EXHIBIT 10.5
________________________________________________________________________________
LEASE AGREEMENT
Between
AMERICAN NATIONAL BANK AND TRUST COMPANY
LAND TRUST 65387
----------------------------------------
as Landlord
and
XXXXXX XXXXX COMPANY
----------------------------------------
as Tenant
Dated as of May 12, 1994
________________________________________________________________________________
This instrument prepared by:
TABLE OF CONTENTS
SECTION HEADING PAGE
Parties..................................................................... 1
SECTION 1. LEASE OF PREMISES; TITLE AND CONDITION....................... 1
SECTION 2. USE.......................................................... 2
SECTION 3. TERMS........................................................ 2
SECTION 4. RENT......................................................... 2
SECTION 5. NET LEASE.................................................... 2
SECTION 6. TAXES AND ASSESSMENTS........................................ 3
SECTION 7. LIENS........................................................ 4
SECTION 8. INDEMNIFICATION.............................................. 5
SECTION 9. MAINTENANCE AND REPAIR....................................... 5
SECTION 10. ALTERATIONS.................................................. 6
SECTION 11. CONDEMNATION AND CASUALTY.................................... 6
SECTION 12. INSURANCE.................................................... 8
SECTION 13. ASSIGNMENT AND SUBLETTING.................................... 11
SECTION 14. PERMITTED CONTESTS........................................... 11
SECTION 15. CONDITIONAL LIMITATIONS; DEFAULT PROVISIONS.................. 12
SECTION 16. ADDITIONAL RIGHTS OF LANDLORD................................ 15
SECTION 17. NOTICES, DEMANDS AND OTHER INSTRUMENTS....................... 16
SECTION 18. ESTOPPEL CERTIFICATES........................................ 16
SECTION 19. NO MERGER.................................................... 16
SECTION 20. SURRENDER.................................................... 16
SECTION 21. SEPARABILITY; BINDING EFFECT................................. 16
SECTION 22. RECORDING OF LEASE........................................... 17
SECTION 23. LESSOR'S RIGHT TO CURE LESSEE'S DEFAULT...................... 17
SECTION 24. EXPENSES..................................................... 17
SECTION 25. COUNTERPARTS................................................. 17
SECTION 26. HEADINGS..................................................... 17
SECTION 27. SCHEDULES.................................................... 17
Signatures.................................................................. 18
ATTACHMENTS TO LEASE AGREEMENT:
Schedule A -- Description of the Premises
Schedule B -- Terms and Basic Rent Payments
Schedule C -- Payments Upon Purchase
ADDENDUM
LEASE AGREEMENT dated as of May 12, 1994 (this "Lease"), between American
National Bank & Trust Company Land Trust 65387, a ____________ corporation
(herein, together with any corporation succeeding thereto by consolidation,
merger or acquisition of its assets substantially as an entirety, called
"Landlord") having an address at 00 X. XxXxxxx Xx., Xxxxxxx, XX 00000,
__________________________ and Xxxxxx Xxxxx Company, a Delaware corporation
(herein, together with any corporation succeeding thereto by consolidation,
merger or acquisition of its assets substantially as an entirety, called
"Tenant"), having an address at 0000 Xxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
Section 1. Lease of Premises; Title and Condition. (a) In consideration of
the rents and covenants herein stipulated to be paid and performed by Tenant and
upon the terms and conditions herein specified, Landlord hereby leases to
Tenant, and Tenant hereby leases from Landlord, the premises (the "Premises")
consisting of (i) the land (the "Land") described in Schedule A, (ii) all
buildings and other improvements (including the attachments and other affixed
property), now or hereafter located on the Land (the "Improvements"), and (iii)
the respective easements, rights and appurtenances relating to the Land and the
Improvements. The interests of Landlord in the Premises is herein called
"Landlord's Estate". The Premises are leased to Tenant in their present
condition without representation or warranty by Landlord and subject to the
rights of parties in possession, to the existing state of title and to all
applicable legal requirements now or hereafter in effect. Tenant has examined
the Premises and title thereto, and has found all of the same satisfactory for
all purposes.
(b) LANDLORD HAS NOT MADE AN INSPECTION OF THE PREMISES OR OF ANY PROPERTY
OR FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF, AND TENANT EXPRESSLY
AGREES TO LEASE THE PREMISES AND EACH PART THEREOF "AS IS" AND "WHERE IS".
LANDLORD SHALL NOT BE DEEMED TO HAVE MADE, AND LANDLORD HEREBY DISCLAIMS, ANY
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED OR OTHERWISE, WITH RESPECT TO THE
SAME OR THE LOCATION, USE, DESCRIPTION, DESIGN, MERCHANTABILITY, FITNESS FOR USE
FOR ANY PARTICULAR PURPOSES, CONDITION OR DURABILITY THEREOF, OR AS TO THE
QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, OR AS TO LANDLORD'S TITLE
THERETO OR OWNERSHIP THEREOF OR OTHERWISE, IT BEING AGREED THAT ALL RISKS
INCIDENT THERETO ARE TO BE BORNE BY TENANT. IN THE EVENT OF ANY DEFECT OR
DEFICIENCY OF ANY NATURE IN THE PREMISES OR ANY PROPERTY OR FIXTURE OR OTHER
ITEM CONSTITUTING A PORTION THEREOF, WHETHER PATENT OR LATENT, LANDLORD SHALL
HAVE NO RESPONSIBILITY OR LIABILITY WITH RESPECT THERETO. THE PROVISIONS OF THIS
SECTION 1(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
THE PREMISES OR ANY PROPERTY OR FIXTURE OR OTHER ITEM CONSTITUTING A PORTION
THEREOF, WHETHER ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OR ANOTHER LAW
NOW OR HEREAFTER IN EFFECT OR OTHERWISE.
-1-
Section 2. Use. Tenant will only use the Premises for a manufacturing plan.
Landlord agrees that without the prior content of Tenant (which consent shall
not be unreasonably withheld) it shall not seek any change in the zoning
ordinances or land use category applicable to the Premises and Landlord agrees
to cooperate with Tenant, at Tenant's expense, in any effort by Tenant to oppose
any changes in the present zoning ordinances or land use category applicable to
the Premises.
Section 3. Terms. The Premises are leased for (a) an initial term (the
"Initial Term"), unless and until the term of this Lease shall expire or be
terminated pursuant to any provision hereof. The Initial Term shall commence and
expire on the dates set forth in Schedule B. Tenant shall exercise its option to
extend the term of this Lease for one or more Extended Terms by giving notice
thereof to Landlord not less than six months prior to the expiration of the then
existing term.
Section 4. Rent. (a) Tenant shall pay to Landlord in lawful money of the
United States as fixed rent for the Premises, the amounts set forth in Schedule
B (collectively, "Basic Rent") on the dates set forth therein (individually a
"Payment Date" and collectively the "Payment Dates"), at Landlord's address as
set forth above, or at such other address or to such other Person as Landlord
from time to time may designate.
(b) All amounts which Tenant is required to pay pursuant to this Lease
(other than Basic Rent, amounts payable upon purchase of the Landlord's Estate
and amounts payable as liquidated damages pursuant to Section 18), together with
every fine, penalty, interest and cost which may be added for non-payment or
late payment thereof, shall constitute additional rent. If Tenant shall fail to
pay any such additional rent when the same shall become due, Landlord shall have
all rights, powers and remedies with respect thereto as are provided herein or
by law in the case of nonpayment of Basic Rent and shall, except as expressly
provided herein, have the right to pay the same on behalf of Tenant. Tenant
shall pay to Landlord interest at the rate of 5% per annum on all overdue Basic
Rent from the due date thereof until paid, and on all overdue additional rent
paid by Landlord on behalf of Tenant from the date of payment by Landlord until
repaid by Tenant. Tenant shall perform all its obligations under this Lease at
its sole cost and expense, and shall pay all Basic Rent and additional rent when
due, without notice or demand.
Section 5. Net Lease. (a) This Lease is a net lease and any present or
future law to the contrary notwithstanding, shall not terminate except as
provided in Sections 11(b), 13, 14 and 18(b), nor shall Tenant be entitled to
any abatement or reduction (except as provided in Section 11(c)), set-off,
counterclaim, defense or deduction with respect to any Basic Rent, additional
rent or other sum payable hereunder, nor shall the obligations of Tenant
hereunder be affected, by reason of: any damage to or destruction of the
Premises; any taking of the Premises or any part thereof or of the Landlord's
Estate by condemnation or otherwise; any prohibition, limitation, restriction or
prevention of Tenant's use, occupancy or enjoyment of the Premises, or any
interference with such use, occupancy or enjoyment by any Person; any eviction
by paramount title or otherwise; any default by Landlord hereunder or under any
other agreement; the impossibility or illegality of performance by Landlord,
Tenant or both; any action of any governmental authority; or any other cause
whether similar or dissimilar to the foregoing. The
-2-
parties intend that the obligations of Tenant hereunder shall be separate and
independent covenants and agreements and shall continue unaffected unless such
obligations shall have been modified or terminated pursuant to an express
provision of this Lease.
(b) Tenant shall remain obligated under this Lease in accordance with its
terms and shall not take any action to terminate, rescind or avoid this Lease,
notwithstanding any bankruptcy, insolvency, reorganization, liquidation,
dissolution or other proceeding affecting Landlord or any assignee of Landlord,
or any action with respect to this lease which may be taken by any trustee,
receiver or liquidator or by any court. Except as otherwise expressly provided
in this Lease, Tenant waives all rights now or hereafter confirmed by statute or
otherwise to quit, to terminate or surrender this Lease, or to any abatement or
deferment of Basic Rent, additional rent or other sums payable hereunder.
Section 6. Taxes and Assessments; Compliance with Law. (a) Tenant shall
pay, promptly as and when due, and agrees to indemnify Landlord and its
successors and assigns and hold Landlord and its successors and assigns harmless
from and against all Impositions. The term "Impositions" shall mean all taxes,
assessments, use, real estate, personal property, sales, ad valorem, value-
added, lease use, stamp and occupancy taxes, sales taxes on rents, water and
sewer charges, rates and rents, charges for utilities public and private,
excises, levies, license and permit fees and other charges, general and special,
ordinary and extraordinary, foreseen and unforeseen, of any kind and nature
whatsoever, which shall or may during the term of this Lease be assessed,
levied, charged, confirmed or imposed upon or become payable out of or become a
lien upon (i) the Premises or Landlord's Estate or any part thereof or the
appurtenances thereto or the sidewalks or streets adjacent thereto, (ii) the
rent and income received by or for the account of Tenant from any subtenants,
(iii) the possession, use or occupancy of the Premises or Landlord's Estate,
(iv) the sale, purchase, ownership, delivery, leasing, operation, return or
other disposition of the Premises or Landlord's Estate, (v) such franchises,
licenses and permits as may be appurtenant to the use of the Premises, or (vi)
this Lease or the transactions hereunder or any document or documents related
hereto to which Tenant is a party, or creating or transferring an interest or
estate in the Premises or Landlord's Estate and shall mean all gross receipts or
similar taxes imposed or levied upon, assessed against or measured by any Basic
Rent, additional rent or other sum payable hereunder.
The term "Impositions" shall not include any municipal, state or Federal
income taxes, assessed against Landlord, or any municipal, state or Federal
capital levy, estate, succession, inheritance or transfer taxes of Landlord, or
any franchise taxes imposed upon any corporate owner of the Premises, or any
part thereof, or any income, profits or revenue tax, assessment or charge
imposed upon the rent received as such by Landlord under this Lease, except for
the gross receipts or similar taxes referred to above (the taxes enumerated in
this sentence are collectively referred to as "Landlord's Taxes").
Notwithstanding the foregoing, if at any time during the term of this Lease, if
any of the Landlord's Taxes are imposed, levied or assessed in substitution for
any Imposition which Tenant is required to pay pursuant to this Section 6(a),
then such Landlord's Taxes, to the extent that they are so substituted or
imposed, shall be deemed to be included within the term "Impositions".
-3-
Tenant will furnish to Landlord, promptly after demand therefor, proof of
payment of all Impositions. If any such Imposition may legally be paid in
installments, Tenant may pay such Imposition in installments; in such event,
Tenant shall be liable only for installments which become due and payable during
the term hereof. Landlord shall, at the request of Tenant, execute such
applications for conversion of Impositions to installment payments.
(b) Tenant shall at its sole expense comply with and cause the Premises to
comply with (i) all laws and other governmental statutes, codes, ordinances,
rules, orders, permits, licenses, authorizations, directions and determinations
now or hereafter enacted, whether or not presently contemplated, including
without limitation all Environmental Laws (as hereinafter defined)
(collectively, "Legal Requirements"), applicable to the Premises or the use
thereof, and (ii) all contracts, agreements, insurance policies, permits,
licenses and restrictions applicable to the Premises or the ownership, occupancy
or use thereof, including but not limited to all such Legal Requirements,
contracts, insurance policies, agreements, permits, licenses and restrictions
which (x) require structural, unforeseen or extraordinary changes or (y) relate
to environmental protection or hazardous waste matters.
As used herein "Environmental Law" shall mean any applicable law, statute
or ordinance relating to public health, safety or the environment, including,
without limitation, relating to releases, discharges or emissions to air, water,
land or groundwater, to the withdrawal or use of groundwater, to the use and
handling of polychlorinated biphenyls or asbestos, to the disposal,
transportation, treatment, storage or management of solid or hazardous wastes or
to exposure to toxic or hazardous materials, to the handling, transportation,
discharge or release of gaseous or liquid substances and any regulation, order,
notice of demand issued pursuant to such law, statute or ordinance, in each case
applicable to the Premises or Tenant or the operation, construction or
modification of the Premises, including without limitation the following: the
Clean Air Act, the Federal Water Pollution Control Act, the Safe Drinking Water
Act, the Toxic Substances Control Act, the Comprehensive Environmental Response
Compensation and Liability Act as amended by the Superfund Amendments and
Reauthorization Act of 1986, the Resource Conservation and Recovery Act as
amendment by the Solid and Hazardous Waste Amendments of 1984, the Occupational
Safety and Health Act, the Emergency Planning and Community Right-to-Know Act of
1986, the Solid Waste Disposal Act, and any state statutes addressing similar
matters, and any state statute providing for financial responsibility for
cleanup or other actions with respect to the release or threatened release of
hazardous substances and any state nuisance statute.
Section 7. Liens. Tenant will promptly remove and discharge any charge,
lien, security interest or encumbrance upon the Premises or any Basic Rent,
additional rent or other sum payable hereunder which arises for any reason
(except as a result of an act of Landlord undertaken without the consent of
Tenant) including all liens which arise out of the use, occupancy, construction,
repair or rebuilding of the Premises or by reason of labor or materials
furnished or claimed to have been furnished to Tenant or for the Premises, but
not including any mortgage, charge, lien, security interest or encumbrance
created by Landlord without the consent of Tenant. Notice is hereby given that
Landlord will not be liable for any labor, services or materials furnished or to
be furnished to Tenant, or to anyone holding the Premises or any part
-4-
thereof through or under Tenant, and that no mechanic's or other liens for any
such labor, services or materials shall attach to or affect the interest of
Landlord in and to the Premises.
Section 8. Indemnification. Tenant shall defend all actions against
Landlord with respect to, and shall pay, protect, indemnify and save harmless
Landlord and its successors and assigns and the Premises from and against, any
and all liabilities (including, without limitation, strict liability in tort),
losses, damages, costs, expenses (including reasonable attorneys' fees and
expenses), causes of action, suits, claims, demands or judgments of any nature
(a) to which Landlord or its successors and assigns are subject because of its
respective estate in the Premises or (b) arising or alleged to arise from or in
connection with (i) injury to or death of any Person, or damage to or loss of
property, on or about the Premises or on adjoining property, sidewalks, streets
or ways, or connected with the ownership, use, condition (including, without
limitation, latent and other defect whether or not discoverable by Landlord),
design, occupancy, lease, sublease, construction, maintenance, repair or
rebuilding of any thereof, (ii) violation of any Legal Requirement whether with
respect to environmental protection or hazardous waste matters or otherwise,
(iii) violation of the requirements of this Lease by Tenant, (iv) any nonpayment
or delayed payment of any Basic Rent or any additional rent, (v) any act or
omission of Tenant or its agents, contractors, licensees, sublessees or
invitees, and (vi) any contest referred to in Section 17.
The obligations of Tenant under this Section 8 shall survive the expiration
or other termination of this Lease and shall not be limited or affected by any
other provision of this Lease requiring Tenant to carry liability insurance.
Tenant's liability under this Section 8 shall be limited to actual or contingent
liabilities arising prior to the termination of this Lease.
Section 9. Maintenance and Repair. (a) Tenant acknowledges that it has
received the Premises in good order and repair. Tenant, at its own expense, will
maintain all parts of the Premises, including any altered, rebuilt, additional
or substituted buildings, structures and other improvements thereto and all
sidewalks, curbs, landscaping, parking lots, vaults and vault space located on
or adjacent to the Premises, in good repair and condition, except for ordinary
wear and tear, and will take all action and will make all structural and
nonstructural, foreseen and unforeseen and ordinary and extraordinary changes,
replacements and repairs which may be required to keep all parts of the Premises
in good repair and condition. All repairs, replacements and renewals shall be at
least equal in quality to the original work. Landlord shall not be required to
maintain, repair or rebuild all or any part of the Premises. Tenant waives the
right to (i) require Landlord to maintain, repair or rebuild all or any part of
the Premises, or (ii) make repairs at the expense of Landlord pursuant to any
Legal Requirement at any time in effect.
(b) In the event that all or any part of the Improvements shall encroach
upon any property, street, or right-of-way adjoining or adjacent to the
Premises, or shall violate the agreements or conditions now or hereafter
affecting the Premises or any part thereof, or shall hinder or obstruct any
easement or right-of-way to which the Premises are now or hereafter subject,
then, promptly after written request of Landlord or any Person so affected,
Tenant shall, at its expense, either (i) obtain valid and effective waivers or
settlements of all claims, liabilities and damages resulting therefrom or (ii)
make any changes, including alteration or removal, to the
-5-
Improvements and take such other action as shall be necessary to remove or
eliminate such encroachments, violations, hindrances, obstructions or
impairments.
Section 10. Alterations. If no Event of Default, as defined in Section 18
hereof, shall exist under this Lease and no notice shall have been given to
Tenant of a default hereunder which has not been corrected, Tenant may, at its
expense, make additions to an alterations of the Improvements and construct
additional Improvements and make substitutions and replacements for the
Improvements, provided that (a) the fair market value of the Premises shall not
be lessened thereby, (b) such work shall be expeditiously completed in a good
and workmanlike manner and in compliance with all applicable Legal Requirements,
all insurance policies required to be maintained by Tenant hereunder, and all
other agreements to which Tenant is a party or by which Tenant or the Premises
may be bound, and (c) no Improvements shall be demolished unless (i) Tenant
shall have first furnished Landlord with such surety bonds or other security
acceptable to Landlord as shall be necessary to assure rebuilding of such
Improvements and Landlord shall be deemed to have consented to such demolition
unless Landlord shall deny such consent within 60 days after receipt of the
request for such consent. All such additions and alterations, substitutions and
replacements shall be and remain part of the realty and the property of the
Landlord and shall be subject to this Lease. Landlord agrees to execute such
utility easements, building permit applications, zoning changes and other
similar governmental applications as Tenant may deem necessary or requisite in
connection with any such addition and/or alteration, subject however, to such
limitations and conditions as may be imposed by the Note Purchaser.
Tenant may place upon the Premises any inventory, trade fixtures, machinery
or equipment belonging to Tenant or third parties ("Tenant's Trade Property")
and may remove the same at any time during the term of this Lease. Landlord
agrees, at the request of Tenant, to execute a waiver or subordination of its
statutory or contractual landlord's lien to any holder of a valid security
interest in any of Tenant's Trade Property or to any bona fide lessor of
Tenant's Trade Property provided that the holder of such security interest, or
such lessor, agrees in writing to repair any damage which may be done to the
Premises as a result of removal of any Tenant's Trade Property. Tenant shall
repair any damage to the Premises caused by its removal of any of Tenant' Trade
Property.
Section 11. Condemnation and Casualty. (a) Except as otherwise herein
provided, Tenant hereby irrevocably assigns to Landlord any award, compensation
or insurance payment to which Tenant may become entitled by reason of Tenant's
interest in the Premises (i) if the Premises are damaged or destroyed by fire or
other casualty or (ii) if the use, occupancy or title of the Premises or any
part thereof is taken, requisitioned or sold in, by or on account of any actual
or threatened eminent domain proceeding or other action by any Person having the
power of eminent domain. Landlord may, at Tenant's sole expense, appear in any
such proceeding or action, to negotiate, procure and adjust any claim for any
award, compensation or insurance payment on account or any such damage,
destruction, taking, requisition or sale and Landlord shall collect, hold and
apply any such award, compensation or insurance payment in conformity with the
provisions of this Section 11. Tenant shall be entitled to participate in any
such proceeding, action, negotiation, prosecution or adjustment. In addition,
Tenant may, at its
-6-
option, prosecute a separate claim against any taking authority, or, join with
Landlord in its proceeding against any taking authority, for recovery of
Tenant's relocation expenses and/or loss of trade fixtures, so long as any
recovery by Tenant with respect thereto shall be separately stated and shall not
diminish the award to Landlord. Landlord shall not be liable to Tenant for any
recovery Landlord may obtain or recover from any taking authority.
All amounts paid in connection with any such damage, destruction, taking,
requisition or sale shall be applied pursuant to this Section 11, and all such
amounts (minus the expense of collecting such amounts) are herein called the net
Proceeds. The term Net Proceeds shall not include any award, compensation or
other payment receivable by Tenant pursuant to the provisions of the foregoing
paragraph with respect to relocation expenses or trade fixtures. Tenant shall
pay all reasonable expenses in connection with each such proceeding, action,
negotiation, prosecution and adjustment, including Landlord's costs therein,
which expenses Tenant shall be subject to reimbursement out of any award,
compensation or insurance payment received.
(b) If an occurrence of the character referred to in clauses (i) or (ii) of
Section 11(a) involves a loss which equals or exceeds $750,000 and Tenant
concludes that such loss affects all or a material portion of the Land or
Improvements and renders the Premises unsuitable for restoration and continued
use and occupancy in Tenant's business, then Tenant shall, not later than 30
days after such occurrence, deliver to Landlord (i) notice of its intention to
terminate this Lease on the next Payment Date which occurs not less than 90 days
after the delivery of such notice (the "Termination Date") and (ii) a
certificate of Tenant describing the event giving rise to such termination and
stating that its board of directors has in good faith determined that such event
has rendered the Improvements unsuitable for restoration for continued use and
occupancy in Tenant's business and that Tenant has discontinued use thereof and
will not resume use of such Premises for at least five years thereafter. If the
Termination Date occurs during the Initial Term or Primary Term, such notice to
Landlord shall be accompanied by an irrevocable offer by Tenant (and Tenant
hereby agrees to make the same) to purchase any remaining portion of Landlord's
Estate with the Net Proceeds, if any, payable in connection with such occurrence
(or the right to receive the same when made, if payment thereof has not yet been
made) on the Termination Date, at a price determined in accordance with Schedule
C. If the Termination Date occurs during an Extended Term, this Lease shall
terminate on the Termination Date, except with respect to obligations and
liabilities of Tenant hereunder, actual or contingent, which have arisen on or
prior to the Termination Date, upon payment by Tenant of all Basic Rent,
additional rent and other sums then due and payable hereunder to and including
the Termination Date, and the Net Proceeds shall belong to Landlord. Landlord
shall transfer and convey the entire Landlord's Estate to Tenant upon the terms
and provisions set forth in Section 15 hereof against payment by Tenant of the
purchase price therefor, together with all installments of Basic Rent,
additional rent and other sums then due and payable hereunder to and including
the Termination Date. If this Lease is so terminated as the result of an event
of the character described in clauses (i) or (ii) of Section 11(a), the award,
compensation or other payment payable with respect thereto shall be allocated
pro-rata to Landlord to compensate it for its interests as owner of the
Landlord's Estate and to Tenant to compensate it for its interests as Tenant of
the Premises. Notwithstanding anything to the contrary stated herein, if
Landlord's award, compensation or other payment is
-7-
insufficient to pay in full the balance then due and owning under the Note
Agreement and the Deed of Trust in respect of the Premises and principal,
premium, if any, and accrued and unpaid interest on the Notes outstanding
thereunder issued to finance the Premises, the Tenant will promptly pay the
difference between such award, compensation or other payment and the amount
necessary to satisfy such obligations of the Landlord under the Note Agreement
and the Deed of Trust and in respect of such Notes.
(c) If, after an occurrence of the character referred to in clauses (i) or
(ii) of Section 11(a) which involves a loss of less than $750,000, or, if the
amount of such loss equals or exceeds $750,000 but Tenant does not give notice
of its intention to terminate this Lease, then this Lease shall continue in full
effect, and Tenant shall, at its expense, promptly restore, replace and rebuild
("Restore") any damage to the Premises caused by such event in conformity with
the requirements of Section 10 so as to restore the Premises (as nearly as
practicable) to the condition and fair market value thereof immediately prior to
such occurrence. For this purpose, Tenant shall be entitled to receive the Net
Proceeds payable in connection with such occurrence if the amount of such Net
Proceeds, together with such additional amounts, if any, theretofore expended by
Tenant out of its own funds for such Restoration, are sufficient to pay the
estimated cost of completing such Restoration, but only upon a written
application of the Tenant showing in reasonable detail the nature of such
Restoration, the estimated cost (which shall be verified by an accompanying
certificate of an engineer or architect not an employee of Tenant) to complete
Restoration and stating that Tenant has not theretofore received payment for
such work and that no Event of Default has occurred and is continuing under this
Lease to the knowledge of Tenant. Any Net Proceeds remaining after final payment
has been made for such work shall be retained by or for the account of Landlord.
However, if such Net Proceeds so retained by or for the account of Landlord
shall be more than $200,000, then (i) the Basic Amount set forth in Schedule C
shall be reduced by an amount equal to such Net Proceeds so retained by Landlord
and (ii) each installment of Basic Rent payable on and after the first Payment
Date occurring three months or more after the final payment to Tenant for such
work shall be reduced by a fraction of such installment, the numerator of which
fraction shall be the amount so retained and the denominator of which shall be
the Basic Amount prior to reduction thereof referred to in clause (i) above. In
the event of any temporary requisition, this Lease shall remain in full effect
and Tenant, if no Event of Default shall exist under this Lease and no notice
shall have been given to Tenant of a default hereunder which has not been
corrected, shall be entitled to receive the Net Proceeds allocable to such
temporary requisitions; except that such portion of the Net Proceeds allocable
to the period after the expiration or termination of the term of this Lease
shall be paid to Landlord. If the cost of any repairs required to be made by
Tenant pursuant to this Section 11(c) shall exceed the amount of such Net
Proceeds, the deficiency shall be paid by Tenant. If an Event of Default shall
exist under this Lease such Net Proceeds shall be payable to and held by
Landlord.
Section 12. Insurance. (a) Tenant will maintain insurance on the Premises
of the following character:
(i) Insurance, subject to an 80% co-insurance clause, against loss by
fire, windstorm and explosion and with extended coverage and against such
other risks of
-8-
physical loss as are customarily insured against and in such amounts as are
customarily carried, by companies owning property of a character similar to
that of the Premises and engaged in a business similar to that engaged in
by Tenant but in any event in amounts not less than 100% of the full
replacement value of the Premises, exclusive of foundations and
excavations, as evidenced by "Replacement Costs" or "Restoration"
endorsements thereto. The term "full replacement value" as used herein
means actual replacement value without deduction for physical depreciation,
as determined upon request of Landlord at intervals not more than may be
required by the company issuing such insurance to provide the required
"Replacement Cost" or "Restoration" endorsements and at the expense of
Tenant, by independent appraisals.
(ii) General public liability insurance against claims for bodily
injury, death or property damage occurring on, in or about the Premises and
adjoining streets and sidewalks, in the minimum amounts of $1,000,000 for
bodily injury or death to any on Person, $1,000,000 for any one accident,
and $2,000,000 for property damage.
(iii) Worker's compensation insurance to the extent required by the
law of the state in which the Premises are located and to the extent
necessary to protect Landlord and the Premises against worker's
compensation claims; provided that if permitted under the laws of such
state in lieu of such worker's compensation insurance, Tenant may maintain
a program of self-insurance complying with the rules and regulations and
requirements from time to time in effect of the appropriate state agency of
the state in which the Premises are located.
(iv) Explosion insurance in respect of any boilers and similar
apparatus located in the Premises in the minimum amount of $150,000.
(v) Such other insurance, in such amounts and against such risks, as
is commonly obtained in the case of property similar in use to the Premises
and located in the state in which the Premises are located.
Such insurance shall be written by companies of recognized national
standing authorized to do business in the state in which the Premises are
located, and shall name as insured parties Landlord and Tenant as their
interests may appear. Provided no Event of Default shall exist under this Lease
and no notice shall have been given to Tenant of a default hereunder which has
not been corrected, the loss, if any, under any policy pertaining to loss by
reason of damage to or destruction of any portion of the Premises shall be
adjusted with the insurance companies by Tenant, subject to the approval of
landlord and the Note Purchaser if the loss exceeds $750,000. The loss so
adjusted shall be paid to the Note Purchaser pursuant to the loss payable clause
hereinafter referred to, unless said loss is $750,000 or less in which case said
loss shall be paid directly to Tenant.
(b) Every such policy (other than any general public liability or worker's
compensation policy) shall bear a first mortgage endorsement in favor of the
Note Purchaser, as purchaser of the 7.80% Secured Notes due June 1, 2009 (the
"Notes") of the Landlord issued
-9-
pursuant to the Note Agreement dated as of May 12, 1994 (the "Note Agreement")
between the Landlord and the Note Purchaser dated the date hereof (the "Deed of
Trust") a first mortgage lien on the Premises. Any loss under such policy shall
be payable solely to the mortgage lien on the Premises. Any loss under any such
policy shall be payable solely to the Note Purchaser to be held and applied
pursuant to Section 11. All public liability policies shall name as insured
persons Landlord, Tenant and the Note Purchaser. Every policy referred to in
Section 12(a) shall provide that (i) Landlord's and the Note Purchaser's
interests shall be insured regardless of any breach or violation by Tenant of
any warranties, declarations or conditions contained in such policies, (ii) such
insurance as to the interests of the Landlord and the Note Purchaser therein
shall not be invalidated by the use or operation of the Premises for purposes
which are not permitted by such policies or by any foreclosure or other
proceedings relating to the Premises or by change in title to or ownership of
the Premises, (iii) the insurers shall waive any right of subrogation of the
insurers to any set-off or counterclaim or any other deduction, whether by
attachment or otherwise, in respect of any liability of Tenant, (iv) if any
premium or installment is not paid when due, or if such insurance would lapse or
be cancelled, terminated or materially changed for any reason whatsoever, the
insurers will promptly notify Landlord and the Note Purchaser and any such
lapse, cancellation, termination or change shall not be effective as to Landlord
and the Note Purchaser for 30 days after receipt of such notice, and (vi)
appropriate certification shall be made to Landlord and the Note Purchaser by
each insurer with respect thereto.
(c) Tenant shall deliver to Landlord and the Note Purchaser original or
duplicate policies or certificates of insurers, satisfactory to Landlord and the
Note Purchaser, evidencing the existence of all insurance which is required to
be maintained by Tenant hereunder, such delivery to be made (i) promptly after
the execution and delivery hereof and (ii) within 10 days prior to the
expiration of any such insurance. Tenant shall not obtain or carry separate
insurance concurrent in form or contributing in the event of loss with that
required by this Section 12 unless Landlord and the Note Purchaser are named
insureds therein, with loss payable as provided herein. Tenant shall immediately
notify Landlord and the Note Purchaser whenever any such separate insurance is
obtained and shall deliver to Landlord and the Note Purchaser the policies or
certificates evidencing the same. Any insurance required hereunder may be
provided under blanket policies of Tenant, provided that such blanket policies
otherwise comply with the provisions of this Section 12. Any insurance which
Tenant is obligated to carry under the terms of clauses (a)(i) and (a)(ii) of
this Section 12 may be carried under a plan of self-insurance with respect to
the first portion of any loss claimed under any such insurance by way of
deductible provisions in insurance policies up to such amount as is customary
for corporations of established reputation engaged in the same or a similar
business as Tenant and similarly situated and which maintain such insurance on
property similar to the Premises, provided that any such self-insurance shall no
event exceed $100,000.
(d) The requirements of this Section 12 shall not be construed to negate or
modify Tenant's obligations under Section 8 to fully indemnify Landlord and its
successors and assigns from and against all liability in any way arising out of
the Premises and Tenant's use, non-use, misuse, occupation or nonoccupation of
the Premises.
-10-
Section 13. Assignment and Subletting. Tenant may sublet the Premises or
assign its interests hereunder; provided, that (a) at the time of any such
sublease or assignment no Event of Default or event which with the lapse of time
or the giving of notice, or both, would constitute an Event of Default has
occurred and is continuing, (b) any such sublease or assignment shall by its
terms be expressly made subject and subordinate to the terms of this Lease, (c)
Tenant shall have given Landlord 60 days' prior written notice of any such
sublease or assignment, and (d) any such sublease shall contain a section to
read as follows:
"Sublessee by its execution of this Sublease hereby unconditionally
acknowledges and agrees as follows: (a) Sublessee has received a
copy of the Lease Agreement Dated as of ____________, ____ (the
"Primary Lease") between __________, as tenant, and _______________,
as landlord, (b) this Sublease represents a sublease of Sublessor's
rights in and to the Premises and this Sublease the rights of
Sublessee hereunder are in all respects subject and subordinate to the
Primary Lease."
No such assignment or sublease shall modify or limit any right or power of
Landlord hereunder or affect or reduce any obligation of Tenant hereunder, and
all such obligations shall continue in full effect as obligations of a principal
and not of a guarantor or surety, as though no assignment or subletting had been
made. Tenant shall, within 10 days after the execution of any such sublease or
assignment, deliver a conformed copy thereof to Landlord and the Note Purchaser.
Neither this Lease nor the term hereby demised shall be mortgaged, pledged or
otherwise encumbered by Tenant nor shall Tenant mortgage, pledge or otherwise
encumber the interest of Tenant in and to any sublease of the Premises or of the
rentals payable thereunder. Any such mortgage, pledge, encumbrance, sublease or
assignment made in violation of this Section 16 shall be void. Tenant shall not
collect or accept payment, directly or indirectly, of any rent under any
sublease more than one month in advance of the due date thereof.
Section 14. Permitted Contests. Tenant shall not be required to (a) comply
with any Legal Requirement applicable to the Premises or the use thereof, (b)
pay any Imposition or (c) obtain any waivers or settlements or make any changes
or take any action with respect to any encroachment, hindrance, obstruction,
violation or impairment referred to in Sections 7, 9 or 10 hereof, as long as
Tenant shall contest the existence, applicability, amount or validity thereof in
good faith by appropriate proceedings which shall prevent the collection of, or
other realization with respect to, the matter so contested, and which also shall
prevent the sale, forfeiture or loss of the Premises, Landlord's Estate and any
Basic Rent or additional rent and which shall otherwise not affect the payment
of any Basic Rent or any additional rent; provided that in no event shall such
contest subject Landlord or its successors and assigns to the risk of any
criminal liability or any civil liability. Tenant shall (i) immediately give
written notice to Landlord and the Note Purchaser of any contest hereof, (ii)
give such reasonable security as may be demanded by Landlord or the Note
Purchaser to insure ultimate payment of such Imposition and compliance with such
Legal Requirements and to prevent any sale or forfeiture of the Premises,
Landlord's Estate, the Basic Rent or any additional rent by reason of such
nonpayment or noncompliance
-11-
and (iii) indemnify and hold the Landlord and Note Purchaser harmless from any
liability in connection with any such contest.
Landlord agrees to sign such tax returns, applications and other documents
as may be necessary or requisite for Tenant to properly conduct any contest
permitted hereunder, and Landlord further agrees that it shall hold in trust and
forthwith pay Tenant the amount of any tax, or other refund received by Landlord
as a result of any contest permitted hereunder.
Section 15. Conditional Limitations; Default Provisions. (a) Any of the
following occurrences or acts shall constitute an Event of Default ("Event of
Default") under this Lease:
(i) if Tenant shall fail to pay any Basic Rent, additional rent or
other sum required to be paid by Tenant hereunder; or
(ii) if Tenant shall fail to observe or perform any other provision
hereof and such failure shall continue unremedied for 30 days after the
earlier of (1) written notice thereof from Landlord or, the Note Purchaser
or any holder of the Notes to Tenant, (2) the first date on which an
officer of Tenant shall have actual knowledge that a default has occurred
and is continuing under this Section 15(a)(ii); or
(iii) if Tenant or any of its subsidiaries has entered against it or
on its behalf an order for relief under the Federal bankruptcy laws, or any
other applicable Federal or state bankruptcy, insolvency or other similar
law, or becomes insolvent, or makes an assignment for the benefit of
creditors, or fails to generally pay its debts as such debts become due, or
Tenant or any such subsidiary applies for or consents to the appointment of
a trustee or receiver or for the major part of its property; or
(iv) a custodian (including without limitation a trustee or receiver)
is appointed for Tenant or any of its subsidiaries or for the major part of
the property of either and is not discharged within 90 days after such
appointment; or
(v) bankruptcy or insolvency proceedings, or other proceedings for
relief under any bankruptcy or similar Federal or state law or laws for the
relief of debtors, are instituted by or against Tenant or any of its
subsidiaries and, if instituted against Tenant or any such subsidiary are
consented to or are not dismissed within 90 days after such institution; or
(vi) if the Premises have been left abandoned for a period of 30 days;
or
(vii) if Tenant shall fail to observe or perform any provision of the
Assignment of Lease dated as of May 12, 1994 (the "Assignment") among
Landlord, Tenant and the Note Purchaser relating to the Premises; or
(viii) if any representation or warranty made by Tenant herein or in
the Assignment or made by Tenant in any statement or certificate furnished
by Tenant
-12-
pursuant to the Note Agreement proves untrue in any material respect as of
the date of the issuance or making thereof.
(b) This Lease and the term and estate hereby granted are subject to the
limitation that whenever an Event of Default shall have happened and be
continuing Landlord shall have the right at its election at any time thereafter
to exercise any one or more or all, and in any order, of the remedies
hereinafter set forth, it being expressly understood that no remedy herein
conferred is intended to be exclusive of any other remedies but each and every
remedy shall be in addition to every other remedy given herein or now or
hereafter existing at law or in equity or by statute:
(i) Landlord may take all steps to protect and enforce the rights of
Landlord or obligations of Tenant hereunder, whether by action, suit or
proceeding at law or in equity (for the specific performance of any
covenant, condition or agreement contained in this Lease, or in aid of the
execution of any power herein granted or for any foreclosure, or for the
enforcement of any other appropriate legal or equitable remedy) or
otherwise as Landlord shall deem most advisable to protect and enforce any
of its rights or the obligations of Tenant hereunder;
(ii) Landlord may terminate this Lease by giving a written termination
notice to Tenant specifying a date not less than 15 days after the date of
such notice on which the term of this Lease shall terminate and on such
date the term of this Lease and the estate hereby granted shall expire and
terminate by limitation and all rights of Tenant under this Lease shall
cease on the Termination Date so specified;
(iii) Landlord, whether or not this Lease shall have been terminated
pursuant to clause (ii) of this Section 15(b), shall have the right to
terminate Tenant's right to possession under this Lease and to re-enter and
take possession of the Premises or any part thereof by giving a written
notice to Tenant to quit and surrender possession on a date not less than
15 days after the date of such notice whereupon the right of Tenant to the
possession of the Premises shall cease and terminate on such date, and
Landlord shall have the immediate and continuing right then and at any time
and from time to time thereafter without further notice, to re-enter upon
and take possession of the Premises or any part thereof with or without
legal proceedings (summary or otherwise) and to remove all Persons and
property therefrom as Landlord may elect to do. Should Landlord elect to
re-enter as herein provided or should Landlord take possession pursuant to
legal proceedings or pursuant to any notice provided for by law or upon
termination of this Lease pursuant to clause (ii) of this Section 15(b) or
termination of Tenant's right to possession pursuant to clause (iii) of
this Section 15(b) or otherwise as permitted by law, Tenant shall peaceably
quit and surrender the Premises to Landlord. In any such event, neither
Tenant nor any Person claiming through or under Tenant, by virtue of any
statute or of an order of any court, shall be entitled to possession or to
remain in possession of the Premises, or any part thereof, but shall
forthwith quit and surrender the Premises to Landlord;
-13-
(iv) In the event of any termination of this Lease pursuant to clause
(ii) of this Section 15(b) or repossession pursuant to clause (iii) of this
Section 15(b), Tenant will pay to Landlord Basic Rent and all additional
rent and other sums required to be paid by Tenant up to the time of such
termination or repossession, and from and after such termination or
repossession until the end of what would have been the term of this Lease
in the absence of such termination or repossession, Tenant shall be liable
to Landlord for, and shall pay to Landlord the sums of money (herein called
"Current Damages") which would have been payable by Tenant, as Basic Rent
and all additional rent and other sums which would be payable under this
Lease by Tenant in the absence of such termination or repossession, less
the proceeds, if any, actually received by Landlord as a result of such
repossession and subsequent reletting or other disposition of the Premises,
after deducting from such proceeds, the expenses, costs and payments of
every kind of Landlord which in accordance with the terms of this Lease
would have been borne by Tenant and all of Landlord's expenses in
connection with such realization of proceeds, including without limiting
the generality of the foregoing all unpaid expenses incurred in obtaining
possession, and in altering, repairing and putting the Premises in good
order and condition and in reletting the Premises or any part thereof
including reasonable fees of attorneys, architects, and other experts and
any other reasonable and legitimate expenses. Tenant will pay such other
experts and any other reasonable and legitimate expenses. Tenant will pay
such Current Damages monthly on the days on which Basic Rent would have
been payable under this Lease in the absence of such termination or
repossession, and Landlord shall be entitled to recover the same from
Tenant on each such day. Tenant hereby agrees to be and remain liable for
all sums otherwise payable by Tenant under this Lease including, but not
limited to, the expenses of Landlord aforesaid, as well as for any
deficiency aforesaid, and Landlord shall have the right from time to time
to begin and maintain successive actions or other legal proceedings against
Tenant for the recovery of such deficiency or damages or for a sum equal to
any installments of Basic Rent or additional rent and any other sums
payable hereunder and to recover the same upon the liability of Tenant
herein provided, which liability it is expressly covenanted shall survive
the issuance of any action to secure possession of the Premises. Nothing
herein contained shall be deemed to require Landlord to wait to begin any
such action or other legal proceedings until the date when this Lease would
have expired by limitation had there been no such Event of Default;
(v) At any time after any termination of this Lease pursuant to clause
(ii) of this Section 15(b), or termination of possession pursuant to clause
(iii) of this Section 15(b), whether or not Landlord shall have collected
any Current Damages as aforesaid, Tenant will pay to Landlord, at
Landlord's option and upon demand, as and for liquidated and agreed final
damages (herein called "Final Damages") for Tenant's default and in lieu of
all Current Damages beyond the date of such demand, an amount equal to the
sum of (A) the excess, if any, of Basic Rent and the sums which would be
payable under this Lease from the date of such demand (or, if it be
earlier, the date to which Tenant shall have satisfied in full its
obligations under clause (iv) of this Section 15(b) to pay Current Damages)
for what would be the then unexpired term of this Lease in the absence of
such expiration or repossession, discounted at the rate of 7.8% per annum
on the basis of a
-14-
360-day year of twelve consecutive 30-day months, over the fair rental
value of the Premises at the time of such termination for the balance of
such term, discounted at the same rate and in the same manner as above
stated, plus (B) to the extent legally enforceable and in addition to all
other amounts payable by tenant pursuant to this Section 15(b), as damages
suffered by the Landlord as the result of the occurrence of an Event of
Default hereunder for the loss of a bargain and not as a penalty, an amount
(the "Additional Final Damages") equal to the amount which the Landlord
would be obligated to pay the premium, if any, specified in the Note
Agreement as defined therein. Nothing herein contained shall, however,
limit or prejudice the right of Landlord, in any bankruptcy, reorganization
or insolvency proceedings, to prove for and obtain as liquidated damages by
reason of such termination, an amount equal to the maximum allowed by any
statute or rule of law in effect at the time when, and governing the
proceedings in which, such damages are to be proved, whether or not such
amount shall be greater than, equal to, or less than such Final Damages
and/or Additional Final Damages.
Section 16. Additional Rights of Landlord. (a) No right or remedy hereunder
shall be exclusive of any other right or remedy, but shall be cumulative and in
addition to any other right or remedy hereunder or now or hereafter existing.
Failure to insist upon the strict performance of any provision hereof or to
exercise any option, right, power or remedy contained herein shall not
constitute a waiver or relinquishment thereof for the future. Receipt by
Landlord of any Basic Rent, additional rent or other sum payable hereunder with
knowledge of the breach of any provision hereof shall not constitute waiver of
such breach, and no waiver by Landlord of any provision hereof shall be deemed
to have been made unless made in writing. Landlord shall be entitled to
injunctive relief in case of the violation, or attempted or threatened
violation, of any of the provisions hereof, or to a decree compelling
performance of any of the provisions hereof, or to any other remedy allowed to
Landlord by law.
(b) 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 to redeem or re-enter the Premises or to have a
continuance of this Lease after termination of Tenant's right of occupancy by
order or judgment of any court or by any legal process or writ, or under the
terms of this Lease, or after the termination of the term of this Lease as
herein provided, (ii) any notice to quit or notice of re-entry or of the
institution of legal proceedings to that end, and (iii) the benefits of any law
which exempts property from liability for debt or for distress for rent.
(c) If Tenant shall be in default in the performance of any of its
obligations hereunder, Tenant shall pay to Landlord, on demand, all expenses
incurred by Landlord as a result thereof, including reasonable attorney's fees
and expenses. If Landlord shall be made a party to any litigation commenced
against Tenant and Tenant shall fail to provide Landlord with counsel approved
by Landlord and pay the expenses thereof, Tenant shall pay, on demand, all costs
and reasonable attorneys' fees and expenses incurred by Landlord in connection
with such litigation.
-15-
Section 17. Notices, Demands and Other Instruments. All notices, requests,
offers consents and other instruments given pursuant to this Lease shall be in
writing and shall be validly given when mailed by prepaid registered or
certified mail or by prepaid overnight air courier, (a) if to Landlord, at its
address set forth above Attention: Trustee, (b) if to Tenant, at its address set
forth above Attention: Vice President Finance, (c) if to the Note Purchaser
____________, ____________, ____________, Attention ____________. Landlord,
Tenant and the Note Purchaser each may from time to time specify, by giving 15
days' notice to the other parties, (i) any other address in the United States as
its address for purposes of this Lease and (ii) any other Person or entity that
is to receive copies of notices, offers, consents and other investment
hereunder.
Section 18. Estoppel Certificates. Tenant agrees that from time to time,
upon 20 days' prior request by Landlord or the Note Purchaser to execute,
acknowledge and deliver to Landlord and the Note Purchaser a certificate stating
that this Lease is unmodified and in full effect (or, if there have been
modifications, that this Lease is in full effect as modified, and setting forth
such modifications) and the dates to which Basic Rent, additional rent and other
sums payable hereunder have been paid, and either stating that to the knowledge
of the signer of such certificate no default exists hereunder or specifying each
such default of which the signer has knowledge. Any such certificate executed by
Tenant may be relied upon by any prospective mortgagee or purchasers of the
Landlord's Estate.
Section 19. No Merger. There shall be no merger of this Lease or of the
leasehold estate hereby created with the fee estate in the Premises by reason of
the fact that the same Person acquires or holds, directly or indirectly, this
Lease or the leasehold estate as well as the fee estate in the Premises or any
interest in such fee estate.
Section 20. Surrender. Upon the expiration or termination of the Primary
Term, or if exercised, the last day of any Extended Term, Tenant shall surrender
the Premises to Landlord in the condition in which the Premises were originally
received from Landlord, except as repaired, rebuilt, restored, altered or added
to as permitted or required hereby, except for ordinary wear and tear, and
except as otherwise provided in this Lease. Tenant shall remove from the
Premises on or prior to such expiration or termination all property situated
thereon which is not owned by Landlord, and shall repair any damage caused by
such removal. Property not so removed shall become the property of Landlord, and
Landlord may cause such property to be removed from the Premises and disposed
of, but the cost of any such removal and disposition and of repairing any damage
caused by such removal shall be borne by Tenant.
Section 21. Separability; Binding Effect. Each provision hereof shall be
separate and independent and the breach of any such provision by Landlord shall
not discharge or relieve Tenant from its obligations to perform each and every
covenant to be performed by Tenant hereunder. If any provision hereof or the
application thereof to any Person or circumstance shall to any extent be invalid
or unenforceable, the remaining provisions hereof, or the application of such
provision to Persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected thereby, and each provision hereof shall
be valid and shall be enforceable to the extent permitted by law. All provisions
contained in this Lease shall be
-16-
binding upon, inure to the benefit of, and be enforceable by, the respective
successors and assigns of Landlord and Tenant to the same extent as if each such
successor and assign were named as a party hereto. This Lease may not be
changed, modified or discharged except in writing signed by Landlord and Tenant
and with the prior written consent of the Note Purchaser.
Section 22. Recording of Lease. This Lease, or a short form or memorandum
thereof, shall be filed and/or recorded in the appropriate public office for
publishing notice of the existence of leases by the Tenant, at its expense.
Section 23. Lessor's Right to Cure Lessee's Default. If Tenant shall fail
to make any payment or perform any act required to be made or performed under
this Lease, Landlord, after notice to and demand upon Tenant, and without
waiving or releasing any obligation or default, may (but shall be under no
obligation to) at any time thereafter make such payment or perform such act for
the account and at the expense of Tenant, and may enter upon the Premises for
such purpose and take all such action thereon as, in Landlord's opinion, may be
necessary or appropriate therefor. No such entry shall be deemed an eviction of
Tenant. All sums so paid by Landlord and all costs and expenses (including,
without limitation, attorneys' fees and expenses so incurred, together with
interest thereon to the extent permitted by law) shall be paid by Tenant to
Landlord on demand, together with interest thereon at the lesser of (a) the
highest rate permitted by applicable law or (b) 7.8% per annum (computed on a
360-day year of twelve 30-day months), whichever is lower, for the period from
and including the date on which such sums or expenses are paid or incurred by
Landlord to but not including the date the same are paid.
Section 24. Expenses. If for any reason whatsoever Landlord does not pay
any of the expenses referred to in Section ___ of the Note Agreement, Tenant
shall immediately pay the same.
Section 25. Counterparts. This Lease may be executed in any number of
counterparts, each counterpart constituting an original but altogether only one
Lease.
Section 26. Headings. The headings which are used following the number of
each Section are so used in and for evidence in locating various provisions of
this Lease and shall not be deemed to affect the interpretation or structure of
such provisions.
Section 27. Schedules. Schedules A, B and C referred to in this Lease are
hereby incorporated by reference.
-17-
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed as of the date first above written.
AMERICAN NATIONAL BANK AND TRUST COMPANY
LAND TRUST 65387
[SEAL]
By_______________________________________________
Printed Name X. XXXXXXXX
Its 2ND Vice President
ATTEST:
By______________________________
Printed Name Xxxxxxx X. Xxxxxxxx
Its Asst Secretary
XXXXXX XXXXX COMPANY
[SEAL]
By_______________________________________________
Printed Name Xxxxxxx X. Xxxxxx
Its Senior Vice President and Secretary
ATTEST:
By______________________________
Printed Name
Its Secretary
-18-
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
I, XXXXX XXXXXXXX, a Notary Public in and for the County and State
aforesaid, do hereby certify that Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxx,
personally known to me to be the same persons whose names are respectively, as
PRESIDENT and SECRETARY of XXXXXX XXXXX COMPANY, a DELAWARE corporation,
subscribed to the foregoing instrument, appeared before me this day in person
and severally acknowledged that they, being thereunto duly authorized, signed,
sealed and with the seal of said corporation, and delivered the said instrument
as the free and voluntary act of said corporation and as their own free and
voluntary act, for the uses and purposes therein set forth.
Given under by hand and notarial sell this 12th day of May, 1994.
___________________________________
Notary Public
Printed Name: XXXXX XXXXXXXX
[SEAL]
Commission expires: 0-00-00
-00-
XXXXX XX XXXXXXXX )
) SS
COUNTY OF XXXX )
I, Xxxxxxx Xxxxx, a Notary Public in and for the County and State
aforesaid, do hereby certify that Xxxxx Xxxxxxxx and Xxxxxxx X. Xxxxxxxx,
personally known to me to be the same persons whose names are respectively, as
SECOND VICE PRESIDENT and ASSISTANT SECRETARY of NATIONAL BANK & TRUST COMPANY
OF CHICAGO, a corporation, subscribed to the foregoing instrument, appeared
before me this day in person and severally acknowledged that they, being
thereunto duly authorized, signed, sealed with the seal of said corporation, and
delivered the said instrument as the free and voluntary act of said corporation
and as their own free and voluntary act, for the uses and purposes therein set
forth.
Given under by hand and notarial seal this 17th day of May, 1994.
___________________________________
Notary Public
Printed Name: Xxxxxxx Xxxxx
[SEAL]
Commission expires:
-20-
DESCRIPTION OF THE PREMISES
0000 X. Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000
SCHEDULE A
(to Lease Agreement)
-21-
TERMS AND BASIC RENT PAYMENTS
I. TERMS:
(a) The Initial Term shall commence on May 12, 1994 and shall end at
midnight on June 1, 2009.
(b) The Primary Term shall commence on the expiration of the Initial Term
and shall end at midnight on N/A, ____.
(c) Each Extended Term shall commence on the day next succeeding the
expiration of the preceding term. The last possible Extended Term shall end at
midnight on N/A, ____.
II. BASIC RENT PAYMENTS:
(a) Fixed Rent payable for the Premises for the Initial Term of this Lease
shall be $15,500 per month and shall be payable on June 1, 1994.
SCHEDULE B
(to Lease Agreement)
-00-
Xxxx Xxxxxxxx of the Premises pursuant to Section 11(b), 13(b) or 14, the
amount determined in accordance with Schedule C shall be the amount equal to the
sum of $_________ (the Basic Amount), multiplied by the percentage set forth in
Column 2 below opposite the period in which the date of purchase occurs.
COLUMN 1 COLUMN 2
Date of Purchase Applicable Percentage
SCHEDULE C
(to Lease Agreement)
-23-
ADDENDUM
--------
This is an Addendum to the Lease by and between American National Bank and
Trust Company, Land Trust 65387 ("Landlord"), and Xxxxxx Xxxxx Company
("Tenant"). This document shall be considered to be made a part of as if
incorporated herein of the lease of said date of May 12, 1994.
Pg. 2. Section 3. The Premises are leased for a term of 15 years unless and
until the term of this Lease shall expire or be terminated pursuant to any
provision hereof.
Page 4. Section 7. The first line of this paragraph shall read as follows:
"Liens. Tenant will promptly remove and discharge or contest in good faith any
charge, lien, . . . ."
Page 7. Section 11(a). Item (i) shall read as follows: "if 50% or more of the
Premises are damaged or destroyed by fire or other casualty or . . ."
AMERICAN XXXXXXXX XXXX XXX XXXXX XX.
XXXX XXXXX XX. 00000
____________________________________________
Second Vice President
XXXXXX XXXXX COMPANY - Tenant
By:_________________________________________
Authorized Representative
