard for construction and quality of materials
in the Building, and shall comply with all Governmental Requirements.
(4) Tenant shall perform all Work in compliance with
Landlord's "Policies, Rules and Procedures for Construction Premises"
in effect at the time the Work is performed.
(5) Tenant shall permit Landlord to supervise all Work.
(6) Upon completion, Tenant shall furnish Landlord with
contractor's affidavits and full and final statutory waivers of liens,
as-built plans and specifications, and receipted bills covering all
labor and materials.
B. Damage to Systems. If any part of the mechanical, electrical or
other systems in the Premises shall be damaged, Tenant shall promptly notify
Landlord, and Tenant shall repair such damage. Landlord may also make any
repairs or alterations which Landlord deems necessary for the safety or
protection of the Premises, provided such work is completed at times and in a
manner that will not unreasonably interfere with Tenant's use of the Premises,
or which Landlord is required to make by any court or pursuant to any
Governmental Requirement. Tenant shall at no expense to Landlord make all other
repairs necessary to keep the Premises, and Tenant's fixtures and personal
property, in good order, condition and repair; to the extent Tenant fails to do
so within fifteen (15) days after notice from Landlord (except in the event of
an emergency), Landlord may make such repairs itself. The cost of any repairs
made by Landlord on account of Tenant's default, or on account of the misuse or
neglect by Tenant or its invitees,
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contractors or agents anywhere in the Premises, shall become Additional Rent
payable by Tenant on demand.
C. No Liens. Tenant has no authority to cause or permit any lien or
encumbrance of any kind to affect Landlord's interest in the Premises; any such
lien or encumbrance shall attach to Tenant's interest only. If any mechanic's
lien shall be filed or claim of lien made for work or materials furnished to
Tenant, then Tenant shall at its expense within thirty (30) days thereafter
either discharge or contest and bond over the lien or claim. If Tenant contests
the lien or claim, then Tenant shall (i) within such thirty (30) day period,
provide Landlord adequate security for the lien or claim, (ii) contest the lien
or claim in good faith by appropriate proceedings that operate to stay its
enforcement, and (iii) pay promptly any final adverse judgment entered in any
such proceeding. If Tenant does not comply with these requirements, Landlord may
discharge the lien or claim, and the amount paid, as well as attorney's fees and
other expenses incurred by Landlord, shall become Additional Rent payable by
Tenant on demand.
D. Ownership of Improvements. All Work as defined in this Section 4,
permanent partitions, hardware, equipment, machinery and all other improvements
and all fixtures, except trade fixtures and furniture that are not intended to
replace Scheduled Personal Property , constructed in the Premises by either
Landlord or Tenant, (i) shall become Landlord's property upon installation
without compensation to Tenant, unless Landlord consents otherwise in writing,
and (ii) shall at Landlord"s option either (a) be surrendered to Landlord with
the Premises at the termination of the Lease or of Tenant"s right to possession,
or (b) be removed in accordance with Subsection 4E below (unless Landlord at the
time it gives its consent to the performance of such construction expressly
waives in writing the right to require such removal). Landlord hereby waives its
right to require removal of alterations made to the Premises to expand the
cafeteria or to construct a fitness facility.
E. Removal at Termination. Upon the termination of this Lease or
Tenant's right of possession Tenant shall remove from the Premises its trade
fixtures, furniture, moveable equipment and other personal property including,
without limitation, the items identified on Appendix B as Scheduled Personal
Property or replacements thereof, any improvements which Landlord elects shall
be removed by Tenant pursuant to Section 4D, and any other improvements to any
portion of the Premises. Notwithstanding anything to the contrary contained in
the foregoing, if Tenant timely exercises its Termination Option pursuant to
Section 1C, then Tenant shall not remove any Scheduled Personal Property or
replacements thereof from the Premises (except to the extent such replacements
are computers or computer related equipment used in connection with collections
and servicing of credit cards ["Computer Equipment"] purchased by Tenant,
provided that, at Landlord's option to be exercised by giving written notice to
the Tenant, Tenant has either (i) delivered to Landlord the old Computer
Equipment listed on Schedule B or (ii) disposed of the old Computer Equipment
listed on Schedule B), and all Scheduled Personal Property and replacements
thereof shall be and remain in the Premises at all times for the benefit of
Landlord. Tenant shall repair all damage caused by the installation or removal
of any of the foregoing items. If Tenant does not timely remove such property,
then
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Tenant shall be conclusively presumed to have, at Landlord's election (i)
conveyed such property to Landlord without compensation or (ii) abandoned such
property, and Landlord may dispose of or store any part thereof in any manner at
Tenant"s sole cost, without waiving Landlord"s right to claim from Tenant all
expenses arising out of Tenant"s failure to remove the property, and without
liability to Tenant or any other person. Landlord shall have no duty to be a
bailee of any such personal property. If Landlord elects abandonment, Tenant
shall pay to Landlord, upon demand, any expenses incurred for disposition.
5. USE OF PREMISES. Tenant shall use the Premises only for general
office purposes. Tenant shall not permit any nuisance or waste upon the
Premises, or allow any offensive noise or odor in or around the Premises.
Landlord represents and warrants that as of the Commencement Date the
Premises complies with the requirements of the Americans with Disabilities Act.
In the event that such Act shall be amended or modified so as to require
alteration or modification of the Premises, Tenant shall be responsible for any
alterations required to be made to the Premises under such amendment or
modification; provided that Landlord shall remain responsible for any material
structural modifications required by such Act.
6. GOVERNMENTAL REQUIREMENTS. Tenant shall comply with all Governmental
Requirements applicable to its use of the Premises. In the event of alterations
and repairs performed by Tenant, Tenant shall comply with the provisions of
Section 4 of this Lease.
7. WAIVER OF CLAIMS; INDEMNIFICATION; INSURANCE.
A. Waiver of Claims. To the extent permitted by law, Tenant waives any
claims it may have against Landlord or its officers, directors, employees or
agents for business interruption or damage to property sustained by Tenant as
the result of any act or omission of Landlord.
To the extent permitted by law, Landlord waives any claims it may have
against Tenant or its officers, directors, employees or agents for loss of rents
(other than Rent) or damage to property sustained by Landlord as the result of
any act or omission of Tenant.
B. Indemnification. Tenant shall indemnify, defend and hold harmless
Landlord and its officers, directors, employees and agents against any claim by
any third party for injury to any person or damage to or loss of any property
occurring in the Premises and arising from the use of the Premises or from any
other act or omission of Tenant or any of Tenant's employees or agents. Tenant's
obligations under this Section shall survive the termination of this Lease.
Landlord shall indemnify, defend and hold harmless Tenant and its
officers, directors, employees and agents against any claim by any third party
for damage to person or Premises or
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from any other act or omission of Landlord or any of Landlord's employees or
agents. Landlord's obligations under this section shall survive the termination
of this Lease.
C. Tenant's Insurance. Tenant shall maintain insurance as follows, with
such other terms, coverages and insurers, as Landlord shall reasonably require
from time to time to the extent commercially insurable:
(1) Commercial General Liability Insurance, with (a)
Contractual Liability including the indemnification provisions
contained in this Lease, (b) a severability of interest endorsement,
and (c) limits of not less than Two Million Dollars ($2,000,000)
combined single limit per occurrence and not less than Five Million
Dollars ($5,000,000) in the aggregate for bodily injury, sickness or
death, and property damage. Landlord shall have the right upon notice
to Tenant not more than one time every five years to require Tenant to
increase the limits of its liability policy to approximate the rate of
inflation and maintain the relative value of the insurance coverage.
(2) Commercial Property Insurance insuring against "All Risks"
of direct physical loss covering loss of rents and the full replacement
cost of the Building and other structures or components on the Premises
and all of Tenant"s improvements, fixtures and personal property
(including all Scheduled Personal Property or replacements thereof)
with such terms, coverages and conditions as would be maintained by
prudent owners of premises similar to the Premises. Tenant waives all
rights of subrogation against Landlord, and Tenant"s property insurance
shall include a waiver of subrogation in favor of Landlord.
(3) Workers" compensation or similar insurance in form and
amounts required by law, and Employer"s Liability with not less than
the following limits:
Each Accident $500,000
Disease--Policy Limit $500,000
Disease--Each Employee $500,000
Such insurance shall contain a waiver of subrogation provision
in favor of Landlord and its agents. If Landlord elects to obtain
separate coverage such policies shall contain a similar clause in favor
of Tenant.
Tenant"s insurance shall be primary and not contributory to that
carried by Landlord, its agents, or mortgagee. Landlord, and if any, Landlord"s
building manager or agent and mortgagee or ground lessor shall be named as
additional insureds as respects to insurance required of the Tenant in Sections
7C(1), 7C(2) and 7C(3). The company or companies writing any insurance which
Tenant is required to maintain under this Lease, as well as the form of such
insurance, shall at all times be subject to Landlord"s approval, and any such
company shall be licensed to do
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business in the state in which the Building is located. Such insurance companies
shall have an A.M. Best rating of A V or better.
Tenant shall cause any contractor of Tenant performing work on the
Premises to maintain insurance as follows, with such other terms, coverages and
insurers, as Landlord shall reasonably require from time to time:
(1) Commercial General Liability Insurance, including
contractor's liability coverage, contractual liability coverage,
completed operations coverage, broad form property damage endorsement,
and contractor's protective liability coverage, to afford protection
with limits, for each occurrence, of not less than One Million Dollars
($1,000,000) with respect to personal injury, death or property damage.
(2) Workers" compensation or similar insurance in form and
amounts required by law, and Employer"s Liability with not less than
the following limits:
Each Accident $500,000
Disease--Policy Limit $500,000
Disease--Each Employee $500,000
Such insurance shall contain a waiver of subrogation provision
in favor of Landlord and its agents.
Tenant's contractor"s insurance shall be primary and not contributory
to that carried by Tenant, Landlord, their agents or mortgagees. Tenant and
Landlord, and if any, Landlord"s building manager or agent, mortgagee or ground
lessor shall be named as additional insured on Tenant"s contractor"s insurance
policies.
D. Insurance Certificates. Tenant shall deliver to Landlord
certificates evidencing all required insurance no later than five (5) days prior
to the Commencement Date and each renewal date. Each certificate will provide
for thirty (30) days prior written notice of cancellation to Landlord and
Tenant.
8. FIRE AND OTHER CASUALTY.
A. Termination. If a fire or other casualty causes substantial damage
to the Building or the Premises, Landlord shall engage a registered architect to
certify within one (1) month of the casualty to both Landlord and Tenant the
amount of time needed to restore the Building and the Premises to tenantability,
using standard working methods. If the time needed exceeds twelve (12) months
from the beginning of the restoration, then only Tenant, or two (2) months
therefrom if the restoration would begin during the last twelve (12) months of
the Lease, then either Landlord or Tenant, may terminate this Lease, by notice
to the other party within ten (10) days after the notifying party's receipt of
the architect's certificate. The termination shall be
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effective thirty (30) days from the date of the notice and Rent shall be paid by
Tenant to that date, with an abatement for any portion of the Premises which has
been untenantable after the casualty.
B. Restoration. If a casualty causes damage to the Building or the
Premises but this Lease is not terminated for any reason, then Tenant shall
obtain the applicable insurance proceeds (or if required by Landlord's mortgagee
the proceeds shall be deposited into an escrow), and Tenant shall diligently
restore the Building and the Premises subject to current Governmental
Requirements and in accordance with the terms and conditions of Section 4.
Tenant shall also replace its damaged improvements, personal property (including
all Scheduled Personal Property and replacements thereof) and fixtures. Rent
shall be abated on a per diem basis during the restoration for any portion of
the Premises which is untenantable, except to the extent that Tenant's
negligence caused the casualty.
9. EMINENT DOMAIN. If a Substantial Portion of the Premises is taken
by eminent domain or deed in lieu thereof, then Tenant may terminate this Lease
effective as of the date of the taking. Rent shall xxxxx from the date of the
taking in proportion to any part of the Premises taken. The entire award for a
taking of any kind shall be paid to Landlord, and Tenant shall have no right to
share in the award; provided, that Tenant may pursue a separate award in
connection with the taking as long as no such recovery reduces the award
otherwise payable to Landlord. If a material portion of the parking areas are
taken Landlord shall redesign or reconfigure the parking areas to replace
parking spaces as taken or shall provide alternate parking areas on adjoining
land or shall credit Tenant with an abatement of Rent based upon the reasonable
rental value of the parking spaces permanently lost by such taking. All
obligations accrued to the date of the taking shall be performed by the party
liable to perform said obligations, as set forth herein. For purposes of this
Section 9 "Substantial Portion" of the Premises shall mean more than 25% of the
rentable square footage of the Premises.
10. RIGHTS RESERVED TO LANDLORD.
Landlord may exercise at any time any of the following rights
respecting the operation of the Premises without liability to the Tenant of any
kind:
A. Name. To change the name or street address of the Building (except
any change of name shall require the consent of Tenant, not to be unreasonably
withheld).
B. Signs. To reasonably approve, prior to installation, any of Tenant's
signs in the Premises.
C. Window Treatments. To reasonably approve, at its discretion, prior
to installation, any shades, blinds, ventilators or window treatments of any
kind, as well as any lighting within the Premises that may be visible from the
exterior of the Building.
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D. Keys. To retain and use at any time passkeys to enter the Premises
or any door within the Premises. Tenant shall not alter or add any lock or bolt.
E. Access. To have access to inspect the Premises, at reasonable times
accompanied by a representative of Tenant (except in the case of an emergency)
and to perform its obligations, or make repairs, alterations, additions or
improvements, as permitted by this Lease. If Landlord shall enter the Building
without a representative of Tenant present Landlord shall provide adequate
security for the Building at all times when Landlord is present. Notwithstanding
the foregoing, if Tenant vacates or abandons the Premises then Landlord shall
have the right to inspect the Premises at anytime without a representative of
Tenant present.
F. Preparation for Reoccupancy. To decorate, remodel, repair, alter or
otherwise prepare the Premises for reoccupancy at any time after Tenant abandons
the Premises, without relieving Tenant of any obligation to pay Rent.
G. Heavy Articles. To approve the weight, size, placement and time and
manner of movement within the Building of any safe, central filing system or
other heavy article of Tenant's property. Tenant shall move its property
entirely at its own risk.
H. Show Premises. During the last year of the Term or Renewal Term or
any time after notice of termination has been given to Tenant, upon reasonable
notice to Tenant to show the Premises to prospective purchasers, tenants,
brokers, lenders, investors, rating agencies or others at any reasonable time,
provided that Landlord gives prior notice to Tenant and does not materially
interfere with Tenant's use of the Premises.
I. Use of Lockbox. To designate a lockbox collection agent for
collections of amounts due Landlord. In that case, the date of payment of Rent
or other sums shall be the date of the agent's receipt of such payment or the
date of actual collection if payment is made in the form of a negotiable
instrument thereafter dishonored upon presentment. However, Landlord may reject
any payment for all purposes as of the date of receipt or actual collection by
mailing to Tenant within 21 days after such receipt or collection a check equal
to the amount sent by Tenant.
J. Repairs and Alterations. To make repairs or alterations to the
Premises as permitted by this Lease and in doing so transport any required
material through the Premises, to close entrances, doors, corridors, elevators
and other facilities in the Premises, to open any ceiling in the Premises, or to
temporarily suspend services or use of areas in the Building. Landlord may
perform any such repairs or alterations during ordinary business hours, except
that Tenant may require any Work in the Premises to be done after business hours
if Tenant pays Landlord for overtime and any other expenses incurred. Landlord
may do or permit any work on any nearby building, land, street, alley or way,
provided that such work is accomplished in such a manner as to not materially
interfere with Tenant's use of the Premises.
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K. Landlord's Agents. If Tenant is in default under this Lease,
possession of Tenant's funds or negotiation of Tenant's negotiable instrument by
any of Landlord's agents shall not waive any breach by Tenant or any remedies of
Landlord under this Lease.
L. Other Actions. To take any other action which Landlord deems
reasonable in connection with the operation, maintenance or preservation of the
Building.
11. TENANT'S DEFAULT.
Any of the following shall constitute a default by Tenant:
A. Rent Default. Tenant fails to pay any Rent when due, and in the case
of only the first two (2) such failures in any 12 consecutive months, such
failure continues for five (5) days after notice from Landlord;
B. Assignment. Tenant defaults in its obligations under Section 16
Assignment and Sublease;
C. Other Performance Default. Tenant fails to perform any other
obligation to Landlord under this Lease, and this failure continues for twenty
(20) days after written notice from Landlord, except that if Tenant begins to
cure its failure within the twenty (20) day period but cannot reasonably
complete its cure within such period, then, so long as Tenant continues to
diligently attempt to cure its failure, the twenty (20) day period shall be
extended to sixty (60) days, or such lesser period as is reasonably necessary to
complete the cure;
D. Credit Default. One of the following credit defaults occurs:
(1) Tenant or Guarantor commences any proceeding under any law
relating to bankruptcy, insolvency, reorganization or relief of debts,
or seeks appointment of a receiver, trustee, custodian or other similar
official for the Tenant or Guarantor for any substantial part of their
property, or any such proceeding is commenced against Tenant or
Guarantor and either remains undismissed for a period of thirty days or
results in the entry of an order for relief against Tenant which is not
fully stayed within seven days after entry;
(2) Tenant or Guarantor becomes insolvent or bankrupt, does
not generally pay its debts as they become due, or admits in writing
its inability to pay its debts, or makes a general assignment for the
benefit of creditors;
(3) Any third party obtains a levy or attachment under process
of law against Tenant's leasehold interest.
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E. Vacation Default. Tenant vacates the Premises and fails to (i)
provide for full and adequate security presence at all times or (ii) provide
heating and/or air conditioning such that the average temperature condition of
the Premises is within 5 degrees F of normal office operating temperatures or
(iii) repair and maintain the Premises generally so as to preserve the value of
the Premises during the period of such vacation or abandonment.
12. LANDLORD REMEDIES.
A. Termination of Lease or Possession. If Tenant defaults, Landlord may
elect by notice to Tenant either to terminate this Lease or to terminate
Tenant's possession of the Premises without terminating this Lease. In either
case, Tenant shall immediately vacate the Premises and deliver possession to
Landlord, and Landlord may repossess the Premises and may, at Tenant's sole
cost, remove any of Tenant's signs and any of its other property, without
relinquishing its right to receive Rent or any other right against Tenant.
B. Lease Termination Damages. If Landlord terminates the Lease, Tenant
shall pay to Landlord all Rent due on or before the date of termination, plus
Landlord's reasonable estimate of the aggregate Rent that would have been
payable from the date of termination through the Termination Date, reduced by
the rental value of the Premises calculated as of the date of termination for
the same period, taking into account anticipated vacancy prior to reletting,
reletting expenses and market concessions, both discounted to present value at
the rate of five percent (5%) per annum. If Landlord shall relet the Premises
for any part of such period before such present value amount shall have been
paid by Tenant or finally determined by a court, then the amount of Rent payable
pursuant to such reletting (taking into account vacancy prior to reletting and
any reletting expenses or concessions) shall be deemed to be the reasonable
rental value for that portion of the Premises relet during the period of the
reletting.
C. Possession Termination Damages. If Landlord terminates Tenant's
right to possession without terminating the Lease and Landlord takes possession
of the Premises itself, Landlord may relet any part of the Premises for such
Rent, for such time, and upon such terms as Landlord in its sole discretion
shall determine, without any obligation to do so prior to renting other vacant
areas in the Building. Any proceeds from reletting the Premises shall first be
applied to the expenses of reletting, including reasonable redecoration, repair,
alteration, advertising, brokerage, legal, and other reasonably necessary
expenses. If the reletting proceeds after payment of expenses are insufficient
to pay the full amount of Rent under this Lease, Tenant shall pay such
deficiency to Landlord monthly upon demand as it becomes due. Any excess
proceeds shall be retained by Landlord.
D. Landlord's Remedies Cumulative. All of Landlord's remedies under
this Lease shall be in addition to all other remedies Landlord may have at law
or in equity. Waiver by Landlord of any breach of any obligation by Tenant shall
be effective only if it is in writing, and shall not be deemed a waiver of any
other breach, or any subsequent breach of the same obligation. Landlord's
acceptance of payment by Tenant shall not constitute a waiver of any
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breach by Tenant, and if the acceptance occurs after Landlord's notice to
Tenant, or termination of the Lease or of Tenant's right to possession, the
acceptance shall not affect such notice or termination. Acceptance of payment by
Landlord after commencement of a legal proceeding or final judgment shall not
affect such proceeding or judgment. Landlord may advance such monies and take
such other actions for Tenant"s account as reasonably may be required to cure or
mitigate any default by Tenant. Tenant shall immediately reimburse Landlord for
any such advance, and such sums shall bear interest at the default interest rate
until paid.
E. WAIVER OF TRIAL BY JURY. EACH PARTY WAIVES TRIAL BY JURY IN THE
EVENT OF ANY LEGAL PROCEEDING BROUGHT BY THE OTHER IN CONNECTION WITH THIS
LEASE. EACH PARTY SHALL BRING ANY ACTION AGAINST THE OTHER IN CONNECTION WITH
THIS LEASE IN A FEDERAL OR STATE COURT LOCATED IN XXXX COUNTY, ILLINOIS,
CONSENTS TO THE JURISDICTION OF SUCH COURTS, AND WAIVES ANY RIGHT TO HAVE ANY
PROCEEDING TRANSFERRED FROM SUCH COURTS ON THE GROUND OF IMPROPER VENUE OR
INCONVENIENT FORUM.
F. Litigation Costs. Tenant shall pay Landlord's reasonable attorneys'
fees and other costs in enforcing this Lease, whether or not suit is filed.
13. SURRENDER. Upon termination of this Lease or Tenant's right to
possession, Tenant shall return the Premises, and except as provided in the
following sentence, including all Scheduled Personal Property, to Landlord in
good order and condition, ordinary wear and casualty damage excepted. If Tenant
shall have not exercised its Termination Option pursuant to Section 1C or Tenant
has waived its Termination Option, then on or before the first day of the month
following the earlier of (i) the Termination Notice or (ii) the date Tenant
delivers a waiver of its Termination Option to Landlord, Landlord shall convey
to Tenant all Scheduled Personal Property and replacements thereof by a
quitclaim xxxx of sale. Replacement of Scheduled Personal Property shall be of
equal or better value and function as the class, type or quality of such
personalty as of the Commencement Date. If Landlord requires Tenant to remove
any alterations, then Tenant shall remove the alterations in a good and
workmanlike manner and restore the Premises to its condition prior to their
installation.
14 . HOLDOVER. If Tenant retains possession of any part of the Premises
after the Term, Tenant shall become a month-to-month tenant for the entire
Premises upon all of the terms of this Lease as might be applicable to such
month-to-month tenancy, except that Tenant shall pay all of Base Rent, at 150%
the rate in effect immediately prior to such holdover, computed on a monthly
basis for each full or partial month Tenant remains in possession. Tenant shall
also pay Landlord all of Landlord's direct and consequential damages resulting
from Tenant"s holdover and that result from and after the date thirty (30) days
after Landlord shall have given written notice to Tenant to vacate which notice
may be given by Landlord prior to the expiration of the Lease. No acceptance of
Rent or other payments by Landlord under these holdover
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provisions shall operate as a waiver of Landlord's right to regain possession or
any other of Landlord's remedies.
15. SUBORDINATION TO GROUND LEASES AND MORTGAGES.
A. Subordination. This Lease shall be subordinate to any present or
future ground lease or mortgage respecting the Premises, and any amendments to
such ground lease or mortgage, at the election of the ground lessor or mortgagee
as the case may be, effected by notice to Tenant in the manner provided in this
Lease. The subordination shall be effective upon such notice, but at the request
of Landlord or ground lessor or mortgagee, Tenant shall within fifteen (15) days
of the request, execute and deliver to the requesting party any reasonable
documents provided to evidence the subordination. Any mortgagee has the right,
at its option, to subordinate its mortgage to the terms of this Lease, without
notice to, nor the consent of, Tenant.
B. Termination of Ground Lease or Foreclosure of Mortgage. If any
ground lease is terminated or mortgage foreclosed or deed in lieu of foreclosure
given and the ground lessor, mortgagee, or purchaser at a foreclosure sale shall
thereby become the owner of the Premises, Tenant shall attorn to such ground
lessor or mortgagee or purchaser without any deduction or setoff by Tenant, and
this Lease shall continue in effect as a direct lease between Tenant and such
ground lessor, mortgagee or purchaser. The ground lessor or mortgagee or
purchaser shall be liable as Landlord only during the time such ground lessor or
mortgagee or purchaser is the owner of the Premises. At the request of Landlord,
ground lessor or mortgagee, Tenant shall execute and deliver within fifteen (15)
days of the request any document furnished by the requesting party to evidence
Tenant's agreement to attorn.
C. Notice and Right to Cure. If the Premises are subject to any ground
lease and mortgage identified with name and address of ground lessor or
mortgagee in Appendix C to this Lease (as the same may be amended from time to
time by written notice to Tenant). Tenant agrees to send by registered or
certified mail to any ground lessor or mortgagee identified either in such
Appendix or in any later notice from Landlord to Tenant a copy of any notice of
default sent by Tenant to Landlord. If Landlord fails to cure such default
within the required time period under this Lease, but ground lessor or mortgagee
begins to cure within ten (10) days after such period and proceeds diligently to
complete such cure, then ground lessor or mortgagee shall have such additional
time as is necessary to complete such cure, including any time necessary to
obtain possession if possession is necessary to cure, and Tenant shall not begin
to enforce its remedies so long as the cure is being diligently pursued.
D. Non-disturbance Agreement. At any time that the Premises are made
subject to any ground lease or mortgage, Landlord shall cause the mortgagee or
ground lessor to deliver to Tenant a non-disturbance agreement reasonably
acceptable to Tenant, providing that so long as Tenant is not in default under
this Lease after the expiration of any applicable notice and cure periods,
Tenant may remain in possession of the Premises under the terms of this Lease,
even if
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the ground lessor should terminate the ground lease or if the mortgagee or its
successor should acquire Landlord's title to the Premises.
E. Definitions. As used in this Section 15, "mortgage" shall include
"deed of trust" and/or "trust deed" and "mortgagee" shall include "beneficiary"
and/or "trustee", "mortgagee" shall include the mortgagee of any ground lessee,
and "ground lessor", "mortgagee", and "purchaser at a foreclosure sale" shall
include, in each case, all of its successors and assigns, however remote.
F. Litigation With Current Mortgagee. A current mortgagee of the
Premises is the State of South Dakota Board of Economic Development (the
"Board"), an agency of the State of South Dakota. Any such action or claim
against the Board in connection with this Lease must be brought in the state
courts of South Dakota. The foregoing limitation shall not apply to any action
among the parties with respect to this Lease that does not involve a claim
against the Board.
16. ASSIGNMENT AND SUBLEASE.
A. In General. Tenant shall not, without the prior consent of Landlord
in each case, (i) make or allow any assignment or transfer, by operation of law
or otherwise, of any part of Tenant's interest in this Lease, (ii) grant or
allow any lien or encumbrance, by operation of law or otherwise, upon any part
of Tenant's interest in this Lease, (iii) sublet any part of the Premises, or
(iv) permit anyone other than Tenant and its employees to occupy any part of the
Premises, except that any assignment or sublet to an Affiliate (as defined in
Section 24C) shall not require prior consent of Landlord but shall require the
prompt delivery to Landlord of copies of all such assignments and subleases,
along with such information regarding the Affiliate assignee or subtenant as
Landlord shall reasonably require. Tenant shall remain primarily liable for all
of its obligations under this Lease, notwithstanding any assignment or transfer
unless such assignee or guarantor possesses at the time of such assignment or
transfer an "A" credit rating as determined by Standard and Poor or equivalent
rating agency. No consent granted by Landlord shall be deemed to be a consent to
any subsequent assignment or transfer, lien or encumbrance, sublease or
occupancy. No assignment or sublease whether or not consent of Landlord is
required hereunder shall be valid without the approval by Guarantor and its
acknowledgment that the assignment or sublease shall not alter or amend the
rights of Landlord under the Guaranty. Tenant shall pay all of Landlord's
reasonable attorneys' fees and other expenses incurred in connection with any
consent requested by Tenant or in reviewing any proposed assignment or
subletting. Except to an Affiliate, any assignment or transfer, grant of lien or
encumbrance, or sublease or occupancy without Landlord's prior written consent
shall be void. If Tenant shall assign this Lease, except to an Affiliate, or
sublet the Premises in its entirety any rights of Tenant to renew this Lease,
extend the Term or to lease additional space in the Premises shall be
extinguished thereby and will not be transferred to the assignee or subtenant,
all such rights being personal to the Tenant named herein.
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B. Landlord's Consent. Landlord will not unreasonably withhold its
consent to any proposed assignment or subletting. It shall be reasonable for
Landlord to withhold its consent to any assignment or sublease if (i) Tenant is
in default under this Lease, (ii) the proposed assignee or sublessee is a tenant
or an affiliate of such a tenant or a party that Landlord has identified as a
prospective tenant in the Premises, (iii) the financial responsibility, nature
of business, and character of the proposed assignee or subtenant are not all
reasonably satisfactory to Landlord, (iv) in the reasonable judgment of Landlord
the purpose for which the assignee or subtenant intends to use the Premises (or
a portion thereof) is not in keeping with Landlord's standards for the Building
or are in violation of the terms of this Lease, (v) the proposed assignee or
subtenant is a government entity, or (vi) the proposed assignment is for less
than the entire Premises or for less than the remaining Term of the Lease. The
foregoing shall not exclude any other reasonable basis for Landlord to withhold
its consent.
C. Procedure. Tenant shall notify Landlord of any proposed assignment
or sublease at least thirty (30) days prior to its proposed effective date. The
notice shall include the name and address of the proposed assignee or subtenant,
its corporate affiliates in the case of a corporation and its partners in a case
of a partnership, an execution copy of the proposed assignment or sublease, and
sufficient information to permit Landlord to determine the financial
responsibility and character of the proposed assignee or subtenant. As a
condition to any effective assignment of this Lease, the assignee shall execute
and deliver in form satisfactory to Landlord at least fifteen (15) days prior to
the effective date of the assignment, an assumption of all of the obligations of
Tenant under this Lease. As a condition to any effective sublease, subtenant
shall execute and deliver in form satisfactory to Landlord at least fifteen (15)
days prior to the effective date of the sublease, an agreement to comply with
all of Tenant's obligations under this Lease, and at Landlord's option, an
agreement (except for the economic obligations which subtenant will undertake
directly to Tenant) to attorn to Landlord under the terms of the sublease in the
event this Lease terminates before the sublease expires.
D. Change of Management or Ownership. If Tenant is not wholly owned by
an entity traded on a national securities exchange or if Tenant is not rated by
either Standard & Poor's or Moody's as an "A" credit, any transfer of the direct
or indirect power to affect the management or policies of Tenant or direct or
indirect change in 50% or more of the ownership interest in Tenant shall
constitute an assignment of this Lease.
E. Excess Payments. If Tenant shall assign this Lease or sublet any
part of the Premises for consideration in excess of the pro-rata portion of Base
Rent applicable to the space subject to the assignment or sublet (after
deduction of Tenant's out-of-pocket expenses related to the applicable
transaction), then Tenant shall pay to Landlord as Additional Rent 50% of any
such excess immediately upon receipt.
F. Recapture. Landlord may, by giving written notice to Tenant within
thirty (30) days after receipt of Tenant's notice of assignment or subletting,
terminate this Lease with respect to the space described in Tenant's notice, as
of the effective date of the proposed assignment or
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sublease and all obligations under this Lease as to such space shall expire
except as to any obligations that expressly survive any termination of this
Lease.
17. CONVEYANCE BY LANDLORD. If Landlord shall at any time transfer its
interest in the Premises or this Lease, Landlord shall be released of any
obligations occurring after such transfer, and Tenant shall look solely to
Landlord's successors for performance of such obligations. This Lease shall not
be affected by any such transfer.
18. ESTOPPEL CERTIFICATE. Each party shall, within fifteen (15) days of
receiving a request from the other party, execute, acknowledge in recordable
form, and deliver to the other party or its designee a certificate stating,
subject to a specific statement of any applicable exceptions, that the Lease as
amended to date is in full force and effect, that the Tenant is paying Rent and
other charges on a current basis, and that to the best of the knowledge of the
certifying party, the other party has committed no uncured defaults and has no
offsets or claims. The certifying party may also be required to state the date
of commencement of payment of Rent, the Commencement Date, the Termination Date,
the Base Rent, and such other matters as may be reasonably requested. Failure to
deliver such statement within the time required shall be conclusive evidence
against the non-certifying party that this Lease, with any amendments identified
by the requesting party, is in full force and effect, that there are no uncured
defaults by the requesting party, that not more than one month's Rent has been
paid in advance, that the non-certifying party has not paid any security
deposit, and that the non-certifying party has no claims or offsets against the
requesting party.
19. FORCE MAJEURE. No party shall not be in default under this Lease to
the extent such party is unable to perform any of its obligations on account of
any strike or labor problem, energy shortage, governmental pre-emption or
prescription, national emergency, or any other cause of any kind beyond the
reasonable control (other than inability to pay) of such party ("Force
Majeure").
20. INTENTIONALLY OMITTED.
21. NOTICES. All notices, consents, approvals and similar
communications to be given by one party to the other under this Lease, shall be
given in writing, mailed or personally delivered as follows:
A. Landlord. To Landlord as follows:
x/x XXXX
Xxxxx 000
0000 XxXxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: General Counsel
or to such other person at such other address as Landlord may designate by
notice to Tenant.
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B. Tenant. To Tenant as follows:
x/x Xxxxxxxxx Xxxxxxxxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attn: Leasing and Licensing
or to such other person at such other address as Tenant may designate by notice
to Landlord.
Mailed notices shall be sent by United States certified or registered
mail, or by a reputable national overnight courier service, postage prepaid.
Mailed notices shall be deemed to have been given on the earlier of actual
delivery or three (3) business days after posting in the United States mail in
the case of registered or certified mail, and one business day in the case of
overnight courier.
22. QUIET POSSESSION. So long as Tenant shall perform all of its
obligations under this Lease, Tenant shall enjoy peaceful and quiet possession
of the Premises against any party claiming through the Landlord.
23. REAL ESTATE BROKER. Tenant represents to Landlord that Tenant has
not dealt with any real estate broker with respect to this Lease except for any
broker(s) listed in the Schedule, and no other broker is in any way entitled to
any broker's fee or other payment in connection with this Lease. Tenant shall
indemnify and defend Landlord against any claims by any other broker or third
party for any payment of any kind in connection with this Lease.
24. MISCELLANEOUS.
A. Successors and Assigns. Subject to the limits on Tenant's assignment
contained in Section 16, the provisions of this Lease shall be binding upon and
inure to the benefit of all successors and assigns of Landlord and Tenant.
B. Date Payments Are Due. Except for payments to be made by Tenant
under this Lease which are due upon demand or are due in advance (such as Base
Rent), Tenant shall pay to Landlord any amount for which Landlord renders a
statement of account within thirty (30) days of Tenant's receipt of Landlord's
statement.
C. Meaning of "Landlord", "Re-Entry, "including" and "Affiliate". The
term "Landlord" means only the owner of the Premises and the lessor's interest
in this Lease from time to time. The words "re-entry" and "re-enter" are not
restricted to their technical legal meaning. The words "including" and similar
words shall mean "without limitation." The word "affiliate" shall mean a person
or entity controlling, controlled by or under common control with the applicable
entity. "Control" shall mean the power directly or indirectly, by contract or
otherwise, to direct the management and policies of the applicable entity.
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D. Time of the Essence. Time is of the essence of each provision of
this Lease.
E. No Option. This document shall not be effective for any purpose
until it has been executed and delivered by both parties; execution and delivery
by one party shall not create any option or other right in the other party.
F. Severability. The unenforceability of any provision of this Lease
shall not affect any other provision.
G. Governing Law. This Lease shall be governed in all respects by the
laws of the state in which the Premises is located, without regard to the
principles of conflicts of laws.
H. Lease Modification. Tenant agrees to modify this Lease in any way
requested by a mortgagee which does not cause increased expense to Tenant or
otherwise materially adversely affect Tenant's interests under this Lease.
I. No Oral Modification. No modification of this Lease shall be
effective unless it is a written modification signed by both parties.
J. Landlord's Right to Cure. If Landlord breaches any of its
obligations under this Lease, Tenant shall notify Landlord in writing and shall
take no action respecting such breach so long as Landlord promptly begins to
cure the breach and diligently pursues such cure to its completion. Landlord may
cure any default by Tenant after expiration of any applicable period; any
expenses incurred shall become Additional Rent due from Tenant on demand by
Landlord.
K. Captions. The captions used in this Lease shall have no effect on
the construction of this Lease.
L. Authority. Landlord and Tenant each represents to the other that it
has full power and authority to execute and perform this Lease.
M. Landlord's Enforcement of Remedies. Landlord may enforce any of its
remedies under this Lease either in its own name or through an agent.
N. Entire Agreement. This Lease, together with all Appendices,
constitutes the entire agreement between the parties. No representations or
agreements of any kind have been made by either party which are not contained in
this Lease.
O. Landlord's Title. Landlord's title shall always be paramount to the
interest of the Tenant, and nothing in this Lease shall empower Tenant to do
anything which might in any way impair Landlord's title.
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P. Singular and Plural. Wherever appropriate in this Lease, a singular
term shall be construed to mean the plural where necessary, and a plural term
the singular. For example, if at any time two parties shall constitute Landlord
or Tenant, then the relevant term shall refer to both parties together.
Q. No Recording by Tenant. Unless required by law, Tenant shall not
record in any public records any memorandum or any portion of this Lease.
R. Intentionally Omitted.
S. No Construction Against Drafting Party. The rule of construction
that ambiguities are resolved against the drafting party shall not apply to this
Lease.
T. Survival. All obligations of Landlord and Tenant under this Lease
shall survive the termination of this Lease.
U. Rent Not Based on Income. No rent or other payment in respect of the
Premises shall be based in any way upon net income or profits from the Premises.
Tenant may not enter into or permit any sublease or license or other agreement
in connection with the Premises which provides for a rental or other payment
based on net income or profit.
V. Building Manager and Service Providers. Landlord may perform any of
its obligations under this Lease through its employees or third parties hired by
the Landlord.
W. Late Charge and Interest on Late Payments. Without limiting the
provisions of Section 11A, if Tenant fails to pay any installment of Rent or
other charge to be paid by Tenant pursuant to this Lease within five (5)
business days after the same becomes due and payable, then Tenant shall pay a
late charge equal to the greater of five percent (5%) of the amount of such
payment or $250. Such late charge shall constitute Additional Rent due and
payable by Tenant to Landlord upon the date of payment of the delinquent payment
referenced above.
X. Consent. Neither party shall unreasonably withhold or delay any
consent or approval required under this Lease, except as specifically permitted
in this Lease.
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25. HAZARDOUS SUBSTANCES. Tenant shall not cause or permit any
Hazardous Substances to be brought upon, produced, stored, used, discharged or
disposed of in or near the Premises unless Landlord has consented to such
storage or use in its sole discretion. Tenant may use, however, Hazardous
Substances in such manner and at such levels as contained in customarily used
office and cleaning supplies, provided that Tenant shall be fully liable for
such use, shall promptly remove such products at the termination of this Lease
and shall report promptly to Landlord any spill or discharge or such products in
excess of normal usage. "Hazardous Substances" include those hazardous
substances described in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et
seq., any other applicable federal, state or local law, and the regulations
adopted under these laws ("Environmental Laws"). If any lender or governmental
agency shall require testing for Hazardous Substances in the Premises, Tenant
shall pay for such testing. Landlord represents and warrants that as of the date
hereof Landlord has no present knowledge and received no notice of any spill or
discharge of Hazardous Substances on the Premises that would constitute a
current violation of Environmental Laws.
Landlord shall be liable for any Hazardous Substances located on the
Premises and not used, stored and disposed of in accordance with Environmental
Laws which existed on the Premises prior to the Commencement Date. If Landlord
fails to initiate any clean-up or other action required pursuant to
Environmental Laws, then upon thirty (30) days prior written notice to Landlord,
Tenant shall have the right, but not the obligation, to perform such action as
required by Environmental Laws in which event (i) during the first twenty-four
(24) months of this Lease, Tenant's Base Rent shall be offset by and (ii)
thereafter Landlord shall promptly reimburse Tenant for, the actual costs
incurred by Tenant in undertaking the same.
If the event of any release of any Hazardous Substance on, in or from
the Premises in violation of this Lease by Tenant, or any of its agents,
employees, servants, contractors, licensees and invitees, Tenant shall
immediately clean-up or initiate any other action in order to comply with
Environmental Laws. In the event Tenant fails to immediately take such
appropriate action, upon thirty (30) days written notice to Tenant, Landlord
shall have the right, but not the obligation, to perform such actions as
required by Environmental Laws in which event Tenant shall promptly reimburse
Landlord for its actual costs in undertaking the same.
Tenant shall indemnify and hold harmless Landlord of and from any and
all liabilities (including strict liabilities), penalties, demands, actions,
costs and expenses (including without limitation legal fees and expenses),
incurred or suffered by Landlord or asserted by a third party against Landlord,
directly or indirectly arising out of or due to the breach of Tenant's
obligations set forth in this Section 25 or otherwise as a result of the release
or unlawful presence of Hazardous Substances on the Premises after the
Commencement Date and during the Term of this Lease, unless the release is as a
result of the negligence or willful misconduct of Landlord. Such indemnification
shall survive the expiration or earlier termination of this Lease.
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Landlord shall indemnify and hold harmless Tenant of and from any and
all liabilities (including strict liabilities), penalties, demands, actions,
costs and expenses (including without limitation legal fees and expenses),
incurred or suffered by Tenant or asserted by a third party against Tenant,
directly or indirectly arising out of or due to the breach of Landlord's
obligations set forth in this Section 25 or otherwise as a result of the release
or unlawful presence of Hazardous Substances on the Premises prior to the
Commencement Date. Such indemnification shall survive the expiration or earlier
termination of this Lease.
26. EXCULPATION. Landlord shall have no personal liability under this
Lease; its liability shall be limited to its interest in the Premises, and shall
not extend to any other property or assets of the Landlord. In no event shall
any officer, director, employee, agent, shareholder, partner, member or
beneficiary of Landlord be personally liable for any of Landlord's obligations
hereunder.
27. GUARANTY. Concurrently with the execution of this Lease, Tenant
will deliver to Landlord the Guaranty of Household Finance Corporation (the
"Guaranty") in the form attached hereto as Exhibit D. The Guaranty shall remain
in full force and effect throughout the Term of the Lease.
28. LANDLORD'S DEFAULT. In the event of any default by Landlord
hereunder, Tenant will give Landlord written notice specifying such default with
particularity, and Landlord shall thereupon have thirty (30) days (or such
longer period as may be required in the exercise of due diligence) in which to
cure any such default. Unless and until Landlord fails to cure any default after
such notice and after expiration of such cure period, Tenant shall not have any
remedy or cause of action by reason thereof. Tenant's sole remedy in the event
of a Landlord default after the expiration of any notice and cure periods shall
be to seek its remedies at law or in equity, provided that, during the first
twenty-four (24) months of this Lease, Tenant shall also have the right to cure
any such Landlord default after the expiration of any notice and cure periods
and offset Base Rent by Tenant's actual out-of-pocket costs incurred in curing
such default.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease.
LANDLORD:
SPECIALIZED CARD SERVICES, INC.,
a South Dakota corporation
By:
---------------------------------
Print Name: Xxxxxxx Xxxxxxx
Print Title: Director
TENANT:
HOUSEHOLD CREDIT SERVICES, INC.,
A Delaware corporation
By:
---------------------------------
Print Name
--------------------------
Print Title
-------------------------
