INDUSTRIAL LEASE AGREEMENT
ML
Realty Partners
Xxxx.
Xxxx Circulating Company
THIS
INDUSTRIAL LEASE AGREEMENT (the "Lease") is made as of the "Lease Date" (as
defined herein) by and between MLRP Sergo LLC, a Delaware limited liability
company ("Landlord"), Xxxx. Xxxx Circulating Company, LLC, a Delaware limited
liability company ("Tenant") (the words "Landlord" and "Tenant" to include their
respective legal representatives, successors and permitted assigns where the
context requires or permits).
W
I T N E S S E T H
1. Basic Lease
Provisions. The following constitute the basic provisions of
this Lease:
(a) Demised
Premises: As defined in Section 2.
(b) Demised
Premises Square Footage: 210,315 square feet.
(c) Building
Square Footage: 443,924 square feet.
(d) Annual
Base Rent:
Time
Period Annual Base
Rent
Months
1-12* $809,712.75
Months
13-24 $825,907.00
Months
25-36 $842,425.15
Months
37-48 $859,274.69
Months
49-60 $876,459.16
Months
61-72 $893,988.28
Months
73-84 $911,868.00
Months
85-96 $930,105.47
Months
97-108 $948,707.62
Months
109-120 $967,681.61
Months
121-122 $164,505.90
(e) Monthly
Base Rent Installments:
Time
Period Monthly Base
Rent
Months
1-12* $67,476.06
Months
13-24 $68,825.58
Months
25-36 $70,202.10
Months
37-48 $71,606.14
Months
49-60 $73,038.26
Months
61-72 $74,499.00
Months
73-84 $75,989.00
Months
85-96 $77,508.79
Months
97-108 $79,058.97
Months
109-120 $80,640.13
Months
121-122 $82,252.95
* Notwithstanding
any other provision of this Lease to the contrary, provided that no Event of
Default (as defined in Section 22 hereof) has occurred, Base Rent shall xxxxx
for the first two (2) months of the Primary Term (or the first sixty (60) days
of the Term if the Term commences on a date other than the first day of a
calendar month) (the "Abatement Period"). If there is an occurrence
of an Event of Default Tenant at any time prior to or during the Abatement
Period, then all Base Rent for the Abatement Period shall come due immediately
upon demand by Landlord.
(f) Commencement
Date: Upon substantial completion of the Improvements in accordance
with the provisions of the Tenant Improvement Agreement attached hereto as Exhibit
“C”. At Landlord’s option, the Commencement Date shall be
confirmed pursuant to a Term Commencement Letter substantially in the form
attached hereto as Exhibit “D” and
forming a part hereof.
(g) Expiration
Date: The last day of the one hundred twenty second (122nd) full
calendar month following the Commencement Date.
(h) Term: One
hundred twenty two (122) full calendar months after the Commencement Date (plus
a partial month if the Commencement Date does not fall on the first day of a
calendar month), unless renewed or sooner terminated in accordance with the
provisions of this Lease.
(i) Tenant's
Operating Expense and Tax Percentage: 47.38%
(j) Extension
Options: See Section 1 of Exhibit “I” attached
hereto and forming a part hereof.
(k) Permitted
Use: Warehousing and distribution of Tenant’s products and general
office use ancillary thereto.
(l) Address
for notice:
Landlord: c/o
ML Realty Partners, LLC
Xxx
Xxxxxx Xxxxx
Xxxxxx,
XX 00000
Attn: Asset
Management
Facsimile: (000)
000-0000
with a
copy
to: c/o
ML Realty Partners, LLC
Xxx Xxxxxx Xxxxx
Xxxxxx,
XX 00000
Attn: Xxxxxxx X.
Xxxxxx
Facsimile:
(000) 000-0000
Tenant: Xxxx.
Xxxx Circulating, LLC
00000
Xxxxxxxxx Xxxxxx Xxxx.
Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn:
Vice President of Facilities
Facsimile: (000)
000-0000
(m) Address
for rental payments:
__________________________
__________________________
__________________________
(n) Brokers: CB
Xxxxxxx Xxxxx and Xxxx Partners
(o) Guarantor(s): Form
of Guaranty is attached hereto as Exhibit
“H”.
Source
Interlink Companies Inc. (“Guarantor”)
00000
Xxxxxxxxx Xxxxxx Xxxx.
Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn:
Vice President of Facilities
Facsimile: (000)
000-0000
(p) Security
Deposit: Letter
of Credit in the amount of two (2) months Rent.
(q) Exhibits: The
following Exhibits attached to this Lease are incorporated herein by this
reference and shall be deemed as a part of this Lease:
Exhibit
"A" Demised Premises
Exhibit
"B" Legal Description of Land
Exhibit
"C" Tenant Improvement Agreement
Exhibit
"D" Term Commencement Letter
Exhibit
"E" Estoppel Certificate
Exhibit
"F" Rules and Regulations
Exhibit
"G" Certificate of Authority
Exhibit
"H" Guaranty
Exhibit
"I" Additional Provisions
Exhibit
"J" Broom Clean Condition and Repair Requirements
Exhibit
"K" Letter of Credit Form
2. Demised
Premises. For and in consideration of the rent hereinafter
reserved and the mutual covenants hereinafter contained, and upon all the terms
and provisions of this Lease, (i) Landlord does hereby lease and demise unto
Tenant, and Tenant does hereby lease and accept from Landlord the premises (the
"Demised Premises") known as Unit C (as crosshatched on Exhibit "A" attached
hereto and incorporated herein), located within a building (the "Building") at
0000 Xxxxx Xxxxx, XxXxxx, Xxxxxxxx which is situated on the land ("Land")
described or depicted on Exhibit “B” attached
hereto and incorporated herein (the Building, the Land and any other
improvements from time to time situated thereon being hereinafter referred to
collectively hereinafter from time to time as the "Property") and (ii) Landlord
also grants to Tenant a non-exclusive right to use, in common with other tenants
of the Building (and the employees, guests and other invitees of such tenants),
all driveways and curb cuts located on the Land and other common areas of the
Property (collectively, "Common Areas"). Tenant shall have the
exclusive right to use only the 172 car parking spaces and 24 truck parking
spaces depicted on Exhibit “A” attached
hereto as the “Xxxx. Levy Parking Area” (hereinafter the “Tenant Parking Area”),
as parking for its employees, customers and other invitees, however, Tenant, its
employees, customers and other invitees shall not be permitted to use any other
parking areas on the Property. Tenant’s right to use the Common Areas
and Tenant Parking Area for the purposes intended is subject to and conditioned
upon Tenant’s compliance with such reasonable rules and regulations as may be
established from time to time. Tenant shall not interfere with the
rights of any or all of Landlord, other tenants or licensees, or any other
person entitled to use the Common Areas or other parking areas serving the
Building. Without limitation of the foregoing, Tenant shall not park
or store any trailers on, or conduct truck loading and unloading activities in
the Tenant Parking Area designated for car parking or in the Common Areas in a
manner that unreasonably disturbs, disrupts or prevents the use of the Common
Areas or other parking areas serving the Building by Landlord, other tenants or
licensees or other persons entitled to use the Common Areas or other parking
areas serving the Building. Landlord, from time to time, may change
any or all of the size, location, nature and use of any of the Common Areas
although such changes may result in inconvenience to Tenant, so long as such
changes do not materially and adversely affect Tenant’s use of the Demised
Premises. In addition to the foregoing, Landlord may, at any time,
close or suspend access to any Common Areas to perform any acts in the Common
Areas as, in Landlord’s reasonable judgment, are desirable to improve or
maintain either or both of the Demised Premises and the Property; provided,
however, that Landlord shall use reasonable efforts to limit any disruption of
Tenant’s use and operation of the Demised Premises in connection
therewith.
3. Term. To
have and to hold the Demised Premises for a term (the "Term") commencing on the
Commencement Date and ending on the Expiration Date, unless renewed or
terminated in accordance with the provisions of this Lease. The
initial term of this Lease, specified in Section 1(h) is hereinafter sometimes
referred to as the "Primary Term". If the lease is not fully executed
by the Commencement Date, the Commencement Date and the Expiration Date shall be
advanced by one day for each day of delay. If the Landlord shall be
unable to give possession of the Demised Premises on the Commencement Date for
any reason Landlord shall not be liable for any damages caused thereby nor shall
this Lease be void or voidable, however, the Rent shall not commence until the
Demised Premises are available for occupancy by Tenant, at which time the Term
shall commence so as to give effect to the full stated Term.
4. Base
Rent. Tenant shall pay to Landlord at the address set forth in
Section 1(l), as base rent for the Demised Premises, commencing on the
Commencement Date and continuing throughout the Term in lawful money of the
United States, the annual amount set forth in Section 1(d), payable in equal
monthly installments as set forth in Section 1(e) (the "Base Rent"), payable in
advance, without demand and without abatement, reduction, set-off or deduction,
on the first day of each calendar month during the
Term. Notwithstanding any other provision of this Lease to the
contrary, upon Tenant’s execution of this Lease, Tenant will pay the first
month’s rent in advance. If the Commencement Date shall fall on a day
other than the first day of a calendar month, the Base Rent shall be apportioned
prorata on a per diem basis for the period between the Commencement Date and the
first day of the following calendar month. If the Term ends on a day
other than the last day of a calendar month, Base Rent shall likewise be
apportioned prorata on a per diem basis for the calendar month in which
expiration or termination occurs.
5. Security
Deposit.
(a) Simultaneously
with the execution of this Lease, Tenant will deliver to Landlord the sum set
forth in 1(p) of the Basic Lease Provisions (the “Security Deposit”) as security
for the full and faithful performance by Tenant of each and every term,
provision, covenant, and condition of this Lease. The Security
Deposit shall be an unconditional and irrevocable letter of credit (“Letter of
Credit”) in the form attached hereto as Exhibit
“K”. The Letter of Credit shall be issued by Xxxxx Fargo Bank
NA and located in Chicago, Illinois. Tenant shall ensure that at all
times after the execution and delivery of this Lease through the date that is
thirty (30) days after the Termination Date, an unexpired Letter of Credit in
the amount of the Security Deposit or cash in the amount of the Security Deposit
shall be in the possession of Landlord. The Letter of Credit shall
contain a so-called "evergreen" clause providing that the Letter of Credit shall
not be canceled unless the issuing bank delivers thirty (30) days' prior written
notice to Landlord. Tenant shall deliver to Landlord, no later than
thirty (30) days prior to the expiry date of the then outstanding and expiring
Letter of Credit a replacement Letter of Credit. Failure by Tenant to
deliver any replacement Letter of Credit as required above shall entitle
Landlord to draw under the outstanding Letter of Credit and to retain the entire
proceeds thereof for application as the Security Deposit under this Lease, which
will be held pursuant to Section 5(b) below. Failure by the issuer to
honor a draw request on the Letter of Credit shall be an Event of Default under
the terms of this Lease entitling Landlord to exercise its remedies
hereunder. Each Letter of Credit shall be for the benefit of Landlord
or its successors and assigns and shall entitle Landlord or its successors or
assigns to draw from time to time under the Letter of Credit in portions or in
whole upon presentation of a sight draft and statement by Landlord that Landlord
is entitled to draw thereunder pursuant to the terms and provisions of this
Lease. Landlord shall have an unrestricted right to transfer the
Letter of Credit at anytime and to any successor to Landlord without the payment
of any transfer fee or other charge.
(b) In
the event that Tenant is in default under this Lease, fails to perform any of
the terms, provisions, covenants, or conditions of this Lease, including, but
not limited to, payment of Rent, or fails to deliver any replacement Letter of
Credit as provided above, Landlord may draw upon the Letter of Credit and hold
and apply the funds drawn as a cash security deposit ("Cash Security
Deposit"). If Tenant defaults under this Lease or the exhibits
hereto, Landlord may use, apply, or retain the whole or any part of the proceeds
for the payment of such Rent in default, or for any other sum due Landlord or
which Landlord may, without prejudice to any other remedy, expend or be required
to expend by reason of Tenant’s default or failure to perform, including,
without limitation, any damages or deficiency accrued before or after any
re-entry by Landlord; provided, however, that any such use, application or
retention by Landlord of the whole or any part of the Cash Security Deposit
shall not be or be deemed to be an election of remedies by Landlord or viewed as
liquidated damages, it being expressly understood and agreed that,
notwithstanding such use, application or retention, Landlord shall have the
right to pursue any and all other remedies available to it under the terms of
this Lease or otherwise. In the event that Landlord uses or applies
any portion of the Cash Security Deposit as hereinabove provided, Tenant shall
replenish such applied portions thereof within five (5) days of Landlord’s
demand and Tenant’s failure to do so within such five (5) day period shall be
deemed an Event of Default hereunder. In the event of a sale of the
Building, Landlord shall transfer the Cash Security Deposit to the purchaser,
and Landlord shall thereupon be released from all liability for the return of
such Cash Security Deposit. Tenant shall look solely to the new
Landlord for the return of the Cash Security Deposit. Tenant shall
not assign or encumber the money deposited as security, and neither Landlord nor
its successors or assigns shall be bound by any such assignment or
encumbrance. The Cash Security Deposit will not bear interest and may
be commingled with other funds of Landlord.
6. Operating Expenses, Taxes
and Additional Rent.
(a) Commencing
on the Commencement Date, Tenant agrees to pay as Additional Rent (as defined in
Section 6(d) below) its proportionate share of Operating Expenses and Taxes (as
such terms are hereinafter defined). "Operating Expenses" shall be
defined as all costs and expenses paid or incurred by Landlord in connection
with the ownership and operation of the Land and Building including, without
limitation, costs and expenses for management, operation, repair, replacement
and maintenance as necessary to keep the Building and the Common Areas
(including the Tenant Parking Area), driveways, parking areas, landscaped areas
and other areas associated therewith in good order, condition and repair,
including but not limited to, wages, salaries, fringe benefits and payroll
burden for employees utilized in the management or the Building or the Property,
exterior window cleaning, interior and exterior painting, façade maintenance,
maintenance of all water retention facilities, discharge piping, fountains,
pumps, catch basins and other facilities, both on and off site, utilities for
the common areas of and relating to the Building, expenses associated with the
driveways and parking areas (including pavement repair, sealing and restriping,
and snow, trash and ice removal), non-tenant-specific security systems, lighting
facilities, landscaped areas, walkways, directional signage, curbs and drainage
strips, relating to the Building, all charges assessed against or attributed to
the Land or the Building pursuant to any operating declaration or similar
agreement ("Protective Covenants") governing the operation, maintenance or
improvement of the Property or any other common area of the facility, customary
property management fees (subject to the limitations stated below), all
insurance premiums paid by Landlord with respect to customary insurance
coverages Landlord may carry from time to time in respect of the Property
consistent with prudent property management practice, together with deductibles,
and costs of capital improvements applicable to the Property generally (and not
because of the particular use of the Property by a particular tenant), which
cost shall be amortized on a straight line basis over the useful life of such
improvement, as reasonably determined by Landlord, together with a reasonable
finance charge not to exceed two (2) percent over the Prime Rate (as defined
herein). Operating Expenses shall not include (1) depreciation,
interest and principal payments on mortgages and other debt costs, (2) real
estate brokers' leasing commissions or compensation, (3) any cost or expenditure
(or portion thereof) for which Landlord is reimbursed, whether by insurance
proceeds or otherwise, (4) the cost of any service or improvements furnished to
any other occupant of the Building which Landlord does not provide to Tenant
hereunder, (5) advertising and promotional expenses, and (6) federal or other
income and franchise taxes of Landlord (other than any taxes which may be
imposed upon rents); the costs described in the foregoing items (1) through (6)
shall be the sole and exclusive responsibility of Landlord. In no
event shall Landlord increase property management fees payable by Tenant in any
calendar year by more than four percent (4%) over the property management fees
payable during the immediately preceding calendar
year. Notwithstanding any other provision herein to the contrary, it
is agreed that if the Property is not fully occupied during any calendar year,
then an adjustment shall be made in computing the Operating Expenses for such
calendar year so that the Operating Expenses are computed as though the Building
had been fully occupied during such calendar year. To the extent that
Landlord (or an affiliate thereof) incurs any expenses (such as, by way of
illustration only, multi-property service contracts or blanket insurance
policies) in respect of both the Property and any other properties owned by
Landlord, Landlord may include a fair and equitable apportionment of such
expenses in Operating Expenses.
(b) The
proportionate share of Operating Expenses and Taxes to be paid by Tenant shall
be a percentage of the Operating Expenses and Taxes based upon the proportion
that the stipulated square footage of the Demised Premises bears to the total
stipulated square footage of the Building (such figure being referred to as
"Tenant's Operating Expense and Tax Percentage" and set forth in Section
1(i)). Landlord shall estimate the total amount of Operating Expenses
and Taxes to be paid by Tenant during each calendar year and shall provide such
estimate to Tenant prior to or with reasonable promptness after the beginning of
each calendar year during the Term. Tenant shall pay to Landlord
one-twelfth (1/12) of such sum on the first day of each calendar month during
each such calendar year, or part thereof, during the Term. Landlord
may during the course of any year, redetermine the amount of its estimate of
Operating Expenses and Taxes for such year and adjust the amount of estimated
Additional Rent accordingly, whereupon Tenant shall pay the adjusted estimated
Additional Rent from and after the first day of the month following the month in
which Landlord delivers to Tenant written notice of such adjustment of estimated
Additional Rent. Within a reasonable time after the end of each
calendar year, Landlord shall submit to Tenant a statement of the actual amount
of Operating Expenses and Taxes for such calendar year, and the actual amount
owed by Tenant, and within thirty (30) days after receipt of such statement,
Tenant shall pay any deficiency between the actual amount owed and the estimates
paid during such calendar year, or in the event of overpayment, Landlord shall,
at the option of Tenant (so long as no Event of Default has occurred and is then
continuing), credit the amount of such overpayment toward the next installment
of Operating Expenses and Taxes owed by Tenant or remit such overpayment to
Tenant. If the Commencement Date shall fall on a day other than the
first day of the calendar year, and/or if the Expiration Date shall fall on a
day other than the last day of the calendar year, Tenant's proportionate share
of the Operating Expenses and Taxes for such calendar year shall be apportioned
prorata. No interest shall be payable to Tenant on account of
payments of estimated Additional Rent, and such payments may be
commingled. If there exists any dispute as to (i) the amount of
Additional Rent, (ii) whether a particular expense is properly included in
Additional Rent or (iii) Landlord's calculation of Additional Rent (each an
“Additional Rent Dispute”), the events, errors, acts or omissions giving rise to
such Additional Rent Dispute shall not constitute a breach or default by
Landlord under this Lease and even if a judgment resolving the Additional Rent
Dispute is entered against Landlord, this Lease shall remain in full force and
effect and Landlord shall not be liable for any consequential damages resulting
from the event, error, act or omission giving rise to such Additional Rent
Dispute. Notwithstanding the existence of an Additional Rent Dispute,
Tenant shall pay timely the amount of Additional Rent which is in dispute and
will continue to make all subsequent payments of Additional Rent as and when
required under this Lease, provided that the payment of such disputed amount and
other amounts shall be without prejudice to Tenant's position.
(c) “Taxes”
shall be defined as real estate and ad valorem taxes, assessments, sewer rents,
rates and charges, transit taxes, taxes based upon the receipt of rent, and any
other federal, state or local governmental charge, general, special, ordinary or
extraordinary, which are levied or assessed or become a lien against the
Property or any portion thereof, or are payable in any calendar year during the
Term and any tax in substitution of any of the foregoing. Taxes shall
not include any franchise, capital, stock, transfer, inheritance or income
(other than rental income) tax imposed on Landlord. In case of
special taxes or assessments which may be payable in installments, only the
amount of each installment and interest paid thereon paid during a calendar year
shall be included in taxes for that calendar year. Taxes shall also
include any personal property taxes (attributable to the year in which paid)
imposed upon the furniture, fixtures, machinery, equipment, apparatus, systems
and appurtenances of Landlord used in connection with the operation of the
Building. Taxes also include Landlord’s reasonable costs and expenses
(including reasonable attorney’s fees) in contesting or attempting to reduce any
taxes.
(d) This
shall be a net lease and Base Rent shall be paid to Landlord net of all costs
and expenses, except as herein provided. The provisions for payment
of Operating Expenses and the Taxes are intended to pass on to Tenant and
reimburse Landlord for costs and expenses incurred in connection with ownership
and operation of the Demised Premises and Property and such additional
facilities now and in subsequent years as may be reasonably determined by
Landlord to be necessary to the Building or Property as a whole. Any
amounts required to be paid by Tenant under this Lease and any charges or
expenses incurred by Landlord on behalf of Tenant under the terms of this Lease
shall be considered "Additional Rent" and Base Rent and Additional Rent may be
referred to collectively as “Rent.” Any failure on the part of Tenant
to pay such Additional Rent when and as the same shall become due shall entitle
Landlord to the remedies available to it for non-payment of Base
Rent. Tenant's obligations for payment of Additional Rent shall begin
to accrue on the Commencement Date. No sum shall be deemed to have
been paid under this Lease unless and until such time as Landlord is in actual
receipt of such payment in immediately available good funds.
(e) If
applicable in the jurisdiction where the Demised Premises are located, Tenant
shall pay and be liable for all rental, sales, use and inventory taxes or other
similar taxes, if any, on the amounts payable by Tenant hereunder levied or
imposed by any city, state, county or other governmental body having authority,
such payments to be in addition to all other payments required to be paid
Landlord by Tenant under the terms of this Lease. Tenant shall have
no responsibility for any income tax of any nature payable by
Landlord. Such payment shall be made by Tenant directly to such
governmental body if billed to Tenant, or if billed to Landlord, such payment
shall be paid concurrently with the payment of the Base Rent, Additional Rent,
or such other charge upon which the tax is based, all as set forth
herein.
(f) Tenant
or its representative shall have the right to examine Landlord’s books and
records with respect to the items in Landlord’s annual statement during normal
business hours at any time within one hundred eighty (180) days following the
furnishing by Landlord to Tenant of such statement. Unless Tenant
shall take written exception to any item within sixty (60) days after the
furnishing of the foregoing statement, such statement shall be considered as
final and conclusively accepted by Tenant. Any amount due to Landlord
as shown on any such statement, whether or not written exception is taken
thereto, shall be paid by Tenant within thirty (30) days after Landlord shall
have submitted the statement, without prejudice to any such written
exception.
7. Use of Demised
Premises.
(a) The
Demised Premises shall be used for the Permitted Use set forth in Section 1(k)
and for no other purpose.
(b) Tenant
will permit no liens to attach or exist against the Demised Premises, and shall
not commit any waste.
(c) The
Demised Premises shall not be used for any illegal purposes, and Tenant shall
not allow, suffer, or permit any vibration, noise, odor, light or other effect
to occur within or around the Demised Premises that could constitute a nuisance
or trespass for Landlord or any occupant of an adjoining building, its
customers, agents, or invitees. Upon notice by Landlord to Tenant
that any of the aforesaid prohibited uses are occurring, Tenant agrees to
promptly remove or control the same.
(d) Tenant
shall not in any way violate any law, ordinance or restrictive covenant
affecting the Demised Premises, and shall not in any manner use the Demised
Premises so as to cause cancellation of, prevent the use of, or increase the
rate of, the fire and extended coverage insurance policy required
hereunder.
(e) In
the event insurance premiums pertaining to the Demised Premises, the Building,
or the common areas, whether paid by Landlord or Tenant, are increased over the
least hazardous rate available due to the nature of the use of the Demised
Premises by Tenant, Tenant shall pay such additional amount as Additional
Rent.
8. Insurance.
(a) Tenant
covenants and agrees that from and after the date of delivery of the Demised
Premises from Landlord to Tenant, Tenant will carry and maintain, at its sole
cost and expense, (i) liability insurance in the commercial general liability
form (or reasonable equivalent thereto) covering the Demised Premises and
Tenant's use thereof against claims for personal injury or death, property
damage and product liability occurring upon, in or about the Demised Premises,
such insurance to be written on an occurrence basis (not a claims made basis),
with combined single limit coverage of not less than $3,000,000.00 and with a
general aggregate limit of not less than $5,000,000.00 for each policy year, and
(ii) comprehensive automobile liability insurance covering Tenant against any
losses arising out of liability for personal injuries or deaths of persons and
property damage occurring in or about the Demised Premises in the amount of not
less than $3,000,000, combined single limit. The insurance coverage
required under this Section 8(a) shall, in addition, extend to any liability of
Tenant arising out of the indemnities by Tenant provided in this Lease and, if
necessary, the policy shall contain a contractual endorsement to that
effect.
(b) All
policies of the insurance provided for in Section 8(a) shall be issued in form
reasonably acceptable to Landlord by insurance companies with a rating of not
less than "A," and financial size of not less than Class X, as established in
the most current available "Best's Insurance Reports", and licensed to do
business in the state in which the Building is located. Each and
every such policy:
(i) shall
name Landlord as well as Mortgagee, as defined in Section 24, and any other
party reasonably designated by Landlord, as an additional insured, to the extent
of the obligations of Tenant to Landlord under this Lease which are
insurable;
(ii) a
certificate thereof shall be delivered to Landlord prior to the Lease
Commencement Date and thereafter within thirty (30) days prior to the expiration
of each such policy, and, as often as any such policy shall expire or terminate;
with respect to any certificates of insurance delivered pursuant to this
subsection, Tenant shall, upon written request of Landlord, provide the Landlord
within thirty (30) days a copy of the provisions of the policy evidenced by the
certificate which govern or limit the coverage for the Demised Premises,
certified by the carrier or its agent to be correct and complete; renewal or
additional policies shall be procured and maintained by Tenant in like manner
and to like extent;
(iii) shall
contain a provision that the insurer will give to Landlord and such other
parties in interest at least thirty (30) days notice in writing in advance of
any material change, cancellation, termination or lapse, or the effective date
of any reduction in the amounts of insurance; and
(iv) shall
be written as a primary policy which does not contribute to and is not in excess
of coverage which Landlord may carry.
(c) Tenant
shall, from and after the Commencement Date, carry and maintain, at its sole
cost and expense, (i) insurance on the "all-risk" or equivalent form against
loss or damage to the personal property of Tenant within the Building at its
replacement value including, without limitation, stored inventory, with
companies, amounts and terms of coverage reasonably deemed prudent by Tenant and
(ii) workers’ compensation insurance per the applicable state statutes covering
all employees of Tenant. Landlord shall have no interest in or claim
of any nature to the proceeds of any such insurance. At the request
of Landlord, Tenant shall provide Landlord with a certificate of such insurance,
issued by the carrier or its agent, setting forth the terms of
coverage.
(d) In
the event that Tenant shall fail to carry and maintain the insurance coverages
set forth in this Section 8, Landlord may upon thirty (30) days notice to Tenant
(unless such coverages will lapse in which event no such notice shall be
necessary) procure such policies of insurance and Tenant shall promptly
reimburse Landlord therefor.
(e) Landlord
and Tenant hereby waive any rights each may have against the other on account of
any loss or damage occasioned to Landlord or Tenant, as the case may be, their
respective property, the Demised Premises, its contents or to the other portions
of the Building, to the extent that such loss or damage is actually covered by
fire and extended coverage insurance and is fully
reimbursed. Landlord and Tenant each agree that, to the extent a
waiver of subrogation is obtainable from their respective insurance companies
insuring the property of either Landlord or Tenant, waiving any right of
subrogation that such insurers may have against Landlord or Tenant, as the case
may be, for any such loss, such waiver of subrogation shall be contained in
their respective policies. If, for any reason, Tenant fails to insure
its personal property and contents (including inventory) within the Demised
Premises, Tenant shall conclusively be deemed to have waived any claim against
or recovery from Landlord to the extent that any such claim or recovery would
have been covered by an "all risks" casualty insurance policy for such personal
property and contents and therefore would have been within the scope of a waiver
of subrogation contained in such policy of insurance.
9. Utilities. During
the Term, Tenant shall promptly pay as billed to Tenant all rents and charges
for water and sewer services and all costs and charges for gas, steam,
electricity, fuel, light, power, telephone, heat and any other utility or
service used or consumed in or servicing the Demised Premises. Any
utilities which are not separately metered shall be billed to Tenant by Landlord
at Landlord's actual cost. In the event Tenant's use of any utility
not separately metered is in excess of the average use by other tenants,
Landlord shall have the right to install a meter for such utility, at Tenant's
expense, and xxxx Tenant for Tenant's actual use. If Tenant fails to
pay any utility bills or charges, Landlord may, at its option and upon
reasonable notice to Tenant, pay the same and, in such event, the amount of such
payment, together with interest thereon at the Interest Rate (as defined in
Section 33) from the date of such payment by Landlord will be added to Tenant's
next due payment as Additional Rent.
10. Maintenance and
Repairs.
(a) Tenant
shall, at its own cost and expense, maintain in good condition and repair, and
replace as necessary, the Demised Premises, including but not limited to the
heating, air conditioning and ventilation systems, glass, windows and doors,
sprinkler, all plumbing and sewage systems, fixtures, interior walls, wall
finishes, floors (including floor slabs), ceilings, columns, storefronts, plate
glass, skylights, pipes, mains, water and sewer connections, truck docks and
doors, dock bumpers, dock plates, levelers, entrance doors, door jams, all
electrical facilities and equipment including, without limitation, lighting
fixtures, lamps, fans and any exhaust equipment and systems, electrical motors,
and all other appliances and equipment (including, without limitation, dock
levers, dock shelters, dock seals and dock lighting) of every kind and nature
located in, upon or about the Demised Premises and return the same to Landlord
in the condition required under Section 32(b) hereof. All such
maintenance, repairs and replacements shall be of first class quality and
sufficient for the proper maintenance and operation of the Demised
Premises. Tenant shall keep and maintain the Demised Premises safe,
secure and clean, specifically including, but not by way of limitation, removal
of waste and refuse matter. Tenant shall not permit anything to be
done upon the Demised Premises (and shall perform all maintenance and repairs
thereto so as not) to invalidate, in whole or in part, or prevent the
procurement of any insurance policies which may, at any time, be required under
the provisions of this Lease. Tenant shall not obstruct or permit the
obstruction of any parking area, adjoining street or sidewalk. During
the Term, Tenant shall maintain in full force and effect a service contract for
the maintenance of the heating, ventilation and air conditioning systems with an
entity acceptable to Landlord. Such service contract shall conform to
the requirements under the warranty, if any, on said systems, including, but not
limited to, replacement of filters as necessary and provide for at least
quarterly inspections and cleaning of the applicable units, systems and
equipment, together with such adjustments and servicing as each such inspection
discloses to be recommended or required. Tenant shall deliver to
Landlord (i) a copy of said service contract prior to the Commencement Date, and
(ii) thereafter, a copy of a renewal or substitute service contract within
thirty (30) days prior to the expiration of the existing service contract, and
(iii) upon Landlord’s request, a copy of the service log reflecting all services
performed under such service contract.
(b) Subject
to the provisions of Sections 20 and 21, Landlord shall maintain in good
condition and repair the (i) Common Areas (including the Tenant Parking Area),
(ii) gutters, (iii) roof, (iv) foundation (beneath the floor slab) and
structural frame of the Building and (v) the structural soundness of all
exterior walls at Landlord’s cost; provided, however, that the roof, Common Area
and Tenant Parking Area repair and replacement (but repairs or replacements of
the foundation or structure of the Building) shall be deemed an Operating
Expense payable by Tenant to the extent permitted under Section 6(a) of this
Lease. Landlord’s obligation shall exclude the cost of any
maintenance or repair required because of the act or negligence of Tenant or any
of Tenant’s subsidiaries or affiliates or subtenant(s), or any of Tenant’s or
such subsidiaries’ or affiliates’ or subtenant(s)’ agents, contractors,
employees, licensees or invitees (collectively, “Tenant’s Affiliates”), the cost
of which shall be the responsibility of Tenant. Landlord shall never
have any obligation to repair, maintain or replace, pursuant to this subsection
10(b) or any other provision of this Lease, any Tenant Change (as defined in
Section 19 hereof).
(c) Notwithstanding
anything in Sections 6(a) and 10.1(a) to the contrary, Landlord shall be
responsible for the repair or replacement, as determined in Landlord’s
reasonable discretion, of any material defects to the (i) electrical, gas,
water, telecommunications, and sewer service extending from the main service
connection to the Building, to the extent such services are located on the
Property; (ii) mechanical services within the Demised Premises, including, (1)
the electrical lines, electrical components and lighting, and (2) the plumbing
and drain/sewer line, sprinkler system and fixtures; (iii) the roof, foundation
and walls of the Building; (iv) the parking lot and entry drives servicing the
Demised Premises, including lighting and striping; (v) the docks within the
Demised Premises, including all improvements thereto; (vi) all flooring within
the Demised Premises; (vii) all heating, ventilation and cooling systems
servicing the Demised Premises; (viii) all other improvements to the Demised
Premises, except for the Pre-Term Tenant Alterations (as defined in Exhibit “C” hereto)
and any Tenant Changes; and (ix) all other structural components serving the
Demised Premises as of the date hereof (collectively referred to herein as, the
“Landlord Warranty Items”) for a period of one (1) year from the Commencement
Date (“Warranty Period”). Landlord’s obligations under this Section
10(c) shall only apply to the Landlord Warranty Items serving the Demised
Premises as of the Commencement Date and Landlord shall have no obligation or
responsibility to repair or replace the Landlord Warranty Items after the
Warranty Period or any equipment, mechanical or other items installed to service
the Demised Premises in connection with the Improvements as provided in Exhibit “C” hereto or
at any time thereafter. Tenant shall promptly notify Landlord of any
warranty claim and provide Landlord with its full cooperation and access to the
Demised Premises, as necessary for Landlord to complete any such Landlord
Warranty Item repairs. Landlord’s obligation shall exclude the cost
of any repair or replacement of any damage or defects arising because of (i) the
act, misuse or negligence of Tenant or any of Tenant’s Affiliates, or (ii)
failure of Tenant to properly maintain such items as required herein, the cost
of which shall be the responsibility of Tenant. In addition, Landlord
shall have no obligation to repair or replace any Landlord Warranty Items that
have been modified or repaired by Tenant, except to the extent that such
modifications or repairs made by Tenant are required pursuant to Tenant’s
maintenance obligations under this Lease.
(d) Except
to the extent caused by Landlord’s negligence, Landlord shall not be liable to
Tenant or to any other person for any damage occasioned by failure in any
utility system or by the bursting or leaking of any vessel or pipe in or about
the Demised Premises, or for any damage occasioned by water coming into the
Demised Premises or arising from the acts or neglects of occupants of adjacent
property or the public.
11. Non-Liability and
Indemnification.
(a) Subject
to Landlord’s indemnity under Subsection 10(c), none of Landlord, any managing
agent, Landlord’s members and their respective affiliates, owners, partners,
members, directors, officers, agents and employees shall be liable to Tenant for
any loss, injury, or damage, to Tenant or to any other person, or to its or
their property, irrespective of the cause of such injury, damage or
loss. In the event that Landlord’s indemnity under Subsection 10(c)
is applicable, it shall apply only as and to the specific extent expressly
provided in Subsection 10(c). Further, none of Landlord, any managing
agent, Landlord’s members and their respective affiliates, owners, partners,
members, directors, officers, agents and employees shall be liable to Tenant (a)
for any damage caused by other tenants or persons in, upon or about the
Property, or caused by operations in construction of any public or quasi-public
work; (b) with respect to matters for which Landlord is liable, for
consequential or indirect damages, including those purportedly arising out of
any loss of use of the Demised Premises or any equipment or facilities therein
by Tenant or any person claiming through or under Tenant; or (c) for injury or
damage to person or property caused by fire, or theft, or resulting from the
operation of heating or air conditioning or lighting apparatus, or from falling
plaster, or from steam, gas, electricity, water, rain, snow, ice, or dampness,
that may leak or flow from any part of the Property, or from the pipes,
appliances or plumbing work of the same.
(b) Except
in the event of, and to the extent of, Landlord’s negligence, sole negligence or
willful misconduct, Tenant hereby indemnifies, defends, and holds Landlord, its
managing agent, Landlord’s members and their respective affiliates, owners,
partners, members, directors, officers, agents and employees (collectively,
“Landlord Indemnified Parties”) harmless from and against any and all Losses
(defined below) arising from or in connection with any or all of: (a)
the conduct or management of either or both the Property and the Demised
Premises or any business therein, or any work or Tenant Changes, or any
condition created by any or all of Tenant and Tenant’s Affiliates in or about
the Demised Premises during the Term or during the period of time, if any, prior
to the Commencement Date that Tenant has possession of, or is given access to,
the Demised Premises; (b) any act, omission or negligence of any or all of
Tenant and Tenant’s Affiliates; (c) any accident, injury or damage whatsoever
occurring in, at or upon either or both of the Property and the Demised Premises
and caused by any or all of Tenant and Tenant’s Affiliates; (d) any breach by
Tenant of any or all of its warranties, representations and covenants under this
Lease; (e) any actions necessary to protect Landlord’s interest under this Lease
in a bankruptcy proceeding or other proceeding under the Bankruptcy Code; (f)
the creation or existence of any Hazardous Substances in, at, on or under the
Demised Premises or the Property, if and to the extent brought to the Demised
Premises or the Property or caused by Tenant or any party within Tenant’s
control; and (g) any violation or alleged violation by any or all of Tenant and
Tenant’s Affiliates of any law (collectively, “Tenant’s Indemnified
Matters”). In case any action or proceeding is brought against any or
all of Landlord and the Landlord Indemnified Parties by reason of any of
Tenant’s Indemnified Matters, Tenant, upon notice from any or all of Landlord,
managing agent or any Mortgagee (as defined herein), shall resist and defend
such action or proceeding by counsel reasonably satisfactory to, or selected by,
Landlord. The term “Losses” shall mean all claims, demands, expenses,
actions, judgments, damages (actual, but not consequential), penalties, fines,
liabilities, losses of every kind and nature, suits, administrative proceedings,
costs and fees, including, without limitation, attorneys’ and consultants’
reasonable fees and expenses, and the costs of cleanup, remediation, removal and
restoration, that are in any way related to any matter covered by the foregoing
indemnity. The provisions of this Section 11 shall survive the
expiration or termination of this Lease.
(c) Landlord
hereby indemnifies, defends and holds Tenant harmless from and against any and
all Losses actually suffered or incurred by Tenant as the direct result of any
negligent, willful or intentional acts or omissions of any or all of Landlord,
managing agent and any parties within the direct and sole control of either or
both of Landlord and managing agent. Notwithstanding anything to the
contrary set forth in this Lease, however, in all events and under all
circumstances, the liability of Landlord to Tenant, whether under this Section
11(c) or any other provision of this Lease, shall be limited to the interest of
Landlord in the Property, and Tenant agrees to look solely to Landlord’s
interest in the Property for the recovery of any judgment or award against
Landlord, it being intended that Landlord shall not be personally liable for any
judgment or deficiency. The provisions of this Section 11(c) shall
survive the expiration or termination of this Lease.
(d) Notwithstanding
anything to the contrary herein, nothing in this Section 11 shall be deemed to
exculpate Landlord from, or require Tenant to indemnify Landlord for, Landlord’s
negligent or willful acts or omissions.
12. Tenant's Fixtures and
Personal Property. Tenant shall have the right to install in
the Demised Premises trade fixtures and personal property required by Tenant or
used by it in its business. Tenant may remove any or all such trade
fixtures and personal property from time to time during the Term and shall
remove all such trade fixtures and personal property upon the expiration or
earlier termination of this Lease; provided, however, that Tenant may not remove
any property from the Demised Premises from and after the occurrence of any
Event of Default without the prior consent of Landlord. Tenant shall
repair and restore any damage or injury to the Demised Premises (to the
condition in which the Demised Premises existed prior to such installation)
caused by the installation and/or removal of any such trade fixtures or personal
property.
13. Signs. No
sign, advertisement or notice shall be inscribed, painted, affixed, or displayed
on the windows or exterior walls of the Demised Premises or on any public area
of the Building, except in such places, numbers, sizes, colors and styles as are
approved in advance in writing by Landlord, such approval not to be unreasonably
withheld, delayed or conditioned, subject always to the condition that all signs
must conform to all applicable laws and ordinances affecting the Demised
Premises and the Protective Covenants. Subject to the foregoing
requirements of this Section 13, if Tenant vacates the Demised Premises during
the Term, Tenant, may, subject to Landlord’s approval rights set forth
immediately above, post signage at a location on the Property acceptable to
Landlord, advertising the Demised Premises for sublease. Any and all
permitted signs shall be installed, maintained and removed by Tenant at Tenant's
sole expense.
14. Intentionally
Omitted.
15. Governmental
Regulations. Tenant shall promptly comply throughout the Term,
at Tenant's sole cost and expense, with all present and future laws, ordinances
and regulations of all applicable governing authorities relating to all or any
part of the Demised Premises, ordinary as well as extraordinary, or to the use
or manner of use of the Demised Premises or to the sidewalks, parking areas,
curbs and access ways adjoining the Demised Premises. Tenant shall
give prompt notice to Landlord of any written notice it receives of the alleged
violation of any law or requirement of any governmental or administrative
authority with respect to either or both of the Demised Premises and the use or
occupation thereof.
16. Environmental
Matters.
(a) For
purposes of this Lease:
(i) "Contamination"
as used herein means the uncontained or uncontrolled presence of or release of
Hazardous Substances (as hereinafter defined) into any environmental media from,
upon, within, below, into or on any portion of the Demised Premises, the
Building, or the Property so as to require remediation, cleanup or investigation
under any applicable Environmental Law (as hereinafter defined).
(ii) "Environmental
Laws" as used herein means all federal, state, and local laws, regulations,
orders, permits, ordinances or other requirements, concerning protection of
human health, safety and the environment, all as may be amended from time to
time.
(iii) "Hazardous
Substances" as used herein means any hazardous or toxic substance, material,
chemical, pollutant, contaminant or waste as those terms are defined by any
applicable Environmental Laws (including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601 et seq.
("CERCLA") and the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et
seq. ("RCRA") and any solid wastes, polychlorinated biphenyls, urea
formaldehyde, asbestos, radioactive materials, radon, explosives, petroleum
products and oil.
(b) Tenant
represents that all its activities on the Demised Premises or the Property
during the course of this Lease will be conducted in compliance with
Environmental Laws. Tenant warrants that it is currently in
compliance with all applicable Environmental Laws affecting the business which
Tenant intends to conduct at the Demised Premises and that there are no pending
or threatened notices of deficiency, notices of violation, orders, or judicial
or administrative actions involving alleged violations by Tenant of any
Environmental Laws and relating to or affecting in any way the Demised
Premises. Tenant, at Tenant's sole cost and expense, shall be
responsible for obtaining all permits or licenses or approvals under
Environmental Laws necessary for Tenant's operation of its business on the
Demised Premises and shall make all notifications and registrations required by
any applicable Environmental Laws to the extent applicable to the Demised
Premises. Tenant, at Tenant's sole cost and expense, shall at all
times comply with the terms and conditions of all such permits, licenses,
approvals, notifications and registrations and with any other applicable
Environmental Laws affecting in any way the Demised Premises. Tenant
warrants that it will obtain all such permits, licenses or approvals and make
all such notifications and registrations required by any applicable
Environmental Laws necessary for Tenant's operation of its business on the
Demised Premises. Tenant shall promptly provide Landlord or its
designated agent with complete copies of all communications, permits or
agreements with, from or issued by any governmental authority or agency
(federal, state or local) or any private entity relating in any way to the
presence, release, threat of release, or placement of Hazardous Substances on or
in the Demised Premises or any portion of the Property, or the generation,
transportation, storage, use, treatment, or disposal at, on, in or from the
Demised Premises, of any Hazardous Substances.
(c) Tenant
shall not cause or permit any Hazardous Substances to be brought upon, kept,
stored or used in or about the Demised Premises, the Building, or the Property
without the prior written consent of Landlord, which consent may be granted or
withheld in the absolute discretion of Landlord; provided, however, that the
consent of Landlord shall not be required for cleaning supplies, toner for
photocopying machines and other similar materials, in containers and quantities
reasonably necessary for and consistent with normal and ordinary use by Tenant,
at the Demised Premises, in the routine operation or maintenance of Tenant's
office equipment or in the routine janitorial service, cleaning and maintenance
for the Demised Premises. Any Hazardous Substances which are brought
upon, kept, stored or used by Tenant or any Tenant Affiliate in, on or about the
Land, the Building or the Demised Premises are hereinafter sometimes referred to
as "Tenant Hazardous Substances".
(d) Tenant
shall not cause or permit the release of any Hazardous Substances by Tenant or
its agents, contractors, employees or invitees into any environmental media such
as air, water or land, or into or on the Demised Premises, the Building or the
Property in any manner that violates any Environmental Laws. If such
release shall occur, Tenant shall (i) take all steps reasonably necessary to
contain and control such release and any associated Contamination, (ii) clean up
or otherwise remedy such release and any associated Contamination in accordance
with the highest standards of remediation and to the satisfaction of Landlord
and also to the extent required by, and take any and all other actions required
under, applicable Environmental Laws and (iii) notify and keep Landlord
reasonably informed of such release and response.
(e) Regardless
of any consents granted by Landlord pursuant to Section 16(c) allowing Hazardous
Substances upon the Demised Premises, Tenant shall under no circumstances
whatsoever (i) cause or permit any activity on the Demised Premises which would
cause the Demised Premises to become subject to regulation as a hazardous waste
treatment, storage or disposal facility under RCRA or the regulations
promulgated thereunder; (ii) discharge Hazardous Substances into the storm sewer
system serving the Property; or (iii) install any underground storage tank or
underground piping on or under the Demised Premises.
(f) Tenant
shall and hereby does indemnify Landlord and the other Landlord Indemnified
Parties and hold and defend (through counsel selected by Landlord) Landlord and
the other Landlord Indemnified Parties harmless from and against any and all
reasonable and actual expense, loss, and liability suffered by Landlord or the
other Landlord Indemnified Parties (with the exception of those expenses,
losses, and liabilities arising from Landlord's own gross negligence or willful
misconduct), by reason of Tenant's storage, generation, handling, treatment,
transportation, disposal, or arrangement for transportation or disposal, of any
Hazardous Substances (whether accidental, intentional, or negligent) or by
reason of Tenant's or any Tenant Affiliate’s breach of any of the provisions of
this Section 16. Such expenses, losses and liabilities shall include,
without limitation, (i) any and all expenses that Landlord may incur to comply
with any Environmental Laws as a result of Tenant's or any Tenant’s Affiliate’s
failure to comply therewith; (ii) any and all costs that Landlord may incur in
studying or remedying any Contamination at or arising from the Demised Premises
as a result of a failure by Tenant to comply with this Section 16 or
Environmental Laws; (iii) any and all costs that Landlord may incur in studying,
removing, disposing or otherwise addressing any Hazardous Substances which are
present at the Demised Premises as a result of a failure by Tenant or any Tenant
Affiliate to comply with this Section 16 or Environmental Laws; (iv) any and all
fines, penalties or other sanctions assessed upon Landlord by reason of Tenant's
failure to comply with Environmental Laws; and (v) any and all reasonable legal
and professional fees and costs incurred by Landlord in connection with the
foregoing. Notwithstanding the foregoing, Tenant shall have the right and
obligation to undertake and perform all such studying, remedying, removing,
disposing or otherwise addressing any Hazardous Substances which are the
responsibility of Tenant under this subsection (f), and Landlord shall not
perform such acts unless (x) Landlord is specifically required by Environmental
Laws to perform such acts or (y) Tenant has failed or refused to perform such
acts after having been afforded reasonable notice by Landlord and having had
reasonable opportunity to perform such acts. The indemnity contained
herein shall survive the termination or expiration of this Lease.
(g) Landlord
shall have the right, but not the obligation, to enter the Demised Premises at
reasonable times throughout the Term, after prior written notice to Tenant, to
audit and inspect the Demised Premises for Tenant's compliance with this Section
16. Upon written request by Landlord, Tenant shall provide Landlord
with the results of reasonably appropriate tests of air, water or soil to
demonstrate that Tenant complies with all applicable laws, rules or permits
relating in any way to the generation, transport, storage, use, treatment,
disposal or presence of Hazardous Materials on, at, in or from all or any
portion of either or both of the Demised Premises and the Property.
(h) In
any case where there is any dispute or controversy regarding the source of any
Hazardous Substances, unless it is clearly and indisputably proven that such
Hazardous Substances were present in the Demised Premises on or before the
execution of this Lease or thereafter placed therein by (a) Landlord or its
employees, agents or contractors, or (b) by any tenant of the Building other
than Tenant, or (c) by any other third party not affiliated with Tenant, it
shall be conclusively deemed for all purposes of this Lease that such Hazardous
Substances were placed in the Demised Premises by Tenant or one of the Tenant’s
Affiliates.
(i) Landlord
shall indemnify and hold Tenant harmless from and against any and all “Covered
Liabilities and Costs” (as defined below) arising from (i) the release of
Hazardous Substances on the Property in violation of Environmental Laws
occurring prior to the commencement of the Term, and (ii) the release of
Hazardous substances on the Property in violation of Environmental Laws by
Landlord, its agents, employees, contractors, invitees and
licensees. Covered Liabilities and Costs shall include only (i)
reasonable coasts that Tenant may incur in order to comply with any clean up of
Contamination required by any governmental entity responsible for enforcing
applicable Environmental Laws, (ii) fines, penalties or other sanctions assessed
against or imposed upon Tenant, (iii) reasonable professional fees incurred by
Tenant in connection with the foregoing, and (iv) damages to Tenant’s personal
property directly caused by such release to the extent not covered by Tenant’s
insurance required hereunder. In the event that any claim arises
under this subsection (i) Landlord shall have the right and obligation to
undertake and perform, at its sole cost and expense, all necessary studies,
removals, disposals and remediation of such Contamination, as necessary to bring
the Property in compliance with such Environmental Laws.
17. Acceptance of Demised
Premises.
(a) Except
as set forth in this Lease, LANDLORD IS LEASING THE DEMISED PREMISES TO TENANT
“AS IS,” WITHOUT ANY REPRESENTATIONS OR WARRANTIES, INCLUDING ANY EXPRESS OR
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OR HABITABILITY, AND WITHOUT ANY
OBLIGATION TO ALTER, REMODEL, IMPROVE, REPAIR, DECORATE OR CLEAN ANY PART OF THE
DEMISED PREMISES OR COMMON AREAS.
(b) Any
improvements which Tenant proposes to make to the Demised Premises shall be
deemed a “Tenant Change” (as defined in Section 19) and shall be made in strict
accordance therewith. Upon completion of such work, Tenant shall
furnish Landlord with final waivers of liens and contractors’ affidavits, in
such form as may be required by Landlord, Landlord’s title insurance company and
Landlord’s construction lender, from all parties performing labor or supplying
materials or services in connection with the work showing that all such parties
have been compensated in full and waiving all liens in connection with the
Demised Premises and Building. Tenant shall submit to Landlord a
detailed breakdown of Tenant’s total construction costs, together with such
evidence of payment as is reasonably satisfactory to Landlord.
18. Force
Majeure. Landlord shall not be in default under this Lease to
the extent Landlord is unable to perform any of its obligations on account of
any strike or labor problem, energy shortage, governmental withholding of
permits for work to be performed by Landlord for reasons outside of Landlord’s
control, governmental pre-emption or prescription, national emergency, or any
other cause of any kind beyond the reasonable control of Landlord (“Force
Majeure”).
19. Tenant Alterations and
Additions. Tenant shall not make or permit to be made any
alterations, improvements, or additions to the Demised Premises (a "Tenant
Change"), without first obtaining on each occasion Landlord's prior written
consent; provided, however, that Tenant shall have the right, without the prior
written consent of Landlord, to make non-structural Tenant Changes which require
an expenditure of less than $10,000.00 for any one Tenant Change and less than
$100,000.00 in the aggregate over the Term. Landlord shall approve or
reject a Tenant Change request within ten (10) business days after receipt of
written notice of such request; provided, however, that Landlord’s failure to
timely respond to a Tenant Change request shall be deemed a rejection of such
request. As part of its approval process, Landlord may require that
Tenant submit plans and specifications to Landlord, for Landlord's approval and
to deliver to Landlord “as built” plans and specifications (in CAD format if
Landlord so requests) following the substantial completion
hereof. Notwithstanding any other provision of this Lease to the
contrary, the term Tenant Change shall include any changes made to the Demised
Premises by Landlord or Tenant pursuant to the Tenant Improvement Agreement
attached hereto as Exhibit “C” and
forming a part hereof. Tenant shall be required to remove all Tenant
Changes to the Demised Premises at the end of the Term unless Landlord provides
written notice to Tenant, at least thirty (30) calendar days prior to the end of
the Term, that such Tenant Change must be left in the Demised
Premises. Accordingly, Tenant shall, at its sole cost and expense and
upon the expiration or earlier termination of this Lease, remove the same and
restore the Demised Premises to its condition prior to such Tenant Change unless
notified to the contrary by Landlord as provided above. All Tenant
Changes shall be performed in accordance with all legal requirements applicable
thereto and in a good and workmanlike manner with first-class
materials. Tenant shall maintain insurance reasonably satisfactory to
Landlord during the construction of all Tenant Changes and shall provide
Landlord with evidence thereof satisfactory to Landlord prior to the
commencement of construction. No Tenant Change shall be structural in
nature or impair the structural strength of the Building or reduce its
value. Tenant shall pay the full cost of any Tenant Change and shall
give Landlord such reasonable security as may be requested by Landlord to insure
payment of such cost. With respect to any Tenant Change, Landlord
shall have no duty or obligation to make any replacement or repair thereto,
whether pursuant to Section 10 of this Lease or as required to comply with any
law or otherwise, whether interior or exterior, structural or nonstructural,
ordinary or extraordinary.
20. Fire and Other
Casualty.
(a) If
the Demised Premises are damaged or destroyed by fire or other casualty,
Landlord shall, subject to the limitations in subsection (b) of this Section 20,
promptly and diligently proceed to repair, rebuild or replace the Demised
Premises, so as to restore the Demised Premises to the condition in which the
Demised Premises existed immediately prior to such damage or
destruction. If Landlord carries on any restoration or repair at the
Demised Premises pursuant to this Section 20 and Tenant continues to occupy any
other portion of the Demised Premises, Landlord shall take all such steps as may
be reasonable and practicable to prevent interference with Tenant's use and
enjoyment of the portion of the Demised Premises which Tenant continues to
occupy. Landlord shall perform its obligations under this Section 20
in a manner which will achieve restoration of any damage as soon as practicable,
giving due regard to the nature and scope of the damage, subject to the
occurrence of Permitted Delay.
(b) Any
provision of this Section 20 to the contrary notwithstanding, if either (i) all
or any portion of the Demised Premises is damaged by fire or other casualty and
the time period reasonably determined by Landlord to be required for the actual
restoration or repair of the Demised Premises will exceed two hundred seventy
(270) days from the date the casualty occurs or (ii) the Demised Premises is
damaged by fire or other casualty within twelve (12) months preceding the end of
the Term (which includes any renewal of the Term then properly exercised by
Tenant) either (x) to an extent exceeding twenty-five percent (25%) of the then
current value of the Demised Premises, or (y) affecting a portion of the Demised
Premises which is critical to Tenant’s business operations and which cannot be
relocated or restored, then either Landlord or Tenant shall have the right, to
be exercised by giving written notice to the other (which notice shall set forth
with specificity the basis for giving the notice) within thirty (30) days after
the occurrence of the casualty, to terminate this Lease. Termination
shall be effective on a date specified in the written notice, which date shall
be not less than thirty (30) nor more than sixty (60) days after the date the
notice is given. Upon such termination, the term of this Lease shall
end as if the date of termination were the date originally specified for
expiration of the Term.
(c) If
a casualty prevents Tenant from fully occupying the Demised Premises, Base Rent
shall xxxxx, for so long as such full occupancy is prevented, in proportion to
the amount of the Demised Premises not usable by Tenant as a result of the
casualty; provided that if the casualty occurred as a result of the act or
negligence of Tenant, there shall be no such abatement unless (and only to the
extent) that the loss of rent is actually covered by insurance carried by
Landlord pursuant to Section 8.
21. Condemnation.
(a) If
all of the Demised Premises is taken or condemned for a public or quasi-public
use ("Taking"), or if a Material Portion of the Demised Premises (as hereinafter
defined) is acquired in a Taking, Landlord shall promptly upon receipt of notice
thereof, give notice of such Taking to Tenant. This Lease shall then
terminate as of the earlier of the date title to the condemned real estate vests
in the condemnor or the date on which Tenant is deprived of possession of the
Demised Premises. In such event, the Base Rent herein reserved and
all Additional Rent and other sums payable hereunder shall be apportioned and
paid in full by Tenant to Landlord to that date, all Base Rent, Additional Rent
and other sums payable hereunder prepaid for periods beyond that date shall
forthwith be repaid by Landlord to Tenant, and neither party shall thereafter
have any liability hereunder, except that any obligation or liability of either
party, actual or contingent, under this Lease which has accrued on or prior to
such termination date shall survive. A Taking shall have acquired a
"Material Portion of the Demised Premises" if the Taking:
(i) affects
more than 10% of the area of the Demised Premises or an area which is critical
to Tenant’s business operations and cannot be relocated or restored;
or
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(ii)
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materially
and adversely affects access to the Land or the
Building.
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(b) If
less than a Material Portion of the Demised Premises is affected by a Taking,
Landlord, to the extent of the award it receives, shall restore the Demised
Premises to a condition and to a size as nearly comparable as reasonably
possible to the condition and size thereof immediately prior to the Taking, and
there shall be an equitable adjustment to the Base Rent based on loss of use of
the Demised Premises as a result of the Taking.
(c) Except
as hereinafter expressly provided to the contrary, Landlord shall be entitled to
receive the entire award in any proceeding with respect to any Taking provided
for in this Section 21, without deduction therefrom for any estate vested in
Tenant by this Lease, and Tenant shall receive no part of such
award. Nothing herein contained shall be deemed to prohibit Tenant
from making a separate claim, against the condemnor, to the extent permitted by
law, for the value of Tenant's moveable trade fixtures, machinery and moving
expenses, provided that the making of such claim shall not and does not
adversely affect or diminish Landlord's award.
22. Tenant's
Default.
(a) The
occurrence of any one or more of the following events shall constitute an "Event
of Default" of Tenant under this Lease:
(i) if
Tenant fails to pay Base Rent or any Additional Rent hereunder as and when such
rent becomes due and such failure continues for seven (7) calendar days after
Landlord gives written notice of such failure to Tenant;
(ii) if
Tenant permits to be done anything which creates a lien upon the Demised
Premises and fails to discharge, bond such lien or post security with Landlord
acceptable to Landlord within thirty (30) days after receipt by Tenant of
written notice thereof;
(iii) if
Tenant fails to maintain in force all policies of insurance required by this
Lease and such failure shall continue for more than ten (10) days after Landlord
gives Tenant notice of such failure;
(iv) if
any petition is filed by or against Tenant under any present or future section
or chapter of the Bankruptcy Code, or under any similar law or statute of the
United States or any state thereof (which, in the case of an involuntary
proceeding, is not permanently discharged, dismissed, stayed, or vacated, as the
case may be, within sixty (60) days of commencement), or if any order for relief
shall be entered against Tenant in any such proceedings;
(v) if
Tenant becomes insolvent or makes a transfer in fraud of creditors or makes an
assignment for the benefit of creditors;
(vi) if
a receiver, custodian, or trustee is appointed for the Demised Premises or for
all or substantially all of the assets of Tenant, which appointment is not
vacated within sixty (60) days following the date of such
appointment;
(vii) if
Tenant shall fail to deliver to Landlord at least ten days prior
written notice, accompanied by an additional security deposit equal to two
monthly installments of Base Rent and then prevailing estimated Additional Rent,
prior to vacating or abandoning the Demised Premises;
(viii) if
Tenant fails to perform or observe any other term of this Lease and such failure
shall continue for more than ten (10) days after Landlord gives Tenant notice of
such failure;
(ix) Source
Interlink Companies Inc., the Guarantor under the Guaranty dated of even date
herewith and attached hereto as Exhibit “H”,
breaches, defaults under or fails to comply with any or all of the requirements
of such Guaranty; or
(x) if
Tenant vacates or abandons the Demised Premises during the Term and fails to
continue to comply with the terms of this Lease, including, but not limited to
maintenance of required insurance covered and keeping the same in repair and
secured.
(b) Upon
the occurrence of any Event of Default Landlord may, at Landlord's option,
without any demand or notice whatsoever (except as expressly required in this
Section 22):
(i) Terminate
this Lease by giving Tenant notice of termination, in which event this Lease
shall expire and terminate on the date specified in such notice of termination
and all rights of Tenant under this Lease and in and to the Demised Premises
shall terminate. Tenant shall remain liable for all obligations under
this Lease arising up to the date of such termination, and Tenant shall
surrender the Demised Premises to Landlord on the date specified in such notice;
or
(ii) Terminate
this Lease as provided in Section 22(b)(i) hereof and recover from Tenant all
damages Landlord may incur by reason of Tenant's default, including, without
limitation, a sum which, at the date of such termination, represents the (1)
value of the excess, if any, of (a) the Base Rent, Additional Rent and all other
sums which would have been payable hereunder by Tenant for the period commencing
with the day following the date of such termination and ending with the
Expiration Date had this Lease not been terminated, over (b) the aggregate
reasonable rental value of the Demised Premises for the period commencing with
the day following the date of such termination and ending with the Expiration
Date had this Lease not been terminated (which is hereby stipulated and agreed
shall not exceed sixty percent (60%) of the Rent reserved for such period under
this Lease), plus (2) the costs of recovering possession of the Demised Premises
and all other expenses incurred by Landlord due to Tenant's default, including,
without limitation, reasonable attorney's fees, plus (3) the unpaid Base Rent
and Additional Rent earned as of the date of termination plus any interest and
late fees due hereunder, plus other sums of money and damages owing on the date
of termination by Tenant to Landlord under this Lease or in connection with the
Demised Premises, all of which shall be deemed immediately due and payable;
provided, however, that such payments shall not be deemed a penalty but shall
merely constitute payment of liquidated damages, it being understood and
acknowledged by Landlord and Tenant that actual damages to Landlord are
extremely difficult, if not impossible, to ascertain. The excess, if
any, of subparagraph (ii)(1)(a) over subparagraph (ii)(1)(b) herein shall be
discounted to present value at the "Treasury Yield" rate. "Treasury
Yield" shall mean the rate of return in percent per annum of Treasury Constant
Maturities for the length of time specified as published in document H.15(5 19)
(presently published by the Board of Governors of the U.S. Federal Reserve
System titled "Federal Reserve Statistical Release") for the calendar week
immediately preceding the calendar week in which the termination
occurs. If the rate of return of Treasury Constant Maturities for the
calendar week in question is not published on or before the business day
preceding the date the Treasury Yield in question is to become effective, then
the Treasury Yield shall be based upon the rate of return of Treasury Constant
Maturities for the length of time specified for the most recent calendar week
for which such publication has occurred. If no rate of return for
Treasury Constant Maturities is published for the specific length of time
specified, the Treasury Yield for such length of time shall be the weighted
average of the rates of return of Treasury Constant Maturities most nearly
corresponding to the length of the applicable period specified. If
the publishing of the rate of return of Treasury Constant Maturities is ever
discontinued, then the Treasury Yield shall be based upon the index which is
published by the Board of Governors of the U.S. Federal Reserve System in
replacement thereof or, if no such replacement index is published, the index
which, in Landlord's reasonable determination, most nearly corresponds to the
rate of return of Treasury Constant Maturities. In determining the
aggregate reasonable rental value pursuant to subparagraph (ii) (1)(b) above,
the parties hereby agree that, at the time Landlord seeks to enforce this
remedy, all relevant factors should be considered, including, but not limited
to, (a) the length of time remaining in the Term, (b) the then current market
conditions in the general area in which the Building is located, (c) the
likelihood of reletting the Demised Premises for a period of time equal to the
remainder of the Term, (d) the net effective rental rates then being obtained by
landlords for similar type space of similar size in similar type buildings in
the general area in which the Building is located, (e) the vacancy levels in the
general area in which the Building is located, (f) current levels of new
construction that will be completed during the remainder of the Term and how
this construction will likely affect vacancy rates and rental rates and (g)
inflation; or
(iii) Without
terminating this Lease, Landlord may, without the necessity of notice to the
Tenant, terminate Tenant’s right of possession of the Demised Premises pursuant
to any available judicial proceeding and thereupon enter into and upon and take
possession of the Demised Premises or any part thereof. Any property
then remaining in the Demised Premises may be removed and stored in a warehouse
or elsewhere at the cost of, and for the account of Tenant without Landlord
becoming liable for any loss or damage which may be occasioned
thereby. Thereafter, Landlord shall use its best reasonable efforts
as required by Illinois law to lease to a third party the Demised Premises or
any portion thereof as the agent of Tenant upon such terms and conditions as
Landlord may deem necessary or desirable in order to relet the Demised
Premises. The remainder of any rentals received by Landlord from such
reletting, after the payment of any indebtedness due hereunder from Tenant to
Landlord, and the payment of any costs and expenses of such reletting
(including, without limitation, leasing commissions and costs of preparing the
Demised Premises for reletting), shall be held by Landlord to the extent of and
for application in payment of future rent owed by Tenant, if any, as the same
may become due and payable hereunder, plus the costs and expenses relating to
reletting as described in the immediately preceding sentence. If such
rentals received from such reletting shall at any time or from time to time be
less than sufficient to pay to Landlord the entire sums then due from Tenant
hereunder, Tenant shall pay any such deficiency to
Landlord. Notwithstanding any such reletting without termination,
Landlord may at any time thereafter elect to terminate this Lease for any such
previous default provided same has not been cured; or
(iv) Without
liability to Tenant or any other party and without constituting a constructive
or actual eviction, suspend or discontinue furnishing or rendering to Tenant any
property, material, labor, utilities or other service, wherever Landlord is
obligated to furnish or render the same so long as Tenant is in default under
this Lease; or
(v) With
or without terminating this Lease, allow the Demised Premises to remain
unoccupied and collect rent from Tenant as it comes due; provided that nothing
contained in this Lease will relieve Landlord of its duty to mitigate its
damages to the extent required under the laws of the State of Illinois;
or
(vi) Pursue
such other remedies as are available at law or equity.
(c) If
this Lease shall terminate as a result of or while there exists an Event of
Default hereunder, any funds of Tenant held by Landlord may be applied by
Landlord to any damages payable by Tenant (whether provided for herein or by
law) as a result of such termination or default.
(d) Neither
the commencement of any action or proceeding, nor the settlement thereof, nor
entry of judgment thereon shall bar Landlord from bringing subsequent actions or
proceedings from time to time, nor shall the failure to include in any action or
proceeding any sum or sums then due be a bar to the maintenance of any
subsequent actions or proceedings for the recovery of such sum or sums so
omitted.
(e) No
agreement to accept a surrender of the Demised Premises and no act or omission
by Landlord or Landlord's agents during the Term shall constitute an acceptance
or surrender of the Demised Premises unless made in writing and signed by
Landlord. No re-entry or taking possession of the Demised Premises by
Landlord shall constitute an election by Landlord to terminate this Lease unless
a written notice of such intention is given to Tenant. No provision
of this Lease shall be deemed to have been waived by either party unless such
waiver is in writing and signed by the party making such
waiver. Landlord's acceptance of Base Rent or Additional Rent in full
or in part following an Event of Default hereunder shall not be construed as a
waiver of such Event of Default. No custom or practice which may grow
up between the parties in connection with the terms of this Lease shall be
construed to waive or lessen either party's right to insist upon strict
performance of the terms of this Lease, without a written notice thereof to the
other party.
(f) If
an Event of Default shall occur, Tenant shall pay to Landlord, on demand, all
expenses incurred by Landlord as a result thereof, including reasonable
attorneys' fees, court costs and expenses actually incurred. Landlord
may, at the option of Landlord, cure any Event of Default and the actual cost of
such cure shall be payable by Tenant to Landlord within thirty (30) calendar
days after written demand and shall bear interest at the Interest Rate until
repayment in full by Tenant occurs; provided, however, that if a failure by
Tenant to perform or observe any term of this Lease gives rise to circumstances
or conditions which constitute an emergency threatening human health or safety,
Landlord shall, after making a reasonable effort to notify Tenant, be entitled
to take immediately curative action to the extent necessary to eliminate the
emergency. Any cost so incurred by Landlord shall be reasonably
incurred and must not exceed the scope of the Event of Default in question; and
if such costs are chargeable as a result of labor or materials provided directly
by Landlord, rather than by unrelated third parties, the cost shall not exceed
the amount which would have been charged by a qualified third party unrelated to
Landlord. Such costs must be reasonably documented and copies of such
documentation must be delivered to Tenant with the written demand for
reimbursement.
23. Landlord's Right of
Entry. Tenant agrees to permit Landlord and the authorized
representatives of Landlord and of Lender to enter upon the Demised Premises at
all reasonable times for the purposes of inspecting the Demised Premises,
ascertaining Tenant's compliance with this Lease, curing any Event of Default
and making any repairs required to be performed by Landlord; provided that,
except in the case of an emergency, Landlord shall give Tenant reasonable prior
notice of Landlord's intended entry upon the Demised
Premises. Nothing herein shall imply any duty upon the part of
Landlord to do any work required of Tenant hereunder, and the performance
thereof by Landlord shall not constitute a waiver of Tenant's default in failing
to perform it. Landlord shall not be liable for inconvenience,
annoyance, disturbance or other damage to Tenant by reason of making such
repairs or the performance of such work in the Demised Premises or on account of
bringing materials, supplies and equipment into or through the Demised Premises
during the course thereof and the obligations of Tenant under this Lease shall
not thereby be affected; provided, however, that Landlord shall use reasonable
efforts not to interfere with Tenant's operations in the Demised Premises in
making such repairs or performing such work. Landlord also shall have
the right, upon giving prior notice (which may be given verbally) to Tenant, to
enter the Demised Premises at all reasonable times to exhibit the Demised
Premises to any prospective purchaser, mortgagee or tenant. During
the final nine (9) months of the Term, Landlord may place signs at the Demised
Premises indicating that the Demised Premises is available for
rent.
24. Mortgagee's
Rights.
(a) For
purposes of this Lease:
(i) "Mortgagee"
as used herein means the holder of a Mortgage;
(ii) "Mortgage"
as used herein means any or all mortgages, deeds to secure debt, deeds of trust
or other instruments in the nature thereof which may now or hereafter affect or
encumber Landlord's title to the Demised Premises, and any amendments,
modifications, extensions or renewals thereof.
(b) This
Lease and all rights of Tenant hereunder are and shall be subordinate to the
lien and security title of any Mortgage. Tenant recognizes and
acknowledges the right of Mortgagee to foreclose or exercise the power of sale
against the Demised Premises under any Mortgage.
(c) Tenant
shall, in confirmation of the subordination set forth in Section 24(b) and
notwithstanding the fact that such subordination is self-operative, and no
further instrument or subordination shall be necessary, upon demand, at any time
or times, execute acknowledge, and deliver to Landlord or to Mortgagee any and
all instruments requested by either of them to evidence such
subordination.
(d) At
any time during the Term, Mortgagee may, by written notice to Tenant, make this
Lease superior to the lien of its Mortgage. If requested by
Mortgagee, Tenant shall, upon demand, at any time or times, execute, acknowledge
and deliver to Mortgagee, any and all instruments that may be necessary to make
this Lease superior to the lien of any Mortgage.
(e) If
Mortgagee (or Mortgagee's nominee, or other purchaser at foreclosure) shall
hereafter succeed to the rights of Landlord under this Lease, whether through
possession or foreclosure action or delivery of a new lease, Tenant shall, if
requested by such successor, attorn to and recognize such successor as Tenant's
landlord under this Lease without change in the terms and provisions of this
Lease and shall promptly execute and deliver any instrument that may be
necessary to evidence such attornment, provided that such successor shall not be
bound by (i) any payment of Base Rent or Additional Rent for more than one month
in advance, except prepayments in the nature of security for the performance by
Tenant of its obligations under this Lease, and then only is such prepayments
have been deposited with and are under the control of such successor, (ii) any
provision of any amendment to the Lease to which Mortgagee has not consented,
(iii) the defaults of any prior landlord under this Lease except to the extent
such Mortgagee was given notice of and an opportunity to cure such default and
failed to do so, or (iv) any offset rights arising out of the defaults of any
prior landlord under this Lease, except to the extent such Mortgagee was given
notice of and an opportunity to cure such default and failed to do
so. Upon such attornment, this Lease shall continue in full force and
effect as a direct lease between each successor landlord and Tenant, subject to
all of the terms, covenants and conditions of this Lease.
25. Financial
Statements. Tenant agrees to timely provide financial
information about itself and any Guarantor as requested by Landlord, including,
but not limited to, annual financial statements audited by independent certified
public accountants within ninety (90) days after the end of each fiscal year and
quarterly financial statements within sixty (60) days after the end of each
fiscal quarter and any other financial information reasonably requested by
Landlord (collectively, “Financial Information”). Tenant agrees that
Landlord may deliver the Financial Information to any lender, prospective lender
or prospective purchaser of the Demised Premises. Tenant hereby
further agrees that the Financial Information submitted by it to Landlord, and
by any guarantor(s) of Tenant’s performance under this Lease, whenever furnished
to Landlord and whether or not requested by Landlord, are material inducements
to the execution by Landlord of this Lease. Tenant represents and
warrants that such Financial Information is, and all Financial Information,
whether furnished to Landlord and whether or not requested by Landlord, are
true, correct and complete in all material respects and fairly present the
financial condition of Tenant (and any Guarantor) for the respective periods
covered thereby, and that since the date thereof there has been no material
adverse change in such financial condition or operations of the applicable
party. Tenant hereby authorizes Landlord to make credit inquiries
with Tenant’s bank(s) and trade references from time to time during the Term,
and Tenant agrees to provide Landlord with current references upon Landlord’s
request and to authorize such references to release credit information to
Landlord. Notwithstanding anything in this Section 25 to the
contrary, Guarantor shall not be required to provide the Financial Information
so long as Guarantor is a publicly traded company and such information is
reasonably obtainable through Guarantor’s public filings.
26. Landlord’s Costs and
Expenses of Litigation. Any party in breach or default under
this Lease (the “Defaulting Party”) shall reimburse the other party (the
“Nondefaulting Party”) upon demand for any legal fees and court (or other
administrative proceeding) costs or expenses that the Nondefaulting Party incurs
in connection with the breach or default, regardless whether suit is commenced
or judgment entered. Such costs shall include legal fees and costs
incurred for the negotiation of a settlement, enforcement of rights or
otherwise. Furthermore, in the event of litigation, the court in such
action shall award to the party in whose favor a judgment is entered a
reasonable sum as attorneys’ fees and costs, which sum shall be paid by the
losing party. Tenant shall pay Landlord’s attorneys’ reasonable fees incurred in
connection with Tenant’s request for Landlord’s consent under provisions of this
Lease governing assignment and subletting, or in connection with any other act
which Tenant proposes to do and which requires Landlord’s
consent. The provisions of this Section 26 shall survive the
expiration or earlier termination of this Lease.
27. Estoppel
Certificate. Tenant agrees that on the Commencement Date and
at any time and from time to time thereafter, Tenant will execute, acknowledge
and deliver to Landlord, Landlord’s mortgagee, purchasers, or any other third
party designated by Landlord, within ten (10) days from request by Landlord, a
statement in writing in the form of Exhibit "E" attached
hereto and by this reference incorporated herein, with such modifications
thereto as may be necessary to render the statements therein factually accurate,
and subject to such modifications thereto as Landlord may reasonably
require. Tenant further agrees to certify to any prospective
purchaser or mortgagee any other reasonable information specifically requested
by such prospective purchaser or mortgagee. If Landlord does not
receive estoppel certificate as required under this Section 27 within the
prescribed time, Tenant’s failure to timely deliver such estoppel certificate
shall constitute an Event of Default.
28. Landlord
Liability. No owner of the Demised Premises, whether or not
named herein, shall have liability hereunder after it ceases to hold title to
the Demised Premises, except for obligations which may have theretofore
accrued. No officer, director, shareholder, partner or principal of
Landlord, whether disclosed or undisclosed, nor any employee or agent thereof
shall be under any personal liability with respect to any of the provisions of
this Lease.
29. Notices. Any
notice or payment required or permitted to be given or served by either party to
this Lease shall be deemed given when made in writing and either (i) personally
delivered, (ii) deposited with the United States Postal Service, postage
prepaid, to be mailed by registered or certified mail, return receipt requested,
(iii) delivered by overnight delivery service providing proof of delivery, or
(iv) facsimile with confirmation copy sent by registered or certified mail,
properly addressed to the address set forth in Section 1(l) of the Basic Lease
Provisions (as the same may be changed to another address in the Continental
United States by giving written notice of the change not less than ten (10) days
prior to effective date of the change); provided, however, that the time period
allowed for a response to any notice so given shall not commence until the date
of actual receipt of the notice. Refusal to accept delivery or
inability to deliver as a result of a change of address as to which no notice
was properly given shall be deemed receipt.
30. Brokers. Neither
Landlord nor Tenant has engaged any brokers who would be entitled to any
commission or fee based on the execution of this Lease, other than those set
forth in Section 1(n) (the "Brokers") who will be paid by Landlord pursuant to a
separate agreement. Neither Landlord nor Tenant have had any
conversations or negotiations with any broker except the Brokers concerning the
leasing of the Demised Premises to Tenant. Landlord and Tenant hereby
indemnify each other against and from any claims for any brokerage commissions
(except those payable to the Brokers, all of which are payable by Landlord) and
all costs, expenses and liabilities in connection therewith, including, without
limitation, reasonable attorneys' fees and expenses, for any breach of the
foregoing. The foregoing indemnification shall survive the
termination of this Lease for any reason.
31. Assignment and
Subleasing.
(a) Tenant
may not assign, mortgage, pledge, encumber or otherwise transfer this Lease, or
any interest hereunder, or sublet the Demised Premises, in whole or in part,
without on each occasion first obtaining the prior express written consent of
Landlord, which consent shall not, except as hereinafter provided, be
unreasonably withheld, delayed or conditioned. Any change in control
of Tenant due to a merger, consolidation, stock transfer or asset sale shall be
considered an assignment or transfer which requires Landlord’s prior written
consent. In making a determination to grant or withhold such consent,
in addition to any other relevant factors, Landlord shall be entitled to
consider the creditworthiness of the proposed assignee or sublessee, the nature
of the use of the Demised Premises contemplated by the proposed assignee or
sublessee and whether or not the proposed use will increase wear and tear on the
Demised Premises. In addition, if the intended use by the proposed
assignee or sublessee involves in any way any Hazardous Substances other than
the Hazardous Substances then being used by Tenant at the Demised Premises, in
accordance with Section 17 of this Lease, and if such additional Hazardous
Substances create, in the reasonable judgment of Landlord an increased risk of
Contamination at the Demised Premises, Landlord shall be unconditionally
entitled to withhold consent to the proposed assignment or
sublease. Permitted subtenants or assignees shall become liable
directly to Landlord for all obligations of Tenant hereunder, without, however,
relieving Tenant of any of its liability hereunder; provided, however, that so
long as no Event of Default has occurred and is continuing, Landlord shall not
collect any rent directly from any subtenant of less than the entire Demised
Premises or otherwise interfere with the exercise by Tenant of its rights as
sublandlord under the sublease. No assignment, mortgaging, subletting
or use or occupancy by others shall in any way be construed to relieve (i)
Tenant from any of its liability hereunder to pay Base Rent, Additional Rent and
all other sums payable by Tenant hereunder or to perform its obligations
hereunder (which shall in every instance continue as the liability and
obligation of a principal and not a surety) or (ii) Guarantor from any of its
liabilities under the Guaranty attached hereto as Exhibit “H” and
forming a part hereof, which Guaranty shall remain in full force and effect, or
from thereafter obtaining the express consent of Landlord to any other or
further assignment, mortgaging or subletting of this Lease.
(b) If
Tenant should desire to assign this Lease or sublet the Demised Premises (or any
part thereof), Tenant shall give Landlord written notice no later than ten (10)
business days in advance of the proposed effective date of any proposed
assignment or sublease, specifying (i) the name and business of the proposed
assignee or sublessee, (ii) a detailed description of the intended use of the
Demised Premises by the proposed assignee or sublessee, with particular detail
regarding any Hazardous Substances which will be used in any manner at the
Demised Premises; (iii) the amount and location of the space within the Demised
Premises proposed to be so subleased, (iv) the proposed effective date and
duration of the assignment or subletting, and (v) the proposed rent or
consideration to be paid to Tenant by such assignee or
sublessee. Tenant shall promptly supply Landlord with financial
statements and other information as Landlord may reasonably request to evaluate
the proposed assignment or sublease.
(c) Landlord
shall have a period of ten (10) business days following receipt of such notice
and other information requested by Landlord within which to notify Tenant in
writing that Landlord elects: (i) to permit Tenant to assign or
sublet such space; or (ii) to refuse to consent to Tenant's assignment or
subleasing of such space and to continue this Lease in full force and effect as
to the entire Demised Premises. Tenant agrees to reimburse Landlord
for reasonable legal fees and any other reasonable costs incurred by Landlord in
connection with any requested assignment or subletting. Tenant shall
deliver to Landlord copies of all documents executed in connection with any
permitted assignment or subletting, which documents shall be in form and
substance reasonably satisfactory to Landlord and which shall require such
assignee to assume performance of all terms of this Lease on Tenant's part to be
performed. No acceptance by Landlord of any rent or any other sum of
money from any assignee, sublessee or other category of transferee shall be
deemed to constitute Landlord's consent to any assignment, sublease, or
transfer.
(d) Any
attempted assignment or sublease by Tenant in violation of the terms and
provisions of this Section 31 shall be void and such act shall constitute an
Event of Default. In no event shall any assignment, subletting or
transfer, whether or not with Landlord's consent, relieve Tenant of its primary
liability under this Lease for the entire Term, and Tenant shall in no way be
released from the full and complete performance of all the terms
hereof. If Landlord takes possession of the Demised Premises before
the expiration of the Term of this Lease, Landlord shall have the right, at its
option to take over any sublease of the Demised Premises or any portion thereof
and such subtenant shall attorn to Landlord, as its landlord, under all the
terms and obligations of such sublease occurring from and after such date, but
excluding previous acts, omissions, negligence or defaults of Tenant and any
repair or obligation in excess of available net insurance proceeds or
condemnation award. Tenant shall reimburse Landlord for any costs
incurred by Landlord in connection with any sublease including any alterations
to the Demised Premises or any other portion of the Property undertaken in
consequence thereof.
(e) Landlord
shall have the right to sell, transfer, assign, pledge, and convey all or any
part of the Land and the Building and all of Landlord's rights under this
Lease. In the event Landlord assigns or otherwise conveys its rights
under this Lease, Landlord shall be entirely freed and released from any
obligations accruing thereafter under this Lease, and Tenant agrees to look
solely to Landlord's successor in interest for performance of such
obligations.
(f) If
Tenant transfers or assigns this Lease or sublets the Demised Premises in whole
or in part to any permitted assignee or sublessee, Landlord shall be entitled to
receive, as Additional Rent, 50% of any "Rental Profit" (as hereinafter defined)
received by Tenant. The term "Rental Profit" shall mean the amount,
calculated on a per square foot basis and not on an aggregate or cumulative
basis, by which (i) the total rental and other consideration (of any nature
whatsoever and however characterized) paid or delivered to Tenant by an assignee
of the interest of Tenant or sublessee of all or any part of the Demised
Premises, for the purpose of compensating Tenant directly or indirectly for the
assignment or sublease, exceeds (ii) the Monthly Base Rent Installments paid by
Tenant to Landlord pursuant to this Lease, after amortization of (x) the
reasonable costs of any improvements which Tenant has made for the purposes of
assigning or subletting all or part of the Demised Premises and (y) reasonable
and customary subletting and assignment leasing commissions paid by Tenant to
unaffiliated third parties. By way of example, if Landlord grants the
required written consent to a sublease by Tenant of 10,000 square feet of the
Demised Premises and the total rental and other consideration received by Tenant
for the sublease equals a per annum rate of $4.50 per square foot and the per
annum rate per square foot for the Annual Base Rent then payable by Tenant is
$4.25 per square foot, the Rental Profit would be $0.25 per square foot and
Landlord would be entitled to receive its share of such Rental Profit
concurrently with receipt of each payment by the sublessee to
Tenant. Landlord shall be entitled to receive payment of its share of
Rental Profit as and when payments are received by Tenant.
(g) Notwithstanding
anything contained herein to the contrary, Tenant may without Landlord’s prior
written consent, but subject to the remainder of the requirements of this
Section 31, assign this Lease, in whole or in part, or sublease the Demised
Premises, or any portion thereof, to any entity controlling, controlled by or
under common control with Tenant (collectively, an “Affiliate”), or to any
corporation (a “Successor Corporation”) into or with which Tenant is merged or
consolidated or to an entity which purchases all, or substantially all, of the
assets of Tenant (a “Purchaser”); provided, that (i) Tenant gives Landlord
written notice of such assignment or sublease not later than ten (10) business
days prior to the effective date of such assignment or sublease, (ii) Tenant
shall not be released from any liability under this Lease, whether past, present
or future, by reason of such assignment or sublease, (iii) in the event of an
assignment, the Affiliate, Successor Corporation or Purchaser, as the case may
be, assumes this Lease by a written assumption agreement in form acceptable to
Landlord in its reasonable judgment, delivered to Landlord prior to the
effective date of such assignment and (iv) the Purchaser or Successor
Corporation has a net worth after consummation of the applicable transfer which
is at least equal to or greater than the Tenant’s net worth at the date of this
Lease or Tenant’s net worth immediately prior to the transaction resulting in
such Purchaser or Successor Corporation becoming the Tenant
hereunder. In addition, notwithstanding anything to the contrary in
this Lease, a registered offering of the stock of Tenant shall not be deemed an
assignment of this Lease requiring Landlord’s consent provided (i) there is no
material change in Tenant’s management on account thereof and (ii) Tenant gives
Landlord at least fifteen (15) days prior notice of such registered public
offering (however, notwithstanding the foregoing, in the event applicable law
prohibits Tenant from providing fifteen (15) days prior notice, then Tenant
shall only be required to provide notice at the earliest date allowed by
applicable law). Any transfer permitted under this paragraph shall be
referred to herein as a “Permitted Transfer” and an Affiliate, Successor
Corporation or Purchaser may be referred to as a “Permitted
Transferee.”
32. Termination or
Expiration.
(a) No
termination of this Lease prior to the normal ending thereof, by lapse of time
or otherwise, shall affect Landlord's right to collect rent for the period prior
to termination thereof.
(b) Upon
the end of the Term or termination of Tenant's right to possession of the
Demised Premises, Tenant will at once surrender and deliver up the Demised
Premises to Landlord, in compliance with the requirements of Exhibit “J” attached
hereto and forming a part hereof, ordinary wear and tear (as is attributable to
deterioration by reason of time and normal usage in spite of Tenant’s reasonable
care) excepted. As used herein (i) "Broom Clean" means free from all
debris, dirt, rubbish, oil, grease, tire tracks, marking tape or other
substances, inside the Demised Premises and outside of the Building, and (ii)
"Good Condition" means that the Demised Premises are in good condition and in
good working order. Any damage caused by removal of Tenant from the
Property, including any damage caused by the removal of Tenant's Property under
Section 32(c) below, shall be repaired and paid for by Tenant prior to the end
of the Term.
(c) Upon
the end of the Term or termination of Tenant's right to possession of the
Demised Premises, Tenant shall remove all Tenant Changes unless Landlord has
provided written notice to the contrary as provided in Section 19 hereof
("Required Removables") and all of Tenant's personal property and trade fixtures
(including, without limitation, all of Tenant's equipment and all computer and
telecommunications cabling and wiring both within and outside the Demised
Premises and all signage), which removal shall be done in a good, workmanlike
and lien-free manner, and upon such removal Tenant shall repair all damage to
the Demised Premises, the Building and the Land caused by the installation or
removal of such items (including the removal of any and floor bolts) and restore
the Demised Premises to its condition prior to the installation of such
items. If Tenant does not remove any items comprising Tenant's
property or the Required Removables prior to the end of the Term, then Landlord
may remove such items and repair and restore the Demised Premises and Tenant
shall pay the cost of such removal, repair and restoration to Landlord upon
demand. If Tenant does not remove any items comprising Tenant's
property, or the Required Removables, in addition to any other remedies of
Landlord, then Tenant shall be conclusively presumed to have conveyed such items
to Landlord without further payment or credit by Landlord to Tenant or, at
Landlord's sole option, such items shall be deemed abandoned, in which event
Landlord may cause such items to be stored, removed or disposed of at Tenant's
expense, without notice to Tenant and without obligation to compensate
Tenant.
(d) If
Tenant remains in possession of the Demised Premises after expiration of the
Term, with or without Landlord's acquiescence and without any express agreement
of the parties, Tenant shall be a tenant-at-sufferance at one hundred ten
percent (110%) of the Base Rent in effect at the end of the Term, for the first
thirty (30) days of such holdover, increased to one hundred fifty percent (150%)
after the expiration of such thirty (30) day period. Tenant shall
also continue to pay all other Additional Rent due hereunder, and there shall be
no renewal of this Lease by operation of law. In addition to the
foregoing, in the event that Tenant remains in possession of the Demised
Premises after the expiration of the Term, Tenant shall be liable for all
damages, direct and consequential, incurred by Landlord as a result of such
holdover. No receipt of money by Landlord from Tenant after the
termination of this Lease or Tenant's right of possession of the Demised
Premises shall reinstate, continue or extend the Term or Tenant's right of
possession.
33. Late
Payments. In the event any installment of rent, inclusive of
Base Rent, or Additional Rent or other sums due hereunder, if any, is not paid
within five (5) days after the same comes due, Tenant shall pay a late charge
equal to five percent (5%) of such past due amount. Any installment
of Base Rent, Additional Rent or other sums due hereunder, which is not paid
within thirty (30) calendar days after the date when such rent is due shall,
after such thirty (30) day period, bear interest at the Interest
Rate. The term "Interest Rate," as used in this Lease, shall mean a
per annum rate of interest equal to five percent (5%) in excess of the Prime
Rate (as herein defined) in effect from time to time. The term "Prime
Rate", as used in this Lease, shall mean the prime rate of interest as then most
recently published in The Wall Street Journal section on “Money
Rates”.
34. Rules and
Regulations. Tenant agrees to abide by the rules and
regulations set forth on Exhibit "F" attached
hereto, as well as other rules and regulations reasonably promulgated by the
Landlord from time to time, so long as such rules and regulations are uniformly
enforced against all tenants of Landlord in the Building and do not materially
diminish or impair the rights of Tenant under this Lease.
35. Miscellaneous.
(a) The
parties hereto hereby covenant and agree that Landlord shall receive the Base
Rent and Additional Rent and all other sums payable by Tenant hereinabove
provided as income from the Demised Premises, without any abatement, reduction,
set-off, counterclaim, defense or deduction whatsoever.
(b) If
any clause or provision of this Lease is determined to be illegal, invalid or
unenforceable under present or future laws effective during the Term, then and
in that event, it is the intention of the parties hereto that the remainder of
this Lease shall not be affected thereby, and that in lieu of such illegal,
invalid or unenforceable clause or provision there shall be substituted a clause
or provision as similar in terms to such illegal, invalid or unenforceable
clause or provision as may be possible and be legal, valid and
enforceable.
(c) All
rights, powers, and privileges conferred hereunder upon the parties hereto shall
be cumulative, but not restrictive to those given by law
(d) Time
is of the essence of this Lease.
(e) No
failure of Landlord or Tenant to exercise any power given Landlord or Tenant
hereunder or to insist upon strict compliance by Landlord or Tenant with its
obligations hereunder, and no custom or practice of the parties at variance with
the terms hereof shall constitute a waiver of Landlord's or Tenant's rights to
demand exact compliance with the terms hereof.
(f) This
Lease contains the entire agreement of the parties hereto and no
representations, inducements, promises or agreements, oral or otherwise, between
the parties not embodied herein shall be of any force and effect. The
masculine (or neuter) pronoun, singular number shall include the masculine,
feminine and neuter gender and the singular and plural number.
(g) Landlord
and Tenant agree to execute, upon request of the other, a memorandum of this
Lease in recordable form and the requesting party shall pay the costs and
charges for the recording of such memorandum of lease. Under no
circumstances shall Tenant have the right to record this Lease.
(h) The
captions of this Lease are for convenience only and are not a part of this
Lease, and do not in any way define, limit, describe or amplify the terms or
provisions of this Lease or the scope or intent thereof.
(i) This
Lease may be executed in multiple counterparts, each of which shall constitute
an original, but all of which taken together shall constitute one and the same
agreement.
(j) This
Lease shall be interpreted under the laws of the State where the Demised
Premises are located.
(k) The
parties acknowledge that this Lease is the result of negotiations between the
parties, and in construing any ambiguity hereunder no presumption shall be made
in favor of either party. No inference shall be made from any item
which has been stricken from this Lease other than the deletion of such
item.
36. Lease
Date. For purposes of this Lease, the term "Lease Date" shall
mean the date upon which this Lease is signed by Landlord or Tenant, whichever
is later.
37. Anti-Terrorism
Representations. Tenant is not, and shall not during the Term
become, a person or entity with whom Landlord is restricted from doing business
with under the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 1002, H.R. 3162, Public Law
107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number
13224 on Terrorism Financing, effective September 24, 2001 and regulations
promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including
without limitation persons and entities named on the Office of Foreign Asset
Control Specially Designated and Blocked Persons List (collectively “Prohibited
Persons).
To the best of its knowledge, Tenant is
not currently engaged in any transactions or dealings, or otherwise associated
with, any Prohibited Persons in connection with the use or occupancy of the
Demised Premises. Tenant will not in the future during the Term
engage in any transactions or dealings, or be otherwise associated with, any
Prohibited Persons in connection with the use or occupancy of the Demised
Premises.
Breach of these representations
constitutes a material breach of this Lease and shall entitle Landlord to any
and all remedies available thereunder, or at law or in equity.
38. Authority. If
Tenant is not a natural person, Tenant shall cause its corporate secretary or
general partner, as applicable, to execute the certificate attached hereto as
Exhibit
“G”. Tenant is authorized by all required corporate or
partnership action to enter into this Lease and the individual(s) signing this
Lease on behalf of Tenant are each authorized to bind Tenant to its
terms. The individual(s) signing this Lease on behalf of Landlord are
each authorized to bind Landlord to its terms.
39. JURY TRIAL
WAIVER. THE LANDLORD AND THE TENANT, TO THE FULLEST EXTENT
THAT THEY MAY LAWFULLY DO SO, HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BROUGHT BY ANY PARTY TO THIS LEASE WITH RESPECT TO THIS LEASE, THE
DEMISED PREMISES, OR ANY OTHER MATTER RELATED TO THIS LEASE OR THE DEMISED
PREMISES.
40. Additional
Provisions. The Additional Provisions, if any, attached hereto
as Exhibit “I”
are incorporated herein and made a part hereof, and to the extent of any
conflict between the foregoing provisions and the Additional Provisions, the
Additional Provisions shall control.
[Signature
Page to Follow]
12024/00003/428855/9
IN
WITNESS WHEREOF, the parties hereto have hereunto set their hands under seals,
the day and year written next to each party's signature below.
LANDLORD:
MLRP
Sergo LLC,
a
Delaware limited liability company
By: /s/
Xxxxxxx X. Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: Vice
President
Date: 04/18/2007
TENANT:
Xxxx.
Xxxx Circulating Company, LLC,
a
Delaware limited liability company
Date: 04/17/2007
By: /s/
Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Pres
/ Co-CEO
Attest: /s/
Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Contract
Administrator
