EXHIBIT 10.4
LEASE
STAG II AURORA, LLC
AS LANDLORD,
AND
DAYTON SUPERIOR CORPORATION
AS TENANT
TABLE OF CONTENTS
Article Page
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I Basic Terms.................................................... 1
II Lease of Premises.............................................. 3
III Initial Construction of Premises............................... 5
IV Annual Fixed Rent.............................................. 5
V Additional Rent................................................ 5
VI Maintenance, Use, and Alterations of the Premises.............. 8
VII Insurance and Indemnification.................................. 14
VIII Assignment and Subletting...................................... 15
IX Default and Remedies........................................... 17
X Casualty and Condemnation...................................... 21
XI Landlord's Financing........................................... 21
XII Miscellaneous.................................................. 23
XIII Special Provisions ............................................ 26
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ARTICLE I: BASIC TERMS
1.1 Reference Subjects. The following terms used in this Lease shall have
the meanings set forth below.
Date of Lease: October __, 2005
Landlord: STAG II Aurora, LLC, a Delaware limited liability
company
Tenant: Dayton Superior Corporation, an Ohio corporation
Property: The land known and numbered as 000 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxx, more particularly described on
Exhibit A.
Premises: The entire building or buildings at the Property
(the "Building"), containing approximately 103,683
rentable square feet, and all other improvements on
or above the surface of the Property.
Tenant's Percentage Share: 100%
Term Commencement Date: The date of this Lease.
Rent Commencement Date: The date of this Lease.
Term Expiration Date: The last day of the eleventh (11th) Lease Year. The
first Lease Year of the Term shall commence on the
Term Commencement Date and end on the last day of
the month in which the first (1st) anniversary of
the Rent Commencement Date shall occur (unless the
Rent Commencement Date shall occur on the first day
of a month, in which case the first Lease Year
shall end on the day before the first (1st)
anniversary of the Rent Commencement Date).
Subsequent Lease Years shall commence on the day
after the last day of the first Lease Year or an
anniversary thereof, and shall end on an
anniversary of the last day of the first Lease
Year.
Permitted Uses: Manufacturing, warehouse and distribution uses,
together with office uses ancillary to such uses.
Security Deposit: $140,650.
Tenant's Guarantor: None.
Annual Fixed Rent: See Exhibit B.
Additional Rent: See Article V.
Broker(s) None.
Exhibits Schedule 9.10 Letter of Credit Requirements
A: Property
B: Annual Fixed Rent
C: Rules and Regulations
D. Insurance, Casualty, and Condemnation
Provisions
E. Subordination, Non-Disturbance and
Attornment Agreement
ARTICLE II: LEASE OF PREMISES
2.1 Premises. Landlord hereby leases the Premises to Tenant and Tenant
hereby leases the Premises from Landlord for the Term, subject to and with the
benefit of the terms, covenants and conditions of this Lease, and of rights,
agreements, easements and restrictions of record applicable to the Property, all
of which Tenant shall perform and observe insofar as the same are applicable to
the Premises. As appurtenant to the Premises, Tenant shall have the right to the
exclusive use of the roof for telecommunications equipment and all portions of
the Property at and above grade level, but Tenant shall not have any right of
access, control over or other ability to use any portion of the Property below
grade level.
2.2 Term.
(a) The term of this Lease (the "Term") shall begin on the Term
Commencement Date and shall end on the Term Expiration Date, subject to
extension as set forth below.
(b) Tenant shall have the right to extend the Term for two periods of five
(5) years, on the terms and conditions set forth below. To exercise the
extension option, Tenant shall notify Landlord in writing at least twelve (12)
months prior to the then scheduled expiration of the Term. Failure to timely
deliver such notice shall be deemed an irrevocable election by Tenant not to
extend the Term, and Tenant shall have no further right to extend the Term. If
Tenant timely delivers such notice, then all of the terms and conditions of the
Lease in effect immediately prior to such extension shall apply during the
extension period, except that Tenant shall have no right to extend the Term
beyond the end of the second extension period and the Annual Fixed Rent during
such extension period shall be the Fair Market Rent therefor, determined as
provided below, but not less than the Annual Fixed Rent applicable to the
Premises immediately before such extension. If Tenant shall exercise the
extension option in accordance with this Section, the provisions of this Section
shall be self-operative, but upon request by either party after determination of
the Annual Fixed Rent for the extension period the parties shall execute an
agreement specifying the Annual Fixed Rent for the extension period and
acknowledging the extension of the Term.
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Notwithstanding the foregoing, Tenant's exercise of any option to extend the
Term shall be void, at Landlord's election, if either at the time the option is
exercised or at the time the extension period is to commence, (i) Tenant is in
default under the Lease, or (ii) there exists a sublease or subleases of more
than 25% of the square footage of the Building in the aggregate, or (iii) the
originally named Tenant hereunder has assigned or transferred its interest in
this Lease (except for an assignment or transfer that does not require
Landlord's consent under the terms of this Lease).
(c) As used herein, the "Fair Market Rent" shall mean the annual fair
market rent for the Premises, ascertained for a term coterminous with the time
period for which the Fair Market Rent is to be effective, under the terms of
this Lease, determined as though the Premises were in the condition then
existing or in such better condition as such space is required to be maintained
hereunder. Not later than ten (10) months prior to the commencement of the
extension period, Landlord shall notify Tenant in writing of Landlord's
determination of the Fair Market Rent. Within thirty (30) days after receipt of
such notice, Tenant shall notify Landlord whether Tenant accepts or disputes
Landlord's determination of Fair Market Rent, which notice of dispute shall
include Tenant's determination of the Fair Market Rent (the failure to timely
dispute being deemed Tenant's acceptance of Landlord's determination).
(d) If Tenant so disputes Landlord's determination, such dispute shall be
resolved in accordance with the following procedure. Within thirty (30) days
after receipt of Tenant's notice disputing Landlord's determination, Landlord
and Tenant shall mutually appoint as an arbitrator a licensed real estate broker
with at least ten years experience as a broker of comparable properties in the
area or if they cannot agree upon such arbitrator, either party may apply to the
office of the American Arbitration Association ("AAA") for appointment of such
an arbitrator. The arbitrator shall be charged to determine the Fair Market Rent
in accordance with this Section, within sixty (60) days after the arbitrator is
appointed, by selecting either of the final estimates of the Fair Market Rent
provided by Landlord and Tenant at the commencement of the hearing. The
arbitrator shall have no authority or jurisdiction to make any other
determination of such amount. The arbitration shall be conducted in accordance
with the commercial arbitration rules of the AAA insofar as such rules are not
inconsistent with the provisions of this Lease (in which case the provisions of
this Lease shall govern). The cost of the arbitrator shall be borne equally by
the parties. If the AAA shall cease to provide arbitration for commercial
disputes in Chicago, Illinois, the arbitrator shall be appointed by any
successor organization providing substantially the same services, and in the
absence of such an organization, by a court of competent jurisdiction under the
arbitration act of the State of Illinois. For any extension period during which
the applicable Fair Market Rent is in dispute hereunder, Tenant shall make
payment on account of Annual Fixed Rent at the rate set forth in Landlord's
notice above, and the parties shall adjust for over or under-payments within
thirty days after the decision of the arbitrator is announced.
ARTICLE III: DELIVERY OF PREMISES
3.1 Delivery of Premises. The Premises are demised and leased subject to
the existing state of the title as of the Term Commencement Date.
3.2 Existing Conditions. Tenant acknowledges that Tenant or its affiliates
owned and occupied the Premises prior to the Term Commencement Date and that it
has inspected the Premises and accepts the same in the condition they are in on
the Term Commencement Date, it
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being expressly agreed that neither Landlord nor any person acting under
Landlord has made or implied any representations or warranties concerning this
Lease, the Premises, or their condition or suitability for Tenant's use. To the
extent permitted by applicable law, Tenant waives any right or remedy otherwise
accruing to Tenant on account of the condition or suitability of the Premises,
or title to the Premises, and Tenant agrees that it takes the Premises "as-is,"
with all faults and without any such representation or warranty, including any
implied warranties.
ARTICLE IV: RENT
4.1 Annual Fixed Rent. Commencing on the Rent Commencement Date and on the
first day of each subsequent calendar month during the Term, Tenant shall pay to
Landlord the Annual Fixed Rent set forth in on Exhibit B hereto in lawful money
of the United States, in advance and without offset, deduction, or prior demand.
The Annual Fixed Rent shall be payable at Landlord's Address or at such other
place or to such other person as Landlord may designate in writing from time to
time.
ARTICLE V: ADDITIONAL RENT
5.1 Additional Rent. All sums payable by Tenant under this Lease other than
Annual Fixed Rent shall be deemed "Additional Rent." The term "rent" shall mean
Annual Fixed Rent and Additional Rent. Unless this Lease provides otherwise,
Tenant shall pay all Additional Rent then due with the next monthly installment
of Annual Fixed Rent.
5.2 Real Estate Taxes. Tenant covenants and agrees to pay when due,
directly to the relevant taxing authority, as Additional Rent, all Taxes.
"Taxes" shall mean all taxes, assessments, betterments, excises, user fees
and all other governmental charges and fees of any kind or nature, or
impositions or agreed payments in lieu thereof or voluntary payments made in
connection with the provision of governmental services or improvements of
benefit to the Building or the Property (including any so-called linkage, impact
or voluntary betterment payments), and all penalties and interest thereon (if
due to Tenant's failure to make timely payments on account of Taxes), assessed
or imposed against the Premises or the property of which the Premises are a part
(including without limitation any personal property taxes levied on such
property or on fixtures or equipment used in connection therewith), or upon
Landlord by virtue of its ownership thereof, other than a federal or state
income tax of general application, during the Term of the Lease. If during the
Term the present system of ad valorem taxation of property shall be changed so
that, in lieu of or in addition to the whole or any part of such ad valorem tax,
there shall be assessed, levied or imposed on such property or Premises or on
Landlord any kind or nature of federal, state, county, municipal or other
governmental capital levy, income, sales, franchise, excise or similar tax,
assessment, levy, charge or fee (as distinct from the federal and state income
tax in effect on the Term Commencement Date) measured by or based in whole or in
part upon Building valuation, mortgage valuation, rents or any other incidents,
benefits or measures of real property or real property operations and imposed on
owners of real estate generally, then any and all of such taxes, assessments,
levies, charges and fees shall be included within the term Taxes, but only to
the extent the same are applicable to the Premises.
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Tenant may seek a reduction in the assessed valuation (for tax purposes) of
the Property provided the same is done by and at Tenant's sole cost and expense
and after written notice to Landlord, and Landlord agrees that it shall
cooperate in good faith with Tenant's reasonable requests in connection with any
such proceeding. Tenant may defer payment of any contested Taxes; provided that
Tenant's deferral is in compliance with applicable law permitting such deferral.
Tenant shall be entitled to all refunds associated with Tenant's successful
prosecution of any such proceeding. If required by applicable law, Landlord
shall join in any proceeding referred to in this paragraph; provided, however,
Tenant shall indemnify and save Landlord harmless from any costs and expenses
associated with such proceedings.
If Landlord shall receive a refund of any Taxes paid by Tenant, Landlord
shall reimburse Tenant the amount of said refund after deducting therefrom the
actual reasonable out of pocket costs and expenses incurred in connection
therewith.
5.3 INTENTIONALLY OMITTED.
5.4 Utilities. Tenant shall pay all charges and deposits for gas, water,
sewer, electricity, telecommunications, and other energy, utilities and services
used or consumed on the Premises during the Term. It is understood and agreed
that Landlord (i) shall be under no obligation whatsoever to furnish any such
services to the Premises and (ii) shall not be liable for (nor suffer any
reduction in any rent on account of) any interruption or failure in the supply
of the same.
5.5 Personal Property Taxes. Tenant shall pay when due, directly to the
relevant taxing authority, all taxes charged against trade fixtures,
furnishings, equipment, inventory, or any other personal property belonging to
Tenant. Tenant shall use its best efforts to have its personal property taxed
separately from the Premises. If any of Tenant's personal property shall be
taxed with the Premises, Tenant shall pay Landlord the taxes for such personal
property within thirty days after Tenant receives a written statement from
Landlord for such personal property taxes.
5.6 Method of Payment. Tenant agrees to pay the Annual Base Rent to
Landlord in advance in equal monthly installments by the first day of each
calendar month during the Term. Tenant shall make a ratable payment of Annual
Base Rent and Additional Rent (to the extent applicable) for any period of less
than a month at the beginning or end of the Term. All payments of Annual Base
Rent, and all payments of Additional Rent and other sums due and payable to
Landlord, shall be paid in current U.S. exchange by check drawn on a
Clearinghouse Bank at the address of Landlord set forth in Section 12.1 or such
other place as Landlord may from time to time direct (or if requested by
Landlord, by electronic fund transfer), without demand, set-off or other
deduction.
5.7 Net Lease. This Lease is an absolutely triple net lease to Landlord. It
is the intent of the parties hereto that the Annual Fixed Rent payable under
this Lease shall be an absolutely net return to Landlord and that Tenant shall
pay all costs and expenses relating to the Premises except as otherwise
expressly set forth in this Lease. Without limiting the generality of the
preceding sentence, Tenant shall at its sole cost and expense (which expense
shall be deemed Additional Rent hereunder) be responsible for payment of all
Taxes, all electricity, telecommunication service, gas, water, sewer, telephone,
refuse disposal, and other charges for utilities and services
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supplied to the Premises, insurance costs, amounts due under any Title Document
(defined below) and all costs of cleaning, maintaining and repairing the
Premises in accordance with the terms of this Lease. Any amount or obligation
herein relating to the Premises that is not expressly declared to be that of
Landlord shall be deemed to be an obligation of Tenant to be performed by Tenant
at Tenant's expense and Tenant shall indemnify Landlord against, and hold
Landlord harmless from, the same, and Tenant's liability for the payment of any
of the same which shall become payable during the Term is hereby expressly
provided to survive the Term. Annual Fixed Rent, Additional Rent, and all other
sums payable hereunder by Tenant, shall be paid without notice or demand, and
without set off, counterclaim, recoupment, abatement, suspension, deduction, or
defense (other than payment) whatsoever, so that this Lease shall yield net to
Landlord the Annual Fixed Rent under all circumstances and conditions whether
now or hereinafter existing and whether or not within the contemplation of the
parties. Except as otherwise expressly set forth in this Lease with respect to
certain events of casualty or condemnation, Tenant shall in no event have any
right to terminate this Lease. It is the intention of the parties hereto that
the obligations of Tenant hereunder shall be separate and independent covenants
and agreements, that the Annual Fixed Rent, the Additional Rent, and all other
sums payable by Tenant hereunder shall continue to be payable in all events, and
that the obligations of Tenant hereunder shall continue unaffected, unless the
requirement to pay or perform the same shall have been terminated pursuant to an
express provision of this Lease. As used herein, the term "Title Documents"
means any and all easements, covenants, conditions, and restrictions, industrial
park association agreements, and other agreements, encumbrances, and
restrictions of record affecting all or part of the Premises, as the same may
now exist, or as the same may hereafter be created or amended without materially
expanding the obligations of Tenant without Tenant's approval (which approval
shall not be unreasonably withheld), but excluding any mortgage.
5.7 True Lease. Landlord and Tenant agree that the parties intend this
Lease to constitute a lease and not a financing arrangement. Each party shall
reflect the transaction represented hereby in all applicable books, records and
reports (including income tax filings) in a manner consistent with "true lease"
treatment rather than "financing" treatment, subject to future modifications of
accounting or tax rules or guidelines and subject to contrary determinations or
positions by governmental agencies or the like.
ARTICLE VI: MAINTENANCE, USE, AND ALTERATIONS OF PREMISES
6.1 Landlord's Structural Repair Obligations. Except as set forth in
Exhibit D, Section II and Exhibit D, Section V attached hereto, Landlord shall
have no obligation to repair or maintain the Building or Premises. Tenant hereby
waives the benefit of any present or future law that provides Tenant the right
to repair the Premises or Building at Landlord's expense or to terminate this
Lease because of the condition of the Building or the Premises. Notwithstanding
anything to the contrary in this paragraph, Tenant shall be solely responsible
for the cost of (a) any repair or capital replacement arising from an
overburdening of any building system or component or any other act or omission
of Tenant, its employees, agents, contractors, or invitees or from a failure by
Tenant to perform its maintenance and repair obligations under this Lease, and
(b) any alterations, additions, improvements, repairs, or replacements that are
performed by or on behalf of Tenant.
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6.2 Tenant's Repair and Maintenance Obligations. Except as set forth in
Exhibit D Section II and Exhibit D, Section V attached hereto, Tenant shall
clean, maintain, repair and secure the Premises, all improvements and
appurtenances thereto, all access areas thereof, and all utilities, facilities,
installations and equipment used in connection therewith, and shall pay all
costs and expenses of so doing, keeping the Premises in good order, repair and
condition, reasonable wear and tear, and damage by casualty and taking (to the
extent provided in Article X only) excepted. Without limiting the generality of
the foregoing, Tenant shall keep the foundation of the Building, all exterior
walls, structural walls, the roof of the Building, all interior walls, floor
surfaces and coverings, glass, windows, doors, and partitions, all fixtures and
equipment, all interior utilities, pipes and drains and other above-ground level
installations used in connection with the Premises in such good order, repair
and condition, shall provide all cleaning, painting and floor covering to the
Premises, and shall remove all refuse from and provide its own janitorial
services for the Premises. Tenant shall keep in good order, condition and repair
all building systems (including the heating, ventilation, air conditioning,
plumbing, electrical, utility, and safety systems). Tenant's maintenance
obligations shall also include, without limitation, gardening and landscaping;
snow removal; maintenance of signs; rental or lease payments paid by Tenant for
rented or leased personal property used in the operation or maintenance of the
Premises; fees for required licenses and permits required by Tenant; sweeping
and striping of pavement; general maintenance; painting; lighting; and similar
items. If any portion of the Premises or any system or equipment in the Premises
that Tenant shall be obligated to repair cannot be fully repaired or restored,
Tenant shall promptly replace such portion of the Premises or system or
equipment.
6.3 Use and Compliance with Law. Tenant shall use the Premises only for the
Permitted Uses and only as permitted under federal, state, and local laws,
regulations and orders applicable from time to time, including without
limitation municipal by-laws, land use and zoning laws, environmental laws and
regulations (including all laws and regulations regulating the production, use,
and disposal of any pollutant or toxic or hazardous material), and occupational
health and safety laws. Tenant shall procure all approvals, licenses and permits
necessary therefor, in each case giving Landlord true and complete copies of the
same and all applications therefor. Except as set forth in Section 6.1, Tenant
shall promptly comply with all present and future laws applicable to Tenant's
use of the Premises or Tenant's signs thereon, foreseen or unforeseen, and
whether or not the same necessitate structural or other extraordinary changes or
improvements to the Premises or interfere with its use and enjoyment of the
Premises, and shall keep the Premises equipped with adequate safety appliances
and comply with all requirements reasonable in light of the use Tenant is making
of the Premises of insurance inspection or rating bureaus having jurisdiction.
If Tenant's use of the Premises results in any increase in the premium for any
insurance carried by Landlord, then upon Landlord's notice to Tenant of such
increase Tenant shall pay the same to Landlord upon demand as Additional Rent.
Tenant shall, in any event, indemnify and save Landlord harmless from all loss,
claim, damage, cost or expense (including reasonable attorneys' fees of counsel
of Landlord's choice against whom Tenant makes no reasonable objection) on
account of Tenant's failure so to comply with the obligations of this Section
(paying the same to Landlord upon demand as Additional Rent). Except as set
forth in Section 6.1, Tenant shall bear the sole risk of all present or future
laws affecting the Premises or appurtenances thereto, and Landlord shall not be
liable for (nor suffer any reduction in any rent on account of) any
interruption, impairment or prohibition affecting the Premises or Tenant's use
thereof resulting from the enforcement of laws. Tenant shall comply with the
rules and regulations for the Premises set forth on Exhibit C hereto, as the
same may be reasonably amended from time to time by
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Landlord (in accordance with standards applicable to comparable properties) for
the operation, care and use of the Property and appurtenant improvements and
areas in which Tenant is granted rights of use by the terms of this Lease.
6.4 Nuisance; Hazardous Materials. Tenant shall not, either with or without
negligence, injure, overload, deface, damage or otherwise harm Landlord's
property, the Premises or any part or component thereof; commit any nuisance;
permit the emission of any hazardous materials or substances; allow the release
or other escape of any biologically or chemically active or other hazardous
substances or materials so as to impregnate, impair or in any manner affect,
even temporarily, any element or part of Landlord's property or the Premises, or
allow the storage or use of such substances or materials in any manner not
sanctioned by law or by commercially reasonable and customary standards
prevailing in the industry for the storage and use of such substances or
materials; nor shall Tenant bring onto the Premises any such materials or
substances except to use in the ordinary course of Tenant's business, and then
only in strict compliance with applicable law; permit the occurrence of
objectionable noise or odors; or make, allow or suffer any waste whatsoever to
Landlord's property or the Premises. Without limitation, hazardous materials
shall include all substances described or regulated in any federal, state, local
or administrative agency ordinance, law, rule, regulation, order or requirement
relating to environmental conditions, human health or hazardous substances,
including the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (42 U.S.C. Section 9601 et seq), the Resource Conservation and
Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act (42
U.S.C. Section 7401 et seq.), the Emergency Planning and Community Right-To-Know
Act (42 U.S.C. Section 1101 et seq.), The Endangered Species Act (16 U.S.C.
Section 1531 et seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601
et seq.), the Occupational Safety and Health Act (29 U.S.C. Section 651 et seq.)
and the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.),
and the regulations promulgated pursuant to such laws, all as amended from time
to time, and all other laws governing similar matters as they may be amended
from time to time. In addition, Tenant shall execute affidavits, representations
and the like from time to time at Landlord's request concerning Tenant's best
knowledge and belief regarding the presence or absence of hazardous materials
and substances on the Premises. In all events, Tenant shall indemnify, defend,
and hold harmless Landlord and its mortgagees as provided in this Lease from any
claims resulting from any release of hazardous materials or substances on the
Premises first occurring during the Term, except to the extent caused by
Landlord or its agents or contractors or caused by a migration onto or under the
Property from adjacent property. (At the request of Landlord, Tenant will from
time to time confirm such indemnity to mortgagees directly with such
mortgagees.)
The indemnities under this Section shall survive any termination of the
Lease.
6.5 Landlord's Right to Enter. Landlord and its agents or employees may
upon reasonable notice enter the Premises during business hours (and in case of
emergency at any time) for the purpose of performing repairs or replacements, or
exercising any of the rights reserved to Landlord herein, or securing or
protecting Landlord's property or the Premises, or removing any alterations or
additions not consented to by Landlord, and similarly upon reasonable notice may
show the Premises to prospective purchasers and lenders, and during the last
twelve months of the Term to prospective tenants, and may keep affixed in
suitable places notices for letting (during the last twelve (12) months of the
Term) and selling. Except in case of emergency, Landlord shall be
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subject in entering the Premises to reasonable security conditions, if any, set
forth by Tenant in writing to Landlord. If Tenant so desires, a representative
of Tenant may accompany Landlord or its agents in any entry onto the Premises
under this Lease.
6.6 Parking. Tenant shall be entitled to use all parking areas on the
Property and within the Building without charge. Handicapped spaces shall only
be used by those legally permitted to use them.
6.7 Alterations, Additions, and Improvements. Tenant shall not make any
installations, alterations, additions, or improvements in or to the Premises,
including, without limitation, any apertures in the walls, partitions, ceilings
or floors, without on each occasion obtaining the prior written consent of
Landlord, which consent shall not be unreasonably withheld or delayed, except
that only prior notice and a description of and plans for the work (but no
approval) shall be required for any interior work costing less than $50,000 in
the aggregate during any twelve-month period and that does not require a permit
with respect to the building's structure or mechanical, electrical, or other
building systems. Any such work so approved by Landlord shall be performed only
in accordance with plans and specifications therefor approved by Landlord.
Tenant shall not perform any work in or to the Premises that would in Landlord's
reasonable judgment (i) in any manner affect any structural component of the
Building (including, without limitation, exterior walls, exterior windows, core
walls, columns, roofs, or floor slabs), (ii) in any respect be incompatible with
the electrical or mechanical components or systems of the Building, (iii) affect
space or areas around the Building (including the exterior of the Building),
(iv) diminish the value of the Premises for the Permitted Uses, or (v) require
any unusual expense to re-adapt the Premises for the Permitted Uses. Tenant
shall procure at Tenant's sole expense all necessary permits and licenses before
undertaking any work on the Property and shall perform all such work in a good
and workmanlike manner employing materials of good quality and so as to conform
with all applicable zoning, building, fire, health and other codes, regulations,
ordinances and laws and with all applicable insurance requirements. If any
notice of contract or lien is placed on the Property arising from work performed
by or for Tenant, if requested by Landlord for any work requiring Landlord's
approval, Tenant shall thereafter furnish to Landlord prior to commencement of
any such work a bond or other security acceptable to Landlord assuring that any
work by Tenant will be completed in accordance with the approved plans and
specifications and that all subcontractors will be paid. Tenant shall employ for
such work only contractors reasonably approved by Landlord and shall require all
contractors employed by Tenant to carry insurance in types and amounts
reasonably approved by Landlord (including without limitation worker's
compensation insurance in accordance with statutory requirements and commercial
general liability insurance covering such contractors on or about the Premises
with a combined single limit not less than $3,000,000) and shall submit
certificates evidencing such coverage to Landlord prior to the commencement of
such work, subject to Section II of Exhibit D in the case of casualty. Tenant
shall indemnify and hold harmless Landlord from all injury, loss, claims or
damage to any person or property occasioned by or arising out of such work.
Landlord may inspect the work of Tenant at reasonable times in accordance with
Section 6.5 and give notice of observed defects. Upon completion of any such
work, Tenant shall provide Landlord with "as built" plans, copies of all
construction contracts and proof of payment for all labor and materials.
6.8 Liens and Encumbrances. Tenant shall not create or suffer, shall keep
Landlord's property, the Premises and Tenant's leasehold free of, and shall
promptly remove and discharge,
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any lien, notice of contract, charge, security interest, mortgage or other
encumbrance which arises for any reason, voluntarily or involuntarily, as a
result of any act or omission by Tenant or persons claiming by, through or under
Tenant, or any of their agents, employees or independent contractors, including
without limitation liens which arise by reason of labor or materials furnished
or claimed to have been furnished to Tenant or for the Premises.
6.9 Condition upon Termination. At the expiration or earlier termination of
this Lease, Tenant (and all persons claiming by, through or under it) shall,
without the necessity of any notice, surrender the Premises (including any
tenant work and all replacements thereof, except such additions or alterations
constructed after the Term Commencement Date as Landlord may direct to be
removed at the time of Landlord's approval thereof, which shall be removed by
Tenant and the Premises restored to their pre-existing condition) and all keys
to the Premises, remove all of its trade fixtures and personal property not
bolted or otherwise attached to the Premises (and such trade fixtures and other
property bolted or attached to the Premises as Landlord may direct or, except as
set forth below, as Tenant may desire), and all Tenant's signs wherever located,
in each case repairing damage to the Premises which results in the course of
such removal and restoring the Premises to a fully functional and tenantable
condition (including the filling of all floor holes, the removal of all
disconnected wiring back to junction boxes and the replacement of all damaged
ceiling tiles). Tenant shall yield up the Premises broom-clean and in good
order, repair and condition, reasonable wear and tear and damage by casualty and
taking (to the extent provided in Article X only) excepted. Any property not so
removed within thirty (30) days after the expiration or termination of the Lease
shall be deemed abandoned and may be removed and disposed of by Landlord in such
manner as Landlord shall determine, and Tenant shall pay to Landlord the
reasonable cost and expense incurred by it in effecting such removal and
disposition and in making any required repairs to the Premises. In no event,
however, shall Tenant remove any of the following materials or equipment (which
shall be deemed Landlord's property), without Landlord's prior written consent:
any power wiring or wiring panels; lighting or lighting fixtures; doors,
windows, or wall coverings; drapes, blinds or other window coverings; installed
carpets or other installed floor coverings; any built-in heating or air
conditioning equipment; fencing or security gates; or other similar building
operating equipment.
6.10 Tenant's Expense. Tenant shall fulfill all of Tenant's obligations
under this Article VI at Tenant's sole expense. If Tenant shall fail to
maintain, repair or replace the Premises as required by this Article VI,
Landlord may, upon thirty (30) days' prior notice to Tenant (except that no
notice shall be required in the case of an emergency), enter the Premises in
accordance with Section 6.5 and perform such maintenance or repair (including
replacement, as needed) on behalf of Tenant. In such case, Tenant shall
reimburse Landlord for all costs reasonably incurred in performing such
maintenance, repair or replacement, together with an administrative charge of
fifteen percent, as Additional Rent, immediately upon demand.
6.11 Interruptions. Landlord shall not be liable to Tenant in damages or by
reduction of rent or otherwise by reason of inconvenience or for loss of
business arising from Landlord or its agents or employees entering the Premises
for any of the purposes authorized in this Lease or for repairing, altering or
improving the Building in a manner reasonable in light of the circumstances. In
case Landlord is prevented or delayed from making any repairs or replacements or
furnishing any services or performing any other covenant or duty to be performed
on Landlord's part by reason of any cause reasonably beyond Landlord's control,
Landlord shall not be liable to Tenant
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therefor, nor shall the same give rise to a claim in Tenant's favor that such
failure constitutes actual or constructive, total or partial, eviction from the
Premises. Landlord reserves the right to stop any service or utility system,
when necessary by reason of accident or emergency, or until necessary repairs
have been completed; provided, however, that in each instance of stoppage,
Landlord shall give Tenant such notice as is practicable under the circumstances
of the expected duration of such stoppage and will exercise reasonable diligence
to eliminate the cause thereof. Except in case of emergency repairs Landlord
will give Tenant reasonable advance notice of any contemplated stoppage and will
use reasonable efforts to avoid unnecessary inconvenience to Tenant by reason
thereof.
ARTICLE VII: INSURANCE AND INDEMNIFICATION
7.1 Insurance. The provisions of this Lease regarding insurance and
indemnification are set forth in Exhibit D, which is incorporated herein by
reference.
ARTICLE VIII: ASSIGNMENT AND SUBLETTING
8.1 Landlord's Consent Required. Tenant shall not assign this Lease, or
sublet or license the Premises or any portion thereof, or advertise the Premises
for assignment or subletting or permit the occupancy of all or any portion of
the Premises by anybody other than Tenant (each of the foregoing actions is
referred to as a "transfer") without obtaining, on each occasion, the prior
consent of Landlord, subject to and in accordance with this Article VIII. A
transfer shall include, without limitation, any transfer of Tenant's interest in
this Lease by operation of law, merger or consolidation of Tenant into any other
firm or corporation, the transfer or sale of a controlling interest in Tenant
whether by sale of its capital stock or otherwise or any liquidation of Tenant
or a substantial part of Tenant's assets. Landlord's consent to a proposed
sublease shall not be unreasonably withheld, it being understood that the
proposed sublease must comply with all other provisions of this Lease
(including, without limitation, this Section 8.1), must not alter Landlord's
rights under the Lease, and must not impose any additional obligation on
Landlord.
Notwithstanding the foregoing, the following transactions ("Excluded
Transactions") shall not require the consent of Landlord provided that Landlord
shall receive prior notice thereof plus reasonable evidence upon closing that
the transaction is in fact one of the following (and provided further that the
proposed transfer complies with all other provisions of this Lease, including,
without limitation, this Article VIII, does not alter Landlord's rights under
the Lease, and does not impose any additional obligation on Landlord):
(a) Any transfer to an entity succeeding to the business and assets of
Tenant, whether by way of merger, consolidation or otherwise; and
(b) Any transfer to an entity controlling Tenant, directly or indirectly
controlled and beneficially owned by Tenant, or under common control with
Tenant. For purposes of this clause (b), control shall mean possession of more
than 50 percent ownership of the shares of beneficial interest of the entity in
question together with the power to control and manage the affairs thereof
either directly or by election of directors and/or officers.
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8.2 Terms. Tenant shall not offer to make a transfer to any party which
would be of such type, character or condition as to be inappropriate as a tenant
for a building comparable to the Building. Tenant shall not offer to make or
make an assignment of any portion of the Premises (other than for Excluded
Transactions) unless the aggregate rent payable to Tenant under such assignment
equals or exceeds the then prevailing market rate rent and other charges payable
for space comparable to the Premises.
8.3 Right of Termination or Recapture. If Tenant proposes a transfer of the
Premises with an intended duration of more than seven (7) years (other than for
Excluded Transactions or a transfer of a division of Tenant that occupies the
entire Building which transfer involves the entire Building), Tenant shall offer
to Landlord in writing the right to terminate this Lease as to the space and
period in question as of the date specified in the offer. If Landlord shall
elect in writing to accept the offer to terminate within twenty (20) days after
receipt of notice of the offer, this Lease shall so terminate as to the space
and period in question as of the date specified in such offer, and all of the
terms and provisions of this Lease governing termination shall apply. If
Landlord shall not so elect, Tenant shall then comply with the provisions of
this Article VIII applicable to such transfer.
8.4 Landlord's Consent. Tenant's request for consent under this Article
VIII (and Tenant's notice of any transfer not requiring Landlord's consent under
Section 8.1 above) shall set forth the details of the proposed transfer,
including: (i) the name, business and financial condition of the prospective
transferee, (ii) a true and complete copy of the proposed instrument containing
all of the terms and conditions of such transfer, (iii) a written agreement of
the assignee, subtenant or licensee, in recordable form reasonably approved by
Landlord, agreeing with Landlord to perform and observe all of the terms,
covenants, and conditions of this Lease, and (iv) any other information Landlord
reasonably requested by Landlord prior to or in response to such notice. Except
for any transfer not requiring Landlord's consent under Section 8.1 above,
Landlord shall have the right to withhold consent, reasonably exercised as to
any proposed sublease, or to grant consent, based on the following factors: (i)
the business of the proposed assignee or subtenant and the proposed use of the
Premises (if other than the Permitted Use); (ii) the net worth, business
reputation, character, and financial condition of the proposed assignee or
subtenant; (iii) Tenant's compliance with all of its obligations under this
Lease within applicable notice and cure periods; and (iv) such other factors as
Landlord may reasonably deem relevant. Tenant shall pay to Landlord, as
Additional Rent, Landlord's reasonable attorneys' fees in reviewing any transfer
contemplated by this Section, whether or not Landlord consents to the same
(provided that the maximum amount of such fees in connection with any single
proposed transfer shall be Two Thousand Dollars [$2,000]).
8.5 Profits. If Tenant does transfer with Landlord's consent (other than a
transfer of a division of Tenant that occupies the entire Building which
transfer involves the entire Building under which Landlord does not release
Tenant from its obligations under this Lease pursuant to Section 8.6 below), and
if the consideration, rent, or other charges payable to Tenant under such
transfer exceed the rent and other charges to be paid hereunder (pro-rated based
on floor area in the case of a subletting, license or other occupancy of less
than the entire floor area of the Premises in question), then Tenant shall pay
to Landlord, as additional rent, after deducting all reasonable out-of-pocket
expenses incurred in connection with such transfer (including without
limitation, brokerage commissions, tenant improvement costs, and legal fees)
fifty percent (50%)
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of the amount of such excess when and as received. Without limiting the
generality of the foregoing, any lump-sum payment or series of payments due
(including for the purchase of so-called leasehold improvements) on account of
any transfer shall be deemed to be in excess of rent and other charges in its or
their entirety.
8.6 No Release. Notwithstanding any transfer of this Lease or any interest
therein (other than an Excluded Transaction or, in Landlord's discretion, a
transfer of a division of Tenant that occupies the entire Building which
transfer involves the entire Building), Tenant's (and any Guarantor's) liability
to Landlord shall in all events remain direct and primary. Any transferee of all
or a substantial part of Tenant's interest in the Premises shall be deemed to
have agreed directly with Landlord to be jointly and severally liable with
Tenant for the performance of all of Tenant's covenants under this Lease; and
such assignee shall upon request execute and deliver such instruments as
Landlord reasonably requests in confirmation thereof (and agrees that its
failure to do so shall be subject to the default provisions). Landlord may
collect rent and other charges from such transferee (and upon notice such
transferee shall pay directly to Landlord) and shall apply the net amount
collected to the rent and other charges herein reserved, but no transfer shall
be deemed a waiver of the provisions of this Section, or the acceptance of the
transferee as a tenant, or a release of Tenant or any guarantor from direct and
primary liability for the performance of all of the covenants of this Lease. The
consent by Landlord to any transfer shall not relieve Tenant from the obligation
of obtaining the express consent of Landlord to any modification of such
transfer or a further assignment, subletting, license or occupancy, to the
extent required in Section 8.1; nor shall Landlord's consent alter in any manner
whatsoever the terms of this Lease, to which any transfer at all times shall be
subject and subordinate. The breach by Tenant of any restriction on transfer in
this Section shall be a default for which there is no cure period.
ARTICLE IX: DEFAULT AND REMEDIES
9.1 Events of Default. (a) If Tenant fails to pay Annual Fixed Rent or any
Additional Rent or other sum or charge hereunder within three (3) days after
written notice that the same is due; or (b) if more than two notices of separate
defaults are properly given in any twelve month period, or (c) (Intentionally
omitted), or (d) if any assignment shall be made by Tenant (or any assignee,
sublessee or guarantor of Tenant) for the benefit of creditors, or (e) if
Tenant's leasehold interest shall be taken on execution or by other process of
law, or (f) if a petition is filed by Tenant (or any assignee, sublessee or
guarantor of Tenant) for adjudication as a bankrupt, or for reorganization or an
arrangement under any provision of any bankruptcy act then in force and effect,
or (g) if an involuntary petition under the provisions of any bankruptcy act is
filed against Tenant (or any assignee, sublessee or guarantor of Tenant) and
such involuntary petition is not dismissed within sixty (60) days thereafter, or
(h) if Tenant (or any assignee, sublessee or guarantor of Tenant) shall be
declared bankrupt or insolvent according to law, or (i) if a receiver, trustee
or assignee shall be petitioned for and not contested by Tenant for the whole or
any part of Tenant's (or such assignee's, sublessee's or guarantor's) property,
or if a receiver, trustee or assignee shall be appointed over Tenant's (or such
other person's) objection and not be removed within sixty (60) days thereafter,
or (j) if any representation or warranty made by Tenant shall be untrue in any
material respect, or (k) if Tenant fails to perform any other covenant,
agreement or condition hereunder and such default continues for thirty (30) days
after notice (provided, however, that such thirty (30) day period shall be
reasonably extended for up to an additional sixty (60) days in the case of
non-monetary default if the matter complained of can be cured, but the
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cure cannot be completed within such thirty (30) day period and Tenant begins
promptly to cure within such period and thereafter diligently completes the
cure; if such matters cannot be cured then there shall be no cure period), then,
and in any such case, Landlord and its agents and employees lawfully may, in
addition to and not in derogation of any remedies for any preceding breach,
immediately or at any time thereafter, without demand or notice and with or
without process of law, enter into and upon the Premises or any part thereof in
the name of the whole, or mail or deliver a notice of termination of the Term
addressed to Tenant at the Premises or at any other address herein provided, and
thereby terminate this Lease and repossess the same as of Landlord's former
estate. Upon such entry or mailing or delivery, as the case may be, the Term
shall terminate, all executory rights of Tenant and all obligations of Landlord
under this Lease shall immediately cease, and Landlord may expel Tenant and all
persons claiming by, through or under Tenant and remove its and their effects
(forcibly if necessary) without being deemed guilty of any manner of trespass
and without prejudice to any remedies which might otherwise be used for arrears
of rent or prior breach of covenants; and Tenant hereby waives all statutory and
equitable rights to its leasehold (including without limitation rights in the
nature of further cure or of redemption, if any). Landlord may, without notice,
store Tenant's effects (and those of any person claiming by, through or under
Tenant) at the expense and risk of Tenant and, if Landlord so elects, may sell
such effects at public auction or auctions or at private sale or sales after
seven (7) days notice to Tenant (which notice Tenant agrees is reasonable) and
apply the net proceeds to the payment of all sums due to Landlord from Tenant,
if any, and pay over the balance, if any, to Tenant. If any payment of Annual
Fixed Rent, additional rent, or other payment due from Tenant to Landlord is not
paid when due, then Landlord may, at its option, in addition to all other
remedies hereunder, impose a late charge on Tenant equal to 5% of the amount in
question, which late charge will be due upon demand as Additional Rent.
9.2 Remedies for Default.
(a) Reletting Expenses Damages. If this Lease is terminated for
default, then Tenant covenants, as an additional cumulative obligation after
such termination, to pay all of Landlord's reasonable costs and expenses related
thereto or in collecting amounts due hereunder, including attorneys fees, and
all of Landlord's reasonable expenses in connection with such reletting,
including without limitation, tenant inducements, brokerage commissions, fees
for legal services, expenses of preparing the Premises for reletting and the
like ("Reletting Expenses"). It is agreed by Tenant that Landlord may (i) relet
the Premises or any part or parts thereof for a term or terms which may at
Landlord's option be equal to or less than or exceed the period which would
otherwise have constituted the balance of the Term, and may grant such tenant
inducements as Landlord in its sole judgment considers advisable, and (ii) make
such alterations, repairs and decorations in the Premises as Landlord in its
sole discretion considers advisable, and no action of Landlord in accordance
with the foregoing nor any failure to relet or to collect rent under any
reletting shall operate or be construed to release or reduce Tenant's liability.
Any obligation to relet the Premises imposed upon Landlord by law shall be
subject to Landlord's reasonable objectives of developing its property in a
harmonious manner with appropriate mixes of tenants, uses, floor areas, terms,
etc. Landlord's Reletting Expenses together with all sums otherwise provided for
in this Lease, whether incurred prior to or after such termination, shall be due
and payable immediately from time to time upon notice from Landlord.
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(b) Termination Damages. If this Lease is terminated for default, then
unless and until Landlord elects lump sum liquidated damages described in (c)
below Tenant covenants, as an additional cumulative obligation after any such
termination, to pay punctually to Landlord all the sums and perform all the
obligations which Tenant covenants in this Lease to pay and to perform in the
same manner and to the same extent and at the same time as if this Lease had not
been terminated. In calculating the amounts to be paid by Tenant pursuant to the
preceding sentence Tenant shall be credited with the net proceeds of any rent
then actually received by Landlord from a reletting of the Premises after
deducting all sums provided for in this Lease to be paid by Tenant and not then
paid. In no event shall Tenant be liable for indirect or consequential damages
except in the case of holding over when notice of a new tenancy has been
provided in advance as set forth in Section 12.12.
(c) Lump Sum Liquidated Damages. If this Lease is terminated for
default, then Tenant covenants, as an additional cumulative obligation after
termination, to pay forthwith to Landlord at Landlord's election made by written
notice to Tenant at any time within one year after termination, as liquidated
damages a single lump sum payment equal to the sum of (i) all sums provided for
in this Lease to be paid by Tenant and not then paid at the time of such
election, plus either (ii) the present value (calculated at the Federal Reserve
discount rate or equivalent) of the excess of all of the rent reserved for the
residue of the Term over all of the fair market rent reasonably projected by
Landlord to be received on account of the Premises during such period, which
rent from reletting shall be reduced by reasonable projections of vacancies and
by Landlord's Reletting Expenses described above to the extent not theretofore
paid to Landlord, or (iii) an amount equal to the sum of all of the rent and
other sums due hereunder and payable with respect to the twelve (12)-month
period next following the date of termination.
9.3 Remedies Cumulative. Any and all rights and remedies Landlord may have
under this Lease, and at law and equity, shall be cumulative and shall not be
deemed inconsistent with each other, and any two or more of all such rights and
remedies may be exercised at the same time insofar as permitted by law. Nothing
contained in this Lease shall, however, limit or prejudice the right of Landlord
to prove and obtain in proceedings for bankruptcy or insolvency by reason of the
termination of this Lease, an amount equal to the maximum allowed by any statute
or rule of law in effect at the time when and governing the proceedings in which
the damages are to be proved, whether such amount be greater, equal to, or less
than the amount of the loss or damages referred to in the preceding Section.
9.4 Effect of Waivers of Default. Any consent or permission by Landlord to
any act or omission which otherwise would be a breach of any covenant or
condition, or any waiver by Landlord of the breach of any covenant or condition,
shall not in any way be held or construed to operate so as to impair the
continuing obligation of such covenant or condition, or otherwise operate to
permit other similar acts or omissions. No breach shall be deemed to have been
waived unless and until such waiver be in writing and signed by Landlord. The
failure of Landlord to seek redress for violation of or insist upon the strict
performance of any covenant or condition of this Lease, or the receipt by
Landlord of rent with knowledge of any violation, shall not be deemed a consent
to or waiver of such violation, nor shall it prevent a subsequent act, which
would otherwise constitute a violation, from in fact being a violation.
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9.5 No Accord and Satisfaction; No Surrender. No acceptance by Landlord of
a lesser sum than the Annual Fixed Rent, additional rent or any other sum or
charge then due shall be deemed to be other than on account of the earliest
installment of such rent, sum or charge due; nor shall any endorsement or
statement on any check or in any letter accompanying any check or payment be
deemed an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such installment
or pursue any other right or remedy available to it. The delivery of keys (or
any similar act) to Landlord or any agent or employee of Landlord shall not
operate as a termination of this Lease or an acceptance of a surrender of the
Premises.
9.6 Waiver of Jury. Landlord and Tenant hereby waive trial by jury in any
summary proceeding in any emergency or other statutory remedy, or in any action
based, in whole or in part, on non-payment of rent or other default under this
Lease; and Tenant further agrees that it shall not interpose any counterclaim or
set-off in any such proceeding, except to the extent Tenant would have no right
to commence an independent proceeding to seek to recover on account of such
claim.
9.7 Landlord's Curing and Enforcement. If Tenant shall neglect or fail to
perform or observe any covenant or condition of this Lease and shall not cure
such default within the applicable cure period, Landlord may, at its option,
without waiving any claim for breach, at any time thereafter cure such default
for the account of Tenant, and any amount paid or any liability incurred by
Landlord in so doing shall be deemed paid or incurred for the account of Tenant,
and Tenant shall reimburse Landlord therefor, together with an administrative
charge of five (5%) per cent of the amount thereof, on demand as Additional
Rent; and Tenant shall further indemnify and save Landlord harmless in the
manner elsewhere provided in this Lease in connection with all of Landlord's
actions in effecting any such cure. Notwithstanding any other provision herein
concerning cure periods, Landlord may cure any default for the account of Tenant
after such notice to Tenant, if any, as is reasonable under the circumstances
(including telephone notice) if the curing of such default prior to the
expiration of the applicable cure period is reasonably necessary to prevent
likely damage to the Premises or other improvements or possible injury to
persons, or to protect Landlord's interest in its property or the Premises.
Tenant shall pay to Landlord on demand as additional rent all of the costs and
expenses of Landlord, including such administrative charge and reasonable
attorneys' fees, incurred in enforcing any covenant or condition of this Lease.
Without limiting any of its other rights or remedies, any sum due hereunder
shall, in addition, bear interest from the date due at the greater of (i) one
and one-half percent (1 1/2%) for each month (or ratable portion thereof) the
same remains unpaid, or (ii) three percent (3%) per annum (or ratable portion
thereof) above the so-called prime rate of interest published in the Wall Street
Journal from time to time on 90 day loans to its most credit-worthy borrowers;
provided that interest shall never exceed the maximum rate permitted under
applicable law.
In the event Tenant breaches any covenant or fails to observe any condition
set forth in Article VII with respect to the insurance required to be maintained
by Tenant, then without limiting any other right or remedy, and notwithstanding
any other provision herein concerning notice and cure of defaults, Landlord may
immediately and without notice to Tenant obtain such insurance, and Tenant shall
pay the cost thereof and Landlord's expenses related thereto upon demand as
Additional Rent.
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9.8 Landlord's Default. In no event shall Landlord be in default unless
notice thereof has been given to Landlord (and all mortgagees of which Tenant
has notice) and Landlord (or any such mortgagee at its sole discretion) fails to
perform within 30 days (provided, however, that such 30 day period shall be
reasonably extended if such performance begins within such period and thereafter
is diligently pursued, or if such mortgagee notifies Tenant within such period
that it intends to cure on behalf of Landlord and thereafter begins curing
within such period, or if later within 30 days after acquiring possession of the
Property if the cure requires the mortgagee to obtain possession of the
Property, and diligently pursues curing with reasonable promptness). Any
mortgagee notice and cure periods set forth in any subordination, nondisturbance
and attornment agreement then in effect under Section 11.1 shall control to the
extent the same differ from the foregoing.
9.9 Vacancy During Last Six Months. If Tenant vacates substantially all of
the Premises (or substantially all of major portions of the Premises) at any
time within the last six months of the Term, Landlord may enter the Premises (or
such portions) and commence demolition work or construction of leasehold
improvements for future tenants. The exercise of such right by Landlord will not
affect Tenant's obligations to pay Annual Fixed Rent or Additional Rent with
respect to the Premises (or such portions), which obligations shall continue
without abatement until the end of the Term.
9.10 Security Deposit. On the execution of this Lease, Tenant shall pay to
Landlord as a security deposit for the performance of the obligations of Tenant
hereunder any amount specified therefor in Section 1.1. Said security deposit
may be mingled with other funds of Landlord and no fiduciary relationship shall
be created with respect to such deposit, nor shall Landlord be liable to pay
Tenant interest thereon. If Tenant shall fail to perform any of its obligations
under this Lease, Landlord may, but shall not be obliged to, apply the security
deposit to the extent necessary to cure the default, and Tenant shall be obliged
to reinstate such security deposit to the original amount thereof upon demand.
Within 30 days after the expiration or sooner termination of the Term the
security deposit, to the extent not applied, shall be returned to the Tenant,
without interest. Tenant may provide the security deposit to Landlord in the
form of a clean, irrevocable letter of credit as security for the performance of
the obligations of Tenant hereunder, subject to the terms and conditions set
forth in this Section 9.10 (together with any renewal or replacement thereof in
accordance herewith, the "Letter of Credit"). Tenant shall provide the Letter of
Credit, upon Tenant's execution of this Lease, in the amount set forth for the
security deposit in Section 1.1 ("Original Amount"). Any Letter of Credit
delivered hereunder shall comply with the requirements of Schedule 9.10 attached
hereto and incorporated by reference herein.
ARTICLE X: CASUALTY AND CONDEMNATION
10.1 Damage to Premises and Takings. The provisions of this Lease regarding
casualty and condemnation are set forth in Exhibit D, which is incorporated
herein by reference.
ARTICLE XI: PROTECTION OF LENDERS
11.1 Subordination and Superiority of Lease. Tenant agrees that this Lease
and the rights of Tenant hereunder will be subject and subordinate to the
present or future lien of any first mortgage (and at Landlord's election, to the
lien of any subordinate mortgage or mortgages) and to
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the rights of any lessor under any ground or improvements lease of the Premises
(collectively referred to in this Lease as a "mortgage" and the holder or lessor
thereof from time to time as a "mortgagee"), and to all advances and interest
thereunder and all modifications, renewals, extensions and consolidations
thereof; and that Tenant shall attorn to any such mortgagee succeeding to
Landlord's interest in the Property by foreclosure, deed in lieu of foreclosure,
or otherwise, promptly after the giving of notice by such mortgagee requiring
such attornment, provided however, that the mortgagee of any mortgage executes
and delivers to Tenant an agreement in the form attached hereto as Exhibit E (or
otherwise on any commercially reasonable form containing terms not materially
less favorable to Tenant than those set forth in Exhibit E) in which the
mortgagee agrees that Tenant shall not be disturbed in its possession upon
Tenant's attornment to such mortgagee as Landlord and performance of its Lease
covenants (both of which conditions Tenant agrees with all mortgagees to
perform). Tenant agrees that any mortgagee may at its option unilaterally elect
to subordinate, in whole or in part and by instrument in form and substance
satisfactory to such mortgagee alone, the lien of its mortgage (or the priority
of its ground lease) to some or all provisions of this Lease. Tenant shall cause
its current mortgagee to execute and deliver to Tenant a subordination
non-disturbance agreement in the form attached hereto as Exhibit F, with such
changes as Tenant and such mortgagee may approve.
Tenant agrees that this Lease shall survive the merger of estates of any
ground (or improvements) lessor and lessee. Until a mortgagee (either superior
or subordinate to this Lease) forecloses Landlord's equity of redemption (or
terminates in the case of a ground or improvements lease), no mortgagee shall be
liable for failure to perform any of Landlord's obligations (and such mortgagee
shall thereafter be liable only after it succeeds to and holds Landlord's
interest and then only as limited herein). Any mortgagee (or any other successor
to Landlord acquiring the Property by foreclosure, deed in lieu of foreclosure,
or otherwise) shall not be (i) liable for any previous act or omission of
Landlord under the Lease; (ii) subject to any credit, demand, claim,
counterclaim, offset or defense which theretofore accrued to Tenant against
Landlord; (iii) unless consented to by such mortgagee, bound by any previous
amendment or modification of the Lease or by any previous prepayment of more
than one month's payment of Annual Fixed Rent or additional rent (except
estimated payments of additional rent); (iv) required to account for any
security deposit of Tenant other than any security deposit actually delivered to
such mortgagee by Landlord; (v) bound by any obligation to make any payment to
Tenant or grant any credits, except for services, repairs, maintenance and
restoration provided for under the Lease to be performed by Landlord after the
date of such attornment; or (vi) responsible for any monies owing by Landlord to
Tenant. Tenant shall give notice of any alleged non-performance on the part of
Landlord to any mortgagee of which Tenant has notice, simultaneously with the
default notice delivered to Landlord; and Tenant agrees that such mortgagee
shall have a separate, consecutive reasonable cure period of no less than 30
days (to be reasonably extended in the same manner Landlord's 30 day cure period
is to be extended) following Landlord's cure period during which such mortgagee
may, but need not, cure any non-performance by Landlord. The foregoing shall not
relieve such mortgagee of the obligation to remedy or cure any conditions at the
Premises the existence of which constitutes a Landlord default under the Lease
and which continue at the time of such mortgagee's taking title to the Property.
The agreements in this Lease with respect to the rights and powers of a
mortgagee constitute a continuing offer to any person which may be accepted by
taking a mortgage (or entering into a ground or improvements lease) of the
Premises.
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11.2 Rent Assignment. If from time to time Landlord assigns this Lease or
the rents payable hereunder to any person, whether such assignment is
conditional in nature or otherwise, such assignment shall not be deemed an
assumption by the assignee of any obligations of Landlord; but the assignee
shall be responsible only for non-performance of Landlord's obligations which
occur after it succeeds to and only while it holds Landlord's interest in the
Premises.
11.3 Other Instruments. The provisions of this Article shall be
self-operative; nevertheless, Tenant agrees to execute, acknowledge and deliver
any subordination, attornment or priority agreements or other instruments
conforming to the provisions of this Article (and being otherwise commercially
reasonable) from time to time requested by Landlord or any mortgagee in
furtherance of the foregoing, and further agrees that its failure to do so
within ten (10) business days after written demand shall be subject to the
monetary default provisions of this Lease.
11.4 Tenant's Financial Condition. Within ten (10) business days after
request from Landlord from time to time, Tenant shall deliver to Landlord
Tenant's and Guarantor's financial statements, including audited annual
financial statements, balance sheets, income statements, and statements of cash
flow, certified by Tenant's/Guarantor's Treasurer or Chief Financial Officer, in
each case for the latest available two (2) fiscal years (the latest year ending
no more than six (6) months prior to Landlord's request). Such financial
statements shall be delivered to Landlord's mortgagees and lenders and
prospective mortgagees, lenders and purchasers. Notwithstanding the foregoing,
during any time that Tenant is filing financial materials with the Securities
and Exchange Commission, such financial materials shall be the materials that
Tenant is required to deliver to Landlord pursuant to this Section 11.4.
ARTICLE XII: MISCELLANEOUS
12.1 Notice from One Party to the Other. All notices, consents, approvals
and the like shall be in writing and shall be delivered in hand by any courier
service providing receipts, by a nationally recognized overnight courier
providing receipts, or mailed by certified mail addressed to Landlord or Tenant
as set forth below. If requested, Tenant shall deliver copies of all notices in
like manner to Landlord's mortgagees and other persons having a relationship to
the Premises at such address as designated from time to time by Landlord or such
mortgagee. Any notice so addressed shall be deemed duly given on the second
business day following the day of mailing if so mailed by registered or
certified mail, return receipt requested, whether or not accepted, or if by hand
or by overnight courier upon actual receipt by any person reasonably appearing
to be an agent or employee working in the executive offices of the addressee.
If to Tenant:
Dayton Superior Corporation
0000X Xx. Xxx. 00-00
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx
with a copy to:
Dayton Superior Corporation
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000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
If to Landlord:
c/o STAG Capital Partners, LLC
00 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxx
with a copy to:
Xxxx X. Xxxxxxxx, Esq.
DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Any address or name specified above may be changed by notice given to the
addressee by the other party in accordance with this Section 12.1. The inability
to deliver notice because of a changed address of which no notice was given as
provided above, or because of rejection or other refusal to accept any notice,
shall be deemed to be the receipt of the notice as of the date of such inability
to deliver or rejection or refusal to accept. Any notice to be given by any
party hereto may be given by the counsel for such party.
12.2 Quiet Enjoyment. Landlord agrees that upon Tenant's paying all rent
and performing and observing all covenants, conditions and other provisions on
its part to be performed and observed, Tenant may peaceably and quietly have,
hold and enjoy the Premises during the Term without disturbance by Landlord or
anyone claiming by, through or under it, subject always to the terms of this
Lease, provisions of law, and rights or interests of record to which this Lease
may be or become subject and subordinate.
12.3 Limitation of Landlord's Liability. Landlord shall be liable only for
breaches of Landlord's obligations occurring while Landlord is owner of the fee
of which the Premises are a part (provided, however, that if Landlord shall ever
sell and lease-back such fee, or the ground thereof or the improvements thereon,
then "fee" shall, in such event, be deemed to mean Landlord's leasehold
interest). Tenant (and all persons claiming by, through or under Tenant) agrees
to look solely to Landlord's interest from time to time in the Property
(including the uncollected rents, issues, profits, and proceeds thereof, subject
to the superior rights of mortgagees therein) for satisfaction of any claim or
recovery of any judgment from Landlord; it being agreed that neither Landlord
nor any trustee, beneficiary, partner, member, manager, shareholder, agent or
employee of Landlord shall ever be personally or individually liable for any
claim or judgment, or otherwise, to Tenant (or such persons). In no event shall
Landlord ever be liable to Tenant (or such persons) for indirect or
consequential damages; nor shall Landlord ever be answerable or liable in any
equitable judicial proceeding or order beyond the extent of such interest in the
Property.
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12.4 Applicable Law and Construction. This Lease may be executed in
counterpart copies and shall be governed by and construed as a sealed instrument
in accordance with the laws of the State of Illinois. If any provision shall to
any extent be invalid, the remainder of this Lease shall not be affected. Other
than contemporaneous instruments executed and delivered of even date, if any,
this Lease contains all of the agreements between Landlord and Tenant with
respect to the Premises and supersedes all prior dealings between them with
respect thereto. There are no oral agreements between Landlord and Tenant
affecting this Lease. This Lease may be amended only by an instrument in writing
executed by Landlord and Tenant. The enumeration of specific examples of a
general provision shall not be construed as a limitation of the general
provision. Unless a party's approval or consent is required by its terms not to
be unreasonably withheld, such approval or consent may be withheld in the
party's sole discretion. If Tenant is granted any extension or other option, to
be effective the exercise (and notice thereof) shall be unconditional, time
always being of the essence to any options; and if Tenant purports to condition
the exercise of any option or vary its terms in any manner, then the option
granted will automatically and immediately become null and void and the
purported exercise will be ineffective. This Lease and all consents, notices and
other related instruments may be reproduced by any party by photographic,
microfilm, microfiche or other reproduction process and the originals thereof
may be destroyed; and each party agrees that reproductions will be admissible in
evidence to the same extent as the original itself in and judicial or
administrative proceeding (whether or not the original is in existence and
whether or not reproduction was made in the regular course of business), and
further reproduction will likewise be admissible. The titles of the several
Articles and Sections are for convenience only, and shall not be considered a
part hereof. The submission of a form of this Lease or any summary of its terms
shall not constitute an offer by Landlord to Tenant; but a leasehold shall only
be created and the parties bound when this Lease is executed and delivered by
both Landlord and Tenant.
12.5 Successors and Assigns. Except as herein provided otherwise, the
agreements and conditions in this Lease contained on the part of Landlord to be
performed and observed shall be binding upon Landlord and its legal
representatives, successors and assigns, and shall inure to the benefit of
Tenant and its legal representatives, successors and assigns; and the agreements
and conditions on the part of Tenant to be performed and observed shall be
binding upon Tenant (and any guarantor of Tenant) and Tenant's legal
representatives, successors and assigns and shall inure to the benefit of
Landlord and its legal representatives, successors and assigns.
12.6 Relationship of the Parties. Nothing herein shall be construed as
creating the relationship between Landlord and Tenant of principal and agent, or
of partners or joint venturers; it being understood and agreed that neither the
manner of fixing rent, nor any other provision of this Lease, nor any act of the
parties, shall ever be deemed to create any relationship between them other than
the relationship of landlord and tenant.
12.7 Estoppel Certificate. Within ten (10) business days after either
party's request, Landlord and Tenant agree, in favor of the other, to execute,
acknowledge and deliver a statement in writing certifying that this Lease is
unmodified and in full force and effect (or, if there have been any
modifications that the same is in full force and effect as modified and stating
the modifications), and the amount and dates to which the Annual Fixed Rent (and
Additional Rent and all other charges) have been paid and any other information
reasonably requested by the requesting party or Landlord's mortgagee. Both
parties intend and agree that any such statement
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may be relied upon by any prospective purchaser, mortgagee, or other person to
whom the same is delivered. Tenant acknowledges that prompt execution and
delivery of such statements, and all instruments referred to in Article XI,
constitute essential requirements of any financings or sales by Landlord, and
Tenant will indemnify Landlord in the manner elsewhere provided against all
costs and damages resulting from Tenant's failure to comply herewith
(notwithstanding any grace period) or Landlord's right to execute the same on
Tenant's behalf.
12.8 Notice of Lease. Neither party shall record this Lease, but each party
will, upon request of the other, execute a recordable notice of lease in a form
reasonably approved by Landlord and, upon termination, a like notice of
termination of lease; and Tenant irrevocably appoints Landlord as its
attorney-in-fact, with full power of substitution, to execute, acknowledge and
deliver such notice of termination of lease in Tenant's name, place and stead if
Tenant fails so to do with five (5) days of any request.
12.9 Tenant as Business Entity. Simultaneously with the execution of the
Lease, each of Landlord and Tenant shall deliver to the other (i) a certificate
of legal existence and good standing and (ii) a certified copy of a resolution
of its directors, manager, or general partner authorizing the execution of this
Lease or other reasonable evidence of such authority.
12.10 Legal Proceedings. If either party shall be in breach or default
under this Lease, such party shall reimburse the other upon demand for any costs
or expenses incurred in connection with any breach or default of the defaulting
party, as provided in this Section. Such costs shall include all reasonable
legal fees and costs incurred for the negotiation of a settlement, enforcement
of rights or otherwise.
12.11 Landlord's Consent. Tenant shall pay Landlord's reasonable fees and
expenses, including, without limitation, legal, engineering and other
consultants' fees and expenses, incurred in connection with Tenant's request for
Landlord's consent under this Lease, or in connection with any other act by
Tenant which requires Landlord's consent or approval under this Lease.
12.12 Holding Over. If Tenant (or anyone claiming by, through or under
Tenant) shall remain in possession of the Premises or any part thereof after the
expiration or earlier termination of this Lease with respect to any portion of
the Premises without any agreement in writing executed with Landlord, the person
remaining in possession shall be deemed a tenant at sufferance, Tenant shall
thereafter pay Annual Fixed Rent at 150% of the greater of the amount payable
for the twelve month period immediately preceding such expiration or termination
or the then prevailing fair market rent for the Premises and with all additional
rent payable and covenants of Tenant in force as otherwise herein provided, and
Tenant shall be liable to Landlord for all damages directly arising from such
breach, and for indirect or consequential damages relating only to any loss of
any replacement tenant(s) for the Premises of which Tenant had notice. After
acceptance of the full amount of such rent by Landlord the person remaining in
possession shall be deemed a tenant from month-to-month at such rent and
otherwise subject to and having agreed to perform all of the provisions of this
Lease, but Landlord will not be deemed to have relinquished any claims for
damages.
12.13 Interpretation. Whenever required by the context of this Lease, the
singular shall include the plural and the plural shall include the singular. The
masculine, feminine and neuter
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genders shall each include the other. In any provision relating to the conduct,
acts or omissions of Tenant, the term "Tenant" shall include Tenant's agents,
employees, contractors, invitees, successors or others using the Premises with
Tenant's expressed or implied permission.
12.14 Waivers. All waivers shall be in writing and signed by the waiving
party. Landlord's failure to enforce any provision of this Lease or its
acceptance of rent shall not be a waiver and shall not prevent Landlord from
enforcing that provision or any other provision of this Lease in the future. No
statement on a payment check from Tenant or in a letter accompanying a payment
check shall be binding on Landlord. Landlord may, with or without notice to
Tenant, negotiate such check without being bound by to the conditions of such
statement.
12.15 Force Majeure. If either party cannot perform any of its obligations
due to events beyond such party's reasonable control, the time provided for
performing such obligations shall be extended by a period of time equal to the
duration of such events. Events beyond the parties' reasonable control include,
but are not limited to, acts of God, war, civil commotion, labor disputes,
strikes, fire, flood or other casualty, shortages of labor or material,
government regulation or restriction and weather conditions but exclude
financial circumstances. Notwithstanding the foregoing, the events listed in
this Section 12.15 shall not excuse Tenant's failure to pay any Annual Fixed
Rent or Additional Rent due under this Lease.
12.16 Brokers. Each of Tenant and Landlord represents and warrants to the
other that it has not dealt with any broker (other than the Broker(s) identified
in Article I, if any) in connection with this Lease or the Premises and agrees
to indemnify and save the other harmless from all loss, claim, damage, cost or
expense (including reasonable attorneys' fees of counsel of the other's choice
against whom the indemnifying party makes no reasonable objection) arising from
any its breach of this representation and warranty. This warranty and
representation shall survive the term or any early termination of this Lease.
The fees of any Broker named in Article I will be paid by Landlord.
ARTICLE XIII: SPECIAL PROVISIONS
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Executed as a sealed instrument as of the Date of Lease first set forth
above.
LANDLORD:
STAG II Aurora, LLC
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: President
TENANT:
Dayton Superior Corporation
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
----------------------------------
Title: Vice President, Strategic Planning
---------------------------------
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Schedule 9.10
Letter of Credit Requirements
The Letter of Credit (as defined in the Lease) shall be for the Original
Amount. The Letter of Credit (i) shall be irrevocable and shall be issued by a
commercial bank reasonably acceptable to Landlord that has an office in Boston,
Massachusetts or New York City or Chicago, Illinois that accepts requests for
draws on the Letter of Credit, (ii) shall require only the presentation to the
issuer of a certificate of the holder of the Letter of Credit stating that
Landlord is entitled to draw on the Letter of Credit pursuant to the terms of
the Lease, (iii) shall be payable to Landlord or its successors in interest as
the Landlord and shall be freely transferable without cost to any such successor
or any lender holding a collateral assignment of Landlord's interest in the
Lease, (iv) shall be for an initial term of not less than one year and contain a
provision that such term shall be automatically renewed for successive one-year
periods unless the issuer shall, at least forty five (45) days prior to the
scheduled expiration date, give Landlord notice of such nonrenewal, and (v)
shall otherwise be in form and substance reasonably acceptable to Landlord.
Notwithstanding the foregoing, the term of the Letter of Credit for the final
period shall be for a term ending not earlier than the date thirty (30) days
after the last day of the Term.
Landlord shall be entitled to draw upon the Letter of Credit for its full
amount or any portion thereof if (a) Tenant shall fail to perform any of its
obligations under the Lease after the expiration of any applicable notice and
cure period, or fail to perform any of its obligations under the Lease and
transmittal of a default notice is barred by applicable law, or fail to perform
any of its obligations under the Lease and any applicable notice and cure period
would expire prior to the expiration of the Letter of Credit, or (b) not less
than thirty (30) days before the scheduled expiration of the Letter of Credit,
Tenant has not delivered to Landlord a new Letter of Credit in accordance with
this Schedule. Without limiting the generality of the foregoing, Landlord may,
but shall not be obligated to, draw on the Letter of Credit from time to time in
the event of a bankruptcy filing by or against Tenant and/or to compensate
Landlord, in such order as Landlord may determine, for all or any part of any
unpaid rent, any damages arising from any termination of the Lease in accordance
with the terms of the Lease, and/or any damages arising from any rejection of
the Lease in a bankruptcy proceeding commenced by or against Tenant. Landlord
may, but shall not be obligated to, apply the amount so drawn to the extent
necessary to cure Tenant's failure.
Any amount of the Letter of Credit drawn in excess of the amount applied by
Landlord to cure any such failure shall be held by Landlord as a cash security
deposit for the performance by Tenant of its obligations under the Lease. Any
cash security deposit may be mingled with other funds of Landlord and no
fiduciary relationship shall be created with respect to such deposit, nor shall
Landlord be liable to pay Tenant interest thereon. If Tenant shall fail to
perform any of its obligations under this Lease, Landlord may, but shall not be
obliged to, apply the cash security deposit to the extent necessary to cure
Tenant's failure. After any such application by Landlord of the Letter of Credit
or cash security deposit, as the case may be, Tenant shall reinstate the Letter
of Credit to the amount originally required to be maintained under the Lease,
upon demand. Provided that Tenant is not then in default under the Lease, and no
condition exists or event has occurred which after the expiration of any
applicable notice or cure period would constitute such a default, within thirty
(30) days after the expiration or sooner termination of the Term the Letter of
Credit
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and any cash security deposit, to the extent not applied, shall be returned to
the Tenant, without interest.
In the event of a sale of the Premises, Building or lease, conveyance or
transfer of the Premises or the Building, Landlord shall transfer the Letter of
Credit or cash security deposit to the transferee. Upon such transfer, the
transferring Landlord shall be released by Tenant from all liability for the
return of such security, and Tenant agrees to look to the transferee solely for
the return of said security. The provisions hereof shall apply to every transfer
or assignment made of the security to such a transferee. Tenant further
covenants that it will not assign or encumber or attempt to assign or encumber
the Letter of Credit or the monies deposited herein as security, and that
neither Landlord nor its successors or assigns shall be bound by any assignment,
encumbrance, attempted assignment or attempted encumbrance.
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Exhibit A
The Property
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Exhibit B
Annual Fixed Rent
LEASE YEAR ANNUAL AMOUNT MONTHLY PAYMENT
---------- ------------- ---------------
1 $364,000 $30,333
2 $371,280 $30,940
3 $378,706 $31,559
4 $386,280 $32,190
5 $394,006 $32,834
6 $401,886 $33,491
7 $409,924 $34,160
8 $418,123 $34,844
9 $426,485 $35,540
10 $435,015 $36,251
11 $443,715 $36,976
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Exhibit C
Rules and Regulations
1. Tenant shall not use any method of heating or air-conditioning other than
that supplied by the building systems without the prior written consent of
Landlord, which shall not be unreasonably withheld.
2. Except for dock shelters and seals as may be expressly permitted by
Landlord, no awnings or other projections shall be attached to the outside
walls of the building.
3. Tenant shall not use, keep or permit to be used or kept any flammable or
combustible materials without proper governmental permits and approvals.
4. Tenant shall not use, keep or permit to be used or kept food or other
edible materials in or around the Premises in such a manner as to attract
rodents, vermin or other pests. Tenant shall not permit cooking in or about
the Premises other than in microwave ovens.
5. Tenant shall not use or permit the use of the Premises for lodging or
sleeping, for public assembly, or for any illegal or immoral purpose.
6. Storage of propane tanks, whether interior or exterior, shall be in secure
and protected storage enclosures approved by the local fire department and,
if exterior, shall be located in areas specifically designated by Landlord.
Safety equipment, including eye wash stations and approved neutralizing
agents, shall be provided in areas used for the maintenance and charging of
lead-acid batteries. Tenant shall protect electrical panels and building
mechanical equipment from damage from forklift trucks.
7. No person shall go on the roof of the Property without Landlord's
permission except to perform obligations or to exercise Tenant's rights
under its lease.
8. No animals (other than seeing eye dogs) or birds of any kind may be brought
into or kept in or about the Premises.
9. Tractor trailers which must be unhooked or parked with dolly wheels beyond
the concrete loading areas must use steel plates or wood blocks of
sufficient size to prevent damage to the asphalt paving surfaces. No
parking or storing of such trailers will be permitted on streets adjacent
to the Property.
10. Forklifts which operate on asphalt paving areas shall not have solid rubber
tires and shall use only tires that do not damage the asphalt.
11. Tenant shall be responsible for the safe storage and removal of all
pallets. Pallets shall be stored in a neat and orderly manner, so as not to
have an unkempt appearance from the street or other public areas. If
pallets are stored within the Premises, storage shall comply with safe
practices as described in Factory Mutual Loss Prevention Data Sheet 8-24.
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12. Tenant shall be responsible for the safe storage and removal of all trash
and refuse. All such trash and refuse shall be contained in suitable
receptacles stored in a neat and orderly manner, so as not to have an
unkempt appearance from the street or other public areas. Landlord reserves
the right to remove, at Tenant's expense and without further notice, any
trash or refuse left elsewhere outside of the Premises or Building.
13. Tenant shall appoint an Emergency Coordinator who shall be responsible for
assuring notification of the local fire department in the event of an
emergency, assuring that sprinkler valves are kept open and implementing
the Factory Mutual "Red Tag Alert" system including weekly visual
inspection of all sprinkler system valves on or within the Premises.
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Exhibit D
Insurance, Casualty and Condemnation
This Exhibit D shall be incorporated into the Lease, and where terms of
this Exhibit conflict with these terms within the Lease, the terms of this
Exhibit shall prevail and govern the Lease.
I. INSURANCE
(a) Coverage. Tenant shall purchase and maintain insurance during the
entire Term of the Lease and any period Tenant (or any party claiming
by, through or under Tenant) occupies any portion of the Premises, for
the benefit of the Tenant and Landlord (as their interest may appear)
with terms and coverages reasonably satisfactory to Landlord, and with
insurers having a minimum A.M. Best rating of at least A-/X, and with
such increases in limits as Landlord may from time to time reasonably
request, but initially Tenant shall maintain the following coverages
in the following amounts:
(i) Commercial General Liability Insurance naming Landlord,
Landlord's management, leasing and development agents and
Landlord's mortgagee(s) from time to time as additional insureds,
with coverage for premises/operations, personal and advertising
injury, products/completed operations and contractual liability
with combined single limits of liability of not less than
$1,000,000 for bodily injury and property damage per occurrence
and not less than 2,000,000 in the aggregate and excess liability
insurance with a limit not less than $20,000,000 per occurrence
and aggregate.
(ii) Property insurance covering property damage and business
interruption for the entire Property. Covered property shall
include the Building, boilers and machinery, all tenant
improvements, office furniture, trade fixtures, office equipment,
merchandise and all other items Tenant's property on the
Premises. Such insurance shall name Landlord and Landlord's
mortgagee(s) from time to time as additional loss payees as their
interests may appear. Such insurance shall be written on an "all
risk" of physical loss or damage basis including but not limited
to the perils of fire, extended coverage, windstorm, vandalism,
malicious mischief, sprinkler leakage, flood, windstorm and
earthquake, for the full replacement cost value of the covered
items and other endorsements as Landlord shall reasonably request
from time to time and in amounts that meet any co-insurance
clause of the policies of insurance with a deductible amount not
to exceed $50,000 with respect to property insurance and $500,000
with respect to commercial general liability insurance.
(iii) Workers' Compensation Insurance and Employers Liability
Insurance with statutory limits and automobile liability
insurance (coverage must include owed, leased, hired and non
owned vehicles) with a limit of at least $1,000,000.
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Tenant shall, prior to the commencement of the Term and on each
anniversary of the Term Commencement Date and/or renewal date thereof,
furnish to Landlord certificate(s) (ACCORD Form 27) evidencing such
coverage, which certificate(s) shall state that such insurance
coverage may not be changed or canceled without at least thirty (30)
days' prior written notice to Landlord and Tenant. The insurance
maintained by Tenant shall be deemed to be primary insurance and any
insurance maintained by Landlord (acknowledging that Landlord has no
obligation to maintain any insurance) shall be deemed secondary
thereto.
(b) Avoid Action Increasing Rates. Tenant shall comply with all applicable
laws and ordinances, all orders and decrees of court and all
requirements of other governmental authorities, and shall not,
directly or indirectly, make any use of the Premises which may thereby
be prohibited or be dangerous to person or property or which may
jeopardize any insurance coverage or may increase the cost of
insurance or require additional insurance coverage. If Tenant fails to
comply with the provisions of this Section I(b) and (i) any insurance
coverage is jeopardized and Tenant fails to correct such dangerous or
prohibited use following ten (10) days' notice, or (ii) insurance
premiums are increased and Tenant fails, following ten (10) days'
notice, to cease such use, then in each event such failure shall
constitute an Event of Default by Tenant hereunder, without any
further notice or cure right, and Landlord shall have all of its
remedies as set forth in the Lease.
(c) Waiver of Subrogation. Landlord and Tenant each hereby waive any and
every claim for recovery from the other for any and all loss of or
damage to the Building or Premises or to the contents thereof, which
loss or damage is covered by valid and collectible property insurance
policies. Landlord waives any and every claim against Tenant for any
and all loss of or damage to the Building or the Premises or contents
thereof, which would have been covered had the insurance policies
required to be maintained by Landlord by this Lease been in force, to
the extent that such loss or damage would have been recoverable under
such insurance policies. Tenant waives any and every claim against
Landlord for any and all loss of, or damage to, the Building or
Premises or the contents thereof which would have been covered had
Tenant maintained the insurance policies required to be maintained by
Tenant under this Lease been in force, to the extent that such loss or
damage would have been recoverable under such insurance policies.
Inasmuch as this mutual waiver will preclude the assignment of any
such claim by subrogation (or otherwise) to an insurance company (or
any other person), Landlord and Tenant each agree to give to each
insurance company which has issued, or in the future may issue, to it
policies of property insurance, written notice of the terms of this
mutual waiver, and to have said insurance policies properly endorsed,
if necessary, to prevent the invalidation of said insurance coverage
by reason of said waiver.
II. FIRE OR CASUALTY
(a) If the Premises or the Building (including machinery or equipment used
in its operation) shall be damaged by fire or other casualty and if
such damage does not cause a termination of this Lease as described in
the following sentences, then
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Landlord shall repair and restore the damage with reasonable
promptness, subject to reasonable delays for insurance adjustments and
delays caused by matters beyond Landlord's reasonable control, but
Landlord shall not be obligated to expend for repairing or restoring
the damage an amount in excess of the proceeds of insurance actually
received by Landlord for application to the repair of such damage. If
in Landlord's estimate the Premises cannot be restored within three
hundred sixty-five (365) days from the date of such fire or casualty,
then Landlord shall give notice to Tenant of such estimate within one
hundred twenty (120) days after such fire or casualty. Tenant may
elect by written notice given to Landlord within sixty (60) days
following the date of such notice from Landlord (time being of the
essence) to terminate this Lease effective as of the date of Tenant's
notice. If any such damage (i) renders 25% or more of the Building
untenantable or (ii) renders general Building systems inoperable and
such systems cannot be repaired in Landlord's reasonable estimate
within three hundred sixty-five (365) days from the date of such
damage or (iii) occurs within the last two (2) Lease Years, Landlord
shall have the right to terminate this Lease as of the date of such
damage upon written notice given to the Tenant at any time within one
hundred twenty (120) days after the date of such damage. 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 such
repairs and restoration provided that Tenant shall have the right to
terminate the Lease if such repairs are not completed within such
365-day period, subject to extension for delays caused by reasons
outside of Landlord's control, by notice given within thirty (30) days
after such repair period expires, which notice shall be deemed
withdrawn if the restoration is completed within thirty (30) days
after such notice is delivered to Landlord. Annual Fixed Rent and
additional rent, however, shall xxxxx on those portions of the
Premises as are, from time to time, untenantable and, in fact,
unoccupied by Tenant as a result of such damage.
(b) Notwithstanding anything to the contrary herein set forth, Landlord
shall have no duty pursuant to this Section II to repair or restore
any portion of any alterations, additions, installation or
improvements in the Premises or the decoration thereto except to the
extent that the proceeds of the insurance carried by Tenant are timely
received by Landlord for application to such use. If Tenant desires
any other additional repairs or restoration, and if Landlord consents
thereto, it shall be done at Tenant's sole cost and expense subject to
all of the applicable provisions of the Lease. Tenant acknowledges
that Landlord shall be entitled to the full proceeds of any insurance
coverage whether carried by Landlord or Tenant, for damage to any
alterations, addition, installation, improvements or decorations which
would become the Landlord's property upon the termination of the
Lease.
III. WAIVER OF CLAIM - INDEMNIFICATION
Without limiting any other provisions hereof, but subject to the provisions
of Section I(c) hereof, Tenant agrees to defend, protect, indemnify and
save Landlord and its partners, affiliates, officers, agents, servants and
employees and Landlord's management, leasing and development agents and
Landlord's mortgagee(s) from time to time from and against all liability to
third parties arising out of the use of the Premises by, or the acts or
omissions of,
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Tenant or its servants, agents, employees, contractors, suppliers, workers
or invitees. To the extent not prohibited by law and subject to the waiver
of subrogation contained in Section I(c), Landlord and its partners,
affiliates, officers, agents, servants and employees shall not be liable
for any damage either to person, property or business resulting from the
loss of the use thereof sustained by Tenant or by other persons due to the
Building or any part thereof or any appurtenances thereto becoming out of
repair, or due to the happening of any accident or event in or about the
Building, including the Premises, or due to any act or neglect of any
tenant or occupant of the Building or of any other person, unless and then
only to the extent caused by the negligence or willful misconduct of
Landlord or its agents, employees or contractors. This provision shall
apply particularly, but not exclusively, to damage caused by gas,
electricity, snow, ice, frost, steam, sewage, sewer gas or odors, fire,
water or by the bursting or leaking of pipes, faucets, sprinklers, plumbing
fixtures and windows, and except as provided above, shall apply without
distinction as to the person whose act or neglect was responsible for the
damage and shall apply whether the damage was due to any of the causes
specifically enumerated above or to some other cause of an entirely
different kind. Tenant further agrees that all personal property upon the
Premises, or upon loading docks, recovering and holding areas, or freight
elevators of the Building, shall be at the risk of Tenant only, and that
Landlord shall not be liable for any loss or damage thereto or theft
thereof. The provisions of this Rider shall survive the expiration or
earlier termination of the Lease, and shall not derogate from the abatement
and termination rights set forth in Section 6.11.
IV. NONWAIVER
No waiver of any provisions of this Lease shall be implied by any failure
of Landlord to enforce any remedy on account of the violation of such
provisions, even if such violation is continued or repeated subsequently,
and no express waiver shall affect any provision other than the one
specified in such waiver and that one only for the time and in the manner
specifically stated. No receipt for monies by Landlord from Tenant after
the termination of this Lease shall in any way alter the length of the Term
or of Tenant's right to possession hereunder or after the finding of any
notice shall reinstate, continue or extend the Term or affect any notice
given Tenant prior to the receipt of such monies, it being agreed that
after the service of notice or the commencement of a suit or after final
judgment for possessions of the Premises, Landlord may receive and collect
any Annual Fixed Rent and additional rent due, and the payment of said
Annual Fixed Rent and additional rent shall not waive or affect said
notice, suit or judgment.
V. CONDEMNATION
If the Land or the Building (or any portion of the Building, the loss of
which would require reconfiguration or restoration of the Building which
Landlord reasonably estimates will cost in excess of 25% of the current
replacement cost of the Building) shall be taken or condemned by any
competent authority for any public or quasi-public use or purpose, Landlord
shall have the right, exercisable at its sole direction, to cancel the
Lease upon not less than sixty (60) days' notice prior to the date of
cancellation designated in the notice. No money or other consideration
shall be payable by Landlord to Tenant for the right of
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cancellation and Tenant shall have no right to share in the condemnation
award or in any judgment for damages caused by such taking or condemnation.
If any such taking (i) renders 25% or more of the Building untenantable or
(ii) renders general Building systems inoperable and such systems cannot be
repaired in Landlord's reasonable estimate within three hundred sixty-five
(365) days from the date of such taking or (iii) occurs within the last two
(2) Lease Years, Landlord or Tenant shall have the right to terminate this
Lease as of the date of such taking upon written notice given to the other
at any time within one hundred twenty (120) days after the date of such
taking. 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
such repairs and restoration unless such repairs are not completed within
such 365-day period, in which event Tenant shall have the right to
terminate the Lease if such repairs are not completed within such 365-day
period, subject to extension under Section 12.15, by notice given within 30
days after such repair period expires, which notice shall be deemed
withdrawn if the restoration is completed within 30 days after such notice
is delivered to Landlord. Annual Fixed Rent and additional rent, however,
shall xxxxx on those portions of the Premises as are, from time to time,
untenantable and, in fact, unoccupied by Tenant as a result of such taking.
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Exhibit E
Form of SNDA
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
Tenant Name: ___________________________
Trade Name: ____________________________
Room/Unit No.: _________________________
THIS AGREEMENT is dated the _____ day of ____________________, 20__, and is
made by and among CONNECTICUT GENERAL LIFE INSURANCE COMPANY, having an address
c/o CIGNA Investments, Inc., 000 Xxxxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx
00000, Attn: Debt Asset Management, S-319 ("Mortgagee"),
________________________________________________________,
d/b/a _____________________________________________________, having an address
of ________________________________________________________ ("Tenant"), and
_____________________________________________________, having an address of
________________________________________ ("Landlord).
RECITALS:
A. Tenant has entered into a lease ("Lease") dated ____________________
with ____________________ as lessor ("Landlord"), covering the premises known as
____________________ (the "Premises") within the property known as
____________________, more particularly described as shown on Exhibit A,
attached hereto (the "Real Property").
B. Mortgagee has agreed to make or has made a mortgage loan in the amount
of ____________________ to Landlord, secured by a mortgage of the Real Property
(the "Mortgage"), and the parties desire to set forth their agreement herein.
NOW, THEREFORE, in consideration of the premises and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. The Lease and all extensions, renewals, replacements or modifications
thereof are and shall be subject and subordinate to the Mortgage and all terms
and conditions thereof insofar as it affects the Real Property of which the
Premises form a part, and to all renewals, modifications, consolidations,
replacements and extensions thereof, to the full extent of amounts secured
thereby and interest thereon.
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2. Tenant shall attorn to and recognize any purchaser at a foreclosure sale
under the Mortgage, any transferee who acquires the Premises by deed in lieu of
foreclosure, and the successors and assigns of such purchaser(s), as its
landlord for the unexpired balance (and any extensions, if exercised) of the
term of the Lease on the same terms and conditions set forth in the Lease.
3. If it becomes necessary to foreclose the Mortgage, Mortgagee shall
neither terminate the Lease nor join Tenant in summary or foreclosure
proceedings for the purpose of terminating the Lease so long as Tenant is not in
default under any of the terms, covenants, or conditions of the Lease beyond any
applicable notice and cure periods.
4. If Mortgagee succeeds to the interest of Landlord under the Lease,
Mortgagee shall not be: (a) liable for the return of any security deposit unless
such deposit has been delivered to Mortgagee by Landlord or is in an escrow fund
available to Mortgagee, (b) bound by any rent or additional rent that Tenant
might have paid for more than the current month to any prior landlord (including
Landlord), (c) bound by any amendment, modification, or termination of the Lease
made without Mortgagee's prior written consent (which consent shall not be
unreasonably withheld or delayed), or (d) personally liable under the Lease,
Mortgagee's liability thereunder being limited to its interest in the Real
Property.
5. This Agreement shall be binding on and shall inure to the benefit of the
parties hereto and their successors and assigns.
6. Tenant shall give Mortgagee, by commercial overnight delivery service, a
copy of any notice of default served on Landlord at the same time such notice is
sent to the Landlord, addressed to Mortgagee at Mortgagee's address set forth
above or at such other address as to which Tenant has been notified in writing.
Mortgagee shall have the right, but not the obligation, to cure such default
within the time period specified in the Lease.
7. Landlord has agreed under the Mortgage and other loan documents that
rentals payable under the Lease shall be paid directly by Tenant to Mortgagee
upon default by Landlord under the Mortgage. After receipt of notice from
Mortgagee to Tenant, at the address set forth above or at such other address as
to which Mortgagee has been notified in writing, that rentals under the Lease
should be paid to Mortgagee, Tenant shall pay to Mortgagee, or at the direction
of Mortgagee, all monies due or to become due to Landlord under the Lease.
Tenant shall have no responsibility to ascertain whether such demand by
Mortgagee is permitted under the Mortgage, or to inquire into the existence of a
default. Landlord hereby waives any right, claim, or demand it may now or
hereafter have against Tenant by reason of such payment to Mortgagee, and any
such payment shall discharge the obligations of Tenant to make such payment to
Landlord.
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IN WITNESS WHEREOF, the parties hereto have executed these presents as of
the day and year first above written.
WITNESSES: MORTGAGEE:
----------------------------------------
By:
------------------------------------- ------------------------------------
Name:
Its:
------------------------------------- -----------------------------------
Name:
TENANT:
----------------------------------------
By:
------------------------------------- ------------------------------------
Name:
Its:
------------------------------------- -----------------------------------
Name:
LANDLORD:
----------------------------------------
By:
------------------------------------- ------------------------------------
Name:
------------------------------------- Its:
Name: -----------------------------------
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STATE OR COMMONWEALTH OF ________________
: ss.
COUNTY OF _______________________________
On this, the _____ day of ________________, 20___, before me, the
undersigned officer, personally appeared _______________________, who
acknowledged himself/herself to be the ____________________________ of
___________________________, and signed the foregoing instrument for the
purposes therein contained as his/her free act and deed and the free act and
deed of such entity.
IN WITNESS WHEREOF, I hereunto set my hand and official seal the day and
year aforesaid.
-------------------------------------
Notary Public
My Commission Expires:
STATE OR COMMONWEALTH OF ________________
: ss.
COUNTY OF _______________________________
On this, the _____ day of ________________, 20___, before me, the
undersigned officer, personally appeared _______________________, who
acknowledged himself/herself to be the ____________________________ of
___________________________, and signed the foregoing instrument for the
purposes therein contained as his/her free act and deed and the free act and
deed of such entity.
IN WITNESS WHEREOF, I hereunto set my hand and official seal the day and
year aforesaid.
-------------------------------------
Notary Public
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My Commission Expires:
STATE OR COMMONWEALTH OF ________________
: ss.
COUNTY OF _______________________________
On this, the _____ day of ________________, 20___, before me, the
undersigned officer, personally appeared _______________________, who
acknowledged himself/herself to be the ____________________________ of
___________________________, and signed the foregoing instrument for the
purposes therein contained as his/her free act and deed and the free act and
deed of such entity.
IN WITNESS WHEREOF, I hereunto set my hand and official seal the day and
year aforesaid.
-------------------------------------
Notary Public
My Commission Expires:
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