LEASE
SUPER AMERICAN TISSUE XXXXX OF TENNESSEE LLC,
as Landlord,
and
AMERICAN TISSUE XXXXX OF TENNESSEE LLC
as Tenant
000 XXXXXXXX XXXXXX
XXXXXXX, XXXXXXXXX 00000
DATED: AS OF September 25, 2000
TABLE OF CONTENTS
Article Page
Article 1. Basic Provisions..................................................1
Article 2. Additional Definitions............................................2
Article 3. Demise; Premises; Term............................................6
Article 4. Fixed Rent........................................................6
Article 5. Taxes.............................................................7
Article 6. Utilities.........................................................9
Article 7. Use of Premises; Certificate of Occupancy........................10
Article 8. Compliance with Laws and Agreements..............................10
Article 9. Hazardous Substances.............................................11
Article 10. Repairs.........................................................13
Article 11. Changes; Improvements; Demolition; New Construction.............14
Article 12. Liens and Violations............................................14
Article 13. [Intentionally Omitted]
Article 14. Damage to or Destruction of the Premises........................15
Article 15. Eminent Domain..................................................15
Article 16. Tenant's Default................................................17
Article 17. Landlord's Right To Cure Defaults; Fees and Expenses............21
Article 18. Assignment, Mortgaging and Subletting...........................21
Article 19. Insurance.......................................................22
Article 20. Nonliability and Indemnification................................24
Article 21. Surrender; End of Term..........................................25
Article 22. Subordination and Attornment....................................25
Article 23. Notices.........................................................26
Article 24. [Intentionally Omitted]
Article 25. Quiet Enjoyment; Title..........................................27
Article 26. [Intentionally Omitted]
Article 27. Brokerage.......................................................27
Article 28. Estoppel Certificates; Memorandum...............................27
Article 29. Parties Bound...................................................28
Article 30. Miscellaneous...................................................28
Exhibit A Metes and Bounds Description of the Premises
This Lease ("this Lease"), dated as of the 25th day of September, 2000,
between Super American Tissue Xxxxx of Tennessee LLC, a Delaware limited
liability company ("Landlord"), having an office at 000 Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxx Xxxx 00000 and American Tissue Xxxxx of Tennessee LLC, a Delaware
limited liability company ("Tenant"), having an office at 000 Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxx Xxxx 00000.
W I T N E S S E T H:
WHEREAS, Landlord is the fee owner of certain real property known as 000
Xxxxxxxx Xxxxxx in the City of Memphis, Shelby County, Tennessee; and
WHEREAS, Landlord desires to lease to Tenant, and Tenant desires to lease
from Landlord, the Premises (as hereinafter defined in Section 1.2 hereof), for
the Term (as hereinafter defined in Section 1.3 hereof) and upon and subject to
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant agree as follows.
Article 1. Basic Provisions.
The following terms, whenever used in this Lease, shall have the respective
meanings given to such terms in this Article 1:
1.1 REAL PROPERTY: The parcel of land known as 000 Xxxxxxxx Xxxxxx in the
City of Memphis, Shelby County, Tennessee, more particularly described on
Exhibit A attached hereto and made a part hereof, together with all easements,
air rights, development rights and other appurtenances thereto.
1.2 PREMISES: The Real Property together with any improvements thereon.
1.3 TERM: Approximately twenty (20) years, commencing on the date hereof
(the "Commencement Date") and expiring on the last day of the month in which the
__the 20th anniversary of the Commencement Date occurs (the "Expiration Date"),
unless sooner terminated pursuant to the provisions of this Lease.
1.4 FIXED RENT (Article 4): $300,000 per annum; $25,000 per month
1.5 [Intentionally Omitted]
1.6 LANDLORD'S MAILING ADDRESS: 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx
00000, Attention: Xxxxx Xxxxxxxxxx.
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1.7 TENANT'S MAILING ADDRESS: 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx
00000, Attention: Xxxxx Xxxxxxxxxx.
1.8 LANDLORD'S TAX IDENTIFICATION NUMBER: [Intentionally Omitted].
1.9 TENANT'S TAX IDENTIFICATION NUMBER: [Intentionally Omitted].
1.10 BROKER: None.
Article 2. Additional Definitions.
The following terms, whenever used in this Lease, shall have the respective
meanings given to such terms in this Article 2:
2.1 "Additional Rent" shall have the meaning given to it in Section 4.3.
2.2 [Intentionally Omitted]
2.3 "Adjusted for Inflation" shall mean adjusted by the percentage
increase, if any, in the CPI for an adjustment period commencing on the date of
this Lease and ending on the date of the particular event or for such other
period that may be provided.
2.4 "alterations" shall mean all equipment, fixtures, improvements,
installations, betterments and decorations and all additions thereto,
substitutions therefor and replacements thereof.
2.5 "Bankruptcy Laws" shall have the meaning given to it in Section
16.1(c).
2.6 "business days" shall mean all days, except Saturdays, Sundays and the
days observed as holidays by the federal or Tennessee State or City of Memphis
governments or any labor union servicing the Premises.
2.7 "Contractor" shall mean all contractors, subcontractors, laborers,
materialmen, architects, engineers and consultants.
2.8 "CPI" shall mean the Consumer Price Index for All Urban Consumers,
South Region, All Items (1962-1984 = 100), published by the Bureau of Labor
Statistics of the United States Department of Labor, or any successor index
thereto, appropriately adjusted; provided that if there shall be no successor
index the substitute index shall be such other index as shall be selected by
Tenant and approved by Landlord, such approval not to be unreasonably withheld,
delayed or conditioned.
2.9 "Default Notice" shall have the meaning given to it in Section 16.1(b).
2.10 "Default Rate" shall mean the lesser of (x) two percentage points (2%)
in excess of the rate from time to time charged by The Chase Manhattan Bank or
any successor thereto as its
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"prime rate" in effect during the period in question and (y) eighteen percent
(18%) per annum (but in any event not more than the maximum legal rate),
calculated on the basis of the actual days elapsed, based on a 360-day year.
2.11 [Intentionally Omitted]
2.12 "Environment" shall have the meaning given to it in Section 9.1(c).
2.13 "Environmental Complaint" shall have the meaning given to it in
Section 9.4.
2.14 "Environmental Condition" shall have the meaning given to it in
Section 9.1(d).
2.15 "Environmental Damages" shall have the meaning given to it in Section
9.1(e).
2.16 "Environmental Laws" shall have the meaning given to it in Section
9.1(b).
2.17 [Intentionally Omitted]
2.18 [Intentionally Omitted]
2.19 "Event of Default" shall have the meaning given to it in Section 16.1.
2.20 [Intentionally Omitted]
2.21 "Fixtures" shall have the meaning given to it in Section 11.3.
2.22 "Hazardous Materials" shall have the meaning given to it in Section 9.
1 (a).
2.23 "Improvements" shall mean all alterations made by or on behalf of
Tenant.
2.24 [Intentionally Omitted]
2.25 [Intentionally Omitted]
2.26 "Landlord" shall mean only the owner at the time in question of the
present landlord's interest in the Premises and in the event of a sale or
transfer of the Premises (by operation of law or otherwise) or of Landlord's
interest under this Lease, the grantor or transferor, as the case may be, shall
be and hereby is (to the extent of the interest or portion of the Premises or
estate sold or transferred) released and discharged, from and after the date of
such sale or transfer, of all liability in respect of the performance of any of
the terms of this Lease on the part of Landlord thereafter arising; provided
that the purchaser or transferee (collectively, "Transferee") shall be deemed to
have assumed and agreed to perform (and without further agreement between the
then parties hereto, or among such parties and the Transferee) and only during
and in respect of the Transferee's period of ownership of Landlord's interest
under this Lease, all of the terms this Lease on the part of Landlord to be
performed during such period of ownership, which terms shall be deemed to "run
with the land," it being intended that Landlord's obligations hereunder shall be
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binding on Landlord, its successors and assigns, only during and in respect of
their respective successive periods of ownership. If, at any time, Landlord
shall be comprised of more than one person, Tenant shall recognize Landlord
named herein as the sole Landlord under this Lease until such time as Landlord
named herein (or its successor named pursuant to this Section 2.26) shall notify
Tenant of the name and address of a single person who, for all purposes, shall
be deemed to be Landlord under this Lease and all notices sent by Tenant to such
person or received by Tenant from such person shall be binding upon all persons
then comprising Landlord.
2.27 "Lease Year" shall mean each of (i) the period commencing on the
Commencement Date and ending on the last day of the month in which the first
anniversary of the Commencement Date occurs; and (ii) each successive 12-month
period thereafter through and including the Expiration Date; it being agreed
that the first Lease Year may be greater than a 12-month period and the last
Lease Year may be less than a 12-month period if this Lease is terminated prior
to the Expiration Date.
2.28 [Intentionally Omitted]
2.29 [Intentionally Omitted]
2.30 "Legal Requirements" shall mean (a) all present and future laws,
statutes and ordinances (including building codes and zoning regulations and
ordinances) and the orders, rules, regulations, directives and requirements of
all federal, state, county, city and borough departments, bureaus, boards,
agencies, offices, commissions and other subdivisions thereof, or of any
official thereof, or of any other governmental, public, quasi-governmental or
quasi-public authority, whether now or hereafter made, existing or in force,
with respect to (i) the Premises, the Improvements and the appurtenances thereto
and the businesses operated therein, (ii) the use, management, operation,
maintenance, renting or occupancy of the Premises and the Improvements and the
businesses operated therein, (iii) the making of any alterations at or to the
Premises, and (b) all requirements, obligations and conditions of all
instruments of record that may be applicable to the Real Property or any part
thereof or the vaults, sidewalks, curbs, or areas adjacent thereto that are
either (i) existing and of record as of the date of this Lease or (ii) hereafter
created (A) by any governmental authority having jurisdiction without any
voluntary act of or agreement by Landlord or (B) by Tenant.
2.31 "Notice" shall have the meaning given to it in Section 23.1.
2.32 "Occupants" shall mean any occupants of any portion of the Premises
that are in possession without permission of Landlord.
2.33 [Intentionally Omitted]
2.34 [Intentionally Omitted]
2.35 [Intentionally Omitted]
2.36 [Intentionally Omitted].
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2.37 "Permit" shall have the meaning given to it in Section 9.1(f).
2.38 "person" shall mean and be deemed to include individuals,
corporations, partnerships, limited liability companies, trusts, firms,
associations and all other legal entities.
2.39 [Intentionally Omitted]
2.40 "Release" shall have the meaning given to it in Section 9. 1(g).
2.41 "rent" or "rents" shall mean Fixed Rent and Additional Rent.
2.42 [Intentionally Omitted]
2.43 [Intentionally Omitted]
2.44 [Intentionally Omitted]
2.45 [Intentionally Omitted]
2.46 "Superior Mortgage" shall mean all present and future mortgages, deeds
of trust and building loan agreements entered into by Landlord or the owner at
the time in question of the Real Property and/or the Premises and/or any portion
of either of them, affecting the Real Property and/or the Premises, each advance
made or to be made thereunder, and all modifications, replacements, supplements,
substitutions, extensions and spreaders and consolidations thereof.
2.47 "Superior Mortgagee" shall mean the holder, at the time referred to,
of a Superior Mortgage.
2.48 "Tax Proceedings" shall have the meaning given to it in Section
5.5(b).
2.49 "Taxes" shall have the meaning given to it in Section 5.1.
2.50 [Intentionally Omitted]
2.51 [Intentionally Omitted]
2.52 [Intentionally Omitted]
2.53 "Tenant" shall have the meaning given to it in Section 18.10.
2.54 "Termination Notice" shall have the meaning given to it in Section
16.1.
2.55 "Threat of Release" shall have the meaning given to it in Section
9.1(h).
2.56 [Intentionally Omitted]
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2.57 [Intentionally Omitted]
Article 3. Demise; Premises; Term.
3.1 Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the Premises for the Term, unless the Term shall sooner terminate
pursuant to any of the terms of this Lease or pursuant to law, upon and subject
to the terms of this Lease.
3.2 Tenant has inspected the Premises, is thoroughly acquainted with their
condition (physical and otherwise) and has been afforded adequate opportunity to
examine, investigate and inspect the same, and agrees to take the same in their
"as is" condition on the Commencement Date. Except as expressly provided to the
contrary in this Lease: (x) neither Landlord nor any agent or representative of
Landlord has made or does make any representation or warranty as to (a) the
physical condition of the Premises (including (i) any structural or latent
defects or (ii) the existence of any Environmental Condition), or (b) any use or
uses to which the Premises may be put, or (c) any leases, subleases, tenants,
rents, or (d) any operating or maintenance agreements, or (e) any utilities or
services; and (y) the occupancy or taking of possession of all or any part of
the Premises by Tenant or anyone claiming by, through or under Tenant shall be
conclusive evidence as against Tenant that the Premises were in the condition
required at the time of such occupancy or taking of possession.
3.3 Except as otherwise expressly provided in this Lease, the Term shall
not expire and Tenant shall have no right to terminate this Lease or surrender
the Premises nor shall Tenant's obligation to pay rent be otherwise affected or
abated, by reason of the prohibition, limitation or restriction by any
governmental authority of Tenant's use of the Premises or the Improvements or
any portion thereof or the interference with such use by any person or entity,
unless such prohibition, limitation, restriction or interference is due to the
voluntary acts of Landlord or to a breach by Landlord of any representations or
covenants contained in Article 25.
3.4 Except as otherwise expressly provided in this Lease, Tenant waives any
rights hereafter conferred by law to tenants generally to terminate this Lease
or to quit or surrender the Premises or the Improvements or any portion thereof.
Article 4. Fixed Rent.
4.1 Fixed Rent shall be payable to Landlord, without notice or demand, in
equal monthly installments, in advance, on the fifteenth day of each calendar
month during the Term commencing on the Commencement Date and continuing through
and until the Expiration Date.
4.2 If the Commencement Date shall be other than the first day of a
calendar month, Fixed Rent for such month shall be pro-rated on a per diem
basis, and Tenant shall pay such pro-rated amount on the Commencement Date.
4.3 Additional rent ("Additional Rent") shall consist of all sums of money
(other than Fixed Rent) as shall become due from and payable by Tenant to
Landlord hereunder, and all
6
amounts payable pursuant to Article 5 and shall be part of the rent due to
Landlord hereunder, for default in the payment of which Landlord shall have the
same remedies as for a default in the payment of Fixed Rent.
4.4 Fixed Rent and Additional Rent shall be payable to Landlord by Tenant's
check (subject to collection) or by check (subject to collection) drawn on a
bank or trust company having a banking office in the City of New York that is a
member of the New York Clearing House Association, at Landlord's Mailing Address
as set forth in Section 1.6 or at such other place as Landlord may designate
without abatement, deduction or setoff.
4.5 If Tenant shall fail to make any payment of Fixed Rent or Additional
Rent within 5 days of the due date thereof, then, in addition to all of
Landlord's other remedies under this Lease, such unpaid amount shall bear
interest from the due date thereof until the date paid at the Default Rate. All
interest payable under this Section 4.5 shall be Additional Rent and shall be
due and payable by Tenant on demand. The collection by Landlord of any interest
under this Section 4.5 shall not be construed as a waiver of Tenant's obligation
to perform any term, covenant or condition of this Lease nor shall it affect any
other right or remedy of Landlord under this Lease.
4.6 [Intentionally Omitted]
4.7 Landlord and Tenant acknowledge and agree that this Lease is a net
lease. In this regard, Tenant shall be responsible for and shall pay any and all
costs, expenses and charges of any nature or kind whatsoever relating to the
Premises or Tenant's use and occupation of the Premises throughout the Term, and
Landlord shall receive the Fixed Rent payable to Landlord hereunder as a net
amount, without any abatement, deduction, deferment, setoff, defense or
counterclaim, except as specifically set forth in this Lease, free and clear of
any other obligations other than income taxes and obligations such as mortgages
created by Landlord.
Article 5. Taxes.
5.1 Tenant shall pay directly to the taxing authority, as and when the same
become due and payable without penalty, the following (collectively, "Taxes"):
(a) all real property taxes and assessments, and water and sewer charges and
rents, water meter charges (including expenses incident to the installation,
repair or replacement of water meters), and all other governmental levies,
impositions or charges, ordinary, extraordinary, foreseen or unforeseen,
applicable to the Premises, assessed, levied or imposed upon all or any part of
the Premises, whether or not the same constitutes one or more tax lots, imposed
by any taxing authority, now or hereafter levied or assessed, which, with
respect to any period during the Term, shall be or become due and payable and
which: (i) shall be levied, assessed or imposed on or against the Premises or
any interest of Tenant in the Premises or any improvements now or hereafter
constructed thereon (including any taxes or assessments levied in lieu of the
foregoing due to a change, after the date hereof, in the method of taxation
prevailing at the date hereof); or (ii) shall be or become liens on or against
the Premises or any interest of Tenant in the Premises or under this Lease; or
(iii) shall be levied, assessed or imposed on or against Landlord or Tenant by
reason of any actual or asserted engagement by Landlord or Tenant, directly or
indirectly, in any business, occupation or other activity in connection with the
Premises; (b) any charges for fire alarm service, sprinkler
7
supervisory service, gas, electricity, steam or other public utilities or
similar services furnished to the Premises or the Improvements during the Term
to the extent that such charges, if unpaid, would result in a lien against the
Premises; and (c) all taxes and assessments that may, during the Term, be levied
or assessed against any personal property located at the Premises and either
owned by Tenant or used by Tenant in connection with the operation of the
Premises or the Improvements, to the extent that such taxes and assessments, if
unpaid, would result in a lien against the Premises.
5.2 If any Taxes are payable, or may at the option of the taxpayer be paid,
in installments, Tenant may, whether or not interest shall accrue on the unpaid
balance, pay the same (together with any accrued interest on any unpaid balance)
in installments as each installment becomes due and payable, but in any event
before any fine or penalty is assessed for nonpayment; and in all events Tenant
shall prepay all installment obligations in full on or prior to the Expiration
Date.
5.3 Any Taxes relating to a fiscal period of the taxing authority, a
portion of which is within the Term and a portion of which is prior or
subsequent to the Term shall, whether or not such Taxes shall be assessed,
levied, imposed or become a lien on the Premises or shall become payable during
the Term, be apportioned between Landlord and Tenant as of the Commencement Date
or the Expiration Date, as the case may be, so that Landlord shall pay that
proportion of the Taxes which are attributable to the portion of the fiscal
period occurring prior to the Commencement Date or after the Expiration Date,
and Tenant shall pay the remainder. If Tenant shall default beyond the
expiration of any applicable notice or grace period in the payment of any rent
due under this Lease, then Landlord may offset such unpaid amount against any
sums which may be due from Landlord to Tenant pursuant to this Section 5.3.
5.4 In the event that the law governing contests of Taxes hereafter changes
such that the taxing authority shall require the party desiring to contest Taxes
to pay a deposit or post a bond or other security during the pendency of the
contest, then Tenant shall not thereafter contest Taxes unless Tenant pays the
deposit or posts the bond or other security required by the taxing authority.
5.5 (a) [Intentionally Omitted]
(b) Notwithstanding anything in Section 5.4 to the contrary, Landlord shall
have the right (but is not obligated) to prosecute any tax certiorari proceeding
or tax contest proceeding ("Tax Proceedings") for any tax year prior to the tax
year in which the Commencement Date occurs (the "Current Tax Year") by
Landlord's present counsel and to settle any such proceedings for any tax year
prior to the Current Tax Year without the consent of Tenant; provided, however,
that Landlord shall not accept an offer of assessment reduction for any period
prior to the Commencement Date which impacts in a manner detrimental to Tenant
the assessment for any period on or after the Commencement Date without, in each
case, obtaining Tenant's consent (such consent not to be unreasonably withheld).
If requested by Landlord, Tenant shall join as a party plaintiff in any such
proceedings and both Landlord and Tenant shall be represented by Landlord's
counsel in any such Tax Proceedings. Tenant shall execute any and all consents
or other documents (including, without limitation, a substitution of attorney)
and do any act or thing necessary in connection with the prosecution of such Tax
Proceeding, as reasonably
8
requested by Landlord. Tenant hereby irrevocably constitutes and appoints
Landlord as Tenant's attorney-in-fact to execute any such certificate or
instrument for and on behalf of Tenant, such power of attorney being coupled
with an interest. Landlord shall be entitled to any refunds of any Taxes and of
penalties and interest thereon which apply or relate to periods prior to the
Commencement Date.
(c) Tenant shall have the right (but is not obligated) to prosecute any Tax
Proceedings for the Current Tax Year and/or any tax year thereafter by counsel
of Tenant's choosing and to settle any such proceedings for any such tax year
without the consent of Landlord; provided, however, that Tenant shall not accept
an offer of assessment reduction for any period from and after the Commencement
Date which impacts in a manner detrimental to Landlord the assessment for any
period prior to the Commencement Date without, in each case, obtaining
Landlord's consent (such consent not to be unnecessarily withheld). Any such
contest may be made by Tenant in the name of Landlord or Tenant, or both, as
Tenant shall deem appropriate. If requested by Tenant, Landlord shall join as a
party plaintiff in any such proceedings, and both Landlord and Tenant shall be
represented by Tenant's counsel in such Tax Proceedings. Landlord shall deliver
to Tenant, upon demand, receipted tax bills and cancelled checks used in payment
of such taxes and shall execute any and all consents or other documents
(including, without limitation, a substitution of attorney) and do any act or
thing necessary in connection with the prosecution of such Tax Proceeding, as
reasonably requested by Tenant. Landlord hereby irrevocably constitutes and
appoints Tenant as Landlord's attorney-in-fact to execute any such certificate
or instrument for and on behalf of Landlord, such power of attorney being
coupled with an interest. Tenant shall be entitled to any refunds of any Taxes
and of penalties and interest thereon which apply or relate to periods included
in the Term.
(d) If either party hereto receives any benefits to which the other party
shall be entitled under this Section 5.5, the party receiving such benefit shall
hold the same in trust for the benefit of the other and promptly remit the same
to the other.
5.6 Notwithstanding anything herein to the contrary, in no event shall
Tenant be required to pay any estate, inheritance, succession or any transfer
tax of Landlord or any income, excess profits or revenue tax on the rent payable
by Tenant under this Lease; provided, however, that if at any time during the
Term the methods of taxation prevailing at the Commencement Date shall be
altered so that in lieu of or as a substitute for any Taxes which Tenant has
agreed to pay pursuant to Section 5.1, there shall be levied, assessed or
imposed (a) a tax, assessment, levy imposition or charge, wholly or partially as
a capital levy or otherwise, on the rents received under this Lease or (b) a
license fee measured by the rent payable by Tenant under this Lease, then Tenant
shall pay the same.
Article 6. Utilities.
6.1 Tenant shall pay, or cause to be paid, all charges for gas,
electricity, light, heat, water, sewerage, steam, air conditioning, telephone,
protective and other communication services, and for all other public or private
utility services which shall be used, rendered or supplied to or in connection
with the Premises. Tenant shall repair and maintain any systems and equipment
used in connection therewith, and shall comply with any applicable Legal
Requirements. Tenant shall
9
have the right at any time and from time to time in its sole discretion to
replace or eliminate any utility services and/or any systems or equipment used
in connection therewith.
6.2 Landlord shall have no obligation to provide any services, utilities or
maintenance to the Premises or make any repairs therein or thereto. Unless due
to Landlord's willful acts of commission, Landlord shall not be liable for (i)
any failure, interruption or curtailment of services or utilities or for injury
or damage to persons or property in connection with the provision of such
services or utilities, from any cause whatsoever (including, without limitation,
acts of God) or (ii) any interference by any party (other than Landlord) with
light or other incorporeal hereditament, and no such failure, interruption,
curtailment or interference shall constitute an actual or constructive eviction
or entitle Tenant to an abatement of or offset against rent.
Article 7. Use of Premises; Certificate of Occupancy .
7.1 Tenant shall at all times use the Premises for lawful purposes.
7.2 If (i) a new or amended certificate of occupancy for the Premises shall
be necessary or desirable in connection either with a change of use of all or
any portion of the Premises or with the performance of any Improvements or (ii)
any licenses, permits, certificates or other approvals, consents or
authorizations shall be necessary or desirable in connection with the lawful
use, occupancy, operation and management of the Premises as the same may be used
or improved from time to time, Tenant shall obtain the same at Tenant's sole
cost and expense, and Landlord shall cooperate with Tenant in obtaining any new
or amended certificate of occupancy and any such licenses, permits,
certificates, approvals, consents and authorizations, to the extent that Tenant
may request (provided Tenant shall reimburse Landlord for all out-of-pocket
expenses reasonably incurred in connection therewith). Tenant shall not use or
permit the use of the Premises in a manner that violates any certificate of
occupancy, license, permit, certificate, approval, consent, authorization or
Legal Requirement at the time in effect with respect to the Premises and the
Improvements constructed thereon, or any restrictive covenant at the time in
effect with respect to the Premises and the Improvements constructed thereon and
which is hereafter created by the exercise of the rights of any governmental
entity or public utility company (other than due to the voluntary acts of
Landlord).
Article 8. Compliance with Laws and Agreements.
8.1 Tenant shall, at Tenant's sole cost and expense, comply with all Legal
Requirements and Insurance Requirements affecting the Premises and the use and
occupancy thereof from and after the Commencement Date, including compliance
with Legal Requirements and Insurance Requirements relating to structural
repairs or changes whether or not the need for such compliance relates to the
particular use to which the Premises or the Improvements may be put.
8.2 Tenant may contest by appropriate proceedings the applicability or
validity of any Legal Requirement or Insurance Requirement and may postpone
compliance during the contest, provided that: (a) such non-compliance shall not
subject Landlord to prosecution for a crime; (b) if such non-compliance may
subject Landlord to any fine or penalty or result in any liens against
Landlord's interest in this Lease and, at the time of such contest (i) a
leasehold mortgage
10
encumbers Tenant's interest in the Premises, Tenant shall comply with the
requirements of such leasehold mortgage in connection with the prosecution of
such contest, (ii) no leasehold mortgage encumbers Tenant's interest in the
Premises but a Superior Mortgage encumbers the Real Property and/or the
Premises, Tenant shall comply with the reasonable requirements of such Superior
Mortgage in connection with the prosecution of such contest or (iii) no
leasehold mortgage encumbers Tenant's interest in the Premises and no Superior
Mortgage encumbers the Real Property or the Premises, then if the fine, penalty
or lien to which Landlord or Landlord's interest in this Lease might be subject
(as reasonably estimated by Tenant) shall exceed $50,000 (which amount shall be
Adjusted for Inflation on each 5th anniversary of the Commencement Date) and if
such contest is not resolved within 90 days after it is commenced, then Tenant
shall provide security in an amount reasonably satisfactory to pay the cost
either of such compliance or of removal any such liens; and (c) Tenant shall
prosecute the contest with due diligence and in good faith to a final
determination by a court, department or governmental authority or body having
final jurisdiction.
Article 9. Hazardous Substances.
9.1 For the purposes of this Lease, the following terms shall have the
following definitions:
(a) "Hazardous Materials" shall mean (i) any toxic substance or hazardous
waste, substance or related material, or any pollutant or contaminant; (ii)
radon gas, asbestos in any form which is or could become friable, urea
formaldehyde foam insulation, transformers or other equipment which contain
dielectric fluid containing levels of polychlorinated biphenyls in excess of
federal, state or local safety guidelines, whichever are more stringent; (iii)
any substance, gas, material or chemical which is or may hereafter be defined as
or included in the definition of "hazardous substances," "toxic substances,"
"hazardous materials," "hazardous wastes" or words of similar import under any
Legal Requirement including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. ss. 9061 et seq.;
the Hazardous Materials Transportation Act, as amended, 49 U.S.C. ss. 1801 et
seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S.C. S 6901
et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. ss. 1251
et seq.; and (v) any other chemical, material, gas or substance, the exposure to
or release of which is or may hereafter be prohibited, limited or regulated by
any governmental or quasi-governmental entity having jurisdiction over the
Premises or the operations or activity at the Premises, or any chemical,
material, gas or substance that does or may pose a hazard to the health or
safety of the occupants of the Premises or the occupants of property adjacent to
the Premises; provided, however, that "Hazardous Materials" shall not include
small amounts of material used for cleaning and maintenance purposes.
(b) "Environmental Laws" shall mean all Legal Requirements relating to the
protection of human health or the Environment, including:
(i) all Legal Requirements relating to reporting, licensing,
permitting, investigation and remediation of emissions, discharges,
Releases or Threats of Release of Hazardous Materials, into the air,
surface water, groundwater or land, or relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of
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Hazardous Materials; and
(ii) all Legal Requirements pertaining to the protection of the health
and safety of employees or the public.
(c) "Environment" shall mean soil, surface waters, groundwaters, land,
stream sediments, surface or subsurface strata and ambient air.
(d) "Environmental Condition" shall mean any condition with respect to the
Environment on or off the Premises, whether or not yet discovered, which could
or does result in any Environmental Damages, including any condition resulting
from the operation of the business of any tenant, subtenant or occupant of the
Premises or that of any other property owner or operator in the vicinity of the
Premises or any activity or operation formerly conducted by any person or entity
on or off the Premises.
(e) "Environmental Damages" shall mean all claims, judgments, damages
(including punitive damages), losses, penalties, fines, liabilities (including
strict liability), encumbrances, liens, costs and expenses of investigation and
defense of any claim, whether or not such is ultimately defeated, and of any
settlement or judgment, of whatever kind or nature, contingent or otherwise,
matured or unmatured, foreseeable or unforeseeable, any of which are incurred at
any time as a result of (i) the existence of Hazardous Materials on, about or
beneath the Premises or migrating to or from the Premises, (ii) the Release or
Threat of Release of Hazardous Materials into the Environment or (iii) the
violation or threatened violation of any Environmental Law pertaining to the
Premises, regardless of whether the existence of such Hazardous Materials, the
Release or Threat of Release of such Hazardous Materials or the violation or
threatened violation of such Environmental Law arose prior to, on or after the
Commencement Date, and including:
(i) damages for personal injury, disease or death or injury to
property or natural resources occurring on or off the Premises, including
lost profits, consequential damages, and the cost of demolition and
rebuilding of any improvements;
(ii) diminution in the value of the Premises, and damages for the loss
of or restriction on the use of the Premises;
(iii) fees incurred for the services of attorneys, consultants,
contractors, experts, laboratories and all other costs incurred in
connection with investigation, cleanup and remediation, including the
preparation of any feasibility studies or reports and the performance of
any cleanup, remedial, removal, abatement, containment, closure,
restoration or monitoring work; and
(iv) liability to any person or entity to indemnify such person or
entity for costs expended in connection with the items referred to in this
Section 9.1(e).
(f) "Permit" shall mean any environmental permit, license, approval,
consent or authorization issued by a federal, state or local governmental or
quasi-governmental entity.
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(g) "Release" shall mean any releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
disposing or dumping into the Environment.
(h) "Threat of Release" shall mean a substantial likelihood of a Release
that requires action to prevent or mitigate damage to the Environment that may
result from such Release.
9.2 Tenant shall not cause or permit any Hazardous Material to be used,
transported, stored, released, handled, produced or installed in, on or about
the Premises, unless the same are used, transported, stored, released, handled,
produced or installed in a manner that complies with all Environmental Laws.
9.3 Tenant hereby indemnifies and holds harmless Landlord, and its
directors, officers, shareholders, employees, successors, assigns, agents,
contractors, experts, licensees, affiliates, lessees, Superior Mortgagees,
trustees, partners, members, principals and invitees, from and against any and
all Environmental Damages relating to Environmental Conditions which first occur
during the Term. Tenant's obligations under this Section 9.3 shall include the
burden and expense of defending all claims, suits and administrative proceedings
(with counsel chosen by Tenant and approved by Landlord, which approval shall
not be unreasonably withheld), even if such claims, suits or proceedings are
groundless, false or fraudulent, and conducting all negotiations of any
description, and paying and discharging, when and as the same become due, any
and all judgments, penalties or other sums due against the indemnitee. Tenant's
obligations under this Section 9.3 shall not apply with respect to Environmental
Damages caused solely by Landlord's willful acts of commission after the
Commencement Date.
9.4 If either party receives any notice of a Release, Threat of Release
or Environmental Condition or a notice with regard to air emissions, water
discharges, noise emissions, recycling, violation of any Environmental Law or
any other environmental, health or safety matter affecting the Premises or the
other party (an "Environmental Complaint") independently or by notice from any
person or entity, including the United States Environmental Protection Agency
and the Tennessee Department of Environment and Conservation, then the party
receiving such notice shall give immediate notice of same to the other party
detailing all relevant facts and circumstances.
Article 10. Repairs.
10.1 Tenant shall, at its sole cost and expense, throughout the Term take
good care of the Premises and keep the Premises in good and safe order and
condition and shall comply with any requirements relating to repair and
maintenance of the Premises contained in any leasehold mortgage then encumbering
Tenant's interest in the Premises; provided, however, that for any period of
time during which no leasehold mortgage encumbers Tenant's interest in the
Premises but a Superior Mortgage encumbers the Real Property and/or the
Premises, Tenant shall comply with the reasonable requirements of such Superior
Mortgage relating to the repair and maintenance of the Premises. Tenant shall
neither commit nor permit any waste or injury to the Premises, and
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shall, at Tenant's sole cost and expense, make all necessary repairs,
restorations and replacements, interior and exterior, structural and
non-structural, ordinary and extraordinary, foreseen and unforeseen, in and to
any Improvements, equipment and personal property now or hereafter erected or
installed in or on the Premises, including vaults, sidewalks, curbs, water,
sewer and gas connections, meters, pipes and mains, and all other Fixtures now
or hereafter belonging to, adjoining or connected with the Premises or used in
the operation thereof. All repairs, restorations and replacements shall be
performed in compliance with all Legal Requirements and Insurance Requirements.
10.2 Tenant shall keep the sidewalks and curbs adjoining the Premises clean
and free of snow and ice, obstructions and rubbish.
10.3 Tenant shall permit Landlord and any Superior Mortgagee, prospective
Superior Mortgagee or prospective purchaser of Landlord's interest in the Real
Property (and the authorized representative of each) to enter the Premises at
all reasonable times, during normal business hours, with reasonable notice and
without unreasonable interference with tenants, subtenants or occupants of the
Premises, for the purpose of permitting Landlord to exercise any right or remedy
it may have pursuant to Article 17 and, not more often than once in any Lease
Year, for the purpose of inspecting the Premises.
Article 11. Changes; Improvements; Demolition; New Construction.
11.1 Tenant may not, without the prior written consent of Landlord, raze,
remove or demolish any existing Improvements and/or make or construct any
Improvements in or to the Premises or on the Real Property.
11.2 Tenant, at its expense, shall (a) obtain all necessary governmental
permits and certificates for the commencement and prosecution of any
Improvements and for final governmental approval upon completion, (b) deliver to
Landlord copies of the same and (c) cause the Improvements to be performed in
compliance with all applicable Legal Requirements and Insurance Requirements,
and in good and workmanlike manner. Landlord shall cooperate with Tenant in
obtaining any such permits and certificates to the extent that Tenant may
request (provided Tenant shall reimburse Landlord for all out-of-pocket expenses
reasonably incurred in connection therewith). In confirmation thereof, Landlord
shall execute and deliver promptly any permit or certificate that Tenant
reasonably may request and, in connection therewith, Landlord hereby irrevocably
constitutes and appoints Tenant as Landlord's attorney-in-fact to execute any
such permit or certificate for and on behalf of Landlord, such power of attorney
being coupled with an interest.
11.3 Any and all Improvements, fixtures, equipment, appurtenances and any
other property of any kind or nature whatsoever (collectively, the "Fixtures")
attached to, built into, or located at the Premises, whether at the Commencement
Date or during the Term, whether or not at the expense of Tenant, may be removed
by Tenant at any time and from time to time and shall not be deemed to be or
become the property of Landlord.
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Article 12. Liens and Violations.
12.1 Landlord shall not be liable for any labor or materials furnished or
to be furnished to Tenant upon credit, and no mechanics, or other lien for any
such labor or materials shall attach to or otherwise affect any reversion or
other estate or interest of Landlord in and to the Real Property, the Premises
or the Improvements.
12.2 If any lien shall at any time be filed against the Premises by reason
of any work, labor, services or materials done for, or supplied to, or claimed
to have been done for, or supplied to, Tenant or anyone holding the Premises
through or under Tenant, Tenant shall cause the same to be discharged of record,
bonded or otherwise secured to the reasonable satisfaction of Landlord, within
120 days after the date Tenant receives notice thereof. If Tenant shall fail to
do so and such. failure shall continue for 10 days after notice to Tenant by
Landlord, then, Landlord may, but shall not be obligated to, procure the
discharge of the same either by paying the amount claimed to be due, by deposit
in a court of competent jurisdiction or by bonding, and Landlord may compel the
prosecution of an action for the foreclosure of such lien by the lienor and pay
the amount of the judgment, if any, in favor of the lienor with interest, costs
and allowances. Any amount paid or deposited by Landlord for any such purpose,
and all other expenses of Landlord (including reasonable attorneys' fees),
together with interest at the Default Rate from the date paid or deposited,
shall be deemed Additional Rent and shall be paid by Tenant on demand.
Article 13. [Intentionally Omitted]
Article 14. Damage to or Destruction of the Premises.
14.1 If any Improvement, furniture, furnishings, Fixtures or other property
now or hereafter located at the Premises shall be damaged or destroyed by fire
or other casualty, this Lease shall not be terminated but shall continue in full
force and effect. Tenant may, but shall not be required to, repair, replace or
rebuild the Premises or build such other Improvements on the Real Property as
may be permissible pursuant to this Lease.
14.2 No damage or destruction to the Premises, or to any Improvement,
furniture, furnishings, Fixtures or other property shall permit Landlord or
Tenant to terminate this Lease, nor shall the same relieve Landlord or Tenant
from liability hereunder, or effect a reduction or abatement of the rent payable
hereunder, or relieve Landlord or Tenant from any of such party's other
obligations under this Lease. Landlord and Tenant each waives any rights now or
hereafter conferred upon it by statute or otherwise to terminate or surrender
this Lease or to quit or surrender the Premises, or to any reduction or
abatement of rent, on account of any such damage or destruction.
Article 15. Eminent Domain.
15.1 Should the Premises, or any part thereof or interest therein, be taken
or damaged by reason of any public improvement, condemnation or eminent domain
proceeding or in any other manner (collectively, "Condemnation"), or should
Tenant receive any written notice regarding such proceeding, Tenant shall give
prompt written notice thereof to Landlord and any
15
Superior Mortgagee. Landlord and any Superior Mortgagee may participate in any
such Condemnation proceedings, and Tenant shall from time to time deliver to
Landlord and any Superior Mortgagee all instruments reasonably requested by
Landlord and any Superior Mortgagee in writing to permit such participation.
Tenant shall, at its expense, diligently prosecute in a reasonable manner any
such proceedings and shall consult with Landlord and any Superior Mortgagee and
its attorneys and experts upon Landlord and any Superior Mortgagee's prior
written request, and cooperate in a reasonable manner with them in the carrying
on or defense of any such proceedings. All proceeds of Condemnation awards or
proceeds of sale in lieu of Condemnation with respect to the Premises and all
judgments, decrees and awards for injury or damage to the Premises shall be paid
and disbursed in the same manner as the "proceeds" of insurance in accordance
with Section 19.6. Tenant, subject to the preceding sentence hereby assigns and
transfers all such proceeds, judgments, decrees and awards to Landlord and any
Superior Mortgagee and agrees to execute such further assignments of all such
proceeds, judgments, decrees and awards, as Landlord and any Superior Mortgagee
may request. Landlord and any Superior Mortgagee is hereby authorized, in the
name of Tenant, to execute and deliver valid acquittance for, and to appeal
from, any such judgment, decree or award. Landlord and any Superior Mortgagee
shall not be, in any event or circumstance, liable or responsible for failure to
collect or exercise diligence in the collection of any proceeds, judgments,
decrees or awards.
15.2 (a) Before commencing to repair, restore or rebuild following material
damage to, or destruction of, all or a material portion of the Premises, whether
by fire or other casualty or by a taking under the power of eminent domain,
Tenant shall obtain from Landlord and any Superior Mortgagee its apprpval of all
site and building plans and specifications pertaining to such repair,
restoration or rebuilding.
(b) Prior to the payment or application of insurance proceeds or a
condemnation or eminent domain award to the repair or restoration of the
Improvements as provided in Sections 15.1 and 19.6, the following conditions
precedent shall have been satisfied:
(i) No Event of Default shall then exist;
(ii) Landlord and any Superior Mortgagee shall have been given
reasonably satisfactory proof that any repair or restoration will be
completed prior to the maturity date of any indebtedness by Landlord to the
Superior Mortgagee that is secured by this Lease;
(iii) Landlord and any Superior Mortgagee shall have been given
reasonably satisfactory proof that either the Improvements have been fully
restored, or that the expenditure of money as may be received from such
insurance proceeds or condemnation award will be sufficient to repair,
restore or rebuild the Premises, free and clear of all liens, claims and
encumbrances, except the lien of any Superior Mortgage;
(iv) In the event such insurance proceeds or condemnation award shall
be insufficient to repair, restore or rebuild the Improvements, Tenant
shall deposit with Landlord and any Superior Mortgagee funds or provide a
performance bond equaling such deficiency, which, together with the
insurance proceeds or condemnation award, shall be sufficient to restore,
repair and rebuild the Improvements; and
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(v) Prior to the disbursement of any such proceeds held by Landlord
and any Superior Mortgagee in accordance with the terms of this Section
15.2 for the cost of any repair, restoration or rebuilding, Landlord and
any Superior Mortgagee shall be furnished with a statement of Tenant's
architect, certifying the extent of the repair and restoration completed to
the date thereof, and that such repairs, restoration, and rebuilding have
been performed to date substantially in conformity with the plans and
specifications approved by Landlord and any Superior Mortgagee and with all
statutes, regulations or ordinances (including building and zoning
ordinances) affecting the Premises; and Landlord and any Superior Mortgagee
shall be furnished with appropriate evidence of payment for labor or
materials furnished to the Premises, and total or partial lien waivers
substantiating such payments.
(c) Prior to the payment or application of insurance proceeds or a
condemnation award to the repair, restoration or rebuilding of the Improvements
as provided in Sections 1.06 and 1.11, there shall have been delivered to
Landlord and any Superior Mortgagee such plans and specifications, payment and
performance bonds and insurance, in such amounts, issued by such company or
companies and in such forms and substance, as are reasonably required by
Landlord and any Superior Mortgagee.
(d) In the event Tenant commences to restore, repair or rebuild the
Improvements and fails to complete the repair or rebuilding within a
commercially reasonable time for any reason within the reasonable control of
Tenant, then Landlord and any Superior Mortgagee, at its option, and upon not
less than thirty (30) days' written notice to Tenant, may commence to restore,
repair or rebuild the said Improvements for or on behalf of Tenant, and for such
purpose, may perform all necessary acts to accomplish such restoration, repair
or rebuilding. In the event insurance proceeds or condemnation award shall
exceed the amount necessary to complete the repair, restoration or rebuilding of
the Improvements, such excess shall be applied on account of the unpaid
principal balance any indebtedness by Landlord to any Superior Mortgagee secured
by this Lease irrespective of whether such balance is then due and payable.
Article 16. Tenant's Default.
16.1 Any one or more of the following events shall be deemed to be an
"Event of Default":
(a) If Tenant shall fail to make any payment of Fixed Rent or Additional
Rent for 10 days after notice of such default; or
(b) If Tenant shall default in the observance or performance of any term,
covenant or condition of this Lease on Tenant's part to be observed or performed
(other than the covenants for the payment of rent) and Tenant shall fail to
remedy such default within 30 days after the giving of notice by Landlord to
Tenant of such default (a "Default Notice"), or if such default is of such a
nature that it cannot reasonably be remedied within 30 days, Tenant shall not
(i) within 30 days after the giving of a Default Notice, advise Landlord of
Tenant's intention to
17
institute all steps necessary to remedy such default and (ii) thereafter
diligently prosecute the same to completion; or
(c) If Tenant shall file a voluntary petition in bankruptcy or shall be
adjudicated a bankrupt or insolvent or shall file any petition or answer seeking
any reorganization, arrangement, liquidation, dissolution or similar relief
under the present or any future federal bankruptcy act or any other present or
future applicable federal, state or other statute or law (foreign or domestic)
(collectively, the "Bankruptcy Laws") or shall make an assignment for the
benefit of creditors or shall seek or consent to or acquiesce in the appointment
of any trustee, custodian, receiver or liquidator of Tenant or of all or any
part of Tenant's property; or
(d) If any proceeding is commenced seeking a reorganization, arrangement,
liquidation, dissolution of Tenant or similar relief under the Bankruptcy Laws,
or the appointment of any trustee, custodian, receiver or liquidator of Tenant
or all or any part of Tenant's property, without the consent or acquiescence of
Tenant, and such proceeding shall not have been vacated, discharged or stayed
within 90 days after the commencement of a proceeding, or any execution or
attachment shall be issued against Tenant or any of Tenant's property pursuant
to which the Premises shall be taken or occupied or attempted to be taken or
occupied.
In any of the events described in (a) through (d) above, Landlord may give
to Tenant notice (a "Termination Notice") of Landlord's intention to terminate
this Lease and the Term at the expiration of 3 days from the date of the giving
of the Termination Notice, and this Lease and the Term shall terminate upon the
expiration of such 3-day period with the same effect as if that day were the
Expiration Date, but Tenant shall remain liable as set forth in this Article 16.
16.2 If Tenant shall default in the payment when due of any rent and such
default shall continue for a period of 10 days after the giving of a Default
Notice, Landlord may, at Landlord's sole option, in addition to any of its other
rights, elect to commence a summary proceeding for failure to pay rent or a
plenary action for the recovery of unpaid rent.
16.3 If this Lease shall terminate as provided in this Article 16, then:
(a) Landlord may, after the date of termination, re-enter the Premises,
without additional notice, either by summary proceedings or by any other
applicable action or proceeding (without being liable to indictment, prosecution
or damages), and may repossess the Premises and dispossess Tenant and any other
persons from the Premises and remove any and all of its or their property and
effects from the Premises, without liability for damage, and in no event shall
re-entry be deemed an acceptance of surrender of this Lease; and
(b) Landlord may relet the Premises from time to time, either in the name
of Landlord or otherwise, to such tenant or tenants, for such term or terms
ending before, on or after the Expiration Date, at such rental or rentals and on
such other conditions, which may include concessions and free rent periods, as
Landlord, in its sole discretion, may determine. Landlord shall have no
obligation to relet the Premises and shall not be liable for refusal or failure
to relet the Premises, or, in the event of any such reletting, for refusal or
failure to collect any rent due upon any such reletting, and no such refusal or
failure shall operate to relieve Tenant of any liability
18
under this Lease or otherwise to affect any such liability. Landlord may make
any repairs, replacements, alterations, additions, improvements, decorations and
other physical changes in the Premises as Landlord considers advisable or
necessary in connection with any reletting, without relieving Tenant of any
liability under this Lease or otherwise affecting any such liability.
16.4 If this Lease shall terminate as provided in this Article 16, then:
(a) Tenant shall pay to Landlord all Fixed Rent and Additional Rent to the
date of termination;
(b) Landlord shall be entitled to retain all monies, if any, paid by Tenant
to Landlord, whether as Fixed Rent, Additional Rent or otherwise, but such
monies shall be credited by Landlord against any Fixed Rent or Additional Rent
due at the time of such termination or against any damages payable by Tenant;
(c) Tenant shall be liable for and shall pay to Landlord, as damages, any
deficiency between the Fixed Rent and Additional Rent payable for the period
which otherwise would have constituted the unexpired portion of the Term
(conclusively presuming the Additional Rent to be the same as was payable for
the year immediately preceding such termination or re-entry) and the net amount,
if any, of rents ("Net Rent") collected under any reletting for any part of such
period or under any subleases with subtenants which attorn to Landlord, after
first deducting from the rents collected all of Landlord's reasonable
out-of-pocket expenses in connection with the termination of this Lease or
Landlord's re-entry upon the Premises and in connection with such reletting,
including repossession costs, advertising costs, brokerage commissions,
attorneys' fees, architects' fees, alteration costs and other expenses of
preparing the Premises for such reletting;
(d) Any deficiency under Section 16.4(c) shall be paid in monthly
installments by Tenant on the days specified in this Lease for the payment of
installments of Fixed Rent. Landlord shall be entitled to recover from Tenant
each monthly deficiency as the same shall arise, and no suit to collect the
amount of the deficiency for any month shall prejudice Landlord's right to
collect the deficiency for any prior or subsequent month by a similar
proceeding. Alternatively, suits for the recovery of such deficiencies may be
brought by Landlord from time to time at its election;
(e) Whether or not Landlord shall have collected any monthly deficiencies,
Landlord shall be entitled to recover from Tenant, and Tenant shall pay Landlord
on demand, as and for liquidated and agreed final damages and not as a penalty,
a sum equal to the amount by which the Fixed Rent and Additional Rent payable
for the period to the Expiration Date from the latest of the date of termination
of this Lease, the date of re-entry or the date through which monthly
deficiencies shall have been paid in full (conclusively presuming the Additional
Rent to be the same as payable for the year immediately preceding such
termination or re-entry) exceeds the then fair and reasonable rental value of
the Premises for the same period, both discounted at the Default Rate to present
worth. If, before presentation of proof of such liquidated damages to any court
or tribunal, the Premises or any part thereof, shall have been relet by Landlord
in an arms' length transaction for the period which otherwise would have
constituted the unexpired
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portion of the Term, or any part thereof, the amount of rent upon such reletting
shall be deemed, prima facie, to be the fair and reasonable rental value for the
part or the whole of the Premises (as the case may be) so relet during the term
of the reletting;
(f) In no event shall Tenant be entitled to receive any excess of Net Rent
under Section 16.4(c) over the sums payable by Tenant to Landlord under this
Article 16;
(g) All of the right, title, estate and interest of Tenant in and to (i)
the Premises, (ii) all Fixtures, machinery and supplies on the Premises, (iii)
all rents, issues and profits of the Premises whether then accrued or to accrue,
and (iv) all insurance policies and all insurance proceeds paid or payable shall
automatically terminate and the right, title, estate and interest of Tenant, its
successors in interest and assigns in and to all such property shall belong to
Landlord, without further action on the part of either party and without cost or
charge to Landlord; and
(h) Landlord shall be entitled to possession of the Premises free from any
estate or interest of Tenant.
16.5 Tenant, on its own behalf and on behalf of all persons claiming
through or under Tenant, including all creditors, waives any and all rights and
privileges under law which Tenant and all such persons may then have to (a) the
service of any notice (other than any notice provided for in this Lease
including, without limitation, in this Article 16) of intention to re-enter or
to institute legal proceedings to that end, (b) redeem the Premises, (c)
re-enter or repossess the Premises, or (d) restore the operation of this Lease,
after Tenant shall have been dispossessed by a judgment or by warrant of any
court or judge, or after any re-entry by Landlord, or after any expiration or
termination of this Lease and the Term, whether such dispossess, re-entry,
expiration or termination shall be by operation of law or pursuant to the
provisions of this Lease. The words "re-enter," "re-entry" and "re-entered" as
used in this Lease shall not be deemed to be restricted to their technical legal
meanings.
16.6 If, after the occurrence of an Event of Default for Tenant's failure
to make any payment of Fixed Rent or Additional Rent, Landlord shall obtain a
judgment from a court of competent jurisdiction for the defaulted amount, Tenant
shall pay to Landlord, within 5 days after notice thereof, such defaulted
amount, together with any amount due pursuant to Section 16.7, with interest
thereon from the date of such default to the date paid at the Default Rate.
Tenant shall pay such defaulted amount, together with any amounts owing to
Landlord pursuant to Section 16.4 and such interest, to Landlord prior to paying
any outstanding principal, interest or other charges owed to any leasehold
mortgagee and the lien of such judgment shall be superior to the lien of any
leasehold mortgage.
16.7 If suit shall be brought for the recovery of Fixed Rent or Additional
Rent or any other amount due under the provisions of this Lease, or because of
any Event of Default, Tenant shall pay to Landlord all expenses reasonably
incurred for the suit, including attorneys, fees and disbursements.
16.8 Landlord and Tenant waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties against the other in any matter
arising out of or in any way
20
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
or occupancy of the Premises, any claim of injury or damage, and any emergency
statutory or any other statutory remedy. Tenant shall not interpose any
counterclaim in a summary proceeding or in any action based on nonpayment by
Tenant of Fixed Rent or Additional Rent, unless failure to interpose the
counterclaim would preclude Tenant asserting the claim which is the subject of
the counterclaim in a separate action.
Article 17. Landlord's Right To Cure Defaults; Fees and Expenses.
17.1 If Tenant shall default beyond the expiration of any applicable notice
or grace period in the performance of any covenant, provision, agreement or
condition of this Lease, then Landlord, without liability to Tenant, may (but
shall not be obligated), after 10 days' notice to Tenant (or without notice if,
in Landlord's reasonable judgment, an emergency exists), perform the same for
the account and at the expense of Tenant. Any amounts paid in connection with
the foregoing, together with interest at the Default Rate, shall be deemed
Additional Rent and shall be payable by Tenant on demand.
Article 18. Assignment, Mortgaging and Subletting.
18.1 Tenant may not, without Landlord's prior written consent: (i) assign
this Lease to any person or entity or (ii) sublet all or any portion of the
Premises or (iii) encumber Tenant's interest in this Lease with a leasehold
mortgage or otherwise, provided, however, that nothing herein shall interfere
with or adversely affect Tenant's rights to grant easements or otherwise convey
or transfer interests in the Premises to utility companies, railroads or
governmental authorities which (a) do not detract from the value of the Premises
or impair its use in the ordinary conduct of business or (b) in Tenant's
reasonable judgment, enhance operational capabilities or otherwise benefit or
add value in respect of the Premises.
18.2 [Intentionally Omitted]
18.3 [Intentionally Omitted]
18.4 [Intentionally Omitted]
18.5 Every sublease and mortgage shall be subject to the express condition
that Landlord shall not at any time incur any personal liability thereunder.
Every sublease shall be subject to the express condition that if this Lease
should be terminated prior to the Expiration Date or if Landlord should succeed
to Tenant's estate in the Premises, then (i) the subtenant shall attorn to and
recognize Landlord as the subtenant's landlord under the sublease, upon and
subject to the then-executory terms and conditions of the sublease and (ii)
provided the subtenant is not in default beyond any applicable notice and cure
periods of any of its obligations under its sublease, Landlord shall agree not
to disturb the subtenant (and Landlord and the subtenant shall execute and
deliver any instrument reasonably requested by the other to evidence such
attornment and non-disturbance) if a leasehold mortgagee shall also grant such
nondisturbance to such subtenant.
18.6 Notwithstanding any assignment and assumption by the assignee of the
obligations
21
of Tenant under this Lease, Tenant (and each successor in interest to Tenant
pursuant to this Article 18), shall remain jointly and severally liable (as a
primary obligor) with its assignee and all subsequent assignees for the
performance of Tenant's obligations under this Lease.
18.7 No assignment of this Lease shall be binding upon Landlord unless the
assignee shall execute and deliver to Landlord an agreement, in recordable form,
whereby the assignee agrees unconditionally to be bound by and to perform all of
the obligations of Tenant under this Lease, and further agrees that the
provisions of this Article 18 shall be binding upon any assignee with respect to
all future assignments and transfers. A failure or refusal of the assignee to
execute or deliver such an agreement shall not release the assignee from its
liability for the obligations of Tenant under this Lease assumed by acceptance
of the assignment of this Lease.
18.8 [Intentionally Omitted]
18.9 [Intentionally Omitted]
18.10 The term "Tenant" as used in this Lease shall mean Tenant named in
this Lease, and from and after any valid assignment, sale or other transfer of
Tenant's interest under this Lease pursuant to the provisions of this Article
18, shall mean the assignee, purchaser or transferee (subject, in any event, to
the provisions of Section 18.6).
Article 19. Insurance.
19.1 Throughout the Term, Tenant shall, at its sole cost and expense keep
the Improvements insured under an "all risk" extended coverage form of insurance
policy containing both a replacement cost and an agreed amount endorsement, and
against all other hazards as reasonably may be required by Landlord and any
Superior Mortgagee, which may include, without limitation, insurance against
loss or damage by flood and earthquake. If any structures within the
Improvements are within a special flood hazard area or earthquake hazard area,
Tenant is required to obtain insurance against such hazard in form, content and
amounts reasonably approved by Landlord and any Superior Mortgagee. All
insurance shall be in form, content and amounts reasonably approved by Landlord
and any Superior Mortgagee and written by an insurance company or companies
reasonably approved by Landlord and any Superior Mortgagee. The policies for
such insurance shall have on the Improvements attached thereto standard
mortgagee clauses in favor of and permitting Landlord and any Superior
Mortgagee, subject to the provisions of Section 19.6, to collect any and all
proceeds payable under all such insurance. All such policies shall contain a
30-day notice of cancellation or of change in coverage clause in favor of the
Landlord and any Superior Mortgagee, and such policies, or certified copies
thereof, shall be delivered to and held by Landlord and any Superior Mortgagee.
Tenant shall also carry public liability insurance protecting Landlord and any
Superior Mortgagee against liability for injuries to persons and property
occurring in, on or adjacent to the Premises, in form and amounts and with
companies reasonably satisfactory to Landlord and any Superior Mortgagee, with
the policy or policies evidencing such insurance to contain a thirty (30) day
notice of cancellation or of change in coverage clause in favor of Landlord and
any Superior Mortgagee. Tenant shall not carry separate insurance, concurrent in
kind or form and contributing in the event of loss, with any insurance required
herein, without the consent of
22
Landlord and any Superior Mortgagee.
19.2 If Tenant shall fail to obtain or maintain in effect any insurance
required under Section 19.1, Landlord may (but shall not be obligated to), if
such failure continues for 10 days after notice by Landlord to Tenant (which
notice expressly refers to this Section 19.2 and states that Landlord intends to
obtain and pay for such insurance), obtain and pay for such insurance and Tenant
shall reimburse Landlord for the reasonable out-of-pocket cost thereof as
provided in Section 17.1.
19.3 Tenant shall not violate or permit any occupant of the Premises to
violate any of the conditions or provisions of any insurance policy. Tenant
shall perform and satisfy the requirements of the insurers writing such policies
so that at all times insurers meeting the requirements of Section 19.1 shall be
willing to write or continue such insurance.
19.4 [Intentionally Omitted]
19.5 All policies of insurance shall be issued by companies with a
financial rating reasonably satisfactory to Landlord and any Superior Mortgagee
and in amounts in each company as may be reasonably satisfactory to Landlord and
any Superior Mortgagee. All policies of insurance shall have attached thereto a
lender's loss payable and additional insured endorsement for the benefit of
Landlord and any Superior Mortgagee in form reasonably satisfactory to Landlord
and any Superior Mortgagee, shall contain a standard waiver of subrogation
clause and shall contain such other endorsements, terms and provisions as shall
be reasonably satisfactory to Landlord and any Superior Mortgagee. All policies
of insurance required under this Lease may be carried under blanket policies
held by Tenant or any of its affiliates. If requested, Tenant shall furnish
Landlord and any Superior Mortgagee with a certified copy of all policies of
required insurance. At least ten (10) days prior to the expiration of each such
policy, Tenant shall furnish Landlord and any Superior Mortgagee with evidence
satisfactory to Landlord and any Superior Mortgagee of the reissuance of a
policy continuing insurance in force as required by this Lease. All such
policies shall contain a provision that such policies will not be canceled,
materially modified or amended (including any reduction in the scope or limits
of coverage), without thirty (30) days' prior written notice to Landlord and any
Superior Mortgagee. Neither Landlord nor any Superior Mortgagee shall be
responsible for the solvency of any company issuing any policy of insurance
pursuant hereto whether or not approved by it, or for the collection of any
amounts due under any such policy, and shall be responsible and accountable only
for such money as may be actually received by it, and then only in accordance
with the terms hereof. Nothing contained herein shall be construed as making
Landlord or any Superior Mortgagee liable in any way for any loss, damage or
injury resulting from the failure to insure the Premises.
19.6 After the occurrence of any casualty to the Premises or any part
thereof, Tenant shall give prompt written notice thereof to Landlord, any
Superior Mortgagee and each insurer after Tenant becomes aware thereof and
submit a claim to insurer for payment of insurance proceeds with a copy of such
claim sent by Tenant to Landlord and any Superior Mortgagee. Such casualty shall
not affect the obligations of Tenant hereunder, and Landlord and any Superior
Mortgagee is authorized at its option to compromise and settle all loss claims
if not
23
adjusted promptly by Tenant in a manner reasonably satisfactory to the Landlord
and any Superior Mortgagee. All proceeds of insurance paid or payable under any
insurance policy (the "proceeds") shall be paid to Landlord (or instead to any
Superior Mortgagee) for the benefit of Tenant, and each insurer of all or any
portion of the Premises is hereby authorized and directed to make payment for
any such loss directly to Landlord (or instead to any Superior Mortgagee) for
the benefit of Tenant. Any proceeds shall be applied first to the payment of all
reasonable costs and expenses incurred by Landlord and any Superior Mortgagee in
obtaining such proceeds to the extent not previously reimbursed by Tenant and
then will be made available to Tenant to permit repair, restoration and
rebuilding of the Premises in accordance with and subject to Tenant's strict
compliance with the provisions of Section 15.1. However, in the event Tenant
chooses not to repair, restore or rebuild or Landlord or any Superior Mortgagee,
based upon its sole discretion reasonably exercised, determines that it is not
economically feasible to repair, restore or rebuild such property, whether or
not Tenant chooses to repair, restore or rebuild such property, such proceeds
shall be payable to Landlord and/or any Superior Mortgagee, as their interests
may appear. Nothing contained in this Lease shall be deemed to excuse Tenant
from repairing or maintaining the Premises as provided herein and in Section
10.1. The application or release by Landlord or any Superior Mortgagee of any
proceeds shall not cure or waive any Event of Default or notice of default under
this Lease or invalidate any act done pursuant to such notice except to the
extent that such application or release cures the Event of Default.
Article 20. Nonliability and Indemnification.
20.1 Tenant shall indemnify and hold Landlord, its employees, agents and
contractors harmless from all loss, cost, liability, claim, damage and expense
(including reasonable attorneys, fees and disbursements), penalties and fines,
incurred in connection with or arising from (a) any default by Tenant in the
observance or performance of any of the terms, covenants or conditions of this
Lease, (b) the use or occupancy or manner of use or occupancy of the Premises or
(c) any acts, omissions or negligence of Tenant or any such person, or the
contractors, agents, servants, employees, visitors or licensees of Tenant or any
such person, in or about the Premises, including any acts, omissions or
negligence in the making or performing of any repairs, restoration, alterations
or improvements, unless such loss, cost, liability, claim, damage or expense
arises solely due to the gross negligence or willful misconduct after the date
of this Lease of Landlord, its employees, agents or contractors.
20.2 If any action or proceeding is commenced against Landlord in
connection with or arising out of any of the matters for which Tenant has agreed
to indemnify Landlord pursuant to Section 20.1, Tenant, upon Notice from
Landlord, at Tenant's sole cost and expense, shall resist and defend such action
or proceeding with counsel selected by Tenant's insurance company and paid for
by Tenant's insurance company or by Tenant, or other reputable counsel selected
and paid for by Tenant or Tenant's insurance company. If Landlord has been made
a party to such action or proceeding, Landlord, at Landlord's sole cost and
expense, shall be entitled to appear, defend or otherwise take part in such
matter by counsel of its choosing, provided that such appearance, defense or
other taking part does not limit or render void any insurance of Landlord or
Tenant in respect of the subject matter of such action or proceeding. In the
case of any claim to which Landlord has been made a party and for which Tenant
has not indemnified Landlord pursuant to Section 20.1, Tenant shall not
compromise or settle such claim without Landlord's approval, which
24
approval shall not be unreasonably withheld, delayed or conditioned.
20.3 Any amounts payable by Tenant under this Article 20 shall be
Additional Rent and shall be payable by Tenant to Landlord upon demand.
20.4 [Intentionally Omitted]
20.5 [Intentionally Omitted]
20.6 Notwithstanding anything to the contrary contained in this Lease,
Tenant shall look only to Landlord's estate in the Premises (or any proceeds
thereof) for the satisfaction of Tenant's remedies for the collection of a
judgment (or other judicial process) requiring the payment of money by Landlord
in the event of any default by Landlord under this Lease, and no other property
or assets of Landlord or its officers, directors, shareholders, partners,
members or principals, disclosed or undisclosed, shall be subject to levy, lien,
attachment, execution or other enforcement procedure for the satisfaction of
Tenant's remedies under or with respect to this Lease.
Article 21. Surrender; End of Term.
21.1 Tenant shall, on or before the Expiration Date or on the sooner
termination of the Term, peaceably and quietly leave and surrender to Landlord
the Premises, together with any Improvements which may have been made or placed
upon the Premises, excluding in any event movable furniture, movable personal
property or movable trade fixtures put in at the expense of Tenant or its
subtenants. All property removable by Tenant or subtenants pursuant to this
Article 21 which shall not be removed by Tenant on or before the date when
Tenant shall vacate and surrender the Premises shall be deemed abandoned by
Tenant.
21.2 If Tenant remains in possession of the Premises after the Expiration
Date, Tenant, at the option of Landlord, shall be deemed to be occupying the
Premises as a Tenant from month to month, at a monthly rental equal to two times
the monthly installment of Fixed Rent payable during the last month of the Term,
and upon and subject to all the other conditions, provisions and obligations of
this Lease, including, without limitation, the obligation to pay Additional
Rent.
Article 22. Subordination and Attornment.
22.1 This Lease and all rights of Tenant in the Premises are and shall be
subject and subordinate in all respects to (a) all Superior Mortgages, (b) each
and every advance to be made under any Superior Mortgage and (c) all renewals,
modifications, replacements, substitutions, extensions, spreaders and
consolidations of any Superior Mortgage. The provisions of this Section 22.1
shall be self-operative and no further instrument of subordination shall be
required. In confirmation of such subordination, Tenant shall promptly execute
and deliver, without charge, an instrument, in recordable form, that Landlord or
a Superior Mortgagee may reasonably request to evidence such subordination.
22.2 If any Superior Mortgagee shall become the owner of the Premises as a
result of foreclosure of its Superior Mortgage or through a deed in lieu of
foreclosure, or as a Superior
25
Mortgagee in possession, then (i) Tenant shall attorn to and recognize the
Superior Mortgagee as Tenant's Landlord under this Lease, upon and subject to
the then-executory terms and conditions of this Lease and (ii) provided Tenant
is not in default beyond any applicable notice and cure periods of any of its
obligations under this Lease, the Superior Mortgagee shall agree (A) not to
disturb Tenant (it being agreed that naming Tenant as a defendant in a
foreclosure action for procedural purposes only shall not be deemed a
disturbance of Tenant), (B) to recognize Tenant as tenant under all of the
then-executory terms and conditions of this Lease and (C) not to reduce any of
Tenant's rights or increase any of Tenant's obligations under this Lease (and
the Superior Mortgagee and Tenant shall execute and deliver any instrument
reasonably requested by the other to evidence such attornment, non-disturbance,
recognition and agreement). The foregoing provisions shall apply notwithstanding
that, as a matter of law, this Lease may terminate upon the foreclosure of any
Superior Mortgage; shall be self-operative upon any such demand; and no further
instrument shall be required to give effect to said provisions. Tenant agrees
that no Superior Mortgagee or purchaser at a foreclosure sale shall be (a)
liable for any previous act or omission of Landlord, (b) subject to any
counterclaim, defense or offset which shall have accrued to Tenant against
Landlord, or (c) bound by any previous modification of this Lease or by any
prepayment of more than one month's Fixed Rent, unless such modification or
prepayment shall have been approved in writing by the Superior Mortgagee through
or by reason of which such purchaser shall have succeeded to the rights of
Landlord under this Lease.
22.3 If any act or omission by Landlord shall give Tenant the right to
terminate this Lease or to claim a partial or total eviction or abatement of
rent, Tenant will not exercise any such right until (a) it has given notice of
such act or omission to all Superior Mortgagees, addressed to such Superior
Mortgagees at the last addresses furnished to Tenant and (b) a period of 30 days
for remedying such act or omission shall have elapsed following the giving of
such notice during which no such Superior Mortgagee shall have commenced and
continued to remedy such act or omission or to cause the same to be remedied,
provided that within such 30-day period such Superior Mortgagee shall have
delivered to Tenant its written agreement to commence to remedy such act or
omission or to cause the same to be remedied.
Article 23. Notices.
23.1 Any xxxx, notice, request, consent, approval or other communication
("Notice") given or made hereunder to be effective shall be in writing (whether
or not so stated in the applicable provisions of this Lease) and either (a) sent
by registered or certified mail, return receipt requested, postage prepaid, or
(b) delivered in person or by overnight courier, with receipt acknowledged to,
in the case of Tenant, to Tenant's Mailing Address, and in the case of Landlord,
to Landlord's Mailing Address, or to such other address for such party as such
party shall hereafter designate by Notice given to the other party pursuant to
this Section 23.1. Each Notice mailed shall be deemed to be given on the third
day following the date of mailing the same and each Notice delivered in person
or by overnight courier shall be deemed to be given when delivered or upon
refusal to accept delivery.
23.2 Notices given by counsel shall be deemed to be valid notices if
addressed and sent in accordance with the provisions of this Article 23.
Article 24. [Intentionally Omitted].
26
24.1 [Intentionally Omitted]
24.2 [Intentionally Omitted]
24.3 [Intentionally Omitted]
24.4 [Intentionally Omitted]
24.5 [Intentionally Omitted].
Article 25. Quiet Enjoyment; Title.
25.1 Landlord covenants and agrees that Tenant shall have quiet enjoyment
of the Premises without hindrance or molestation by Landlord or anyone claiming
by, through or under Landlord, subject to the provisions of this Lease.
25.2 Landlord represents and covenants that there are no agreements
(written or oral) in the nature of licenses, permits, franchises, concessions or
occupancy agreements affecting the Premises to which Landlord is a party.
Article 26. [Intentionally Omitted]
Article 27. Brokerage.
27.1 Landlord and Tenant each represents to the other that in the
negotiation of this Lease it dealt with no brokers. Landlord and Tenant shall
each indemnify and hold harmless the other party from and against any and all
liabilities, claims, losses, damages, costs and expenses arising out of any
inaccuracy or alleged inaccuracy of the above representation, including
reasonable attorneys, fees and disbursements. The provisions of this Article 27
shall survive the termination of this Lease.
Article 28. Estoppel Certificates; Memorandum.
28.1 Landlord and Tenant each agrees that from time to time, upon 10 days'
notice from the other party, it will execute, acknowledge and deliver to the
other party a statement in writing certifying and stating (a) that this Lease is
unmodified and in full force and effect, or if there have been modifications,
that this Lease is in full force and effect as modified and stating such
modifications, (b) the dates to which the Fixed Rent and Additional Rent have
been paid and the current amount thereof, (c) whether or not, to the best
knowledge of the signer, the other party is in default in keeping, observing or
performing any term, covenant, or condition contained in this Lease and, if so,
specifying the nature of each such default, (d) whether the signing party has
made any claim against the other party under this Lease and, if so, the nature
and the dollar amount, if any, of such claim, (e) whether there exist any
offsets or defenses against enforcement of any of the terms of this Lease upon
the part of the signing party to be performed and, if so, specifying the same
and (f) such further information with respect to this Lease or the Premises as
the other party
27
may reasonably request, it being intended that any statement delivered pursuant
to this Article 28 shall be binding on the signing party and may be relied upon
by the other party, any prospective purchaser or mortgagee of the Premises or
any prospective assignee or mortgagee of this Lease or Tenant's interest therein
or any prospective subtenant of the Premises.
Article 29. Parties Bound.
29.1 Subject to the provisions of Section 2.26, this Lease shall be binding
upon, and shall inure to the benefit of, Landlord and its successors and
assigns. This Lease shall be binding upon, and shall inure to the benefit of,
Tenant and its successors and assigns.
Article 30. Miscellaneous.
30.1 The Article headings in this Lease are inserted only as a matter of
convenience in reference and are not to be given any effect in construing any
provision of this Lease. All references in this Lease to Article, Section and
paragraph numbers shall be deemed to refer to Articles, Sections and paragraphs
of this Lease unless otherwise stated.
30.2 Neither this Lease nor any provision of this Lease may be waived,
changed, cancelled, modified or discharged orally, but only by an agreement in
writing and signed by the party against whom enforcement of any waiver, change,
cancellation, modification or discharge is sought. All understandings and
agreements between Landlord and Tenant are merged in this Lease which represents
the entire agreement between the parties and which fully and completely sets
forth all terms and conditions of the transactions embodied in this Lease.
30.3 If any term or provision of this Lease or any portion of a term or
provision of this Lease or the application of any such term or provision to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected, and each term and provision of this Lease
shall be valid and be enforced to the fullest extent permitted by law.
30.4 [Intentionally Omitted]
30.5 All the provisions of this Lease shall be deemed and construed to be
"conditions" as well as "covenants," as though the words specifically expressing
or importing covenants and conditions were used in each separate provision of
this Lease.
30.6 The terms "include" and "including" as used in this Lease shall be
construed as terms of illustration and not terms of exclusion.
30.7 In any case in which Landlord's consent or approval is permitted or
required to be obtained under this Lease, Landlord shall not unreasonably
withhold, delay or condition such consent or approval.
30.8 Words of any gender in this Lease shall be held to include any other
gender and
28
words in the singular number shall be held to include the plural where the sense
requires.
30.9 This Lease shall be governed by the internal laws of the State of New
York, without regard to principles of conflicts of law.
30.10 (a) Landlord and Tenant acknowledge and agree that all disputes
arising, directly or indirectly, out of or relating to this Lease and all
actions to enforce this Lease shall be dealt with and adjudicated in the state
courts of New York or the federal courts sitting in New York, and Landlord and
Tenant each hereby expressly and irrevocably submits to the personal
jurisdiction of such courts in any suit, action or proceeding arising, directly
or indirectly, out of or relating to this Lease or in any action to enforce this
Lease. So far as is permitted under applicable law, this consent to personal
jurisdiction shall be self-operative and no further instrument or action, other
than service of process shall be necessary in order to confer jurisdiction upon
the person of Landlord or Tenant in any such court.
(b) Provided that service of process is properly effected upon such party,
Landlord and Tenant each irrevocably waives, to the fullest extent permitted by
law, and agrees not to assert, by way of motion, as a defense or otherwise (i)
any objection which it may have to the venue of any such suit, action or
proceeding brought in such a court as is mentioned in this Section 30.10, (ii)
any claim that any suit, action or proceeding brought in such a court has been
brought in an inconvenient forum or (iii) any claim that it is not personally
subject to the jurisdiction of such a court.
30.11 The receipt or acceptance by Landlord of rent with knowledge of a
breach by Tenant of any term of this Lease shall not be deemed to be a waiver of
such breach. No receipt by Landlord of a lesser amount than the correct rent
shall be deemed to be other than a payment on account, nor shall any endorsement
or statement on any check or any accompanying letter be deemed to effect or
evidence an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
rent payable or to pursue any other right or remedy of Landlord provided in this
Lease or permitted by law.
30.12 The failure of Landlord or Tenant to insist in any instance upon the
strict performance of any term of this Lease, or to exercise any right herein
contained, shall not be construed as a waiver or relinquishment for the future
of the performance of such obligation or of the right to exercise any such
right, but the same shall continue and remain in full force and effect with
respect to any subsequent breach, act or omission.
30.13 No acceptance by Landlord of keys shall operate as a termination of
this Lease or a surrender of the Premises or this Lease, and any agreement to
accept a surrender of all or any part of the Premises or this Lease shall be
valid only if in a writing signed by Landlord.
30.14 Each right and remedy of Landlord and Tenant provided for in this
Lease shall be cumulative and shall be in addition to every other right provided
for in this Lease or now or hereafter existing at law or in equity, by statute
or otherwise, and the exercise or beginning of the exercise by Landlord or
Tenant of any one or more of such rights shall not preclude the simultaneous or
later exercise by such party of any or all other rights provided for in this
Lease or mow or hereafter existing at law or in equity, by statute or otherwise.
29
30.15 Each term, covenant, agreement, obligation and other provision of
this Lease on the part of either Landlord or Tenant to be observed and performed
shall be deemed and construed as a separate and independent covenant of the
party required to observe or perform the same, not dependent upon any other
term, covenant, agreement, obligation or provision of this Lease.
30.16 This Lease shall be construed without regard to any presumption or
other rule requiring construction against the party causing this Lease to be
drafted. In the event of any action, suit, arbitration, dispute or proceeding
affecting the terms of this Lease, no weight shall be given to any deletions or
striking out of any of the terms of this Lease contained in any drafts of this
Lease and no such deletion, strike-out or drafts shall be entered into evidence
in any such action, suit, arbitration, dispute or proceeding nor given any
weight therein.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year first above written.
SUPER AMERICAN TISSUE XXXXX
OF TENNESSEE LLC
By:/s/ Xxxxx Xxxxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Manager
AMERICAN TISSUE XXXXX OF
TENNESSEE LLC
By:/s/ Xxxxx Xxxxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Manager
30
Exhibit A
Metes and Bounds Description of the Premises
EXHIBIT A
Property Description - Parcel "A"
Being Parcels 1 through 4 of the Xxxxxxxx-Xxxxx Corporation property, of record
in Book 1921, Page 121 at the Shelby County Register's Office, located in
Memphis, Tennessee and being more particularly described as fellows:
Beginning at the intersection of the north line of Pear Avenue (64 foot
right-of-way) and the west line of the Illinois Central Railroad (50 foot
right-of-way); thence north 87 degrees 34 minutes 24 seconds west along the said
north line of Pear Avenue a distance of 992.22 feet to a point of transition in
said Pear Avenue, from a 64.00 foot right of way to a 66.00 foot right of way;
thence north 03 degrees 33 minutes 36 seconds east along the east line of Xxxxxx
Street (now closed) a distance of 488.00 feet to a point; thence north 87
degrees 25 minutes 44 seconds west a distance of 185.30 feet to a point; thence
north 50 degrees 09 minutes 14 seconds east a distance of 27.10 feet to a point;
thence north 17 degrees 29 minutes 57 seconds, west a distance of 26.26 feet to
a point; thence north 50 degrees 09 minutes 14 seconds east a distance of 385.85
feet to a point; thence north 02 degrees 18 minutes 41 seconds East a distance
of 870.09 feet to a point in the approximate centerline thread of the Old Wolf
River; thence along said centerline the following calls and distances;
North 62 degrees 57 minutes 24 seconds East - 78.99 feet
North 41 degrees 57 minutes 49 seconds East - 220.00 feet
North 44 degrees 58 minutes 49 seconds East - 350.00 feet
North 03 degrees 20 minutes 49 seconds East - 240.00 feet
North 13 degrees 03 minutes 26 seconds East - 749.45 feet
to a point on the south line of the Wolf River Channel; thence along said south
line the following calls and distances:
North 88 degrees 13 minutes 49 seconds East 207.75 feet
South 35 degrees 40 minutes 11 seconds East 464.66 feet
South 64 degrees 55 minutes 11 seconds East 171.00 feet
South 66 degrees 39 minutes 11 seconds East 303.20 feet
to a point on the west Line of the Illinois Central Railroad (50.00 foot
right-of-way); thence south 03 degrees 32 minutes 49 seconds west along said
west line a distance of 555.77 feet to a point of curvature; thence
southwestwardly continuing along said west line and along a curve to the right,
having a radius of 2839.93 feet, an arc distance of 1088.89 feet chord south 14
degrees 31 minutes 52 seconds west 1083.23 feet) to a point of tangency; thence
south 25 degrees 30 minutes 55 seconds west a distance of 1049.47 feet to the
point at beginning and containing 3,466,434 square feet or 79.578 acres.
Property Description - Parcel "F"
Commencing at the intersection of the west line of the Illinois Central Railroad
(50.00 foot right-of-way) and the north line of the Wolf River Channel; thence
north 72 degrees 23 minutes 11 seconds west along said north line a distance of
276.01 feet to a point; thence continuing along said north line north 38 degrees
47 minutes 11 seconds west a distance of 394.84 feet to a point; thence
continuing along said north line north 55 degrees 17 minutes 11 seconds west a
distance of 100.00 feet to a point on the approximate centerline thread of the
Old Wolf River Channel and the point of beginning; thence continuing along the
said north line of the existing Wolf River Channel north 55 degrees 17 minutes
11 seconds west a distance of 413.42 feet to a point, thence continuing along
said north line north 77 degrees 26 minutes 11 seconds west a distance of 174.27
feet to a point on the approximate centerline thread of the Old Wolf River
Channel; thence northwardly and following the said centerline thread of the Old
Wolf River Channel the following calls and distances:
North 14 degrees 16 minutes 11 seconds west - 138.90 feet
North 05 degrees 13 minutes 49 seconds east - 165.00 feet
North 23 degrees 28 minutes 49 seconds east - 320.00 feet
North 41 degrees 13 minutes 49 seconds east - 170.00 feet
North 69 degrees 58 minutes 49 seconds east - 180.00 feet
South 71 degrees 01 minutes 11 seconds east - 180.00 feet
South 15 degrees 36 minutes 11 seconds east - 175.00 feet
South 08 degrees 13 minutes 49 seconds west - 550.00 feet
South 03 degrees 38 minutes 49 seconds west - 204.39 feet
To the point of beginning and containing 452,773 square feet or 10.394 acres.
Property Description - Parcel "D"
Being Lots 27 through 00, Xxxxx "X" of the Xxxxx & Xxxxxxxxx'x Greenville
Subdivision (unrecorded) and being more particularly described as follows:
Beginning at the intersection of the north line of Xxxxxxxx Street (68 foot
right-of-way) and the west line of Xxxxxx Street (30 foot right-of-way);
thence north 88 degrees 11 minutes 15 seconds west along said north line a
distance of 125.15 feet to the southeast corner of Lot 26 of said Greenville
Subdivision; thence north 17 degrees 29 minutes 57 seconds west along the east
line of said Lot 26 a distance of 90.00 feet to a point on the south line of Lot
24; thence south 88 degrees 11 minutes 15 seconds east along the said south line
a distance of 30.00 feet to the southeast corner of said Lot 24; thence north 17
degrees 29 minutes 57 seconds west along the east line of Lots 24, 23, 22, 21,
20 and 19 a distance of 179.87 to a point at the northeast corner of said Lot
19, also being the southwest corner of Lot 37; thence south 88 degrees 11
minutes 15 seconds east along the south line of said Lot 37 a distance of 95.15
test to a point on the west line of said Xxxxxx Street; thence south 17 degrees
29 minutes 57 seconds east along said west line a distance of 269.87 feet to the
point of beginning and containing 26.781 square feet or 0.615 acres.
Property Description - Parcel "C"
Being Xxxx 00, 00, 00, 00 xxx 00, Xxxxx "D" of Xxxxx & Xxxxxxxxx'x Greenville
Subdivision (unrecorded) and being more particularly described as follows:
Beginning at the intersection of the north line of Xxxxxxxx Street (68 foot
right-of-way) and the west line of Xxxx Street (30.00 foot right-of-way);
thence north 88 degrees 11 minutes 15 seconds west along said north line a
distance of 95.00 feet to a point; thence north 17 degrees 27 minutes 40 seconds
west a distance of 150.01 feet to a found iron pin at the southwest corner of
Lot 18 of said Greenville Subdivision; thence south 88 degrees 08 minutes 20
east seconds along the south line of said Lot 18 a distance of 94.92 feet to a
found iron pin on the West line of said Xxxx Street; thence south 17 degrees 29
minutes 57 seconds east along said west line a distance of 149.96 feet to the
point of beginning and containing 13,441 square feet or 0.309 acres.
Property Description - Parcel "G"
Tract 1
Beginning at a point on the north line of Pear Avenue (64.00 foot right-of-way)
922.22 feet west of the west right-of-way line of the Illinois Central Railroad
(50.00 foot right-of-way) as measured along the north line of Pear Avenue, said
point being on the east line of Xxxxxx Street (now closed) and also being a
point of transition in said Pear Avenue from a 64.00 foot right of way to a
66.00 foot right of way; thence north 82 degrees 09 minutes 06 seconds west
continuing along the north line of Pear Avenue a distance of 54.57 feet to a
point; thence north 87 degrees 13 minutes 18 seconds west a distance of 228.35
feet to a point in the east line of a 10 foot wide alley; thence north 12
degrees 11 minutes 47 seconds west along said east line a distance of 361.29
feet to a point; thence north 00 degrees 10 minutes 06 seconds a distance of
89.06 feet to a point on the south line of Xxxxxxxx Street (68 foot right of
way); thence south 88 degrees 11 minutes 15 seconds east along said south line a
distance of 196.00 feet to a point; thence north 01 degrees 48 minutes 45
seconds east a distance of 35.76 feet to a point; thence north 50 degrees 09
minutes 14 seconds east a distance of 8.03 feet to a point on the north line of
Xxxxxxxx Street (now closed); thence south 87 degrees 25 minutes 44 seconds east
along said north line a distance of 185.30 feet to a point in the east line of
said Xxxxxx Street; thence south 03 degrees 33 minutes 36 seconds west along
said east line a distance of 488.00 feet to the point of beginning and
containing 158.967 square feet or 3.649 acres.
Property Description - Parcel "G"
Tract 2
Commencing at a point on the north line of Pear Avenue (64.00 foot right-of-way)
922.22 feet west of the west right-of-way line of the Illinois Central Railroad
(50.00 foot right-of-way) as measured along the north line of Pear Avenue, said
point being on the east line of Xxxxxx Street (now closed) and also being a
point of transition in said Pear Avenue from a 64.00 foot right of way to a
66.00 foot right of way; thence north 03 degrees 33 minutes 36 seconds east a
distance of 488.00 feet to a point on the north, line of Xxxxxxxx Street (now
closed); thence north 87 degrees 25 minutes 44 seconds west along said north
line a distance of 185.30 feet to a point; thence north 50 degrees 09 minutes 14
seconds east a distance of 37.10 feet to a point; thence north 17 degrees 29
minutes 57 seconds west a distance of 26.26 feet to the point of beginning said
point being in the east line of the southerly extension of Xxxxxx Street (30
foot right-of-way); thence north 17 degrees 29 54 minutes 57 seconds vest along
said east line a distance of 650.43 feet to a point on the south line of the
City of Memphis and Shelby County Flood Control Property; thence north 66
degrees 27 minutes 36 seconds east along said south line a distance of 88.28
feet to a point; thence south 17 degrees 29 minutes 57 seconds east distance at
31.10 feet to a point; thence north 50
degrees 02 minutes 30 seconds east a distance of 60.50 feet to a point; thence
north 70 degrees 12 minutes 29 seconds east a distance of 77.97 feet to a point;
thence north 65 degrees 46 minutes 23 seconds east a distance of 328.58 feet to
a point; thence south 02 degrees 18 minutes 41 seconds west a distance of 563.14
feet to a point; thence south 50 degrees 09 minutes 14 seconds west a distance
of 385.85 feet to the point of beginning and containing 249,510 square feet or
5.728 acres
Property Description - Parcel "E"
Being Xxx 00, Xxxxx "X" of the Xxxxx and Xxxxxxxxx'x Greenville Subdivision
(unrecorded) and being more particularly described as follows;
Beginning at a found iron pin on the west line of Xxxxxx Street 89.69 feet north
of the north line of Luke Street said iron pin also being the northeast corner
of Lot 43 of said Greenville Subdivision; thence north 88 degrees 11 minutes 15
seconds west along the north line of said Lot 43 a distance of 95.15 feet to a
point at the northwest corner of said Lot 43, said point also being the
northeast corner of Lot 11; thence north 17 degrees 29 minutes 57 seconds west
along the east line of said Lot 11 a distance of 30.00 feet to a point at the
southwest corner of Lot 45; thence south 88 degrees 11 minutes 15 seconds east
along the south line of said Lot 45 a distance of 95.15 feet to a point on the
west line of said Xxxxxx Street; thence south 17 degrees 29 minutes 57 seconds
east along said west line a distance of 30.00 feet to the point of beginning and
containing 2,681 square feet or 0.062 acres.
