EXHIBIT 10.4
LEASE
INDUSTRIAL BUILDING LEASE
1. BASIC TERMS. This Section 1 contains the Basic Terms of this Lease
between Landlord and Tenant, named below. Other Sections of the Lease referred
to in this Section 1 explain and define the Basic Terms and are to be read in
conjunction with the Basic Terms.
1.1. Date of Lease: June 29, 2001.
1.2. Landlord: First Industrial, L.P., a Delaware limited partnership.
1.3. Tenant: Natural Golf, Inc., an Illinois corporation.
1.4. Premises: Approximately 25,395 rentable square feet in the
building commonly known as 0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx Xxxxxxxx, Xxxxxxxx
(the "Building").
1.5. Property: See Exhibit A.
1.6. Lease Term: Three (3) years ("Initial Term"), commencing December
1, 2001 ("Commencement Date") and ending November 30, 2004 ("Expiration Date"),
subject to extension pursuant to Section 2.2 below.
1.7. Permitted Uses: (See Section 4) General office, telemarketing,
warehouse and light assembly.
1.8. Tenant's Guarantor: None.
1.9. Brokers: (See Section 23; if none, so state)
(A) Tenant's Broker: The Levy Organization
(B) Landlord's Broker: Insignia ESG
1.10. Security Deposit: (See Section 4) $55,000, subject to reduction
pursuant to Section 4.
1.11. Base Rent Payable by Tenant is as follows:
December 1,2001 through November 30,2002. . $11,321.94 per month
December 1,2002 through November 30,2003. . $11,661.60 per month
December 1,2003 through November 30,2004. . $12,011.44 per month
1.12. Tenant's Proportionate Share: 23.96%
1.13. Riders to Lease: The following riders are attached to arid made a
part of this Lease: None.
2. LEASE OF PREMISES: RENT.
2.1. Lease of Premises for Lease Term. Landlord hereby leases the
Premises to Tenant, and Tenant hereby rents the Premises from Landlord, for the
Term and subject to the conditions of this Lease.
2.2. Renewal Option. Provided that this Lease is in full force and
effect and Tenant is not in default under the terms hereof beyond applicable
cure period, Landlord hereby grants to Tenant the option to extend the Initial
Term (the "Renewal Option ") for one (1) additional period of three (3) years
(the "Renewal Term ") on the same terms and conditions of this Lease, except as
otherwise provided in this Section 2.2. For purposes of this Lease, the Initial
Term as extended by any Renewal Term is hereinafter referred to as the "Term."
Tenant may exercise the Renewal Option by delivery of written notice (a "Renewal
Notice") to Landlord on or prior to the date which is 180 days prior to the
expiration of the Initial Term. The monthly Base Rent for the Premises during
the Renewal Term shall be:
December 1,2004 to November 30,2005. . . . $12,371.78 per month
December 1,2005 to November 30,2006. . . . $12,742.94 per month
December 1,2006 to November 30,2007. . . . $13,125.22 per month
2.3. Types of Rental Payments. Tenant shall pay rents of (a) net base
rent payable in monthly installments as set forth in Section 1.11 hereof, in
advance, on the first day of each and every calendar month during the Term of
this Lease (the "Base Rent"); and (b) Tenant's Proportionate Share of Operating
Expenses (defined below) and any other amounts owed by Tenant hereunder
(collectively, "Additional Rent"); and (c) in the event any monthly installment
of Base Rent or Additional Rent, or both, is not paid within 10 days of the date
when due, a late charge in an amount equal to 5% of the then delinquent
installment of Base Rent and/or Additional Rent (the "Late Charge"; the Late
Charge, Base Rent and Additional Rent shall collectively be referred to as
"Rent"), to First Industrial, L.P ., 00 Xxxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000-0000, or if sent by overnight courier, The Northern Trust
Company, 000 Xxxxx Xxxxxxx Xxxxxx, Receipt and Dispatch, 0xx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attention: First industrial, L.P ., Suite 1449 ( or such other
entity designated as Landlord' s management agent, if any, and if Landlord so
appoints such a management agent, the "Agent"), or pursuant to such other
directions as Landlord shall designate in this Lease or otherwise in writing.
2.4. Covenants Concerning Rental Payments. Tenant shall pay the Rent
promptly when due, without notice or demand, and without any abatement,
deduction or setoff, except as may otherwise be expressly and specifically
provided in this Lease. No payment by Tenant, or receipt or acceptance by Agent
or Landlord, of a lesser amount than the correct Rent shall be deemed to be
other than a payment on account, nor shall any endorsement or statement on any
check or letter accompanying any payment be deemed an accord or satisfaction,
and Agent or Landlord may accept such payment without prejudice to its right to
recover the balance due or to pursue any other remedy available to Landlord. If
the Commencement Date occurs on a day other than the first day of a calendar
month, the Rent due for the first calendar month of the Term shall be prorated
on a per diem basis and paid to Landlord on the Commencement Date, and the Term
will be extended to terminate on the last day of the calendar month in which the
Expiration Date stated in Section 1.6 occurs.
3. OPERATING EXPENSES.
3.1. Definitional Terms Relating to Additional Rent. For purposes of
this Section and other relevant provisions of the Lease:
3.1.1. Operating Expenses. The term "Operating Expenses" shall mean all
costs and expenses paid or incurred with respect to the ownership, repair,
replacement, restoration, maintenance and operation of the Property, including,
without limitation, the following: (i) all costs, wages and benefits of
employees or other agents of Landlord or Agent engaged in the operation,
maintenance or rendition of other services to or for the Property; (ii) to the
extent not separately metered, billed, or furnished, all charges for utilities
and services furnished to either or both of the Property and the Premises
(including, without limitation, the Common Areas [ as hereinafter defined]),
together with any taxes on such utilities; (iii) all premiums for casualty,
workers' compensation, liability, boiler, flood and all other types of insurance
provided by Landlord and relating to the Property , all third party
administrative costs incurred in connection with the procurement and
implementation of such insurance policies, and all deductibles paid by Landlord
pursuant to insurance policies required to be maintained by Landlord under this
Lease; (iv) the cost of all supplies, tools, materials and equipment utilized in
the ownership arid operation of the Property, and sales and other taxes thereon;
(v) amounts charged (including, without limitation, those costs and expenses set
forth in Section 13.2(i) below) by any or all of contractors, materialmen and
suppliers for services, materials and supplies furnished in connection with any
or all of the operation, repair and maintenance of any part of the Property ,
including, without limitation, the structural elements of the Property and the
Common Areas; (vi) management fees to Agent or other persons or management
entities actually involved in the management and operation of the Property
(which persons or management entities may be affiliates of Landlord); (vii) any
capital improvements made by, or on behalf of, Landlord to the Property that are
either or both (a) designed to reduce Operating Expenses and (b) required to
keep the Property in compliance with all governmental laws, rules and
regulations (enacted from and after the date of this Lease) applicable thereto,
from time to time, the cost of which capital improvements shall be reasonably
amortized by Landlord over the useful life of the improvement, in accordance
with generally accepted accounting principles; (viii) all professional fees
incurred in connection with the operation, management and maintenance of the
Property; and (ix) Taxes, as hereinafter defined.
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3.1.2. Taxes. The term "Taxes," as referred to in Section 3.1.1(ix)
above shall mean (i) all governmental taxes, assessments, fees and charges of
every kind or nature (other than Landlord's income taxes), whether general,
special, ordinary or extraordinary, due at any time or from time to time, during
the Term and any extensions thereof, in connection with the ownership, leasing,
or operation of the Property, or of the personal property and equipment located
therein or used in connection therewith; and (ii) any reasonable expenses
incurred by Landlord in contesting such taxes or assessments and/or the assessed
value of the Property. For purposes hereof, Taxes for any year shall be Taxes
that are due for payment or paid in that year rather than Taxes that are
assessed, become a lien, or accrue during such year.
3.1.3. Operating Year. The term "Operating Year" shall mean the
calendar year commencing January lst of each year (including the calendar year
within which the Commencement Date occurs) during the Term.
3.2. Payment of Operating: Expenses. Tenant shall pay, as Additional
Rent and in accordance with the requirements of Section 3.3, its Proportionate
Share of the Operating Expenses as set forth in Section 3.3. Additional Rent
commences to accrue upon the Commencement Date. The Tenant's Proportionate Share
of Operating Expenses payable hereunder for the Operating Years in which the
Term begins and ends shall be prorated to correspond to that portion of said
Operating Years occurring within the Term. Tenant's Proportionate Share of
Operating Expenses and any other sums due and payable under this Lease shall be
adjusted upon receipt of the actual bills therefor, and the obligations of this
Section 3 shall survive the termination or expiration of the Lease.
3.3. Payment of Additional Rent. Landlord shall have the right to
reasonably estimate the Operating Expenses for each Operating Year. Upon
Landlord's or Agent's notice to Tenant of such estimated amount, Tenant shall
pay, on the first day of each month during that Operating Year, an amount (the
"Estimated Additional Rent") equal to the estimate of the Tenant's Proportionate
Share of Operating Expenses divided by 12 (or the fractional portion of the
Operating Year remaining at the time Landlord delivers its notice of estimated
Operating Expenses due from Tenant for that Operating Year). If the aggregate
amount of Estimated Additional Rent actually paid by Tenant during any Operating
Year is less than Tenant's actual ultimate liability for Operating Expenses for
that particular Operating Year, Tenant shall pay the deficiency within 30 days
of Landlord's written demand therefor. If the aggregate amount of Estimated
Additional Rent actually paid by Tenant during a given Operating Year exceeds
Tenant's actual liability for such Operating Year, the excess shall be credited
against the Estimated Additional Rent next due from Tenant during the
immediately subsequent Operating Year, except that in the event that such excess
is paid by Tenant during the final Lease Year, then upon the expiration of the
Term, Landlord or Agent shall pay Tenant the then-applicable excess within 30
days after determination thereof No interest shall be payable to Tenant on
account of such payments of Estimated Additional Rent and such payments may be
commingled.
4. USE OF PREMISES AND COMMON AREAS: SECURITY DEPOSIT.
4.1. Use of Premises and Property. The Premises shall be used by the
Tenant for the purpose(s} set forth in Section 1.7 above and for no other
purpose whatsoever. Tenant shall not, at any time, use or occupy, or suffer or
permit anyone to use or occupy, the Premises, or do or permit anything to be
done in the Premises or the Property , in any manner that may (a) violate any
Certificate of Occupancy for the Premises or the Property; (b ) cause, or be
liable to cause, injury to, or in any way impair the proper utilization of, all
or any portion of the Property (including, but not limited to, the structural
elements of the Property) or any equipment, facilities or systems therein; ( c )
constitute a violation of the laws and requirements of any public authority or
the requirements of insurance bodies or the rules and regulations of the
Property , including any covenant, condition or restriction affecting the
Property; (d) exceed the load bearing capacity of the floor of the Premises; (e)
impair or tend to impair the character, reputation or appearance of the
Property; or ( e) unreasonably annoy, inconvenience or disrupt the operations or
tenancies of other tenants or users of the Property.
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4.2. Use of Common Areas. As used herein, "Common Areas" shall mean all
areas within the Property that are available for the common use of tenants of
the Property and that are not leased or held for the exclusive use of Tenant or
other tenants or licensees, including, but not limited to, parking areas,
driveways, sidewalks, loading areas, access roads, corridors, landscaping and
planted areas. Tenant shall have the nonexclusive right to use the Common Areas
for the purposes intended, subject to such reasonable rules and regulations as
Landlord may uniformly establish from time to time. Tenant shall not interfere
with the rights of any or all of Landlord, other tenants or licensees, or any
other person entitled to use the Common Areas. Landlord, from time to time, may
change any or all of the size, location, nature and use of any of the Common
Areas although such changes may result in inconvenience to Tenant, so long as
such changes do not materially and adversely affect Tenant's use of the
Premises. In addition to the foregoing, Landlord may, at any time, close or
suspend access to any Common Areas to perform any acts in the Common Areas as,
in Landlord's reasonable judgment, are desirable to improve or maintain either
or both of the Premises and the Property, or are required in order to satisfy
Landlord's obligations under either or both of Sections 13.2 and 18; provided,
however, that Landlord shall use reasonable efforts not to disrupt Tenant's use
and operation of the Premises in connection therewith.
4.3. Signage. Tenant shall not affix any sign of any size or character
to any portion of the Property, without prior written approval of Landlord,
which approval shall not be unreasonably withheld or delayed. Tenant shall
remove all signs of Tenant upon the expiration or earlier termination of this
Lease and immediately repair any damage to either or both of the Property and
the Premises caused by, or resulting from, such removal.
4.4. Security Deposit. Simultaneously with the execution and delivery
of this Lease, Tenant shall deposit with Landlord or Agent the sum set forth in
Section 1.10 above, in cash (the "Security"), representing security for the
performance by Tenant of the covenants and obligations hereunder. The Security
shall be held by Landlord or Agent, without interest, in favor of Tenant;
provided, however, that no trust relationship shall be deemed created thereby
and the Security may be commingled with other assets of Landlord. If Tenant
defaults in the performance of any of its covenants hereunder, Landlord or Agent
may, without notice to Tenant, apply all or any part of the Security, to the
extent required for the payment of any Rent or other sums due from Tenant
hereunder, in addition to any other remedies available to Landlord. If such
application occurs, Landlord shall so advise Tenant, in writing, promptly
following such application. In the event the Security is so applied, Tenant
shall, upon demand, immediately deposit with Landlord or Agent a sum equal to
the amount so used. If Tenant fully and faithfully complies with all the
covenants hereunder, the Security (or any balance thereof) shall be returned to
Tenant within 30 days after the last to occur of (i) the date the Term expires
or terminates or (ii) delivery to Landlord of possession of the Premises.
Landlord may deliver the Security to any purchaser of Landlord' s interest in
the Premises [or any Successor Landlord ( defined below), if applicable], and
thereupon Landlord and Agent shall be discharged from any further liability with
respect to the Security. Notwithstanding the foregoing, in the event that Tenant
does not default on any of its obligations hereunder between the date of this
Lease and May 31, 2002, then on May 31,2002 the Security shall reduce to an
amount equal to the product of (x) two (2) and (y) the then current monthly
amount of Base Rent and Additional Rent payable hereunder.
5. CONDITION AND DELIVERY OF PREMISES.
5.1. Condition of Premises. Tenant agrees that Tenant is familiar with
the condition of both the Premises and the Property, and Tenant hereby accepts
the foregoing on an "AS-IS," "WHERE-IS" basis. Tenant acknowledges that neither
Landlord nor Agent, nor any representative of Landlord, has made any
representation as to the condition of the foregoing or the suitability of the
foregoing for Tenant's intended use. Tenant represents and warrants that Tenant
has made its own inspection of the foregoing. Neither Landlord nor Agent shall
be obligated to make any repairs, replacements or improvements (whether
structural or otherwise) of any kind or nature to the foregoing in connection
with, or in consideration of, this Lease, except (a) as set forth in Sections
13.2 and 18 and (b) with respect to all (if any) repairs and improvements
expressly and specifically described in Exhibit B attached hereto ("Work
Items"). Landlord agrees to make reasonable efforts to enforce, or cause Agent
to enforce, upon Tenant ' s request, all manufacturer's or contractor's
warranties, if any, issued in connection with any of the Work Items.
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5.2. Early Occupancy. Notwithstanding anything to the contrary
contained herein, Tenant shall be permitted to take possession of and occupy the
Premises at any time after the date of this Lease and prior to the Commencement
Date (the "Early Occupancy Period"); provided, however, that Tenant's occupancy
of the Premises during the Early Occupancy Period shall be on all of the terms
and conditions of this Lease except that Tenant shall not be obligated to pay
Rent during the Early Occupancy Period.
6. SUBORDINATION: NOTICES TO SUPERIOR LESSORS AND MORTGAGEES:
ATTORNMENT .
6.1. Subordination. Provided that Tenant is provided with a reasonable
and customary subordination, nondisturbance and attornment agreement duly
executed by the holder of any mortgage or deed of trust or the landlord pursuant
to any ground lease, this Lease shall be subject and subordinate at all times to
(a) all ground leases or underlying leases that may now exist or hereafter be
executed affecting either or both of the Premises and the Property and (b) any
mortgage or deed of trust that may now exist or hereafter be placed upon, and
encumber, any or all of (x) the Property; (y) any ground leases or underlying
leases for the benefit of the Property; and (z) all or any portion of Landlord's
interest or estate in any of said items. Notwithstanding the foregoing, Landlord
shall have the right to subordinate or cause to be subordinated any such ground
leases or underlying leases that benefit the Property or any such mortgage or
deed of trust liens to this Lease. Tenant shall execute and deliver, upon demand
by Landlord and in the form reasonably requested by Landlord, any additional
documents evidencing the priority of subordination of this Lease with respect to
any such ground leases or underlying leases for the benefit of the Property or
any such mortgage or deed of trust.
6.2. Estoppel Certificates. Tenant agrees, from time to time and within
10 days after request by Landlord, to deliver to Landlord, or Landlord' s
designee, an estoppel certificate stating such matters pertaining to this Lease
as may be reasonably requested by Landlord. Failure by Tenant to timely execute
and deliver such certificate shall constitute an acceptance of the Premises and
acknowledgment by Tenant that the statements included therein are true and
correct without exception. Landlord and Tenant intend that any statement
delivered pursuant to this section may be relied upon by any prospective
purchaser or mortgagee of the Property or of any interest therein or any other
Landlord designee.
6.3. Transfer for Landlord. In the event of a sale or conveyance by
Landlord of the Property, the same shall operate to release Landlord from any
future liability for any of the covenants or conditions, express or implied,
herein contained in favor of Tenant, and in such event Tenant agrees to look
solely to Landlord's successor in interest with respect thereto and agrees to
attorn to such successor.
7. QUIET ENJOYMENT. Subject to the provisions of this Lease, so long as
Tenant pays all of the Rent and performs all of its other obligations hereunder,
Tenant shall not be disturbed in its possession of the Premises by Landlord,
Agent or any other person lawfully claiming through or under Landlord. This
covenant shall be construed as a covenant running with the Property and is not a
personal covenant of Landlord. Notwithstanding the foregoing, however, Tenant
acknowledges and agrees that Landlord shall have the unfettered and unilateral
right to use portions of the Common Areas (inclusive of the roof of the
Building) for such purposes and uses as Landlord may desire; provided, however,
that in all events and under all circumstances, Landlord's use of any portion of
the Common Areas shall not interfere, in any material respect, with any or all
of (a) Tenant's rights to occupy and use the Common Areas (in the manner and for
the purposes contemplated hereunder); (b) Tenant's right to utilize the
vehicular parking areas located on the Common Areas; and (c) Tenant's right of
access, ingress and egress to and from the Common Areas.
8. ASSIGNMENT. SUBLETTING AND MORTGAGING.
8.1. Prohibition. Tenant acknowledges that this Lease and the Rent due
under this Lease have been agreed to by Landlord in reliance upon Tenant's
reputation and creditworthiness and upon the continued operation of the Premises
by Tenant for the particular use. described in Section 4 above; therefore,
Tenant shall not, whether voluntarily, or by operation of law, or otherwise: (a)
assign or otherwise transfer this Lease; (b) sublet the Premises or any part
thereof, or allow the same to be used or occupied by anyone other than Tenant;
or (c) mortgage, pledge, encumber, or otherwise hypothecate this Lease or the
Premises, or any part thereof, in any manner whatsoever, without in each
instance obtaining the prior written consent of Landlord, which consent may be
given or withheld in Landlord's sole, but reasonable, discretion. Any purported
assignment, mortgage, transfer, pledge or sublease made without the prior
written consent of Landlord shall be absolutely null and void. No assignment of
this Lease shall be effective and valid unless and until the assignee executes
and delivers to Landlord any and all documentation reasonably required by
Landlord in order to evidence assignee's assumption of all obligations of Tenant
hereunder. Any consent by Landlord to a particular assignment, sublease or
mortgage shall not constitute consent or approval of any subsequent assignment,
sublease or mortgage, and Landlord' s written approval shall be required in all
such instances. No. consent by Landlord to any assignment or sublease shall be
deemed to release Tenant from its obligations hereunder and Tenant shall remain
fully liable for performance of all obligations under this Lease.
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8.2. Rights of Landlord. If this Lease is assigned, or if the Premises
(or any part thereof) are sublet or used or occupied by anyone other than
Tenant, whether or not in violation of this Lease, Landlord or Agent may
(without prejudice to, or waiver of its rights), collect Rent from the assignee,
subtenant or occupant. Landlord or Agent may apply the net amount collected to
the Rent herein reserved, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of this Section 8.
With respect to the allocable portion of the Premises sublet, in the event that
the total rent and any other considerations received under any sublease by
Tenant is greater than the total Rent required to be paid, from time to time,
under this Lease. Tenant shall pay to Landlord fifty percent (50%) of such
excess as received from any subtenant and such amount shall be deemed a
component of the Additional Rent.
8.3. Permitted Transfers. The provisions of Section 8.1(a) shall apply
to a transfer of a majority (i.e. greater than 50% interest) of the voting stock
of Tenant or to any other change in voting control of Tenant (if Tenant is a
corporation), or to a transfer of a majority of the general partnership or
membership interests in Tenant (if Tenant is a partnership or a limited
liability company) or to a change in the managerial control of Tenant, or to any
comparable transaction involving any other form of business entity, whether
effectuated in one or more transactions, as if such transfer were an assignment
of this Lease; but said provisions shall not apply to such a transfer, provided,
in any of such events, the successor to Tenant (or any party remaining liable
for the obligations of Tenant hereunder): (i) has a net worth at least equal to
the net worth of Tenant as of the Commencement Date or (ii) is capable of
satisfying Tenant's obligations hereunder. in Landlord's reasonable judgment.
Any such permitted transferee shall execute and deliver to Landlord any and all
documentation reasonably required by Landlord in order to evidence assignee's
assumption of all obligations of Tenant hereunder. Notwithstanding anything to
the contrary contained in this Section 8.3, in no event may Tenant assign,
mortgage, transfer, pledge or sublease this Lease to any entity whatsoever if,
at the time of such assignment, mortgage, transfer, pledge or sublease, Tenant
is in default under this Lease.
9. COMPLIANCE WITH LAWS.
9.1. Compliance with Laws. Tenant shall, at its sole expense
(regardless of the cost thereof), comply with all local, state and federal laws,
rules, regulations and requirements now or hereafter in force and all judicial
and administrative decisions pertaining thereto (collectively, "Laws"),
pertaining to either or both of the Premises and Tenant's use and occupancy
thereof. If any license or permit is required for the conduct of Tenant's
business in the Premises, Tenant, at its expense, shall procure such license
prior to the Commencement Date, and shall maintain such license or permit in
good standing throughout the Term. Tenant shall give prompt notice to Landlord
of any written notice it receives of the alleged violation of any law or
requirement of any governmental or administrative authority with respect to
either or both of the Premises and the use or occupation thereof. The judgment
of any court of competent jurisdiction or the admission of Tenant in any action
or proceeding against Tenant, whether Landlord is a party thereto or not, that
any such Law pertaining to the Premises has been violated, shall be conclusive
of that fact as between Landlord and Tenant.
9.2. Hazardous Materials. If, at any time or from time to time during
the Term (or any extension thereof), any Hazardous Material (defined below) is
generated, transported, stored, used, treated or disposed of at, to, from, on or
in either or both of the Premises and the Property by, or as a result of any act
or omission of, any or all of Tenant and any or all of Tenant's Parties (defined
below): (i) Tenant shall, at its own cost, at all times comply (and cause all
others to comply) with all laws (federal, state or local) relating to Hazardous
Materials, including, but not limited to, all Environmental Laws (defined
below), and Tenant shall further, at its own cost, obtain and maintain in full
force and effect at all times all permits and other approvals required in
connection therewith; (ii) Tenant shall promptly provide Landlord or Agent with
complete copies of all communications, permits or
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agreements with, from or issued by any governmental authority or agency
(federal, state or local) or any private entity relating i~ any way to the
presence, release, threat of release, or placement of Hazardous Materials on or
in the Premises or any portion of the Property , or the generation,
transportation, storage, use, treatment, or disposal at, on, in or from the
Premises, of any Hazardous Materials; (iii) Landlord, Agent and their respective
agents and employees shall have the right to either or both (x) enter the
"Premises and (y) conduct appropriate tests for the purposes of ascertaining
Tenant's compliance with all applicable laws (including Environmental Laws),
rules or permits relating in any way to the generation, transport, storage, use,
treatment, disposal or presence of Hazardous Materials on, at, in or from all or
any portion of either or both of the Premises and the Property; and (iv) upon
written request by Landlord or Agent, Tenant shall provide Landlord with the
results of reasonably appropriate tests of air, water or soil to demonstrate
that Tenant complies with all applicable laws, rules or permits relating in any
way to the generation, transport, storage, use, treatment, disposal or presence
of Hazardous Materials on, at, in or from all or any portion of either or both
of the Premises and the Property .This Section 9.2 does not authorize the
generation, transportation, storage, use, treatment or disposal of any Hazardous
Materials at, to, from, on or in the Premises in contravention of this Section
9. Tenant covenants to investigate, clean up and otherwise remediate, at
Tenant's sole expense, any release of Hazardous Materials caused, contributed
to, or created by any or all of (A) Tenant and (B) any or all of Tenant's
officers, directors, members, managers, partners, invitees, agents, employees,
contractors or representatives ("Tenant Parties") during the Term. Such
investigation and remediation shall be performed only after Tenant has obtained
Landlord's prior written consent; provided, however, that Tenant shall be
entitled to respond immediately to an emergency without first obtaining such
consent. All remediation shall be performed in strict compliance with
Environmental Laws and to the reasonable satisfaction of Landlord. Tenant shall
be liable for any and all conditions covered hereby, and for all costs relating
thereto, that are caused or created by any or all of Tenant and any or all of
Tenant's Parties. Tenant shall not enter into any settlement agreement, consent
decree or other compromise with respect to any claims relating to any Hazardous
Materials in any way connected to the Premises without first obtaining
Landlord's written consent (which consent may be given or withheld in Landlord's
sole, but reasonable, discretion) and affording Landlord the reasonable
opportunity to participate in any such proceedings. As used herein, the term (x)
"Environmental Laws" shall mean any and all laws pertaining to Hazardous
Materials or that otherwise deal with, or relate to, air or water quality, air
emissions, soil or ground conditions or other environmental matters of any kind;
and (y) "Hazardous Materials" shall mean any waste, material or substance
(whether in the form of liquids, solids or gases, and whether or not airborne)
that is or may be deemed to be or include a pesticide, petroleum, asbestos,
polychlorinated biphenyl, radioactive material, urea formaldehyde or any other
pollutant or contaminant that is or may be deemed to be hazardous, toxic,
ignitable, reactive, corrosive, dangerous, harmful or injurious, or that
presents a risk to public health or to the environment, and that is or becomes
regulated by any Environmental Law. The undertakings, covenants and obligations
imposed on Tenant under this Section 9.2 shall survive the termination or
expiration of this Lease.
10. INSURANCE.
10.1. Insurance to be Maintained by Landlord. Landlord shall maintain
(a) "all-risk" property insurance covering the Property (at its full replacement
cost), but excluding Tenant's Property (defined below), and (b) commercial
general public liability insurance covering Landlord for claims arising out of
liability for bodily injury, death, personal injury, advertising injury and
property damage occurring in and about the Property and otherwise resulting from
any acts and operations of Landlord, its agents and employees, and ( c ) rent
loss insurance (collectively; "Landlord's Policies"), all of the above with
limits that are required by any lender(s) of Landlord, or as are otherwise
reasonably determined by Landlord, but in any event, without prejudice to the
foregoing, shall be no less than $2,000,000.00 per occurrence and $5,000,000 or
general aggregate for general liability exposure.
10.2. Insurance to be Maintained by Tenant. Tenant shall purchase, at
its own expense, and keep in force at all times during this Lease the policies
of insurance set forth below in Sections 10.2.1 and 10.2.2 (collectively
"Tenant's Policies"). All Tenant's Policies shall (a) be issued by an insurance
company with a Best rating of A-X or better and otherwise reasonably acceptable
to Landlord and shall be licensed to do business in the state in which the
Property is located; (b) provide that said insurance shall not be canceled or
materially modified unless 30 days' prior written notice shall have been given
to Landlord; and (c) otherwise be in such form, and include such coverages, as
Landlord may reasonably require. All Tenant's Policies (or, at Landlord's
option, Certificates of Insurance, in a form reasonably acceptable to, Landlord,
evidencing said Tenant's Policies), shall be delivered to Landlord by Tenant
upon commencement of the Lease and renewals thereof shall be delivered at least
30 days prior to the expiration of each Tenant's Policy. Tenant shall give
prompt notice to Landlord and Agent of any bodily injury, death, personal
injury, advertising injury or property damage occurring in and about the
Property.
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10.2.1. General Liability and Auto Insurance. Tenant shall purchase and
maintain, throughout the Term, a Tenant's Policy(ies) of (i) commercial general
liability insurance, including personal injury and property damage, in the
amount of not less than $2,000,.000.00 per occurrence, and $5,000,000.00 annual
general aggregate, per location; (ii) comprehensive automobile liability
insurance covering Tenant against any losses arising out of liability for
personal injuries or deaths of persons and property damage occurring in or about
the Premises in the amount of not less than $1,000,000, combined single limit.
The Tenant's Policies required by this Section 10.2.1 shall (a) name Landlord,
Agent, and any party holding an interest to which this Lease may be subordinated
as additional insureds; (b) provide coverage on an occurrence basis; (c) provide
coverage for the indemnity obligations of Tenant under this Lease; (d) contain a
severability of insured parties provision and/or a cross liability endorsement;
( e) be primary , not contributing with, and not in excess of, coverage that
Landlord may carry; and (f) provide coverage with no exclusion for a pollution
incident arising from a hostile fire.
10.2.2. Property and Workers' Compensation Insurance. Tenant shall
purchase and maintain, throughout the Term, a Tenant's Policy or Policies of (i)
"all-risk" property insurance covering Tenant's Property (at its full
replacement cost), and damage to other property resulting from any acts or
operations of Tenant, and (ii) workers' compensation insurance per the
applicable state statutes covering all employees of Tenant.
10.3. Waiver of Subrogation. To the extent permitted by law, and
without affecting the coverage provided by insurance required to be maintained
hereunder, Landlord and Tenant each waive any right to recover against the other
for (a) damages to property, (b) damages to all or any portion of either or both
of the Premises and the Property,( c) claims arising by reason of the foregoing,
to the extent such damages and claims are insured against, or required to be
insured against, by Landlord or Tenant under this Lease, or (d) claims paid by
Tenant's workers' compensation carrier. This provision is intended to waive,
fully and for the benefit of each party, any rights and/or claims which might
give rise to a right of subrogation by any insurance carrier. The coverage
obtained by each party pursuant to this Lease shall include, without limitation,
a waiver of subrogation by the carrier which conforms to the provisions of this
section.
11. ALTERATIONS.
11.1. Procedural Requirements. Tenant may, from time to time, at its
expense, make alterations or improvements in and to the Premises (hereinafter
collectively referred to as "Alterations"), provided that Tenant first obtains
the written consent of Landlord in each instance. Landlord's consent to
Alterations shall not be unreasonably withheld, provided that: (a) the
Alterations are non-structural and the structural integrity of the Property
shall not be affected; (b) the Alterations are to the interior of the Premises;
( c) the proper functioning of the mechanical, electrical, heating, ventilating,
air-conditioning ("HVAC"), sanitary and other service systems of the Property
shall not be affected and the usage of such systems by Tenant shall not be
increased; (d) the Alterations have no adverse effect on other leased premises
in the Property; (e) Tenant shall have appropriate insurance coverage,
reasonably satisfactory to Landlord, regarding the performance and installation
of the Alterations; (f) the Alterations shall conform with all other
requirements of this Lease; and (g) Tenant shall have provided Landlord with
reasonably detailed plans for such Alterations in advance of requesting
Landlord's consent. Additionally, before proceeding with any Alterations, Tenant
shall (i) at Tenant's expense, obtain all necessary governmental permits and
certificates for the commencement and prosecution of Alterations; (ii) submit to
Agent, for Landlord's written approval, working drawings, plans and
specifications and all permits for the work to be done and Tenant shall not
proceed with such Alterations until it has received said approval; and (iii)
cause those contractors, materialmen and suppliers engaged to perform the
Alterations to deliver to Landlord certificates of insurance (in a form
reasonably acceptable to Landlord) evidencing policies of commercial general
liability insurance (providing the same coverages as required in Section 10.2(i)
above) and workers' compensation insurance. Such insurance policies shall
satisfy the obligations imposed under Section 10.2(a) through (d) and (f)
through (i). After obtaining Landlord's approval to the Alterations, Tenant
shall give Landlord at least five days' prior written notice of the commencement
of any Alterations at the Premises, and Landlord may elect to record and post
notices of non-responsibility at the Premises~
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11.2. Performance of Alterations. Tenant shall cause the Alterations to
be performed in compliance with all applicable permits, laws and requirements of
public authorities, and with Landlord's reasonable rules and regulations or any
other restrictions that Landlord or Agent may impose on the Alterations. Tenant
shall cause the Alterations to be diligently performed in a good and workmanlike
manner, using new materials and equipment at least equal in quality and class to
the standards for the Property established by Landlord or Agent. Tenant shall
obtain all necessary permits and certificates for final governmental approval of
the Alterations and shall provide Landlord with ''as built" plans, copies of all
construction contracts, governmental permits and certificates and proof of
payment for all labor and materials, including, without limitation, copies of
paid invoices and final lien waivers.
11.3. Lien Prohibition. Tenant shall pay when due all claims for labor
and material furnished to the Premises in connection with the Alterations.
Tenant shall not permit any mechanics or materialmen's liens to attach to the
Premises or the Property. Tenant, at its expense, shall procure the satisfaction
or discharge of record of all such liens and encumbrances within 30 days after
the filing thereof; or, within such thirty (30) day period, Tenant shall provide
Landlord, at Tenant's sole expense, with endorsements (satisfactory, both in
form and substance, to Landlord and the holder of any mortgage or deed of trust)
to the existing title insurance policies of Landlord and the holder of any
mortgage or deed of trust, insuring against the existence of, and any attempted
enforcement of, such lien. In the event Tenant has not so performed, Landlord
may, at its option; pay and discharge such liens and Tenant shall be responsible
to reimburse Landlord, on demand and as Additional Rent under this Lease, for
all costs and expenses incurred in connection therewith, together with interest
thereon at the rate set forth in Section 22.3, which expenses shall include
reasonable fees of attorneys of Landlord's choosing, and any costs in posting
bond to effect discharge or release of the lien as an encumbrance against the
Premises or the Property .
12. LANDLORD'S AND TENANT'S PROPERTY.
12.1. Landlord's Property. Subject to Section 12.2, all fixtures,
machinery, equipment, improvements and appurtenances attached to, or built into,
the Premises at the commencement of, or during the Term, whether or not placed
there by or at the expense of Tenant, shall become and remain a part of the
Premises; shall be deemed the property of Landlord (the "Landlord's Property"),
without compensation or credit to Tenant; and shall not be removed by Tenant at
the Expiration Date unless Landlord requests their removal. Further, any
personal property in the Premises on the Commencement Date, movable or
otherwise, unless installed and paid for by Tenant, shall be and shall remain
the property of Landlord and shall not be removed by Tenant. In no event shall
Tenant remove any of the following materials or equipment without Landlord's
prior written consent (which consent may be given or withheld in Landlord's sole
discretion): any power wiring or power panels, lighting or lighting fixtures,
wall or window coverings, carpets or other floor coverings, heaters, air
conditioners or any other HV AC equipment, fencing or security gates, or other
similar building operating equipment and decorations.
12.2. Tenant's Property. All movable non-structural partitions,
business and trade fixtures, machinery and equipment, communications equipment
and office equipment that are installed in the Premises by, or for the account
of, Tenant and without expense to Landlord and that can be removed without
structural damage to the Property, and all furniture, furnishings and other
articles of movable personal property owned by Tenant and located in the
Premises (collectively, the "Tenant's Property") shall be and shall remain the
property of Tenant and may be removed by Tenant at any time during the Term,
provided Tenant repairs or pays the cost of repairing any damage to the Premises
or to the Property resulting from the installation and/or removal thereof. At or
before the Expiration Date, or the date of any earlier termination, Tenant, at
its expense, shall remove from the Premises all of Tenant's Property and any
Alterations (except such items thereof as constitute Landlord's Property; or as
Landlord shall have expressly permitted, in writing, to remain, which property
shall become the property of Landlord), and Tenant shall repair (to Landlord's
reasonable satisfaction) any damage to the Premises or the Property resulting
from any installation and/or removal of Tenant's Property. Any other items of
Tenant's Property that shall remain in the Premises after the Expiration Date,
or following an earlier termination date, may, at the option of Landlord, be
deemed to have been abandoned, and in such case, such items may be retained by
Landlord as its property or be disposed of by Landlord, in Landlord's sole and
absolute discretion and without accountability, at Tenant's expense.
Notwithstanding the foregoing, if Tenant is in default under the terms of this
Lease, it may remove Tenant's Property from the Premises only upon the express
written direction of Landlord.
13. REPAIRS AND MAINTENANCE.
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13.1. Tenant Repairs and Maintenance. Tenant shall, at its expense,
throughout the Term, (i) maintain and preserve, in first-class condition
(subject to normal and customary wear and tear), the Premises and the fixtures
and appurtenances therein (including, but not limited to, the Premises' plumbing
and HV AC systems, all doors, overhead or otherwise, glass and levelers located
in the Premises or otherwise available in the Property for Tenant's sole use;
and excluding, however, those components of the Premises for which Landlord is
expressly responsible under Section 13.2); and (ii) maintain, in full force and
effect, a preventative maintenance and service contract with a reputable
'service provider for maintenance of the HV AC systems of the Premises. Tenant
shall also be responsible for all cost and expenses incurred to perform any and
all repairs and replacements (whether structural or non-structural; interior or
exterior; and ordinary or extraordinary), in and to the Premises and the
Property and the facilities and systems thereof, if and to the extent that the
need for such repairs or replacements arises directly or indirectly from any or
all of: (a) the performance or existence of any Alterations, (b) the
installation, use or operation of Tenant's Property in the Premises, (c) the
moving of Tenant's Property in or out of the Property, and (d) any act,
omission, misuse, or neglect of Tenant, any of its subtenants, or others
entering into the Premises by act or omission of Tenant or any subtenant. Any
repairs or replacements required to be made by Tenant to any or all of the
structural components of the property and the :mechanical, electrical, sanitary;
HVAC, or other systems of the Property or Premises shall be performed by
appropriately licensed contractors approved by Landlord, which approval shall
not be unreasonably withheld. All such repairs or replacements shall be subject
to the supervision and control of Landlord, and all repairs and replacements
shall be made with materials of equal or better quality than the items being
repaired or replaced.
13.2. Landlord Repairs. Notwithstanding anything contrary herein,
Landlord shall repair, replace and restore the foundation, exterior and interior
load-bearing walls, roof structure and roof covering and tuckpointing of the
Property; provided, however, that (i) all costs and expenses so incurred by
Landlord to repair, replace and restore the above items shall constitute
Operating Expenses; provided, however, that with respect to any costs incurred
in the replacement context, those costs shall not constitute an Operating
Expense except to the extent that such costs so qualify under Section
3.1.1(vii); and (ii) notwithstanding (i) above, in the event that any such
repair, replacement or restoration is necessitated by any or all of the matters
set forth in Sections 13.1(a) through (d) above (collectively, "Tenant
Necessitated Repairs"), then Tenant shall be required to reimburse Landlord for
all costs and expenses that Landlord incurs in order to perform such Tenant
Necessitated Repairs, and such reimbursement shall be paid, in full, within 10
days after Landlord's delivery of demand therefor. Landlord agrees to commence
the repairs, replacements or restoration described in this Section 13.2 within a
reasonable period of time after receiving from Tenant written notice of the need
for such repairs.
14. UTILITIES. Tenant shall purchase all utility services from the
utility or municipality providing such service; shall provide for scavenger,
cleaning and extermination services; and shall pay for such services when
payments are due. Tenant shall be solely responsible for the repair arid
maintenance of any meters necessary in connection with such services. Tenant's
use of' electrical energy in the Premises shall not, at any time, exceed the
capacity of either or both of (i) any of the electrical conductors and equipment
in or otherwise servicing the Premises; and (ii) the HVAC systems of either or
both of the Premises and the Property.
15. INVOLUNTARY CESSATION OF SERVICES. Landlord reserves the right,
without any liability to Tenant and without affecting Tenant's covenants and
obligations hereunder, to stop service of any or all of the HV AC, electric,
sanitary, elevator (if any), and other systems serving the Premises, or to stop
any other services required by Landlord under this Lease, whenever and for so
long as may be necessary by reason of (i) accidents, emergencies, strikes, or
the making of repairs or changes which Landlord or Agent, in good faith, deems
necessary or (ii) any other cause beyond Landlord's reasonable control;
provided, however, except in the case of energy or other event beyond Landlord's
reasonable control, Landlord shall not stop any services required by Landlord
under this Lease without providing Tenant reasonable prior notice. Further, it
is also understood and agreed that Landlord or Agent shall have no liability or
responsibility for a cessation of services to the Premises or to the Property
that occurs as a result of causes beyond Landlord's or Agent's reasonable
control. No such interruption of service shall be deemed an eviction or
disturbance of Tenant's use and possession of the Premises or any part thereof,
or render Landlord or Agent liable to Tenant for damages, or relieve Tenant from
performance of Tenant's obligations under this Lease, including, but not limited
to, the obligation to. pay Rent; provided, however, that if any interruption of
services persists for a period in excess of five consecutive business days
Tenant shall, as Tenant's sole remedy, be entitled to a proportionate abatement
of Rent to the extent, if any, of any actual loss of use of the Premises by
Tenant.
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16. LANDLORD'S RIGHTS. Landlord, Agent and their respective agents,
employees and representatives shall have the right to enter and/or pass through
the Premises at any time or times upon reasonable prior notice (except in the
event of emergency): (a) to examine and inspect the Premises and to show them to
actual and prospective lenders, prospective purchasers or mortgagees of the
Property or providers of capital to Landlord and its affiliates; and (b ) to
make such repairs, alterations, additions and improvements in or to all or any
portion of either or both of the Premises and the Property, or the Property's
facilities and equipment as Landlord is required or desires to make. Landlord
and Agent shall be allowed to take all materials into and upon the Premises that
may be required in connection with any repairs, alterations, additions or
improvements, without any liability to Tenant and without any reduction or
modification of Tenant's covenants and obligations hereunder; provided, however,
that Landlord shall use reasonable efforts to avoid interference with Tenant's
business operations and Tenant's occupancy and use of the Premises. During the
period of six months prior to the Expiration Date (or at any time, if Tenant has
vacated or abandoned the Premises or is otherwise in default under this Lease),
Landlord and its agents may exhibit the Premises to prospective tenants.
Additionally, Landlord and Agent shall have the following rights with respect to
the Premises, exercisable without notice to Tenant, without liability to Tenant,
and without being deemed an eviction or disturbance of Tenant's use or
possession of the Premises or giving rise to any claim for setoff or abatement
of Rent: (i) to designate and approve, prior to installation, all types of
signs; (ii) to have pass keys, access cards, or both, to the Premises; and (iii)
to decorate, remodel, repair, alter or otherwise prepare the Premises for
reoccupancy at any time after Tenant vacates or abandons the Premises for more
than 30 consecutive days or with no intention of reoccupying the Premises.
17. NON-LIABILITY AND INDEMNIFICATION
17 .1. Non-Liability. Except as provided in Section 17.2.2, none of
Landlord, Agent, any other managing agent, or their respective affiliates,
owners, partners, directors, officers, agents and employees shall be liable to
Tenant for any loss, injury, or damage, to Tenant - or to any other person, of
to its or their property, irrespective of the cause of such injury, damage or
loss. Further, except as provided in Section 17.2.2, none of Landlord, Agent,
any other managing agent, or their respective partners, directors, officers,
agents and employees shall be liable to Tenant (a) for any damage caused by
other tenants or persons in; upon or about the Property, or caused by operations
in construction of any public or quasi-public work; (b) with respect to matters
for which Landlord is liable, for consequential or indirect damages purportedly
arising out of any loss of use of the Premises or any equipment or facilities
therein by Tenant or any person claiming through or under Tenant; (c) any latent
defect in the Premises or the Property; ( d) injury or damage to person or
property caused by fire, or theft, or resulting from the operation of heating'
or air conditioning or lighting apparatus, or from falling plaster, or from
steam, gas, electricity, water, rain, snow, ice, or dampness, that may leak or
flow from any part of the Property, or from the pipes, appliances or plumbing
work of the same.
17 .2. Indemnification.
17 .2.1. Tenant Indemnification. Tenant hereby indemnifies, defends,
and holds Landlord, Agent and their respective affiliates, owners, partners,
directors, officers, agents and employees (collectively, "Landlord Indemnified
Parties") harmless from and against any and all Losses (defined below) arising
from or in connection with any or all of: (a) the conduct or management of
either or both the Property and the Premises or any business therein, or any
work or Alterations done, or any condition created by any or all of Tenant and
Tenant's Parties in or about the Premises during the Term or during the period
of time, if any, prior to the Commencement Date that Tenant is given access to
the Premises; (b ) any act, omission or negligence of any or all of
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Tenant and Tenant's Parties; (c) any accident, injury or damage whatsoever
(unless caused by Landlord's negligence) occurring in, at or upon either or both
of the Property and the Premises and caused by any or ail of Tenant and Tenant's
Parties; (d) any breach by Tenant of any of its warranties and representations
under this Lease; (e) any lawful actions necessary to protect Landlord' s
interest under this Lease in a bankruptcy proceeding or other proceeding under
the Bankruptcy Code; (f) any violation or alleged violation by any or all of
Tenant and Tenant's Parties of any Law including, without limitation, any
Environmental Law; (g) any breach of the provisions of Section 9 by any or all
of Tenant and Tenant's Parties; (h) claims for work or labor performed or
materials supplies furnished to or at the request of any or all of Tenant and
Tenant's Parties; (i) claims arising from any breach or default on the part of
Tenant in the performance of any covenant contained in this Lease; G) any
Hazardous Materials used, exposed, emitted, released, discharged, generated,
manufactured, sold, transported, handled, stored, treated, reused, presented,
disposed of or recycled in, at, near or under all or any portion of the Premises
as a result of the acts or omissions of any or all of Tenant and Tenant's
Parties; and (k) the violation of any Environmental Law or any permit,
application or consent required in connection with any Environmental Law by any
or all of Tenant and Tenant's Parties with respect to the Premises during the
Term, excluding, however, any violation of any Environmental Law resulting
directly from the acts or omissions of Landlord and Landlord's employees, agents
and contractors (collectively, "Tenant's Indemnified Matters"). In case any
action or proceeding is brought against any or all of Landlord and the Landlord
Indemnified Parties by reason of any of Tenant's Indemnified Matters, Tenant,
upon notice from any or all of Landlord, Agent or any Superior party (defined
below), shall resist and defend such action or proceeding by counsel reasonably
satisfactory to, or selected by, Landlord. The term "Losses" shall mean all
claims, demands, expenses, actions, judgments, damages (actual, but not
consequential), penalties, fines, liabilities, losses of every kind and nature
(including, without limitation, property damage, diminution in value of
Landlord's interest in the premises or the Property, damages for the loss or
restriction on use of any space or amenity within the Premises or the Property ,
damages arising from any adverse impact on marketing space in the Property, sums
paid in settlement of claims and any costs and expenses associated with injury,
illness or death to or of any person), suits, administrative proceedings, costs
and fees, including, without limitation, attorneys' and consultants' reasonable
fees and expenses, and the costs of cleanup, remediation, removal and
restoration, that are in any way related to any matter covered by the foregoing
indemnity .The provisions of this Section 17.2.1 shall survive the expiration or
termination of this Lease.
17.2.2. Landlord Indemnification. Landlord hereby indemnifies, defends
and holds Tenant harmless from and against any and all Losses actually suffered
or incurred by Tenant as the sole and direct result of any negligent, willful or
intentional acts or omissions of any or all of Landlord, Agent and any parties
within the direct and sole control of either or both of Landlord and Agent. In
the event that any action or proceeding is brought against Tenant, and the
foregoing indemnity is applicable to such action or proceeding, then Landlord,
upon notice from Tenant, shall resist and defend such action or proceeding by
counsel reasonably satisfactory to Tenant. Notwithstanding anything to the
contrary set forth in this Lease, however, in all events and under all
circumstances, the liability of Landlord .to Tenant shall be limited to the
interest of Landlord in the Property, and Tenant agrees to look solely to
Landlord's interest in the Property for the recovery of any judgment or award
against Landlord, it being intended that Landlord shall not be personally liable
for any judgment or deficiency. The provisions of this Section 17.2.2 shall
survive the expiration or termination of this Lease.
17.3. Force Majeure. The obligations of Tenant hereunder shall not be
affected, impaired or excused, and Landlord shall have no liability whatsoever
to Tenant, with respect to any act, event or circumstance arising out of (a)
Landlord' s failure to fulfill, or delay in fulfilling any of its obligations
under this Lease by reason of labor dispute, governmental preemption of property
in connection with a public emergency or shortages of fuel, supplies, or labor,
or any other cause, whether similar or dissimilar, beyond Landlord's reasonable
control; or (b ) any failure or defect in the supply, quantity or character of
utilities furnished to the Premises, or by reason of any requirement, act or
omission of any public utility or others serving the Property, beyond Landlord's
reasonable control.
17 .4. Limitation. Notwithstanding anything to the contrary herein,
nothing in this Section 17 shall be deemed to exculpate Landlord from, or
indemnify Landlord for, Landlord' s negligent or willful acts or omissions.
18. DAMAGE OR DESTRUCTION.
18.1. Notification and Repair. Tenant shall give prompt notice to
Landlord and Agent of (a) any fire or other casualty to the Premises or the
Property, and (b) any damage to, or defect in, any part or appurtenance of the
Property's sanitary, electrical, HV AC, elevator or other systems located in or
passing through the Premises or any part thereof. Tenant shall be liable for any
claim, loss, damage, cost or expense resulting from Tenant's failure to give
Landlord the foregoing notice in a timely manner. Subject to the provisions of
Section 18.3 below, if either or both of the Property and the Premises is
damaged by fire or other insured casualty, Landlord shall repair (or cause Agent
to repair) the damage and restore and rebuild the Property and/or the Premises
(except for Tenant's Property) with reasonable dispatch after (x) notice to it
of the damage or destruction and (y) the adjustment of the insurance proceeds
attributable to such damage. Subject to the provisions of Section 18.3 below,
Tenant shall not be entitled to terminate this Lease and no damages,
compensation or claim shall be payable by Landlord for purported inconvenience,
loss of business or annoyance arising from any repair or restoration of any
portion of the Premises or of the Property pursuant to this Section. Landlord
(or Agent, as the case may be) shall use its diligent, good faith efforts to
make such repair or restoration promptly and in such manner as not to
unreasonably interfere with Tenant's use and occupancy of the Premises, but
Landlord or Agent shall not be required to do such repair or restoration work
except during normal business hours of business days.
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18.2. Rental Abatement. Provided that any damage to either or both -of
the Property and the Premises is not caused by, or the result of acts or
omissions by, any or all of Tenant and Tenant's Parties, if (a) the Property is
damaged by fire or other casualty thereby causing the Premises to be
inaccessible or (b) the Premises are partially damaged by fire or other
casualty, the Rent shall be proportionally abated to the extent of any actual
loss of use of the Premises by Tenant.
18.3. Total Destruction. If the Property or the Premises shall be
totally destroyed by fire or other casualty, or if the Property shall be so
damaged by fire or other casualty that (in. the reasonable opinion of a
reputable contractor or architect designated by Landlord within 14 days after
such loss occurrence): (i) its repair or restoration requires more than 180 days
or (ii) such repair or restoration requires the expenditure of more than 50% of
the full insurable value of the Property immediately prior to the casualty or
(iii) the damage (x) is less than the amount stated in (ii) above, but more than
10% of the full insurable value of the Property; and (y) occurs during the last
two years of Lease Term, Landlord and Tenant shall each have the option to
terminate this Lease (by so advising the other, in writing) within 10 days after
said contractor or architect delivers written notice of its opinion to Landlord
and Tenant, but in all events prior to the commencement of any restoration of
the Premises or the Property by Landlord. In such event, the termination shall
be effective as of the date upon which either Landlord or Tenant, as the case
may be, receives timely written notice from the other terminating this Lease
pursuant to the preceding sentence. If neither Landlord nor Tenant timely
delivers a termination notice, this Lease shall remain in full force and effect.
Notwithstanding the foregoing, if (A) any holder of a mortgage or deed of trust
encumbering the Property or landlord pursuant to a ground lease encumbering the
Property (collectively, "Superior Parties") or other party entitled to the
insurance proceeds fails to make such proceeds available to Landlord in an
amount sufficient for restoration of the Premises or the Property, or (B) the
issuer of any casualty insurance policies on the Property fails to make
available to Landlord sufficient proceeds for restoration of the Premises or the
Property , then Landlord may, at Landlord' s sole option, terminate this Lease
by giving Tenant written notice to such effect within 30 days after Landlord
receives notice from the Superior Party or insurance company, as the case may
be, that such proceeds shall not be made available, in which event the
termination of this Lease shall be effective as of ~e date Tenant receives
written notice from Landlord of Landlord's election to terminate this Lease.
Landlord shall have no liability to Tenant, and Tenant shall not be entitled to
terminate this Lease by virtue of any delays in completion of repairs and
restoration. For purposes of this Section 18.3 only, "full insurable value"
shall mean replacement cost, less the cost of footings, foundations and other
structures below grade.
18.4. Insurance Proceeds. Landlord shall not be obligated to expend in
repairs and restoration an amount in excess of the proceeds of insurance
recovered with respect to any casualty. Tenant acknowledges that Landlord shall
be entitled to the full proceeds of any insurance coverage, whether carried by
Landlord or Tenant, for damage to either or both of the Premises and the
Property (excluding any proceeds for damage to Tenant's Property), but not for
any proceeds specifically designated for the interruption of Tenant's business.
In the event that either 9r both of the Premises and the Property are not
repaired or reconstructed, all proceeds of insurance ( excluding any proceeds
covering Tenant's Property), whether carried by Landlord or Tenant, shall be
payable to Landlord. Landlord's duty to repair the Premises and the Property
(excluding Tenant's Property) is limited to repairing the Premises to the
condition existing immediately prior to such fire or other casualty.
19. EMINENT DOMAIN. If the whole, or any substantial (as reasonably
determined by Landlord) portion, of the Property is taken or condemned for any
public use under any Law or by right of eminent domain, or by private purchase
in lieu thereof, and such taking would prevent or materially interfere with the
Permitted Use of the Premises, this Lease shall terminate effective when the
physical taking of said Premises occurs. If less than a substantial portion of
the Property is so taken or condemned, or if the taking or condemnation is
temporary (regardless of the portion of the Property affected), this Lease shall
not terminate, but the Rent payable hereunder shall be proportionally abated to
the extent of any actual loss of use of the 'Premises by Tenant. Landlord shall
be entitled to any and all payment, income, rent or award, or any interest
therein whatsoever, which may be paid or made in connection with such a taking
or, conveyance, and Tenant shall have no claim against Landlord for the value of
any unexpired portion of this Lease. Notwithstanding the foregoing, any
compensation specifically and independently awarded to Tenant for loss of
business or goodwill, or for its personal property, shall be the property of
Tenant.
13
20. SURRENDER AND HOLDOVER. On the last day of the Term, or upon any
earlier termination of this Lease, or upon any re-entry by Landlord upon the
Premises, (a) Tenant shall quit and surrender the Premises to Landlord
"broom-clean" and in good order, condition and repair (as defined by Exhibit C,
attached hereto and incorporated herein by reference), except for ordinary wear
and tear and such damage or destruction as Landlord is required to repair or
restore under this Lease, (b) Tenant shall remove all of Tenant's Property
therefrom, except as otherwise expressly provided in this Lease, and (c) Tenant
shall surrender to Landlord any and all keys, access cards, computer codes or
any other items used to access the Premises. Pursuant to Sections 16(a) and (b),
Landlord shall be permitted to inspect the Premises in order to verify
compliance with this Section 20 at any time prior to (x) the Expiration Date,
(y) the effective date of any earlier termination of this Lease, or (z) the
surrender date otherwise agreed to in writing by Landlord and Tenant. The
obligations imposed under the first sentence of this Section 20 shall survive
the termination or expiration of this Lease. If any repairs are required to be
performed in, to or at the Premises (pursuant to the first sentence of this
Section 20 or any other applicable provision of this Lease) upon the expiration
or termination of the Term, Tenant shall cause such repairs to be performed, to
Landlord's reasonable satisfaction, within 10 business days after the date on
which this Lease is terminated or expired. If Tenant fails to timely comply with
the preceding sentence, then Landlord shall have the right to cause the repairs
to be performed, at Tenant's expense, and all such expenses so incurred by
Landlord shall bear interest (at the rate specified in the second sentence of
Section 22.3) from the date the expense is incurred until the date paid, in
full, by Tenant (inclusive of interest). If Tenant remains in possession after
the Expiration Date hereof or after any earlier termination date of this Lease
or of Tenant's right to possession: (i) Tenant shall be deemed a tenant-at-will;
(ii) Tenant shall pay 150% of the aggregate of the Base Rent and Additional Rent
last prevailing hereunder, and also shall pay all actual damages sustained by
Landlord, directly by reason of Tenant's remaining in possession after the
expiration or termination of this Lease; (iii) there shall be no renewal or
extension of this Lease by operation of law; and (iv) the tenancy-at-will may be
terminated by either party hereto upon 30 days' prior written notice given by
the terminating party to the non-terminating party .The provisions of this
Section 20 shall not constitute a waiver by Landlord of any re-entry rights of
Landlord provided hereunder or by law.
21. EVENTS OF DEFAULT.
21.1. Bankruptcy of Tenant. It shall be a default by Tenant under this
Lease if Tenant makes an assignment for the benefit of creditors, or files a
voluntary petition under any state or federal bankruptcy or insolvency law, or
an involuntary petition alleging an act of bankruptcy or insolvency is filed
against Tenant under any state or federal bankruptcy or insolvency law that is
not dismissed within 90 days, or whenever a petition is filed by or against (to
the extent not dismissed within 90 days) Tenant under the reorganization
provisions of the United States Bankruptcy Code or under the provisions of any
law or like import, or whenever a petition shall be filed by Tenant under the
arrangement provisions of the United States Bankruptcy Code or similar law, or
whenever a receiver of Tenant, or of, or for, the property of Tenant shall be
appointed, or Tenant admits it is insolvent or is not able to pay its debts as
they mature.
21.2. Default Provisions. Each of the following shall constitute a
default by Tenant under this Lease: (a) if Tenant fails to pay Rent or any other
payment when due hereunder within five days after written notice from Landlord
of such failure to pay on the due date; provided, however, that if in any
consecutive 12 month period, Tenant shall, on two (2) separate occasions, fail
to pay any installment of Rent on the date such installment of Rent is due,
then, on the third such occasion and on each occasion thereafter on which Tenant
shall fail to pay an installment of Relit on the date such installment of Rent
is due, Landlord shall be relieved from any obligation to provide notice to
Tenant, and Tenant shall then no longer have a five day period in which to cure
any such failure; or (b) if Tenant fails, whether by action or inaction, to
timely comply with, or satisfy, any or all of the obligations imposed on Tenant
under this Lease (other than the obligation to pay Rent) for a period of 30 days
after Landlord's delivery to Tenant of written notice of such default under this
Section 21.2(b ); provided, however, that if the default cannot, by its nature,
be cured within such 30 day period, but Tenant commences and diligently pursues
a cure of such default promptly within the initial 30 day cure period, then
Landlord shall not exercise its remedies under Section 22 unless such default
remains uncured for more than 60 days after the initial delivery of Landlord's
original default notice.
14
22. RIGHTS AND REMEDIES.
22.1. Landlord's Cure Rights Upon Default of Tenant. If Tenant defaults
in the performance of any of its obligations under this Lease, Landlord, without
thereby waiving such default, may (but shall not be obligated to) perform the
same for the account, and at the expense of, Tenant upon compliance with any
notice requirements and cure periods set forth in Section 21.2.
22.2. Landlord's Remedies. In the event of any default by Tenant under
this Lease, Landlord, at its option, and after any applicable notice and cure
period (as required pursuant to Section 21.2), but without additional notice or
demand from Landlord, if any, as provided in Section 21.2 has expired, may, in
addition to all other rights and remedies provided in this Lease, or otherwise
at law or in equity: (a) terminate this Lease and Tenant's right of possession
of the Premises; or (b) terminate Tenant's right of possession of the Premises
without terminating this Lease; provided, however, that Landlord may, whether
Landlord elects to proceed under Subsections (a) or (b) above, relet the
Premises, or any part thereof for the account of Tenant, for such rent and term
and upon such terms and conditions as are acceptable to Landlord. In addition,
for purposes of any reletting, Landlord is authorized to decorate, repair, alter
and improve the Premises to the extent deemed necessary by Landlord, in its
sole, but - reasonable, discretion. In the event of the termination of this
Lease by Landlord pursuant to (a) above, Landlord shall be entitled to recover
from Tenant (i) all damages and other sums that Landlord is entitled to recover
under any provision of this Lease or at law or in equity, including, but not
limited to, all fixed dollar amounts of Base Rent and Additional Rent accrued
and unpaid for the period up to and including such termination date; (ii) all
other additional sums payable by Tenant, or for which Tenant is liable, or in
respect of which Tenant has agreed to indemnify Landlord, under any of the
provisions of this Lease, that may be then owing and unpaid; (iii) all costs and
expenses (including, without limitation, court costs and attorneys' reasonable
fees) incurred by Landlord in the enforcement of its rights and remedies under
this Lease; and (iv) any damages provable by Landlord as a matter of law
including, without limitation, an amount equal to the positive difference, if
any, between (x) the discounted present value (at 6% per annum) of the Base Rent
provided to be paid for the remainder of the Term (measured from the effective
termination date of this Lease) and (y) the fair market rental value of the
Leased Premises (determined at the date of termination of this Lease) after
deduction (from such fair market rental value) of the projected costs and
expenses of reletting the Premises (including the anticipated costs of repairs,
alterations, improvements, additions, legal fees and brokerage commissions) as
reasonably estimated by Landlord. If Landlord elects to pursue its rights and
remedies under Subsection (b) above, and the Premises are relet and a sufficient
sum is not realized therefrom, then to satisfy the payment, when due, of Base
Rent and Additional Rent reserved under the Lease for any monthly period (after
payment of all Landlord' s reasonable expenses of reletting), Tenant shall, in
Landlord's sole judgment, either (i) pay any such deficiency monthly or (ii) pay
such deficiency on an accelerated basis, which accelerated deficiency shall be
discounted at a rate of 6% per annum. If Landlord elects to pursue its rights
and remedies under Subsection (b) above, and Landlord fails to relet the
Premises, then Tenant shall pay to Landlord the sum of (x) the projected costs
of Landlord's expenses of reletting (including the anticipated costs of repairs,
alterations, improvements, additions, legal fees and brokerage commissions) as
reasonably estimated by Landlord and (y) the accelerated amount of Base Rent and
Additional Rent due under the Lease for the balance of the Term, discounted to
present value at a rate of 6% per annum. Tenant agrees that Landlord may file
suit to recover any sums due to Landlord hereunder from time to time and that
such suit or recovery of any amount due Landlord hereunder shall not be any
defense to any subsequent action brought for any amount not theretofore reduced
to judgment in favor of Landlord. If Landlord elects to pursue its rights and
remedies under Subsection (b), then Landlord shall at any time have the further
right and remedy to rescind such election and pursue its rights and remedies
under Subsection (a). In the event Landlord elects, pursuant to clause (b) of
this Section 22.2, to terminate Tenant's right of possession -only, without
terminating this Lease, Landlord may, at Landlord' s option, enter into the
Premises, remove Tenant's Property, Tenant's signs and other evidences of
tenancy, and take and hold possession thereof, as provided in Section 20 hereof;
provided, however, that such entry and possession shall not terminate this Lease
or release Tenant, in whole or in part, from Tenant's obligation to pay the Base
Rent and Additional Rent reserved hereunder for the full Term, or from any other
obligation of Tenant under this Lease. Any and all property that may be removed
from the Premises by Landlord pursuant to the authority of the Lease or of law,
to which Tenant is or may be entitled, may be handled, removed or stored by
Landlord at the risk, cost and expense of Tenant, and in no event or
circumstance shall Landlord be responsible for the- value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under Landlord's
control. Any such property of Tenant not retaken from storage by Tenant within
30 days after the end of the Term, however terminated, shall be conclusively
presumed to have been conveyed by Tenant to Landlord under this Lease as in a
xxxx of sale, without further payment or credit by Landlord to Tenant. However,
the foregoing shall not release or absolve Landlord of its obligation to
reasonably mitigate damages.
15
22.3. Additional Rights of Landlord. Any and all costs, expenses and
disbursements, of any kind or nature, incurred by Landlord or Agent in
connection with the enforcement of any and all of the terms and provisions of
this Lease, including attorneys, reasonable fees (through all appellate
proceedings), shall be due and payable (as Additional Rent) upon Landlord's
submission of an invoice therefor. All sums advanced by Landlord or Agent on
account of Tenant under this Section, or pursuant to any other provision of this
Lease, and all Base Rent and Additional Rent, if delinquent or not paid by
Tenant and received by Landlord when due hereunder, shall bear interest at the
rate of 5% per annum above the "prime" or "reference" or "base" rate (on a per
annum basis) of interest publicly announced as such, from time to time, by the
Bank One, from the due date thereof until paid, and such interest shall be and
constitute Additional Rent and be due and payable upon Landlord's or Agent's
submission of an invoice therefor. The various rights, remedies and elections of
Landlord reserved, expressed or contained herein are cumulative and no one of
them shall be deemed to be exclusive of the others or of such other rights,
remedies, options or elections as are now or may hereafter be conferred upon
Landlord by law.
22.4. Event of Bankruptcy. In addition to, and in no way limiting the
other remedies set forth herein, Landlord and Tenant agree that if Tenant ever
becomes the subject of a voluntary or involuntary bankruptcy, reorganization,
composition, or other similar type proceeding under the federal bankruptcy laws,
as now enacted or hereinafter amended, then: (a) "adequate assurance of future
performance" by Tenant and/or any assignee of Tenant pursuant to Bankruptcy Code
Section 365 will include (but not be limited to) payment of an additional/new
security deposit in the amount of three times the then current Base Rent payable
hereunder; (b ) any person or entity to which this Lease is assigned, pursuant
to the provisions of the Bankruptcy Code, shall be deemed, without further act
or deed, to have assumed all of the obligations of Tenant arising under this
Lease on and after the effective date of such assignment, and any such assignee
shall, upon demand by Landlord, execute and deliver to Landlord an instrument
confirming such assumption of liability; ( c) notwithstanding anything in this
Lease to the contrary, all amounts payable by Tenant to or on behalf of Landlord
under this Lease, whether or not expressly denominated as "Rent", shall
constitute "rent" for the purposes of Section 502(b)(6) of the Bankruptcy Code;
and (d) if this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, any and all monies or other considerations
payable of otherwise to be delivered to Landlord or Agent (including Base Rent,
Additional Rent and other amounts hereunder), shall be and remain the exclusive
property of Landlord and shall not constitute property of Tenant or of the
bankruptcy estate of Tenant. Any and all monies or other considerations
constituting Landlord's property under the preceding sentence not paid or
delivered to Landlord or Agent shall be held in trust by Tenant or Tenant's
bankruptcy estate for the benefit of Landlord and shall be promptly paid to or
turned over to Landlord.
23. BROKER. Tenant covenants, warrants and represents that the broker
set forth in Section 1.9(A) was the only broker to represent Tenant in the
negotiation of this Lease ("Tenant's Broker"). Landlord covenants, warrants and
represents that the broker set forth in Section 1.9(B) was the only broker to
represent Landlord in the negotiation of this Lease ("Landlord's Broker").
Landlord shall be solely responsible for paying the commission of Landlord's
Broker and Tenant's Broker. Each party agrees to and hereby does defend,
indemnify and hold the other harmless against and from any brokerage commissions
or finder's fees or claims therefor by a party claiming to have dealt with the
indemnifying party and all costs, expenses and liabilities in connection
therewith, including, without limitation, reasonable, attorneys' fees and
expenses, for any breach of the foregoing. The foregoing indemnification shall
survive the termination of this Lease for any reason.
24. MISCELLANEOUS.
24.1. Merger. All prior understandings and agreements between the
parties are .merged in this Lease, which alone fully and completely expresses
the agreement of the parties.
No agreement shall be effective to modify this Lease, in whole or in part,
unless such agreement is in Writing, and is signed by the party against whom
enforcement of said change or modification is sought.
24.2. Notices. Any notice required to be given by either party pursuant
to this Lease, shall be in Writing and shall be deemed to have been properly
given, rendered or made only if personally delivered, or if sent
16
by Federal Express or other comparable commercial overnight delivery service,
addressed to the other party at the addresses set forth below ( or to such other
address as Landlord or Tenant may designate to each other from time to time by
Written notice), and shall be deemed to have been given, rendered or made on the
day so delivered or on the first business day after having been deposited with
the courier service:
If to Landlord: First Industrial, L.P .
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Senior Vice President
-Portfolio Management
With a copy to: First Industrial Realty Trust, Inc.
0000 X. Xxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000,
Attn: Regional Director
With a copy to: Barack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx
000 Xxxx Xxxxxx Xxxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxx-Xxxxx
If to Tenant: Natural Golf, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx Xxxxx
24.3. Non-Waiver. The failure of either party to insist, in anyone or
more instances, upon the strict performance of anyone or more of the obligations
of this Lease, or to exercise any election herein contained, shall not be
construed as a waiver or relinquishment for the future of the performance of
such one or more obligations of this Lease or of the right to exercise such
election, but the Lease shall continue and remain in full force and effect with
respect to any subsequent breach, act or omission. The receipt and acceptance by
Landlord or Agent of Base Rent or Additional Rent with knowledge of breach by
Tenant of any obligation of this Lease shall not be deemed a waiver of such
breach.
24.4. Legal Costs. Any party in breach or default under this Lease (the
"Defaulting Party") shall reimburse the other party (the "Nondefaulting Party")
upon demand for any reasonable legal fees and court (or other administrative
proceeding) costs or expenses that the Nondefaulting party incurs in connection
with the breach or default, regardless whether suit is commenced or judgment
entered. Such costs shall include legal fees and costs incurred for the
negotiation of a settlement, enforcement of rights or otherwise. Furthermore, in
the event of litigation, the court in such action shall award to the party in
whose favor a judgment is entered a reasonable sum as attorneys' fees and costs,
which sum shall be paid by the losing party. Tenant shall pay Landlord's
attorneys' reasonable fees incurred in connection with Tenant's request for
Landlord's consent under provisions of this Lease governing assignment and
subletting, or in connection with any other act which Tenant proposes to do and
which requires Landlord's consent.
24.5. Parties Bound. Except as otherwise expressly provided for in this
Lease, this Lease shall be binding upon, and inure to the benefit of, the
successors and assignees of the parties hereto. Tenant hereby releases Landlord
named herein from any obligations of Landlord for any period subsequent to the
conveyance and transfer of Landlord's ownership interest in the Property. In the
event of such conveyance and transfer, Landlord's obligations shall thereafter
be binding upon each transferee (whether Successor Landlord or otherwise). No
obligation of Landlord shall arise under this Lease until the instrument is
signed by, and delivered to, both Landlord and Tenant.
24.6. Recordation of Lease. Tenant shall not record or file this Lease
(or any memorandum hereof) in the public records of any county or state.
24.7. Survival of Obligations. Upon the expiration or other termination
of this Lease, neither party shall have any further obligation nor liability to
the other except as otherwise expressly provided in this Lease and except for
such obligations as; by their nature or under the circumstances, can only be, or
by the provisions of this Lease, may be performed after such expiration or other
termination.
17
24.8 Governing Law; Construction. This lease shall be governed by and
construed in accordance with the laws of the state in which the Property is
located. If any provision of this Lease shall be invalid or unenforceable, the
remainder of this Lease shall not be affected but shall be enforced to the
extent permitted by law. The captions, headings and titles in this Lease are
solely for convenience of reference and shall not affect its interpretation.
This Lease shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Lease to be drafted. Each
covenant, agreement, obligation, or other provision of this Lease to be
performed by Tenant, shall be construed as a separate and independent covenant
of Tenant, not dependent on any other provision of this Lease. All terms and
words used in this Lease, regardless of the number or gender in which they are
used, shall be deemed to include any other number and any other gender as the
context may require. This Lease may be executed in counterpart and, when all
counterpart documents are executed, the counterparts shall constitute a single
binding instrument.
24.9. Time. Time is of the essence of this Lease. If the time for
performance hereunder falls on a Saturday, Sunday or a day that is recognized as
a holiday in the state in which the Property is located, then such time shall be
deemed extended to the next day that is not a Saturday, Sunday or holiday in
said state.
24.10. Authority of Tenant. If Tenant is a corporation, partnership,
limited liability company, association or any other entity, it shall deliver to
Landlord, concurrently with the delivery to Landlord of an executed Lease,
certified resolutions of Tenant's directors or other governing person 0! body
(i) authorizing execution and delivery of this Lease and the performance by
Tenant of its obligations hereunder and (ii) certifying the authority of the
party executing the Lease as having been duly authorized to do so.
24.11. WAIVER OF TRIAL BY JURY. THE LANDLORD AND THE TENANT, TO THE
FULLEST EXTENT THAT THEY MAY LAWFULLY DO SO, HEREBY WAIVE TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BROUGHT BY ANY PARTY TO THIS LEASE WITH RESPECT TO THIS
LEASE, THE PREMISES, OR ANY OTHER MATTER RELATED TO THIS LEASE OR THE PREMISES.
24.12. Tenant Improvement Allowance. Landlord hereby agrees to pay to
Tenant a tenant improvement allowance of $55,000.00 (the "Tenant Improvement
Allowance"), for the construction and installation of certain tenant
improvements to the Premises (the "Tenant Improvements") on and subject to the
terms and conditions set forth on Exhibit D attached hereto .
24.13. Financial Information. From time to time during the Term,.
Tenant shall deliver to Landlord information and documentation describing and
concerning Tenant's financial condition, and in form and substance reasonably
acceptable to Landlord, within ten (10) days following Landlord' s written
request therefor.
24.14. Confidential Information. Tenant agrees to maintain in strict
confidence the economic terms of this Lease and any or all other materials, data
and information delivered to or received by any or all of Tenant and Tenants'
Parties either prior to or during the Term in connection with the negotiation
and execution hereof. The provisions of this Section 24.14 shall survive the
termination of this Lease.
24.15. Submission of Lease. Submission of this Lease to Tenant for
signature does not constitute a reservation of space or an option to lease. This
Lease is not effective until execution by and delivery to both Landlord and
Tenant.
24.16. Joint and Several Liability. All parties signing this Lease as
Tenant shall be jointly and severally liable for all obligations of Tenant
hereunder.
24.17. Riders. All Riders and Exhibits attached hereto and executed (or
initialed) both by Landlord and Tenant shall be deemed to be a part hereof and
hereby incorporated herein.
[Signature Page to Follow]
18
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the day and year first above written.
LANDLORD:
FIRST INDUSTRIAL, L.P ., a Delaware limited partnership
/s/ Xxxx Xxxxxxx
--------------------------------
By: First Industrial Realty Trust, Inc., a
Maryland corporation, its general partner
NATURAL GOLF, INC., an Illinois Corporation
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
Its: President and CEO
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EXHIBIT A
Property
ATTACH APPROPRIATE LEGAL DESCRIPTION
85021-2 A-l
Lot 407 in Kensington Center Resubdivision ,Twenty Four being a resubdivision of
Lots 401 and 402 in Kensington
Center-Resubdivision, Fourteen-and Lot 403 in 'Kensington Center-Phase. Four in
part of the Northeast Quarter of Section 35, Township" 42 North, Range 11, East
of the Third Principal' Meridian, according to plat ~hereof recorded March 30,
1989 as document number T3782920, in Xxxx County, Illinois.
Pin # 03-35-201-012-0000
20
EXHIBIT B
Landlord's Repairs And Improvements II
Landlord shall place all building Systems in good working order.
21
EXHIBIT C
Broom Clean Condition and Repair Requirements
All walls must be clean and free of holes. Overhead door must be free of any
broken panels, cracked lumber or dented panels. The overhead door springs,
rollers, tracks, motorized door operator, and all other items pertaining to the
overhead door must also be in good working condition. HV AC system must be in
good working order, subject to ordinary wear and tear. Filters must be changed,
and all thermostats must be in working order. Tenant must supply Landlord with
maintenance records. All floors (warehouse and office) must be clean and free of
excessive dust, dirt, grease, and oil. Drop grid ceiling must be free of
excessive dust from lack of changing filters. (No ceiling tiles may be missing
or damaged. ) All trash must be removed from both inside and outside of the
Building. .All light bulbs and ballasts must be working. .All signs in front of
Building and on glass entry door and rear door must be removed. .Hot water
heater must work. .All plumbing fixtures, equipment and drains must be clean and
in working order. Windows must be clean. All mechanical and electrical systems
must be in good working condition.
22
EXHIBIT D
Tenant Improvements
This Exhibit D sets forth the rights and obligations of Landlord and Tenant with
respect to the construction of the Tenant Improvements. Capitalized terms used
herein, unless otherwise defined in this Exhibit D, shall have the respective
meanings ascribed to them in the Amendment. Notwithstanding anything to the
contrary contained herein, in the event that the Tenant Improvements consist
only of painting and re carpeting the Premises, the provisions of Paragraphs 2,
3 and 4 of this Exhibit D shall not apply.
1. Tenant Improvements. I Tenant shall engage a duly licensed and
reputable contractor (the "Contractor") to construct and install the Tenant
Improvements in the Premises provided for in the Approved Plans (defined below).
Subject to Tenant's satisfaction of the conditions specified in this Exhibit D,
Tenant shall be entitled to the Tenant Improvement Allowance.
2. Pre-Construction Activities.
(a) On or before Tenant commences any work in the Premises,
Tenant shall submit the following information and items to Landlord for
Landlord's review and approval:
(i) Certified copies of insurance policies or
certificates of insurance as hereinafter described. Tenant
shall not permit the Contractor or any of Tenant's Contractors
to commence work until the required insurance has been
obtained and certified copies of policies of insurance or
certificates thereof have been delivered to Landlord. I
(ii) The Plans (defined below) for the Tenant
Improvements, which Plans shall be subject to Landlord's
approval in accordance with Paragraph 2(b) below.
(iii) All necessary building permits have been
applied for and obtained by Tenant.
(iv) Proper provision has been made by Tenant for
payment in full of the total cost of the Tenant Improvements,
which is satisfactory to Landlord.
Tenant will update such information and items by written notice to Landlord of
any changes.
(b) As used herein the term "Approved Plans" shall mean the
Plans (defined below), as and when approved in writing by Landlord. As
used herein, the term "Plans" shall mean the full and detailed
architectural and engineering plans and specifications covering the
Tenant Improvements (including, without limitation, architectural,
mechanical and electrical working drawings for the Tenant
Improvements). The Plans shall be subject to Landlord's approval and
the approval of all loc governmental authorities requiring approval of
the Tenant Improvements and the Approved Plans. Landlord agrees not to
unreasonably withhold its approval of said Plans. If Landlord notifies
Tenant that changes are required to the final Plans submitted by
Tenant, Tenant should submit to Landlord, for its approval, the Plans
amended in accordance with the change so required. The Plans shall also
be revised, and the Tenant Improvements shall be changed, all at
Tenant's cost and expense, to incorporate any work required in the
Premises by any local governmental field inspector. Landlord's approval
of the Plans shall in no way be deemed to be (x) an acceptance or
approval of any element therein contained which is in violation of any
applicable laws, ordinances, regulations or other governmental
requirements, or (y) an assurance that work done pursuant to the
Approved Plans will comply with all applicable law (or with the
interpretations thereof) or satisfy Tenant's objectives and needs.
3. Change Orders. All changes to the Approved Plans requested by Tenant
must be approved by Landlord in advance of the implementation of such changes as
part of the Tenant Improvements.
23
4. Standards Of Design and Construction and Conditions of Tenant's
Performance. All Tenant Improvements done or upon the Premises by Tenant shall
be done according to the standards set forth in s Exhibit D, except as the same
may be modified in the Approved Plans.
(a) Tenant's Approved Plans and all design and construction of
the Tenant Improvements shall comply with all legal requirements and
industry standards, including, but not limited to, requirements of
Landlord's fire insurance underwriters.
(b) Tenant shall use only new, first-class materials in the
Tenant Improvements, except where explicitly shown in the Approved
Plans. All Tenant Improvements shall be constructed and installed in a
good and workmanlike manner.
(c) Tenant shall permit Landlord to have access to the
Premises, and the Tenant Improvements shall be subject to inspection by
landlord and Landlord's architects, engineers, contractors and other
representatives, at all times during the period in which the Tenant
Improvements is being constructed and installed and following
completion of the Tenant Improvements. Tenant shall impose on and
enforce all applicable terms of this Exhibit D against Tenant's
architect and the Contractor .
5. Insurance and Indemnification.
(a) In addition to any insurance which may be required under
the Lease, Tenant shall secure, pay for and maintain or cause the
Contractor and all subcontractors and materialmen (collectively,
"Tenant's Contractors") to secure, pay for and maintain during the
continuance of construction and fixturing work within the Premises,
insurance in the following minimum coverages and the following minimum
limits of liability:
(i) Worker's Compensation and Employer's Liability
Insurance with limits of not less than $500,000.00, or such
higher amounts as may be required from time to time by any
Employee Benefits Act or other statutes applicable where the
work is to be performed, and in any event sufficient to
protect Tenant's Contractors from liability under the
aforementioned acts.
(ii) Comprehensive General Liability Insurance
(including Contractor's Protective Liability) in commercially
reasonable amounts given the scope of the work to be performed
by each of Tenant's Contractors. Such insurance shall provide
for explosion and collapse, completed operations coverage and
broad form blanket contractual liability coverage and shall
insure Tenant's Contractors against any and all claims for
bodily injury, including death resulting therefrom, and damage
to the property of others and arising from its operations
under the contracts whether such operations are performed by
Tenant's Contractors or by anyone directly or indirectly
employed by any of them.
(iii) Comprehensive Automobile Liability Insurance,
including the ownership, maintenance and operation of any
automotive equipment, owned, hired, or non-owned in an amount
not less than $500,000.00 for each person in one accident, and
$1,000,000.00 for injuries sustained by two or more persons in
anyone accident and property damage liability in an amount not
less than $1,000,000.00 for each accident. Such insurance
shall insure Tenant's Contractors against any and all claims
for bodily injury, including death resulting, therefrom, and
damage to the property of others arising from its operations
under the contracts, whether such operations are performed by
Tenant' s Contractors, or anyone directly or indirectly
employed by any of them. (IV) " All-risk" builder's risk
insurance covering the Tenant Improvements to the full
insurable value thereof. This insurance shall include the
interests of Landlord and Tenant (and their respective
contractors and subcontractors to the extent of any insurable
interest therein) in the Tenant Improvements and shall insure
against the perils of fire and extended coverage and shall
include "all-risk" builder's risk insurance for physical loss
or damage including, without duplication of coverage, theft
vandalism and malicious mischief. -Any loss insured under said
"all-risk" builder's risk insurance is to be adjusted with
Landlord and tenant and made payable to Landlord, as trustee
for the insureds, as their interests may appear. All policies
(except the worker's compensation policy) shall be endorsed to
include Landlord as an additional insured. The waiver of
subrogation provisions contained in the Lease shall apply to
all insurance policies (except the workmen's compensation
policy) to be obtained by Tenant pursuant to this paragraph.
The insurance policy endorsements shall also provide that all
additional insured parties shall be given thirty (30) days'
prior written notice of any reduction, cancellation or
non-renewal of coverage (except that ten (10) days' notice
shall be sufficient in the case of cancellation for
non-payment of premium) and shall provide that the insurance
coverage afforded to the additional insured parties thereunder
shall be primary to any insurance carried independently by
said additional insured parties. Additionally, where
applicable each policy shall contain a cross-liability and
severability of interest clause.
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(b) Without limiting of the indemnification provisions in the Lease, to
the fullest extent permitted by law, Tenant agrees to indemnify , protect,
defend and hold harmless Landlord, the parties listed, or required by, the Lease
to be named as additional insureds, and their respective beneficiaries,
partners, directors, officers, employees and agents, from and against all
claims, liabilities, losses, damages and expenses of whatever nature arising out
of or in connection with the Tenant Improvements or the entry of Tenant or
Tenant's Contractors into the Building and the Premises, including, without
limitation, mechanic's liens, the cost of any repairs to the Premises or
Building necessitated by activities of Tenant or Tenant's Contractors, bodily
injury to persons or damage to the property of Tenant, its employees, agents,
invitees. licensees or others. It is understood and agreed that the foregoing
indemnity shall be in addition to the insurance requirements set forth above and
shall not be in discharge of or in substitution for same or any other indemnity
or insurance provision of the Lease.
6. Tenant Improvement Allowance
(a) Landlord shall make the Tenant Improvement Allowance available to
Tenant as set forth in this Paragraph 6 for application to the cost of the
Tenant Improvements. The Tenant Improvement Allowance shall be paid by Landlord
from time to time as the construction and installment of the Tenant Improvements
progresses (but not more frequently than monthly) directly to the Contractor.
(b) Tenant shall cause the Contractor and Tenant's Contractors to
provide such contractor's affidavits, tenant statements, partial and final
waivers of lien, architect's certificates and any additional documentation
(including, without limitation, Contractor's or Tenant's Contractor's personal
undertakings) Which may be requested by Landlord. Upon completion of the Tenant
Improvements, 1 Tenant shall furnish Landlord with full and final waivers of
liens and contractor's affidavits and statements, in such form as may be
required by Landlord, Landlord's title insurance company and Landlord's
construction or permanent lender, if any, from all parties performing labor or
supplying materials or services in connection with the Tenant Improvements
showing that all of said parties have been compensated in full and waiving all
liens in connection with the Premises and Building. Tenant shall submit to
Landlord a detailed breakdown of Tenant's total construction costs, together
with such evidence of payment as is reasonably satisfactory to Landlord.
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