Exhibit 10.11
LEASE AGREEMENT
by and between
MODULE (DE) LIMITED PARTNERSHIP,
a Delaware limited partnership
as LANDLORD
and
TOWER AUTOMOTIVE PRODUCTS COMPANY, INC.,
a Delaware corporation
and
TOWER AUTOMOTIVE TOOL LLC,
a Michigan limited liability company
collectively, as TENANT
Premises: Auburn, IN 000,000 xxxxxx xxxx
Xxxxxxxx, XX 150,000 square feet
Milan, TN 531,370 square feet
Dated as of: April 10, 2002
TABLE OF CONTENTS
Page
1. Demise of Premises......................................................................................1
2. Certain Definitions.....................................................................................1
3. Title and Condition....................................................................................10
4. Use of Leased Premises; Quiet Enjoyment................................................................11
5. Term...................................................................................................12
6. Additional Basic Rent; Basic Rent......................................................................13
7. Additional Rent........................................................................................13
8. Net Lease: Non-Terminability...........................................................................14
9. Payment of Impositions.................................................................................15
10. Compliance with Laws and Easement Agreements; Environmental Matters....................................16
11. Liens; Recording.......................................................................................18
12. Maintenance and Repair.................................................................................19
13. Alterations and Improvements...........................................................................19
14. Permitted Contests.....................................................................................20
15. Indemnification........................................................................................21
16. Insurance..............................................................................................22
17. Casualty and Condemnation..............................................................................25
18. Termination Events.....................................................................................27
19. Restoration............................................................................................28
20. Procedures Upon Purchase...............................................................................29
21. Assignment and Subletting: Prohibition against Leasehold Financing.....................................30
22. Events of Default......................................................................................32
23. Remedies and Damages Upon Default......................................................................35
24. Notices................................................................................................38
25. Estoppel Certificate...................................................................................38
26. Surrender..............................................................................................38
27. No Merger of Title.....................................................................................39
28. Books and Records......................................................................................39
29. Determination of Value.................................................................................41
30. Non-Recourse as to Landlord............................................................................43
31. Financing..............................................................................................44
32. Subordination, Non-Disturbance and Attornment..........................................................44
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33. INTENTIONALLY DELETED..................................................................................44
34. Tax Treatment; Reporting...............................................................................45
35. Right of First Refusal.................................................................................45
36. Security Deposit.......................................................................................46
37. Post-Closing Obligations...............................................................................48
38. Miscellaneous..........................................................................................49
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EXHIBITS
Exhibit "A" - Premises
Exhibit "B" - Machinery and Equipment
Exhibit "C" - Schedule of Permitted Encumbrances
Exhibit "D" - Basic Rent Payments and Additional Basic Rent
Exhibit "E" - Acquisition Costs
Exhibit "F" - Premises Percentage Allocation of Basic Rent and
Additional Basic Rent
Exhibit "G-1" - Post Closing Remediation
Exhibit "G-2" - Post Closing Repairs
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LEASE AGREEMENT, made as of the 10th day of April, 2002, between MODULE
(DE) LIMITED PARTNERSHIP, a Delaware limited partnership ("Landlord"), with an
address c/o W. P. Xxxxx & Co. LLC, 00 Xxxxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, and TOWER AUTOMOTIVE PRODUCTS COMPANY, INC., a Delaware
corporation, and TOWER AUTOMOTIVE TOOL LLC, a Michigan limited liability company
(singly and collectively as the context may required, "Tenant") with an address
at 0000 Xxxxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxxx, 00000.
In consideration of the rents and provisions herein stipulated to be paid
and performed, Landlord and Tenant hereby covenant and agree as follows:
1. Demise of Premises. Landlord hereby demises and lets to Tenant,
and Tenant hereby takes and leases from Landlord, for the term and upon the
provisions hereinafter specified, the following described property (hereinafter
referred to collectively as the "Leased Premises" and individually as the
"Auburn Premises", the "Bluffton Premises" and the "Milan Premises", each of
which premises is more particularly described in the applicable description in
Exhibit "A" attached hereto, collectively the "Land"), together with (a) the
Appurtenances; (b) the buildings, structures and other improvements now or
hereafter constructed on the Land (collectively, the "Improvements"); and (c)
the fixtures, machinery, equipment and other property described in Exhibit "B"
hereto (collectively, the "Equipment").
2. Certain Definitions.
"Acquisition Cost" of each of the Related Premises shall mean
the amount set forth opposite such premises on Exhibit "E" hereto.
"Additional Basic Rent" shall mean the amount of
$1,815,915.20.
"Additional Rent" shall mean Additional Rent as defined in
Paragraph 7.
"Adjoining Property" shall mean all sidewalks, driveways,
curbs, gores and vault spaces adjoining any of the Leased Premises which
Landlord or Tenant has an obligation under Law, any Permitted Encumbrance or
contract to maintain or repair.
"Affected Premises" shall mean the Affected Premises as
defined in Paragraph 18.
"Alterations" shall mean all changes, additions, improvements
or repairs to, all alterations, reconstructions, renewals, replacements or
removals of and all substitutions or replacements for any of the Improvements or
Equipment, both interior and exterior, structural and non-structural, and
ordinary and extraordinary.
"Appurtenances" shall mean all tenements, hereditaments,
easements, rights-of-way, rights, privileges in and to the Land, including (a)
easements over other lands granted by any Easement Agreement and (b) any
streets, ways, alleys, vaults, gores or strips of land adjoining the Land.
"Assignment" shall mean any assignment of rents and leases
from Landlord to a Lender which (a) encumbers any of the Leased Premises and (b)
secures Landlord's obligation to repay a Loan, as the same may be amended,
supplemented or modified from time to time.
"Assignment Security Deposit" shall mean an Assignment
Security Deposit as defined in Paragraph 21(b).
"Basic Rent" shall mean Basic Rent as defined in Paragraph
1(a) of Exhibit "D".
"Basic Rent Payment Dates" shall mean the Basic Rent Payment
Dates as defined in Paragraph 6.
"Casualty" shall mean any damage to or destruction of or which
affects the Leased Premises or Adjoining Property or which arises from the
Adjoining Property.
"Commencement Date" shall mean Commencement Date as defined in
Paragraph 5.
"Competitor" shall mean any Person whose primary business is
the manufacture or assembly of automobiles or trucks or the manufacture of
automotive components.
"Condemnation" shall mean a Taking and/or a Requisition.
"Condemnation Notice" shall mean notice or knowledge of the
institution of or intention to institute any proceeding for Condemnation.
"Costs" of a Person or associated with a specified transaction
shall mean all reasonable costs and expenses incurred by such Person or
associated with such transaction, including without limitation, attorneys' fees
and expenses, court costs, brokerage fees, escrow fees, title insurance
premiums, mortgage commitment fees, mortgage points, and, if any Related
Premises is transferred to Tenant or its designee, recording fees and transfer
taxes incurred in connection with such transfer, as the circumstances require.
"CPI" shall mean CPI as defined in Exhibit "D" hereto.
"Credit Agreement" shall mean that certain Credit Agreement
dated as of July 25, 2000 by and among X.X. Tower Corporation, certain
subsidiaries of X.X. Tower Corporation, Bank of America, N.A., an Administrative
Agent, The Chase Manhattan Bank, as Syndication Agent and The Other Financial
Institutions Party to said Credit Agreement..
"Default Rate" shall mean the Default Rate as defined in
Paragraph 7(a)(iv).
"Default Termination Amount" shall mean the Default
Termination Amount as defined in Paragraph 23(a)(iii).
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"Easement Agreement" shall mean any conditions, covenants,
restrictions, easements, declarations, licenses and other agreements listed as
Permitted Encumbrances or as may hereafter affect any Related Premises.
"Environmental Law" shall mean (i) whenever enacted or
promulgated, any applicable federal, state, foreign and local law, statute,
ordinance, rule, regulation, license, permit, authorization, approval, consent,
court order, judgment, decree, injunction, code, requirement or agreement with
any governmental entity, (x) relating to pollution (or the cleanup thereof), or
the protection of air, water vapor, surface water, groundwater, drinking water
supply, land (including land surface or subsurface), plant, aquatic and animal
life from injury caused by a Hazardous Substance or (y) concerning exposure to,
or the use, containment, storage, recycling, reclamation, reuse, treatment,
generation, discharge, transportation, processing, handling, labeling,
production, disposal or remediation of any Hazardous Substance, Hazardous
Condition or Hazardous Activity, in each case as amended and as now or hereafter
in effect, if any, and (ii) any common law or equitable doctrine (including,
without limitation, injunctive relief and tort doctrines such as negligence,
nuisance, trespass and strict liability) that may impose liability or
obligations or injuries or damages due to or threatened as a result of the
presence of, exposure to, or ingestion of, any Hazardous Substance. The term
Environmental Law includes, without limitation, the federal Comprehensive
Environmental Response Compensation and Liability Act of 1980, the Superfund
Amendments and Reauthorization Act, the federal Water Pollution Control Act, the
federal Clean Air Act, the federal Clean Water Act, the federal Resources
Conservation and Recovery Act of 1976 (including the Hazardous and Solid Waste
Amendments to RCRA), the federal Solid Waste Disposal Act, the federal Toxic
Substance Control Act, the federal Insecticide, Fungicide and Rodenticide Act,
the federal Occupational Safety and Health Act of 1970, the federal National
Environmental Policy Act and the federal Hazardous Materials Transportation Act,
each as amended and as now or hereafter in effect and any similar state or local
Law.
"Environmental Violation" shall mean (a) any direct or
indirect discharge, disposal, spillage, emission, escape, pumping, pouring,
injection, leaching, release, seepage, filtration or transporting of any
Hazardous Substance at, upon, under, onto or within the Leased Premises, or from
the Leased Premises to the environment, in violation of any Environmental Law or
in excess of any reportable quantity (excluding those which solely trigger
regular annual reports) established under any Environmental Law or which is
likely to result in any liability to Landlord, Tenant or Lender, any Federal,
state or local government or any other Person for the costs of any removal or
remedial action or natural resources damage or for bodily injury or property
damage, (b) any deposit, storage, dumping, placement or use of any Hazardous
Substance at, upon, under or within the Leased Premises or which extends to any
Adjoining Property in violation of any Environmental Law or in excess of any
reportable quantity (excluding those which solely trigger regular annual
reports) established under any Environmental Law or which is likely to result in
any liability to any Federal, state or local government or to any other Person
for the costs of any removal or remedial action or natural resources damage or
for bodily injury or property damage, (c) the abandonment or discarding of any
barrels, containers or other receptacles containing any Hazardous Substances in
violation of any Environmental Laws, (d) any activity, occurrence or condition
which could result in any liability, cost or expense to Landlord or Lender or
any other owner or occupier of the Leased
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Premises, or which is likely to result in a creation of a lien on any Related
Premises under any Environmental Law or (e) any violation of or noncompliance
with any Environmental Law.
"Equipment" shall mean the Equipment as defined in Paragraph
1.
"Escrow Payments" shall mean Escrow Payments as defined in
Paragraph 9(b).
"Event of Default" shall mean an Event of Default as defined
in Paragraph 22(a).
"Fair Market Rental Value" shall mean the fair market rental
value of the Leased Premises for the relevant Renewal Term determined in
accordance with the procedure specified in Paragraph 29.
"Fair Market Value" of either the Leased Premises or any
Related Premises, as the case may be, and the context may require, shall mean
the higher of (a) the fair market value of the Leased Premises or any Related
Premises, as the case may be, as of the Relevant Date as if unaffected and
unencumbered by this Lease or (b) the fair market value of the Leased Premises
or Related Premises, as the case may be, as of the Relevant Date as affected and
encumbered by this Lease and assuming that the Term has been extended for all
extension periods provided for herein. For all purposes of this Lease, Fair
Market Value shall be determined in accordance with the procedure specified in
Paragraph 29.
"Fair Market Value Date" shall mean the date when the Fair
Market Value or the Fair Market Rental Value is determined in accordance with
Paragraph 29.
"Federal Funds" shall mean federal or other immediately
available funds which at the time of payment are legal tender for the payment of
public and private debts in the United States of America.
"Financial Ratio Tests" shall mean the Interest Coverage Ratio
and the Leverage Ratio for the period in question.
"Force Majeure" means any cause or causes which Tenant is not,
despite its best efforts, able to prevent or overcome, including but not limited
to acts of God, strikes, walkouts or other labor disputes, riots, civil strife,
war, acts of public enemy, lightning, fires, explosions, storms or floods; but
acts of Tenant, the unavailability of money, unavailability of sources of
financing, a shortage of labor or materials and changes in market conditions
shall not constitute Force Majeure.
"Guarantors" shall mean Tower and X.X. Tower Corporation, a
Michigan corporation, jointly and severally.
"Guaranty" shall mean that certain Guaranty and Suretyship
Agreement of even date pursuant to which Guarantors, jointly and severally,
guaranty and become surety for the obligations of Tenant under this Lease.
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"Hazardous Activity" means any activity, process, procedure or
undertaking which directly or indirectly (i) procures, generates or creates any
Hazardous Substance; (ii) causes or results in (or threatens to cause or result
in) the release, seepage, spill, leak, flow, discharge or emission of any
Hazardous Substance into the environment (including the air, ground water,
watercourses or water systems), (iii) involves the containment or storage of any
Hazardous Substance; or (iv) would cause any of the Leased Premises or any
portion thereof to become a hazardous waste treatment, recycling, reclamation,
processing, storage or disposal facility within the meaning of any Environmental
Law.
"Hazardous Condition" means any condition which would support
any claim or liability under any Environmental Law, including the presence of
underground storage tanks.
"Hazardous Substance" means (i) any substance, material,
product, petroleum, petroleum product, derivative, compound or mixture, mineral
(including asbestos), chemical, gas, medical waste, or other pollutant, in each
case whether naturally occurring, man-made or the by-product of any process,
that is toxic, harmful or hazardous or acutely hazardous to the environment or
public health or safety or (ii) any substance supporting a claim under any
Environmental Law, whether or not defined as hazardous as such under any
Environmental Law. Hazardous Substances include, without limitation, any toxic
or hazardous waste, pollutant, contaminant, industrial waste, petroleum or
petroleum-derived substances or waste, radon, radioactive materials, asbestos,
asbestos containing materials, urea formaldehyde foam insulation, lead,
polychlorinated biphenyls.
"Impositions" shall mean the Impositions as defined in
Paragraph 9(a).
"Improvements" shall mean the Improvements as defined in
Paragraph 1.
"Indemnitee" shall mean an Indemnitee as defined in Paragraph
15.
"Initial Security Deposit" shall mean Initial Security Deposit
as defined in Paragraph 36(a).
"Initial Term" shall mean Initial Term as defined in Paragraph
5(a).
"Insurance Requirements" shall mean the requirements of all
insurance policies maintained in accordance with this Lease.
"Interest Coverage Ratio" shall mean Interest Coverage Ratio
as defined in the Credit Agreement or the then applicable Replacement Credit
Agreement.
"Land" shall mean the Land as defined in Paragraph 1.
"Law" shall mean any constitution, statute, rule of law, code,
ordinance, order, judgment, decree, injunction, rule, regulation, policy,
requirement or administrative or judicial determination, even if unforeseen or
extraordinary, of every duly constituted governmental authority, court or
agency, now or hereafter enacted or in effect.
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"Lease" shall mean this Lease Agreement.
"Lease Year" shall mean, with respect to the first Lease Year,
the period commencing on the Commencement Date and ending at midnight on the
last day of the twelfth (12th) consecutive calendar month following the month in
which the Commencement Date occurred, and each succeeding twelve (12) month
period during the Term.
"Leased Premises" shall mean the Leased Premises as defined in
Paragraph 1.
"Legal Requirements" shall mean the requirements of all
present and future Laws (including but not limited to Environmental Laws and
Laws related to accessibility to, usability by, and discrimination against,
disabled individuals) and all covenants, restrictions and conditions now or
hereafter of record which may be applicable to Tenant or to any of the Leased
Premises or Related Premises, or to the use, manner of use, occupancy,
possession, operation, maintenance, alteration, repair or restoration of any of
the Leased Premises or Related Premises, even if compliance therewith
necessitates structural changes or improvements or results in interference with
the use or enjoyment of any of the Leased Premises or Related Premises or
requires Tenant to carry insurance other than as required by this Lease.
"Lender" shall mean any person or entity (and its respective
successors and assigns) which may, on or after the date hereof, make a Loan to
Landlord or be the holder of a Note; provided that such Person is not a
Competitor.
"Level 1 Sublease Security Deposit" shall mean Level 1
Sublease Security Deposit as defined in Paragraph 21(c).
"Level 2 Sublease Security Deposit" shall mean Level 2
Sublease Security Deposit as defined in Paragraph 21(c).
"Leverage Ratio" shall mean Leverage Ratio as defined in the
Credit Agreement or the then applicable Replacement Credit Agreement.
"Loan" shall mean any loan made by one or more Lenders to
Landlord, which loan is secured by a Mortgage and an Assignment and evidenced by
a Note.
"Monetary Obligations" shall mean Rent and all other sums
payable by Tenant under this Lease to Landlord, to any third party on behalf of
Landlord or to any Indemnitee.
"Mortgage" shall mean any mortgage or deed of trust from
Landlord to a Lender which (a) encumbers any of the Leased Premises and (b)
secures Landlord's obligation to repay a Loan, as the same may be amended,
supplemented or modified.
"Net Award" shall mean (a) the entire award payable to
Landlord or Lender by reason of a Condemnation whether pursuant to a judgment or
by agreement or otherwise, or (b) the entire proceeds of any insurance required
under clauses (i), (ii) (to the extent
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payable to Landlord or Lender), (iv), (v) or (vi) of Paragraph 16(a), as the
case may be, less any reasonable expenses incurred by Landlord and Lender in
collecting such award or proceeds.
"Note" shall mean any promissory note evidencing Landlord's
obligation to repay a Loan, as the same may be amended, supplemented or
modified.
"Notice of Interest to Renew" shall mean Notice of Interest to
Renew as defined in Paragraph 5(b).
"Partial Casualty" shall mean any Casualty which does not
constitute a Termination Event.
"Partial Condemnation" shall mean any Condemnation which does
not constitute a Termination Event.
"Permitted Encumbrances" shall mean those covenants,
restrictions, reservations, liens, conditions and easements and other
encumbrances, other than any Mortgage or Assignment, listed on Exhibit "C"
hereto (but such listing shall not be deemed to revive any such encumbrances
that have expired or terminated or are otherwise invalid or unenforceable).
"Person" shall mean an individual, partnership, association,
corporation or other entity.
"Post Closing Repairs and Remediation" shall mean the repairs
and/or remediation to the applicable Related Premises described in Exhibit "G-1"
and Exhibit "G-2" attached hereto.
"Premises Percentage Allocation" shall mean the percentage
allocated to each Related Premises in Exhibit "F" to this Lease as the same may
be adjusted in accordance with the formula specified in Exhibit "F".
"Prepaid Rent" shall mean the Additional Basic Rent which has
been prepaid by Tenant to Landlord on the Commencement Date and which shall be
applied as a credit against installments of Additional Basic Rent due under this
Lease in the amounts and on the dates specified in Paragraph 1(b) of Exhibit
"D".
"Prepayment Premium" shall mean any payment required to be
made by Landlord to a Lender under a Note or other document evidencing or
securing a Loan (other than payments of principal and/or interest which Landlord
is required to make under a Note or a Mortgage) solely by reason of any
prepayment or defeasance by Landlord of any principal due under a Note or
Mortgage as a result of an Event of Default or a Casualty which Tenant elects to
treat as a Termination Event, and which may, without limitation, take the form
of (i) a "make whole" or yield maintenance clause requiring a prepayment premium
or (ii) a defeasance payment (such defeasance payment to be an amount equal to
the positive difference between (a) the total amount required to defease a Loan
and (b) the outstanding principal balance of the Loan as of the date of such
defeasance plus reasonable Costs of Landlord and Lender).
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"Present Value" of any amount shall mean such amount
discounted by a rate per annum which is the lower of (a) the Prime Rate at the
time such present value is determined or (b) six percent (6%) per annum.
"Prime Rate" shall mean the interest rate per annum as
published, from time to time, in The Wall Street Journal as the "Prime Rate" in
its column entitled "Money Rate". The Prime Rate may not be the lowest rate of
interest charged by any "large U.S. money center commercial banks" and Landlord
makes no representations or warranties to that effect. In the event The Wall
Street Journal ceases publication or ceases to publish the "Prime Rate" as
described above, the Prime Rate shall be the average per annum discount rate
(the "Discount Rate") on ninety-one (91) day bills ("Treasury Bills") issued
from time to time by the United States Treasury at its most recent auction, plus
three hundred (300) basis points. If no such 91-day Treasury Bills are then
being issued, the Discount Rate shall be the discount rate on Treasury Bills
then being issued for the period of time closest to ninety-one (91) days.
"Related Premises" shall mean any one of the Auburn Premises,
the Bluffton Premises, and the Milan Premises.
"Relevant Amount" shall mean the Termination Amount or the
Default Termination Amount, as the case may be.
"Relevant Date" shall mean (a) the date immediately prior to
the date on which the applicable Condemnation Notice is received, in the event
of a Termination Notice under Paragraph 18 which is occasioned by a Taking, (b)
the date immediately prior to the date on which the applicable Casualty occurs,
in the event of a Termination Notice under Paragraph 18 which is occasioned by a
Casualty, (c) the date when Fair Market Value is redetermined, in the event of a
redetermination of Fair Market Value pursuant to Paragraph 20(c) and (d) the
date immediately prior to the Event of Default giving rise to the need to
determine Fair Market Value in the event Landlord provides Tenant with notice of
its intention to require Tenant to make a termination offer under Paragraph
23(a)(iii).
"Remaining Premises" shall mean the Related Premises which are
not Affected Premises under Paragraph 18.
"Renewal Term" shall mean Renewal Term as defined in Paragraph
5(b).
"Rent" shall mean, collectively, Additional Basic Rent, Basic
Rent and Additional Rent.
"Replacement Credit Agreement" shall mean any credit agreement
that replaces the Credit Agreement upon refinancing of the debt described in the
Credit Agreement (or any Replacement Credit Agreement) and that contains an
Interest Coverage Ratio covenant and a Leverage Ratio covenant.
"Requisition" shall mean any temporary requisition or
confiscation of the use or occupancy of any of the Leased Premises by any
governmental authority, civil or military, whether pursuant to an agreement with
such governmental authority in settlement of or under threat of any such
requisition or confiscation, or otherwise.
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"Security Deposit" shall mean the Initial Security Deposit,
the Assignment Security Deposit, the Level 1 Sublease Security Deposit and/or
the Level 2 Sublease Security Deposit, as applicable.
"Site Assessment" shall mean a Site Assessment as defined in
Paragraph 10(c).
"State" shall mean the state where the applicable Related
Premises is located.
"Surviving Obligations" shall mean any obligations of Tenant
under this Lease, actual or contingent, which arise on or prior to the
expiration or prior termination of this Lease or which survive such expiration
or termination by their own terms.
"Taking" shall mean (a) any taking or damaging of all or a
portion of any of the Leased Premises (i) in or by condemnation or other eminent
domain proceedings pursuant to any Law, general or special, or (ii) by reason of
any agreement with any condemnor in settlement of or under threat of any such
condemnation or other eminent domain proceeding, or (iii) by any other means, or
(b) any de facto condemnation. The Taking shall be considered to have taken
place as of the later of the date actual physical possession is taken by the
condemnor, or the date on which the right to compensation and damages accrues
under the law applicable to the Related Premises.
"Tenant's Personal Property" shall mean all assembly lines,
machines, presses, tools, apparatus, furniture, furnishings, computers, racks,
shelving, trade fixtures, movable and demountable partitions, motorized
vehicles, supplies, materials, inventory and other personal property, together
with all renewals and replacements thereof, in each case whether or not attached
to the Improvements or the Land and now owned or hereafter acquired by Tenant or
any subtenant or permitted assignee of Tenant and installed or located at or on
any Related Property and utilized for the operations of Tenant's business.
"Term" shall mean the Term as defined in Paragraph 5.
"Termination Amount" shall mean the greater of (a) the sum of
the Fair Market Value of the applicable Related Premises and, if the Termination
Amount is paid as a result of a Casualty, the applicable Prepayment Premium
which Landlord will be required to pay in prepaying or defeasing in whole or in
part, as applicable, any Loan with proceeds of the Termination Amount or (b) the
sum of the Acquisition Cost and, if the Termination Amount is paid as a result
of a Casualty, the applicable Prepayment Premium which Landlord will be required
to pay in prepaying or defeasing in whole or in part, as applicable, any Loan
with proceeds of the Termination Amount.
"Termination Date" shall mean the Termination Date as defined
in Paragraph 18.
"Termination Event" shall mean a Termination Event as defined
in Paragraph 18.
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"Termination Notice" shall mean Termination Notice as defined
in Paragraph 18(a).
"Third Party Purchaser" shall mean the Third Party Purchaser
as defined in Paragraph 21 (f).
"Tower" shall mean Tower Automotive, Inc., a Delaware
corporation.
"Warranties" shall mean Warranties as defined in Paragraph
3(e).
3. Title and Condition.
(a) The Leased Premises are demised and let subject to (i) the
Mortgage and Assignment presently in effect, (ii) the rights of any Persons in
possession of the Leased Premises, (iii) the existing state of title of any of
the Leased Premises, including any Permitted Encumbrances, (iv) any state of
facts which an accurate survey or physical inspection of the Leased Premises
might show, (v) all Legal Requirements, including any existing violation of any
thereof, and (vi) the condition of the Leased Premises as of the commencement of
the Term, without representation or warranty by Landlord.
(b) Tenant acknowledges that the Leased Premises are in good
condition and repair at the inception of this Lease. LANDLORD LEASES AND WILL
LEASE AND TENANT TAKES AND WILL TAKE THE LEASED PREMISES AS IS WHERE IS AND WITH
ALL FAULTS. TENANT ACKNOWLEDGES THAT LANDLORD (WHETHER ACTING AS LANDLORD
HEREUNDER OR IN ANY OTHER CAPACITY) HAS NOT MADE AND WILL NOT MAKE, NOR SHALL
LANDLORD BE DEEMED TO HAVE MADE, ANY WARRANTY OR REPRESENTATION, EXPRESS OR
IMPLIED, WITH RESPECT TO ANY OF THE LEASED PREMISES, INCLUDING ANY WARRANTY OR
REPRESENTATION AS TO (i) ITS FITNESS, DESIGN OR CONDITION FOR ANY PARTICULAR USE
OR PURPOSE, (ii) THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, (iii) THE
EXISTENCE OF ANY DEFECT, LATENT OR PATENT, (iv) LANDLORD'S TITLE THERETO, (v)
VALUE, (vi) COMPLIANCE WITH SPECIFICATIONS, (vii) LOCATION, (viii) USE, (ix)
CONDITION, (x) MERCHANTABILITY, (xi) QUALITY, (xii) DESCRIPTION, (xiii)
DURABILITY (xiv) OPERATION, (xv) THE EXISTENCE OF ANY HAZARDOUS SUBSTANCE, OR
(xvi) COMPLIANCE OF THE LEASED PREMISES WITH ANY LAW OR LEGAL REQUIREMENT; AND
ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY TENANT. TENANT ACKNOWLEDGES THAT
THE LEASED PREMISES ARE OF ITS SELECTION AND TO ITS SPECIFICATIONS AND THAT THE
LEASED PREMISES HAVE BEEN INSPECTED BY TENANT AND ARE SATISFACTORY TO IT. IN THE
EVENT OF ANY DEFECT OR DEFICIENCY IN ANY OF THE LEASED PREMISES OF ANY NATURE,
WHETHER LATENT OR PATENT, LANDLORD SHALL NOT HAVE ANY RESPONSIBILITY OR
LIABILITY WITH RESPECT THERETO OR FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES
(INCLUDING STRICT LIABILITY IN TORT). THE PROVISIONS OF THIS PARAGRAPH 3(b) HAVE
BEEN NEGOTIATED, AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY
WARRANTIES BY LANDLORD, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF
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THE LEASED PREMISES, ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OR ANY
OTHER LAW NOW OR HEREAFTER IN EFFECT OR ARISING OTHERWISE.
(c) Tenant represents to Landlord that Tenant has examined the
title to the Leased Premises prior to the execution and delivery of this Lease
and has found the same to be satisfactory for the purposes contemplated hereby.
Tenant acknowledges that (i) fee simple title (both legal and equitable) to the
Leased Premises is in Landlord and except, as provided in Paragraph 35 hereof
with respect to certain rights of refusal to purchase the Leased Premises that
Tenant has only the leasehold right of possession and use of the Leased Premises
as provided herein, (ii) the Improvements conform to all material Legal
Requirements and all Insurance Requirements, (iii) all easements necessary or
appropriate for the use or operation of the Leased Premises have been obtained,
(iv) all contractors and subcontractors who have performed work on or supplied
materials to the Leased Premises have been fully paid, and all materials and
supplies have been fully paid for, (v) the Improvements have been fully
completed in all material respects in a workmanlike manner of appropriate
quality for industrial facilities, and (vi) all Equipment necessary or
appropriate for the use or operation of the Leased Premises has been installed
and is presently fully operative in all material respects.
(d) Landlord and Tenant agree that it is their mutual intent
to create, and that this Lease constitutes, a master lease with respect to each
and every parcel of Land, Improvements and Equipment including in any and all of
the Leased Premises (wherever located), that this Lease is not intended and
shall not be construed to be separate leases and that all the terms and
conditions hereof shall govern the rights and obligations of Landlord and Tenant
with respect thereto. Any Event of Default hereunder in connection with any
Leased Premises shall be deemed to be an Event of Default with respect to the
entire Leased Premises (wherever located).
(e) Landlord hereby assigns to Tenant, without recourse or
warranty whatsoever, all assignable warranties, guaranties, indemnities and
similar rights (collectively "Warranties") which Landlord may have against any
manufacturer, seller, engineer, contractor or builder in respect of any of the
Leased Premises. Such assignment shall remain in effect until the expiration or
earlier termination of this Lease, whereupon such assignment shall cease and all
of said Warranties, guaranties, indemnities and other rights shall automatically
revert to Landlord. In confirmation of such reversion Tenant shall execute and
deliver promptly any certificate of other document reasonably required by
Landlord. Landlord shall also retain the right to enforce any guaranties upon
the occurrence of an Event of Default. To the extent it can legally do so,
Tenant shall enforce all Warranties in accordance with their respective terms.
4. Use of Leased Premises; Quiet Enjoyment.
(a) Tenant may occupy and use the Leased Premises for basic
manufacturing of automotive assembly parts and activities related thereto and
for any other purpose, subject to the prior written consent of Landlord which
shall not be unreasonably withheld, delayed or conditioned. Tenant shall not use
or occupy or permit any of the Leased Premises to be used or occupied, nor do or
permit anything to be done in or on any of the Leased Premises, in a manner
which would or might (i) violate any Law or Legal Requirement, (ii) make
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void or voidable or cause any insurer to cancel any insurance required by this
Lease, or make it difficult or impossible to obtain any such insurance at
commercially reasonable rates, (iii) make void or voidable, cancel or cause to
be cancelled or release any of the Warranties, (iv) cause structural injury to
any of the Improvements or (v) constitute a public or private nuisance or waste.
(b) Subject to the provisions hereof, so long as no Event of
Default has occurred and is continuing, Tenant shall quietly hold, occupy and
enjoy the Leased Premises throughout the Term, without any hindrance, ejection
or molestation by Landlord or Lender with respect to matters that arise after
the date hereof, provided that Landlord or its agents (provided that no such
Person shall be a Competitor) may enter upon and examine any of the Leased
Premises at such reasonable times as Landlord may select and upon reasonable
notice to Tenant (except in the case of any emergency, in which event no notice
shall be required) for the purpose of inspecting the Leased Premises, verifying
compliance or non-compliance by Tenant with its obligations hereunder and the
existence or non-existence of an Event of Default or event which with the
passage of time and/or notice would constitute an Event of Default, showing the
Leased Premises to prospective Lenders and purchasers (provided that no such
Person shall be a Competitor) and taking such other action with respect to the
Leased Premises as is permitted by any provision hereof. Any such entry,
examination or showing (i) shall be subject to Tenant's normal safety and
security procedures and the confidentiality provisions of Xxxxxxxxx 00, (xx)
shall not unreasonably interfere with the operation of Tenant's business, and
(iii) shall be at Landlord's expense so long as no Event of Default has occurred
and is continuing.
5. Term.
(a) Subject to the provisions hereof, Tenant shall have and
hold the Leased Premises for an initial term (the "Initial Term") (such Initial
Term, as extended or renewed in accordance with the provisions hereof, being
called the "Term") commencing on the date hereof (the "Commencement Date") and
ending on the last day of the two hundred sixteenth (216th) calendar month next
following the date hereof (the "Expiration Date").
(b) As long as no Event of Default exists, Tenant shall have
the right to extend the Term for two (2) additional successive periods of ten
(10) years each (each such extension, a "Renewal Term"), provided that (i)
Tenant shall have notified Landlord in writing at least twenty-four (24), but
not more than twenty-six (26), months prior to the first day of each Renewal
Term ("Notice of Interest to Renew") that Tenant is interested in renewing this
Lease for such Renewal Term and (ii) having given Landlord a Notice of Interest
to Renew, Tenant shall have notified Landlord in writing at least eighteen (18)
months prior to the first day of each Renewal Term ("Renewal Notice") that
Tenant is renewing this Lease for such Renewal Term. Any such extension of the
Term shall be subject to all of the provisions of this Lease, as the same may be
amended, supplemented or modified (except that Tenant shall not have the right
to any further Renewal Terms).
(c) If Tenant does not exercise its option pursuant to
Paragraph 5(b) to extend the Term, or if an Event of Default occurs, then
Landlord shall have the right during the remainder of the Term then in effect
and, in any event, Landlord shall have the right during the last year of the
Term, to (i) advertise the availability of any of the Leased Premises for sale
or
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reletting and to erect upon any of the Leased Premises signs indicating such
availability and (ii) show any of the Leased Premises to prospective purchasers
or tenants or their agents at such reasonable times (and upon reasonable notice
to Tenant) as Landlord may select. Any such showing (i) shall be subject to
Tenant's normal safety and security procedures and the confidentiality
provisions of Paragraph 28(d), (ii) shall not unreasonably interfere with the
operation of Tenant's business, and (iii) shall be at Landlord's expense so long
as no Event of Default has occurred and is continuing.
6. Additional Basic Rent; Basic Rent. Tenant shall pay to Landlord,
as annual rent for the Leased Premises during the Term, the Basic Rent and
Additional Basic Rent in the amounts and with respect to the periods determined
in accordance with Exhibit "D" hereto. The Additional Basic Rent has been
received by Landlord and shall without further action be credited as Prepaid
Rent on the dates, in the amounts and with respect to the periods specified in
Paragraph 1(b) of Exhibit "D". Payments of Basic Rent shall be due in the
amounts specified in Exhibit "D" and shall be payable on the twenty-fifth day of
April, 2002 and on the same day of each July, October, January and April
thereafter during the Term (each such day being a "Basic Rent Payment Date").
Each payment of Basic Rent shall be made, at Landlord's sole discretion, (a) to
Landlord at its address set forth above or to such other Person, at such address
as Landlord may direct by fifteen (15) days' prior written notice to Tenant (in
which event Tenant shall give Landlord notice of each such payment concurrent
with the making thereof), and (b) by a check hand delivered at least five (5)
business days before or mailed at least ten (10) days before the applicable
Basic Rent Payment Date, or wire transfer in Federal Funds on the applicable
Basic Rent Payment Date.
7. Additional Rent.
(a) Tenant shall pay and discharge, as additional rent
(collectively, "Additional Rent"):
(i) except as otherwise specifically provided herein,
all costs and expenses of Tenant, Landlord and any other Persons specifically
referenced herein which are incurred in connection or associated with (A) the
ownership, use, non-use, occupancy, monitoring, possession, operation,
condition, design, construction, maintenance, alteration, repair or restoration
of any of the Leased Premises, (B) the performance of any of Tenant's
obligations under this Lease, (C) any sale or other transfer of any of the
Leased Premises to Tenant under this Lease, including costs and expenses
incurred in connection with the payment of a Prepayment Premium, (D) any
Condemnation proceedings, (E) the adjustment, settlement or compromise of any
insurance claims involving or arising from any of the Leased Premises, (F) the
prosecution, defense or settlement of any litigation involving or arising from
any of the Leased Premises, this Lease, or the sale of the Leased Premises to
Landlord, (G) the exercise or enforcement by Landlord, its successors and
assigns, of any of its rights under this Lease, (H) any amendment to or
modification or termination of this Lease made at the request of Tenant, (I)
Costs of Landlord's counsel and reasonable internal Costs of Landlord incurred
in connection with the preparation, negotiation and execution of this Lease, or
incurred in connection with any act undertaken by Landlord (or its counsel) at
the request of Tenant, or incurred in connection with any act of Landlord
performed on behalf of Tenant, and (J) the reasonable internal Costs of Landlord
incurred in connection with any act undertaken by Landlord at the request of
Tenant or
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Tenant's failure to act promptly in an emergency situation and (K) any other
items specifically required to be paid by Tenant under this Lease;
(ii) after the date all or any portion of any
installment of Basic Rent is due and not paid by the applicable Basic Rent
Payment Date, an amount (the "Late Charge") equal to three percent (3%) of the
amount of such unpaid installment or portion thereof, provided, however, that
with respect to the first late payment of all or any portion of any installment
of Basic Rent in any Lease Year, the Late Charge shall not be due and payable
unless the Basic Rent has not been paid within five (5) days' following the due
date thereof;
(iii) a sum equal to any additional sums (including any
late charge, default penalties, interest and fees of Lender's counsel) which are
payable by Landlord to any Lender under any Note by reason of Tenant's late
payment or non-payment of Basic Rent or by reason of an Event of Default; and
(iv) interest at the rate (the "Default Rate") of three
percent (3%) over the Prime Rate per annum on the following sums until paid in
full: (A) all overdue installments of Basic Rent from the respective due dates
thereof, (B) all overdue amounts of Additional Rent relating to obligations
which Landlord shall have paid on behalf of Tenant, from the date of payment
thereof by Landlord, and (C) all other overdue amounts of Additional Rent, from
the date when any such amount becomes overdue.
(b) Tenant shall pay and discharge (i) any Additional Rent
referred to in Paragraph 7(a)(i) when the same shall become due, provided that
amounts which are billed to Landlord or any third party, but not to Tenant,
shall be paid within ten (10) days after Landlord's demand for payment thereof,
and (ii) any other Additional Rent, within ten (10) days after Landlord's demand
for payment thereof.
(c) In no event shall amounts payable under Paragraph
7(a)(ii), (iii) and (iv) exceed the maximum amount permitted by applicable Law.
8. Net Lease: Non-Terminability.
(a) This is a net lease and, except as otherwise expressly
provided to the contrary herein, all Monetary Obligations shall be paid without
notice or demand and without set-off, counterclaim, recoupment, abatement,
suspension, deferment, diminution, deduction, reduction or defense
(collectively, a "Set-Off").
(b) This Lease and the rights of Landlord and the obligations
of Tenant hereunder shall not be affected by any event or for any reason or
cause whatsoever foreseen or unforeseen.
(c) The obligations of Tenant hereunder shall be separate and
independent covenants and agreements, all Monetary Obligations shall continue to
be payable in all events (or, in lieu thereof, Tenant shall pay amounts equal
thereto), and the obligations of Tenant hereunder shall continue unaffected
unless the requirement to pay or perform the same shall have been terminated
pursuant to an express provision of this Lease. The obligation to pay Rent or
amounts equal thereto shall not be affected by any collection of rents by any
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governmental body pursuant to a tax lien or otherwise, even though such
obligation results in a double payment of Rent. All Rent payable by Tenant
hereunder shall constitute "rent" for all purposes (including Section 502(b)(6)
of the Federal Bankruptcy Code).
(d) Except as otherwise expressly provided herein, Tenant
shall have no right and hereby waives all rights which it may have under any Law
(i) to quit, terminate or surrender this Lease or any of the Leased Premises, or
(ii) to any Set-Off of any Monetary Obligations.
(e) Tenant's agreements in the preceding subparagraphs (a)
through (d) should not affect any claim, action or right Tenant may have against
Landlord subject, however, to the limitations set forth in Paragraph 30.
9. Payment of Impositions.
(a) Tenant shall, before interest or penalties are due
thereon, pay and discharge all taxes (including real and personal property,
franchise, sales, use, gross receipts and rent taxes, including the Michigan
Single Business Tax), all charges for any easement or agreement maintained for
the benefit of any of the Leased Premises, all assessments and levies, all
permit, inspection and license fees, all rents and charges for water, sewer,
utility and communication services relating to any of the Leased Premises, all
ground rents and all other public charges whether of a like or different nature,
even if unforeseen or extraordinary, imposed upon or assessed against (i)
Tenant, (ii) Tenant's possessory interest in the Leased Premises, (iii) any of
the Leased Premises or (iv) Landlord as a result of or arising in respect of the
acquisition, ownership, occupancy, leasing, use, possession or sale of any of
the Leased Premises, any activity conducted on any of the Leased Premises, or
the Rent (collectively, the "Impositions"); provided, that nothing herein shall
obligate Tenant to pay (A) income, excess profits or other taxes of Landlord (or
Lender) which are determined on the basis of Landlord's (or Lender's) net income
or net worth (unless such taxes are in lieu of or a substitute for any other
tax, assessment or other charge upon or with respect to the Leased Premises
which, if it were in effect, would be payable by Tenant under the provisions
hereof or by the terms of such tax, assessment or other charge), (B) any estate,
inheritance, succession, gift or similar tax imposed on Landlord or (C) any
capital gains tax imposed on Landlord in connection with the sale of the Leased
Premises to any Person. If any Imposition may be paid in installments without
interest or penalty, Tenant shall have the option to pay such Imposition in
installments; in such event, Tenant shall be liable only for those installments
which accrue or become due and payable during the Term. Tenant shall prepare and
file all tax reports required by governmental authorities which relate to the
Impositions. Tenant shall deliver to Landlord (1) copies of all settlements and
notices pertaining to the Impositions which may be issued by any governmental
authority within ten (10) days after Tenant's receipt thereof, (2) receipts for
payment of all taxes required to be paid by Tenant hereunder within thirty (30)
days after the due date thereof and (3) receipts for payment of all other
Impositions within ten (10) days after Landlord's request therefor.
(b) Tenant shall pay to Landlord such amounts (each an "Escrow
Payment") monthly or as required by such Lender (but not more often than
monthly) so that there shall be in an escrow account an amount sufficient to pay
the Escrow Charges (as hereinafter defined) as they become due on an annual
basis. As used herein, "Escrow Charges"
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shall mean (i) at any time following receipt of written request from Landlord or
Lender, real estate taxes and assessments on or with respect to the Leased
Premises or payments in lieu thereof and premiums on any insurance required by
this Lease and (ii) during the last five (5) Lease Years of the Initial Term and
during an Renewal Term or if an Event of Default exists, any reserves for
capital improvements, deferred maintenance, and/or repair required by any Lender
and tenant improvements and leasing commissions required by any Lender in such
amounts as reasonably customarily required for properties of similar type,
location and use. Landlord shall determine the amount of the Escrow Charges (it
being agreed that if required by a Lender, such amount shall equal any
corresponding escrow installments required to be paid by Landlord) and the
amount of each Escrow Payment. The Escrow Payments may be commingled with other
funds of Landlord or other Persons and no interest thereon shall be due or
payable to Tenant unless the Escrow Payments are held by Landlord in which event
interest shall accrue thereon at the "day-in, day-out" passbook rate of
interest. Landlord shall apply the Escrow Payments only to the payment of the
Escrow Charges in such order or priority as Landlord shall determine or as
required by law. If at any time the Escrow Payments theretofore paid to Landlord
shall be insufficient for the payment of the Escrow Charges, Tenant, within ten
(10) days after Landlord's demand therefor, shall pay the amount of the
deficiency to Landlord.
10. Compliance with Laws and Easement Agreements; Environmental
Matters.
(a) Tenant shall, at its expense, comply with and conform to,
and cause the Leased Premises and any other Person occupying any part of the
Leased Premises to comply with and conform to, all Insurance Requirements and
Legal Requirements (including all applicable Environmental Laws). Tenant shall
not at any time (i) cause, permit or suffer to occur any Environmental Violation
or (ii) permit any sublessee, assignee or other Person occupying the Leased
Premises under or through Tenant to cause, permit or suffer to occur any
Environmental Violation and, at the request of Landlord or Lender, Tenant shall
promptly remediate or undertake any other appropriate response action to correct
any existing Environmental Violation, however immaterial. Any and all reports
prepared for or by Landlord with respect to the Leased Premises shall be for the
sole benefit of Landlord and Lender and no other Person shall have the right to
rely on any such reports.
(b) Tenant, at its sole cost and expense, will at all times
promptly and faithfully abide by, discharge and perform all of the covenants,
conditions and agreements contained in any Easement Agreement on the part of
Landlord or the occupier to be kept and performed thereunder. Tenant will not
alter, modify, amend or terminate any Easement Agreement, give any consent or
approval thereunder, or enter into any new Easement Agreement without, in each
case, prior written consent of Landlord.
(c) Upon prior written notice from Landlord, Tenant shall
permit such persons as Landlord may designate ("Site Reviewers") to visit the
Leased Premises and perform, as agents of Tenant, environmental site
investigations and assessments ("Site Assessments") on the Leased Premises (i)
in connection with any sale, financing or refinancing of the Leased Premises,
(ii) within the six month period prior to the expiration of the Term, (iii) if
required by Lender or the terms of any credit facility to which Landlord is
bound, (iv) if an Event of Default exists, or (v) at any other time that, in the
opinion of Landlord or Lender, a reasonable basis
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exists to believe that an Environmental Violation or any condition that could
reasonably be expected to result in any Environmental Violation exists. Such
Site Assessments may include both above and below the ground testing for
Environmental Violations and such other tests as may be necessary, in the
opinion of the Site Reviewers applying prudent business judgment, to conduct the
Site Assessments. Tenant shall supply to the Site Reviewers such historical and
operational information regarding the Leased Premises as may be reasonably
requested by the Site Reviewers to facilitate the Site Assessments, and shall
make available for meetings with the Site Reviewers appropriate personnel having
knowledge of such matters. The cost of performing and reporting any Site
Assessments shall be paid by Tenant if an Event of Default has occurred and is
continuing or a material Environmental Violation is found to exist. For purposes
of any investigation conducted under subparagraph (c)(v) above, Landlord shall
pay the costs of such investigation unless a material Environmental Violation is
determined to exist as a result of such investigation, in which case Tenant
shall pay such costs. Any such inspection (i) shall be subject to Tenant's
normal safety and security procedures and the confidentiality provisions of
Paragraph 28(d) and (ii) shall not unreasonably interfere with the operation of
Tenant's business.
(d) If an Environmental Violation occurs or is found to exist
and, in Landlord's reasonable judgment, the cost of remediation of, or other
response action with respect to, the same is likely to exceed $2,000,000, Tenant
shall provide to Landlord, within ten (10) days after Landlord's request
therefor, adequate financial assurances that Tenant will effect such remediation
in accordance with applicable Environmental Laws. Such financial assurances
shall be a bond or letter of credit satisfactory to Landlord in form and
substance and in an amount equal to or greater than Landlord's reasonable
estimate, based upon a Site Assessment performed pursuant to Paragraph 10(c), of
the anticipated cost of such remedial action.
(e) Notwithstanding any other provision of this Lease, if an
Environmental Violation occurs or is found to exist with respect to any Related
Premises (any such premises, a "Contaminated Premises"), Landlord is unable to
sell or lease the Contaminated Premises at market rates for comparable
properties as a result of such Environmental Violation, and the Term would
otherwise terminate or expire, then, at the option of Landlord, the Term shall
be automatically extended with respect to the Contaminated Premises beyond the
date of termination or expiration and this Lease shall remain in full force and
effect beyond such date until the earlier to occur of (i) the completion of all
remedial action in accordance with applicable Environmental Laws or (ii) the
date specified in a written notice from Landlord to Tenant terminating this
Lease with respect to such Contaminated Premises.
(f) If Tenant fails to comply with any requirement of any
Environmental Law in connection with any Environmental Violation which occurs or
is found to exist and Tenant fails to promptly undertake to cure such
Environmental Violation, Landlord shall have the right (but no obligation) to
take any and all actions as Landlord shall deem necessary or advisable in order
to cure such Environmental Violation. So long as no Event of Default has
occurred and is continuing, Tenant shall conduct and control all aspects of any
environmental remediation for which it has an obligation pursuant to this Lease.
In order to cost effectively complete any investigation, response activities or
remediation for which it has an obligation under this Lease, Tenant shall be
permitted to use deed restrictions, risk-based standards and engineering or
institutional controls, to the extent they are permitted by Environmental Laws,
do not unreasonably interfere with the industrial operations at the Leased
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Premises, do not adversely affect the value of the Leased Premises, and are
approved by Landlord and Lender, which approval shall be granted or denied
applying prudent and reasonable business judgment. Any approval by Landlord or
Lender shall not limit or restrict the right of Landlord, applying prudent and
reasonable business judgement, to require additional or further action on the
part of Tenant with respect to any Environmental Violation based on future
changes in use, Laws or other changed conditions. The contractual rights and
remedies of Landlord under this Lease (including the indemnification provisions
of Paragraph 15 and the remedies under Paragraph 23 for non-performance under
this Paragraph 10) shall be the sole and exclusive rights and remedies of
Landlord with regard to the liability of Tenant to Landlord for Environmental
Violation, as long as this Lease is in effect.
(g) Tenant shall notify Landlord immediately after becoming
aware of any Environmental Violation (or alleged Environmental Violation) or
noncompliance with any of the covenants contained in this Paragraph 10 and shall
forward to Landlord immediately upon receipt thereof copies of all orders,
reports, notices, permits, applications or other communications relating to any
such violation or noncompliance.
(h) All future leases, subleases or concession agreements
relating to the Leased Premises entered into by Tenant shall contain covenants
of the other party thereto which are identical to the covenants contained in
this Paragraph 10.
11. Liens; Recording.
(a) Subject to Tenant's rights under Paragraph 14(b), Tenant
shall not, directly or indirectly, create or permit to be created or to remain
and shall promptly discharge or remove any lien, levy or encumbrance on any of
the Leased Premises or on any Rent or any other sums payable by Tenant under
this Lease, other than any Mortgage or Assignment, the Permitted Encumbrances
and any mortgage, lien, encumbrance or other charge created by or resulting
solely from any act or omission of Landlord or any Person claiming by, through
or under Landlord (except Tenant or any Person claiming by, through or under
Tenant). NOTICE IS HEREBY GIVEN THAT LANDLORD SHALL NOT BE LIABLE FOR ANY LABOR,
SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO TENANT OR TO ANYONE
HOLDING OR OCCUPYING ANY OF THE LEASED PREMISES THROUGH OR UNDER TENANT, AND
THAT NO MECHANICS' OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS
SHALL ATTACH TO OR AFFECT THE INTEREST OF LANDLORD IN AND TO ANY OF THE LEASED
PREMISES. LANDLORD MAY AT ANY TIME POST ANY NOTICES ON THE LEASED PREMISES
REGARDING SUCH NON-LIABILITY OF LANDLORD.
(b) Tenant shall execute, deliver and record, file or register
(collectively, "record") all such instruments as may be required or permitted by
any present or future Law in order to evidence the respective interests of
Landlord and Tenant in any of the Leased Premises, and shall cause a memorandum
of this Lease (or, if such a memorandum cannot be recorded, this Lease), and any
supplement hereto or thereto, to be recorded in such manner and in such places
as may be required or permitted by any present or future Law in order to protect
the validity and priority of this Lease.
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12. Maintenance and Repair.
(a) Tenant shall at all times maintain each Related Premises
and the Adjoining Property in as good repair and appearance as each is in on the
date hereof and fit to be used for their intended use in accordance with the
better of the practices generally recognized as then acceptable by other
companies in its industry or observed by Tenant with respect to the other real
properties owned or operated by it, and, in the case of the Equipment, in as
good mechanical condition as it was on the later of the date hereof or the date
of its installation, in each case, except for ordinary wear and tear. Tenant
shall take every other reasonable action necessary or appropriate for the
preservation and safety of each Related Premises. Tenant shall promptly make all
Alterations of every kind and nature, whether foreseen or unforeseen, which may
be required to comply with the foregoing requirements of this Paragraph 12(a).
Landlord shall not be required to make any Alteration, whether foreseen or
unforeseen, or to maintain any of the Related Premises or Adjoining Property in
any way, and Tenant hereby expressly waives any right which may be provided for
in any Law now or hereafter in effect to make Alterations at the expense of
Landlord or to require Landlord to make Alterations. Any Alteration made by
Tenant pursuant to this Paragraph 12 shall be made in conformity with the
provisions of Paragraph 13.
(b) If any Improvement, now or hereafter constructed, shall in
any material respect (or any immaterial respect if the claim or demand shall be
brought by a Person other than Landlord) (i) encroach upon any setback or any
property, street or right-of-way adjoining any of the Leased Premises, (ii)
violate the provisions of any restrictive covenant affecting any of the Leased
Premises, (iii) hinder or obstruct any easement or right-of-way to which any of
the Leased Premises is subject or (iv) impair the rights of others in, to or
under any of the foregoing, Tenant shall, promptly after receiving notice or
otherwise acquiring knowledge thereof, either (A) obtain from all necessary
parties waivers or settlements of all claims, liabilities and damages resulting
from each such encroachment, violation, hindrance, obstruction or impairment,
whether the same shall affect Landlord, Tenant or both, or (B) take such action
as shall be necessary to remove all such encroachments, hindrances or
obstructions and to end all such violations or impairments, including, if
necessary, making Alterations.
13. Alterations and Improvements.
(a) Tenant shall have the right, without having obtained the
prior written consent of Landlord and Lender and provided that no Event of
Default then exists, (i) to make non-structural Alterations or a series of
related non-structural Alterations that, as to any such Alterations or series of
related Alterations, do not cost in excess of $1,000,000 with respect to any
Related Premises and (ii) to install Equipment in the Improvements or accessions
to the Equipment that, as to such Equipment or accessions, do not cost in excess
of $1,000,000, with respect to any Related Premises, so long as at the time of
construction or installation of any such Equipment or Alterations no Event of
Default exists and the value and utility of the Leased Premises is not
diminished thereby. If the cost of any non-structural Alterations, series of
related non-structural Alterations, Equipment or accessions thereto is in excess
of $1,000,000 or if Tenant desires to make structural Alterations to any Related
Premises, the prior written approval of Landlord and Lender shall be required.
Tenant shall not construct upon the Land any additional buildings without having
first obtained the prior written consent of Landlord and
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Lender. Landlord shall have the right to require Tenant to remove any
Alterations except for those Alterations required by Law or for which Landlord
has agreed in writing that removal will not be required. Tenant shall have the
right, without the approval of or notice to Landlord, to install any equipment,
machinery and other personal property in the Improvements that are required for
the operation of its business, subject in all events to the terms of Paragraph
12(a) and Paragraph 26.
(b) If Tenant makes any Alterations pursuant to this Paragraph
13 or as required by Paragraph 12 or 17 (such Alterations and actions being
hereinafter collectively referred to as "Work"), then (i) the market value of
the Leased Premises shall not be lessened by any such Work or its usefulness
impaired, (ii) all such Work shall be performed by Tenant in a good and
workmanlike manner, (iii) all such Work shall be expeditiously completed in
compliance with all Legal Requirements, (iv) all such Work shall comply with the
requirements of all insurance policies required to be maintained by Tenant
hereunder, (v) if any such Work involves the replacement of Equipment or parts
thereto, all replacement Equipment or parts shall have a value and useful life
equal to the greater of (A) the value and useful life on the date hereof of the
Equipment being replaced or (B) the value and useful life of the Equipment being
replaced immediately prior to the occurrence of the event which required its
replacement (assuming such replaced Equipment was then in the condition required
by this Lease), (vi) Tenant shall promptly discharge or remove all liens filed
against any of the Leased Premises arising out of such Work, (vii) Tenant shall
procure and pay for all permits and licenses required in connection with any
such Work, (viii) all such Work shall be the property of Landlord and shall be
subject to this Lease, and Tenant shall execute and deliver to Landlord any
document requested by Landlord evidencing the assignment to Landlord of all
estate, right, title and interest (other than the leasehold estate created
hereby) of Tenant or any other Person thereto or therein, and (ix) Tenant shall
comply, to the extent requested by Landlord or required by this Lease, with the
provisions of Paragraphs 12(a) and 19(a), whether or not such Work involves
restoration of the Leased Premises.
14. Permitted Contests. Notwithstanding any other provision of this
Lease, Tenant shall not be required to (a) pay any Imposition, (b) discharge or
remove any lien referred to in Paragraph 11 or 13, (c) take any action with
respect to any encroachment, violation, hindrance, obstruction or impairment
referred to in Paragraph 12(b) or (d) take any action with respect to the
violation of any Environmental Law (such non-compliance with the terms hereof
being hereinafter referred to collectively as "Permitted Violations"), so long
as at the time of such non-compliance no Event of Default exists and so long as
Tenant shall contest, in good faith, the existence, amount or validity thereof,
the amount of the damages caused thereby, or the extent of its or Landlord's
liability therefor by appropriate proceedings which shall operate during the
pendency thereof to prevent or stay (i) the collection of, or other realization
upon, the Permitted Violation so contested, (ii) the sale, forfeiture or loss of
any of the Leased Premises or any Rent to satisfy or to pay any damages caused
by any Permitted Violation, (iii) any interference with the use or occupancy of
any of the Leased Premises, (iv) any interference with the payment of any Rent,
(v) the cancellation or increase in the rate of any insurance policy or a
statement by the carrier that coverage will be denied or (vi) the enforcement or
execution of any injunction, order or Legal Requirement with respect to the
Permitted VIOLATION. Tenant shall provide Landlord security which is
satisfactory, in Landlord's reasonable judgment, to assure that such Permitted
Violation is corrected, including all Costs, interest and penalties that may be
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incurred or become due in connection therewith. While any proceedings which
comply with the requirements of this Paragraph 14 are pending and the required
security is held by Landlord, Landlord shall not have the right to correct any
Permitted Violation thereby being contested unless Landlord is required by Law
to correct such Permitted Violation and Tenant's contest does not prevent or
stay such requirement as to Landlord. Each such contest shall be promptly and
diligently prosecuted by Tenant to a final conclusion, except that Tenant, so
long as the conditions of this Paragraph 14 are at all times complied with, has
the right to attempt to settle or compromise such contest through negotiations.
Tenant shall pay any and all losses, judgments, decrees and Costs in connection
with any such contest and shall, promptly after the final determination of such
contest, fully pay and discharge the amounts which shall be levied, assessed,
charged or imposed or be determined to be payable therein or in connection
therewith, together with all penalties, fines, interest and Costs thereof or in
connection therewith, and perform all acts the performance of which shall be
ordered or decreed as a result thereof. No such contest shall subject Landlord
to the risk of any criminal liability or any material civil liability. Landlord
shall reasonably cooperate with Tenant in any such context at Tenant's sole cost
and expense.
15. Indemnification.
(a) Tenant shall pay, protect, indemnify, defend, save and
hold harmless Landlord, Lender and all other Persons described in Paragraph 30
(each an "Indemnitee") from and against any and all liabilities, losses, damages
(including punitive damages), penalties, Costs (including reasonable attorneys'
fees and costs), causes of action, suits, claims, demands or judgments of any
nature whatsoever, howsoever caused, without regard to the form of action and
whether based on strict liability, gross negligence, negligence or any other
theory of recovery at law or in equity, arising from (i) any matter pertaining
to the acquisition, ownership, leasing, use, non-use, occupancy, operation,
management, condition, design, construction, maintenance, repair or restoration
of any of the Leased Premises or Adjoining Property, (ii) any casualty in any
manner arising from any of the Leased Premises or Adjoining Property, whether or
not Indemnitee has or should have knowledge or notice of any defect or condition
causing or contributing to said casualty, (iii) any violation by Tenant of any
provision of this Lease, any contract or agreement to which Tenant is a party,
any Legal Requirement or any Permitted Encumbrance or any encumbrance Tenant
consented to or (iv) any alleged, threatened or actual Environmental Violation,
including (A) liability for response costs and for costs of removal and remedial
action incurred by the United States Government, any state or local governmental
unit or any other Person, or damages from injury to or destruction or loss of
natural resources, including the reasonable costs of assessing such injury,
destruction or loss, incurred pursuant to Section 107 of CERCLA, or any
successor section or act or provision of any similar state or local Law, (B)
liability for costs and expenses of abatement, correction or clean-up, fines,
damages, response costs or penalties which arise from the provisions of any of
the other Environmental Laws and (C) liability for personal injury or property
damage arising under any statutory or common-law tort theory, including damages
assessed for the maintenance of a public or private nuisance or for carrying on
of a dangerous activity; provided that Tenant shall not be liable to indemnify
any Indemnitee for any liabilities, losses, damages, penalties, Costs, causes of
action, suits, claims, demands or judgments (A) resulting from the gross
negligence or willful misconduct of an Indemnitee, or (B) resulting from any
Liens created by or resulting solely from any act or omission of any Indemnitee.
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(b) In case any action or proceeding is brought against any
Indemnitee by reason of any such claim, (i) Tenant may, except in the event of a
conflict of interest or a dispute between Tenant and any such Indemnitee or
during the continuance of an Event of Default, retain its own counsel and defend
such action (it being understood that Landlord may employ counsel of its choice
to monitor the defense of any such action, the cost of which shall be paid by
Landlord) and (ii) such Indemnitee shall notify Tenant to resist or defend such
action or proceeding by retaining counsel reasonably satisfactory to such
Indemnitee, and such Indemnitee will fully cooperate and assist in the defense
of such action or proceeding if reasonably requested to do so by Tenant. In the
event of a conflict of interest or dispute or during the continuance of an Event
of Default, Landlord shall have the right to select counsel, and the reasonable
cost of such counsel shall be paid by Tenant.
(c) The obligations of Tenant under this Paragraph 15 shall
survive any termination, expiration or rejection in bankruptcy of this Lease
with respect to any matter which existed, arose or occurred on or prior to such
termination, expiration or rejection.
16. Insurance.
(a) Tenant shall maintain the following insurance on or in
connection with the Leased Premises:
(i) Insurance against risk of physical loss or damage to
the Improvements and Equipment as provided under "Special Form" coverage, and
including customarily excluded perils of hail, windstorm, flood coverage (if the
Leased Premises is in a flood zone), earthquake, and, to the extent required by
Lender, terrorism insurance (subject to market availability at the time in
question), in amounts not less than the actual replacement cost of the
Improvements and Equipment; provided that, if Tenant's insurance company is
unable or unwilling to include any or all of such excluded perils, Tenant shall
have the option of purchasing coverage against such perils from another insurer
on a "Difference in Condition" form or through a stand-alone policy. Such
policies shall contain Replacement Cost and Agreed Amount Endorsements and shall
contain deductibles not more than $250,000 per occurrence, including deductibles
for flood and earthquake coverage.
(ii) Commercial General Liability Insurance (including
but not limited to Incidental Medical Malpractice and Host Liquor Liability) and
Business Automobile Liability Insurance (including Non-Owned and Hired
Automobile Liability) against claims for personal and bodily injury, death or
property damage occurring on, in or as a result of the use of the Leased
Premises, in an amount not less than $15,000,000 per occurrence/annual aggregate
and all other coverage extensions that are usual and customary for properties of
this size and type provided, however, that the Landlord shall have the right to
require such higher limits as may be reasonable and customary for properties of
this size and type and owned and operated by companies of similar
creditworthiness as that of the Guarantor.
(iii) Worker's compensation insurance covering all
persons employed by Tenant in connection with any work done on or about any of
the Leased Premises for which claims for death, disease or bodily injury may be
asserted against Landlord, Tenant or any of the Leased Premises or, in lieu of
such Workers' Compensation Insurance, a program of
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self-insurance complying with the rules, regulations and requirements of the
appropriate agency of the State or States in which the Leased Premises are
located.
(iv) Comprehensive Boiler and Machinery Insurance on any
of the Equipment or any other equipment on or in the Leased Premises in an
amount not less than $5,000,000 per accident for damage to property. Either such
Boiler and Machinery policy or the All-Risk policy required in (i) above shall
include at least $3,000,000 per incidence for Off-Premises Service Interruption,
Expediting Expenses, Ammonia Contamination, and Hazardous Materials Clean-up
Expense and may contain a deductible not to exceed $50,000.
(v) Business Interruption and Extra Expense Insurance at
limits to cover 100% of losses and/or expenses incurred over the period of
indemnity not less than eighteen (18) months from time of loss. Such insurance
shall name Landlord as loss payee solely with respect to Rent payable to or for
the benefit of the Landlord under this Lease.
(vi) During any period in which substantial Alterations
at any Related Premises are being undertaken, builder's risk insurance covering
the total completed value including any "soft costs" with respect to the
Improvements being altered or repaired (on a completed value, non-reporting
basis), replacement cost of work performed and equipment, supplies and materials
furnished in connection with such construction or repair of Improvements or
Equipment, together with such "soft cost" endorsements and such other
endorsements as Landlord may reasonably require and general liability, workers'
compensation and automobile liability insurance with respect to the Improvements
being constructed, altered or repaired.
(vii) Such other insurance (or other terms with respect
to any insurance required pursuant to this Paragraph 16, including without
limitation amounts of coverage, deductibles, form of mortgagee clause) on or in
connection with any of the Leased Premises as Landlord or Lender may reasonably
require, which at the time is usual and commonly obtained in connection with
properties similar in type of building size, use and location to the Leased
Premises.
(b) The insurance required by Paragraph 16(a) shall be written
by companies which have a Best's rating of A:X or above and claims paying
ability rating of A or better by Standard & Poor's Rating Services ("Required
Insurance Rating"), a division of the McGraw Hill Companies, Inc. or equivalent
rating agency approved by Landlord and Lender in their sole discretion and are
admitted in, and approved to write insurance policies by, the State Insurance
Department for the states in which the Leased Premises are located. As of the
Commencement Date, Landlord and Lender acknowledge that Tenant's insurance
carrier does not have the Required Insurance Rating. Tenant covenants and agrees
that, if at any time after September 30, 2002 Lender is unable to securitize the
Loan due to Tenant's insurance carrier not having the Required Insurance Rating
and requires that the insurer providing the insurance specified in Paragraph
16(a) have the Required Insurance Rating and by such date Tenant's insurer does
not have the Required Insurance Rating, Tenant shall within fifteen (15) days
following Landlord's written request obtain replacement insurance with an
insurer that has the Required Insurance Rating. The insurance policies shall be
for such in amounts sufficient at all times to satisfy any coinsurance
requirements thereof. The insurance referred to in Paragraphs 16(a)(i),
16(a)(iv) and 16(a)(vi) shall name Landlord as Owner and Lender as loss payee
and
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Tenant as its interest may appear. The insurance referred to in Paragraph
16(a)(ii) shall name Landlord and Lender as additional insureds, and the
insurance referred to in Paragraph 16(a)(v) shall name Landlord as insured and
Lender and Landlord as loss payee. If said insurance or any part thereof shall
expire, be withdrawn or become void for any reason, including a breach of any
condition thereof by Tenant or the failure or impairment of the capital of any
insurer, or Tenant shall immediately obtain new or additional insurance that
complies with the provisions of this Lease.
(c) Each insurance policy referred to in clauses (i), (iv),
(v) and (vi) of Paragraph 16(a) shall contain standard non-contributory
mortgagee clauses in favor of and acceptable to Lender. Each policy required by
any provision of Paragraph 16(a), except clause (iii) thereof, shall provide
that it may not be cancelled substantially modified or allowed to lapse on any
renewal date except after thirty (30) days' prior notice to Landlord and Lender.
Each such policy shall also provide that any loss otherwise payable thereunder
shall be payable notwithstanding (i) any act or omission of Landlord or Tenant
which might, absent such provision, result in a forfeiture of all or a part of
such insurance payment, (ii) the occupation or use of any of the Leased Premises
for purposes more hazardous than those permitted by the provisions of such
policy, (iii) any foreclosure or other action or proceeding taken by Lender
pursuant to any provision of the Mortgage, Note, Assignment or other document
evidencing or securing the Loan upon the happening of an event of default
therein or (iv) any change in title to or ownership of any of the Leased
Premises.
(d) Tenant shall pay as they become due all premiums for the
insurance required by Paragraph 16(a), shall renew or replace each policy and
deliver to Landlord evidence of the payment of the full premium therefor or
installment then due at least thirty (30) days prior to the expiration date of
such policy, and shall promptly deliver to Landlord all original certificates of
insurance or, if required by Lender, original or certified policies.
(e) Anything in this Paragraph 16 to the contrary
notwithstanding, any insurance which Tenant is required to obtain pursuant to
Paragraph 16(a) may be carried under a "blanket" or umbrella policy or policies
covering other properties or liabilities of Tenant, provided that such "blanket"
or umbrella policy or policies otherwise comply with the provisions of this
Paragraph 16 and provided further that Tenant shall provide to Landlord a
Statement of Values which shall be reviewed annually and amended as necessary
based on Replacement Cost Valuations. The original or a certified copy of each
such "blanket" or umbrella policy shall promptly be delivered to Landlord.
(f) Tenant shall have the replacement cost and insurable value
of the Improvements and Equipment determined from time to time as required by
the replacement cost and agreed amount endorsements and shall deliver to
Landlord the new replacement cost and agreed amount endorsement or certificate
evidencing such endorsement promptly upon Tenant's receipt thereof.
(g) Tenant shall promptly comply with and conform to (i) all
provisions of each insurance policy required by this Paragraph 16 and (ii) all
requirements of the insurers thereunder applicable to Landlord, Tenant or any of
the Leased Premises or to the use, manner of use, occupancy, possession,
operation, maintenance, alteration or repair of any of the
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Leased Premises, even if such compliance necessitates Alterations or results in
interference with the use or enjoyment of any of the Leased Premises.
(h) Tenant shall not carry separate insurance concurrent in
form or contributing in the event of a Casualty with that required in this
Paragraph 16 unless (i) Landlord and Lender are included therein as named
insureds, with loss payable as provided herein, and (ii) such separate insurance
complies with the other provisions of this Paragraph 16. Tenant shall
immediately notify Landlord of such separate insurance and shall deliver to
Landlord the original policies or certified copies thereof.
(i) All policies shall contain effective waivers by the
carrier against all claims for insurance premiums against Landlord and shall
contain full waivers of subrogation against the Landlord.
(j) All proceeds of any insurance required under Paragraph
16(a) shall be payable as follows:
(i) Proceeds payable under clauses (ii), (iii) and (iv)
of Paragraph 16(a) and proceeds attributable to the general liability coverage
of Builder's Risk insurance under clause (vi) of Paragraph 16(a) shall be
payable to the Person entitled to receive such proceeds.
(ii) Proceeds of insurance required under clause (i) of
Paragraph 16(a) and proceeds attributable to Builder's Risk insurance (other
than its general liability coverage provisions) under clause (vi) of Paragraph
16(a) shall be payable to Landlord or Lender and applied as set forth in
Paragraph 17 or, if applicable, Paragraph 18. Tenant shall apply the Net Award
to restoration of the Leased Premises in accordance with the applicable
provisions of this Lease unless a Termination Event shall have occurred and
Tenant has given a Termination Notice.
17. Casualty and Condemnation.
(a) If any Casualty to any of the Related Premises occurs,
Tenant shall give Landlord and Lender immediate notice thereof. So long as no
Event of Default exists Tenant is hereby authorized to adjust, collect and
compromise all claims under any of the insurance policies required by Paragraph
16(a) (except public liability insurance claims payable to a Person other than
Tenant, Landlord or Lender) and to execute and deliver on behalf of Landlord all
necessary proofs of loss, receipts, vouchers and releases required by the
insurers and Landlord shall have the right to join with Tenant therein. Any
final adjustment, settlement or compromise of any such claim shall be subject to
the prior written approval of Landlord, and Landlord shall have the right to
prosecute or contest, or to require Tenant to prosecute or contest, any such
claim, adjustment, settlement or compromise. If an Event of Default exists,
Tenant shall not be entitled to adjust, collect or compromise any such claim or
to participate with Landlord in any adjustment, collection and compromise of the
Net Award payable in connection with a Casualty. Tenant agrees to sign, upon the
request of Landlord, all such proofs of loss, receipts, vouchers and releases.
Each insurer is hereby authorized and directed to make payment under said
policies, including return of unearned premiums, directly to Landlord or, if
required
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by the Mortgage, to Lender instead of to Landlord and Tenant jointly, and Tenant
hereby appoints each of Landlord and Lender as Tenant's attorneys-in-fact to
endorse any draft therefor. The rights of Landlord under this Paragraph 17(a)
shall be extended to Lender if and to the extent that any Mortgage so provides.
(b) Tenant, immediately upon receiving a Condemnation Notice,
shall notify Landlord and Lender thereof. So long as no Event of Default exists,
Tenant is authorized to collect, settle and compromise the amount of any Net
Award and Landlord shall have the right to join with Tenant therein. If an Event
of Default exists, Landlord shall be authorized to collect, settle and
compromise the amount of any Net Award and Tenant shall not be entitled to
participate with Landlord in any Condemnation proceeding or negotiations under
threat thereof or to contest the Condemnation or the amount of the Net Award
therefor. No agreement with any condemnor in settlement or under threat of any
Condemnation shall be made by Tenant without the written consent of Landlord.
Subject to the provisions of this Paragraph 17(b), Tenant hereby irrevocably
assigns to Landlord any award or payment to which Tenant is or may be entitled
by reason of any Condemnation, whether the same shall be paid or payable for
Tenant's leasehold interest hereunder or otherwise; provided, however, Tenant
shall have the right to fifteen percent (15%) of any Net Award that is in excess
of the Acquisition Cost for the applicable Related Premises. Nothing in this
Lease shall impair Tenant's right to any award or payment on account of Tenant's
trade fixtures, equipment or other tangible property which is not part of the
Equipment, moving expenses or loss of business, if available, to the extent that
and so long as (i) Tenant shall have the right to make, and does make, a
separate claim therefor against the condemnor and (ii) such claim does not in
any way reduce either the amount of the award otherwise payable to Landlord for
the Condemnation of Landlord's fee interest in the applicable Related Premises
or the amount of the award (if any) otherwise payable for the Condemnation of
Tenant's leasehold interest hereunder. The rights of Landlord under this
Paragraph 17(b) shall also be extended to Lender if and to the extent that any
Mortgage so provides.
(c) If any Partial Casualty (whether or not insured against)
or Partial Condemnation shall occur to any Related Premises, this Lease shall
continue, notwithstanding such event, and there shall be no abatement or
reduction of any Monetary Obligations, except as provided in Paragraph 19(d).
Promptly after such Partial Casualty or Partial Condemnation, Tenant, as
required in Paragraph 12(a), shall commence and diligently continue to restore
the Leased Premises as nearly as possible to their value, condition and
character immediately prior to such event (assuming the Leased Premises to have
been in the condition required by this Lease). Upon the receipt by Landlord of
the entire Net Award of such Partial Casualty or Partial Condemnation, Landlord
shall make such Net Award available to Tenant for restoration in accordance with
and subject to the provisions of Paragraph 19(a). If any Casualty or
Condemnation which is not a Partial Casualty or Partial Condemnation shall
occur, Tenant shall comply with the terms and conditions of Paragraph 18.
(d) In the event of a Requisition of any of the Leased
Premises, each installment of Basic Rent payable on or after the date on which
the Net Award is paid shall be reduced by a fraction, the denominator of which
shall be the total amount of all Basic Rent due from such date to and including
the last Basic Rent Payment Date for the then existing Term and the numerator of
which shall be the amount of such Net Award retained by Landlord. Upon the
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expiration of the Term, any portion of such Net Award which shall not have been
previously credited to Tenant shall be retained by Landlord.
18. Termination Events.
(a) If either (i) all of any Related Premises shall be taken
by a Taking or (ii) any substantial portion of any Related Premises shall be
taken by a Taking or all or any substantial portion of any Related Premises
shall be totally damaged or destroyed by a Casualty and, in the case of a
Casualty, Tenant certifies and covenants to Landlord that it will abandon
operations at the Related Premises for a period of not less than five (5) Lease
Years, (any one or all of the Related Premises described in the above clauses
(i) and (ii) above being hereinafter referred to as the "Affected Premises" and
each of the events described in the above clauses (i) and (ii) shall hereinafter
be referred to as a "Termination Event"), then (x) in the case of (i) above,
Tenant shall be obligated, within thirty (30) days after Tenant receives a
Condemnation Notice and (y) in the case of (ii) above, Tenant shall have the
option, within thirty (30) days after Tenant receives a Condemnation Notice or
thirty (30) days after the Casualty, as the case may be, to give to Landlord
written notice (a "Termination Notice") in the form described in Paragraph 18(b)
of the Tenant's election to terminate this Lease as to the Affected Premises. If
Tenant elects under clause (y) above not to give Landlord a Termination Notice,
then Tenant shall rebuild or repair the Leased Premises in accordance with
Paragraphs 17 and 19.
(b) A Termination Notice shall contain (i) notice of Tenant's
intention to terminate this Lease as to the Affected Premises on the first Basic
Rent Payment Date which occurs at least ninety (90) days after the Fair Market
Value Date (the "Termination Date"), (ii) a binding and irrevocable offer of
Tenant to pay the Termination Amount and (iii) if the Termination Event is an
event described in Paragraph 18(a)(ii), the certification and covenant described
therein and a certified resolution of the Board of Directors of Tenant
authorizing the same. Promptly upon the delivery to Landlord of a Termination
Notice, Landlord and Tenant shall commence to determine Fair Market Value.
(c) If Landlord shall reject such offer by Tenant to pay to
Landlord the Termination Amount as to the Affected Premises pursuant to
Paragraph 18(b) above by written notice to Tenant (a "Rejection") which
Rejection shall contain the written consent of Lender to Landlord's rejection of
Tenant's offer to pay the Termination Amount, not later than thirty (30) days
following the Fair Market Value Date, then this Lease shall terminate as to the
Affected Premises on the Termination Date; provided that, if Tenant has not
satisfied all Monetary Obligations and all other obligations and liabilities
under this Lease which have arisen as to the Affected Premises (collectively,
"Remaining Obligations") on or prior to the Termination Date, then Landlord may,
at its option, extend the date on which this Lease may terminate as to the
Affected Premises to a date which is no later than the first Basic Rent Payment
Date after the Termination Date on which Tenant has satisfied all Remaining
Obligations. Upon such termination (i) all obligations of Tenant hereunder as to
the Affected Premises shall terminate except for any Surviving Obligations, (ii)
Tenant shall immediately vacate and shall have no further right, title or
interest in or to any of the Affected Premises and (iii) the Net Award shall be
retained by Landlord. Notwithstanding anything to the contrary hereinabove
contained, if Tenant shall have received a Rejection and, on the date when this
Lease would otherwise terminate with respect to the Affected Premises as
provided above, Landlord shall not have
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received the full amount of the Net Award payable by reason of the applicable
Termination Event, then the date on which this Lease is to terminate with
respect to the Affected Premises shall be automatically extended to the first
Basic Rent Payment Date after the receipt by Landlord of the full amount of the
Net Award provided that, if Tenant has not satisfied all Remaining Obligations
on such date, then Landlord may, at its option, extend the date on which this
Lease may terminate as to the Affected Premises to a date which is no later than
the first Basic Rent Payment Date after such date on which Tenant has satisfied
all such Remaining Obligations.
(d) Unless Tenant shall have received a Rejection not later
than the thirtieth (30th) day following the Fair Market Value Date, Landlord
shall be conclusively presumed to have accepted such offer from Tenant to pay
the Termination Amount. If such offer from Tenant to pay the Termination Amount
is accepted by Landlord then, on the Termination Date, Tenant shall pay to
Landlord the Termination Amount and all Remaining Obligations and, if requested
by Tenant, Landlord shall convey to Tenant or its designee the Affected Premises
or the remaining portion thereof, if any, and any Net Award, all in accordance
with Paragraph 20.
(e) In the event of the termination of this Lease as to the
Affected Premises as hereinabove provided, this Lease shall remain in full force
and effect as to the Remaining Premises; provided, that the Basic Rent for the
Remaining Premises to be paid after such termination shall be the Basic Rent
otherwise payable hereunder with respect to the Leased Premises multiplied by a
percentage equal to the sum of the percentages set forth on Exhibit "F" for the
Remaining Premises.
19. Restoration.
(a) If any Net Award is in excess of $1,000,000, Landlord (or
Lender if required by any Mortgage) shall hold the Net Award in a fund (the
"Restoration Fund") and disburse amounts from the Restoration Fund only in
accordance with the following conditions:
(i) prior to commencement of restoration, (A) the
architects, contracts, contractors, plans and specifications and a budget for
the restoration shall have been approved by Landlord and (B) Landlord and Lender
shall be provided with mechanics' lien insurance (if reasonably available) and
reasonably acceptable performance and payment bonds which insure satisfactory
completion of and payment for the restoration, are in an amount and form and
have a surety reasonably acceptable to Landlord, and name Landlord and Lender as
additional dual obligees;
(ii) at the time of any disbursement, no Event of
Default shall exist and, unless Tenant is exercising its rights under Paragraph
14, no mechanics' or materialmen's liens shall have been filed against any of
the Leased Premises and remain undischarged unless any such has been "bonded
over";
(iii) disbursements shall be made from time to time in
an amount not exceeding the cost of the work completed since the last
disbursement, upon receipt of (A) satisfactory evidence, including architects'
certificates, of the stage of completion, the estimated total cost of completion
and performance of the work to date in a good and
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workmanlike manner in accordance with the contracts, plans and specifications,
(B) waivers of liens, (C) contractors' and subcontractors' sworn statements as
to completed work and the cost thereof for which payment is requested, (D) a
satisfactory bringdown of title insurance and (E) other evidence of cost and
payment so that Landlord and Lender can verify that the amounts disbursed from
time to time are represented by work that is completed, in place and free and
clear of mechanics' and materialmen's lien claims as a result of non-payment by
or on behalf of Tenant;
(iv) each request for disbursement shall be accompanied
by a certificate of a duly authorized officer of Tenant or Tower, describing the
work for which payment is requested, stating the cost incurred in connection
therewith, stating that Tenant has not previously received payment for such work
and, upon completion of the work, also stating that the work has been fully
completed and complies with the applicable requirements of this Lease;
(v) Landlord may retain ten percent (10%) of the
Restoration Fund until fifty percent (50%) completion which shall be held until
restoration is fully completed;
(vi) the Restoration Fund shall not be commingled with
Landlord's other funds and shall bear interest at a rate agreed to by Landlord
and Tenant; and
(vii) such other reasonable conditions as Landlord or
Lender may impose.
(b) Prior to commencement of restoration and at any time
during restoration, if the estimated cost of completing the restoration work
free and clear of all liens, as determined by Landlord, exceeds the amount of
the Net Award available for such restoration, the amount of such excess shall,
upon demand by Landlord, be paid by Tenant to Landlord to be added to the
Restoration Fund. Any sum so added by Tenant which remains in the Restoration
Fund upon completion of restoration shall be refunded to Tenant. For purposes of
determining the source of funds with respect to the disposition of funds
remaining after the completion of restoration, the Net Award shall be deemed to
be disbursed prior to any amount added by Tenant.
(c) If any sum remains in the Restoration Fund after
completion of the restoration and any refund to Tenant pursuant to Paragraph
19(b), such sum (the "Remaining Sum") shall be retained by Landlord or, if
required by a Note or Mortgage, paid by Landlord to a Lender.
20. Procedures Upon Purchase.
(a) If the Leased Premises or any of the Related Premises are
purchased by Tenant pursuant to any provision of this Lease, Landlord need not
convey any better title thereto than that which was conveyed to Landlord, and
Tenant or its designee shall accept such title, subject, however, to the
Permitted Encumbrances and to all applicable Laws, but free of the lien of and
security interest created by any Mortgage or Assignment and liens, exceptions
and restrictions on, against or relating to the Leased Premises or the
applicable Related Premises which have been created by or resulted solely from
acts of Landlord after the
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date of this Lease, unless the same are Permitted Encumbrances or customary
utility easements benefiting the Leased Premises or were created with the
concurrence of Tenant or as a result of a default by Tenant under this Lease.
(b) Upon the date fixed for any such purchase of the Leased
Premises or any of the Related Premises pursuant to any provision of this Lease
(any such date the "Purchase Date"), Tenant shall pay to Landlord, or to any
Person to whom Landlord directs payment, the Relevant Amount therefor specified
herein, in Federal Funds, less any credit of the Net Award received and retained
by Landlord or a Lender allowed against the Relevant Amount, and Landlord shall
deliver to Tenant (i) a special or limited warranty deed which describes the
premises being conveyed and conveys the title thereto as provided in Paragraph
20(a), (ii) such other instruments as shall be necessary to transfer to Tenant
or its designee any other property (or rights to any Net Award not yet received
by Landlord or a Lender) then required to be sold by Landlord to Tenant pursuant
to this Lease and (iii) any Net Award received by Landlord, not credited to
Tenant against the Relevant Amount and required to be delivered by Landlord to
Tenant pursuant to this Lease; provided, that if any Monetary Obligations remain
outstanding on such date, then Landlord may deduct from the Net Award the amount
of such Monetary Obligations; and further provided, that if any event has
occurred which, in Landlord's reasonable judgment, is likely to subject any
Indemnitee to any liability which Tenant is required to indemnify against
pursuant to Paragraph 15, then an amount shall be deducted from the Net Award
which, in Landlord's reasonable judgment, is sufficient to satisfy such
liability, which amount shall be deposited in an escrow account with a financial
institution reasonably satisfactory to Landlord and Tenant pending resolution of
such matter, and promptly following resolution of such matter the amount shall
be released to the party entitled to the same. If on the Purchase Date any
Monetary Obligations remain outstanding and no Net Award is payable to Tenant by
Landlord or the amount of such Net Award is less than the amount of the Monetary
Obligations, then Tenant shall pay to Landlord on the Purchase Date the amount
of such Monetary Obligations. Upon the completion of such purchase, this Lease
and all obligations and liabilities of Tenant hereunder with respect to the
applicable Related Premises (but not with respect to the Remaining Premises)
shall terminate, except any Surviving Obligations.
(c) If the completion of such purchase shall be delayed after
(i) the Termination Date, in the event of a purchase pursuant to Paragraph 18
or, (ii) the date scheduled for such purchase, in the event of a purchase under
any other provision of this Lease then (x) Rent shall continue to be due and
payable until completion of such purchase and (y) if the purchase is delayed for
more than six (6) months at Landlord's sole option, Fair Market Value shall be
redetermined and the Relevant Amount payable by Tenant pursuant to the
applicable provision of this Lease shall be adjusted to reflect such
redetermination.
(d) Any prepaid Monetary Obligations paid to Landlord shall be
prorated as of the Purchase Date, and the prorated unapplied balance shall be
deducted from the Relevant Amount due to Landlord; provided, that no
apportionment of any Impositions shall be made upon any such purchase.
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21. Assignment and Subletting: Prohibition against Leasehold Financing.
(a) Tenant shall not have the right to assign this Lease or sublet more
than twenty-five percent (25%) of the leaseable space in the Improvements except
as otherwise expressly set forth in this Paragraph 21.
(b) Tenant shall have the right upon thirty (30) days prior written
notice to Landlord and Lender, with no consent of Landlord or Lender being
required, to assign this Lease to any Person, provided that, unless such Person
is a wholly-owned subsidiary of either Guarantor or any Tenant, as a condition
to any such assignment Tenant shall provide to Landlord, no later than the date
on which such assignment shall become effective, a security deposit equal to
eighteen (18) months of the Basic Rent then in effect (the "Assignment Security
Deposit").
(c) Tenant shall have the right to sublease all or any portion of any
Related Premises to any one or more subtenants without the prior written consent
of Landlord or Lender provided, that, (i) if at any time there are subleases
which in the aggregate result in there being under sublease more than
twenty-five percent (25%) but less than fifty percent (50%) of the leasable
space in the Improvements (a "Level 1 Subleasing") then, Tenant shall provide to
the Landlord a security deposit equal to six (6) months of the Basic Rent then
in effect (a "Level 1 Sublease Security Deposit") no later than the date on
which the Level 1 Subleasing shall become effective, and (ii) if at any time
there are subleases which in the aggregate sublease more than fifty percent
(50%) of the leaseable space in the Improvements (a "Level 2 Subleasing") then,
Tenant shall increase the Level 1 Sublease Security Deposit to equal twelve (12)
months of the Basic Rent then in effect (a "Level 2 Sublease Security Deposit").
(d) If Tenant assigns all its rights and interest under this Lease, the
assignee under such assignment shall expressly assume all the obligations of
Tenant hereunder, actual or contingent, including obligations of Tenant which
may have arisen on or prior to the date of such assignment, by a written
instrument delivered to Landlord at the time of such assignment. Each sublease
of any of the Related Premises shall (A) be expressly subject and subordinate to
this Lease and any Mortgage encumbering the Leased Premises; (B) not extend
beyond the then current Term minus one day; (C) terminate upon any termination
of this Lease, unless Landlord elects in writing, to cause the sublessee to
attorn to and recognize Landlord as the lessor under such sublease, whereupon
such sublease shall continue as a direct lease between the sublessee and
Landlord upon all the terms and conditions of such sublease; and (D) bind the
sublessee to all covenants contained in Paragraphs 4(a), 10 and 12 with respect
to subleased premises to the same extent as if the sublessee were the Tenant. No
assignment or sublease shall affect or reduce any of the obligations of Tenant
hereunder or the Guarantors under the Guaranty. All such obligations of Tenant
shall continue in full force and effect as obligations of a principal and not as
obligations of a guarantor, as if no assignment or sublease had been made. No
assignment or sublease shall impose any additional obligations on Landlord under
this Lease.
(e) Tenant shall, within ten (10) days after the execution and delivery
of any assignment or sublease, deliver a duplicate original copy thereof to
Landlord which, in the event of an assignment, shall be in recordable form.
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(f) As security for performance of its obligations under this Lease,
Tenant hereby grants, conveys and assigns to Landlord all right, title and
interest of Tenant in and to all subleases now in existence or hereafter entered
into for any or all of the Leased Premises, any and all extensions,
modifications and renewals thereof and all rents, issues and profits therefrom.
Landlord hereby grants to Tenant a license to collect and enjoy all rents and
other sums of money payable under any sublease of any of the Leased Premises,
provided, however, that if at any time either (i) an Event of Default has
occurred or (ii) there are subleases which in the aggregate result in there
being under sublease more than twenty-five percent (25%) of the leaseable space
in the Improvements Landlord shall have the absolute right at any time upon
notice to Tenant and any subtenants to revoke said license and to collect such
rents and sums of money. Any rents and other sums of money received by Landlord
shall be applied to Rent next due and owing. Tenant shall not accept any rents
more than thirty (30) days in advance of the accrual thereof nor do nor permit
anything to be done, the doing of which, nor omit or refrain from doing
anything, the omission of which, will or could be a breach of or default in the
terms of any of the subleases.
(g) Except as otherwise specifically provided in this Paragraph 21(g),
Tenant shall not have the power to mortgage, pledge or otherwise encumber its
interest under this Lease or any sublease of any of the Related Premises, and
any such mortgage, pledge or encumbrance made in violation of this Paragraph 21
shall be void and of no force and effect. Landlord hereby waives (i) any right
to distrain Tenant's Personal Property and (ii) any Landlord's lien or similar
lien upon Tenant's Personal Property, regardless of whether such lien is created
by statute or otherwise, specifically excluding, however, the Equipment. At the
request of Tenant, Landlord shall execute a waiver (in form reasonably
satisfactory to Landlord) of any Landlord's or similar lien for the benefit of
any holder of a security interest in or lessor of any of Tenant's Personal
Property. Landlord agrees to acknowledge (in a written form reasonably
satisfactory to Landlord) to such Persons at such times and for such purposes as
Tenant may reasonably request that trade fixtures owned by Tenant are Tenant's
Personal Property and not party of the Leased Premises (regardless of whether or
to what Tenant's Personal Property is affixed to the Leased Premises) or
otherwise subject to the terms of this Lease.
(h) Subject to the provisions of Paragraph 35 hereof, Landlord may sell
or transfer the Leased Premises at any time without Tenant's consent to any
third party who is not a Competitor (each a "Third Party Purchaser"). In the
event of any such transfer, Tenant shall attorn to any Third Party Purchaser as
Landlord so long as such Third Party Purchaser and Landlord notify Tenant in
writing of such transfer. At the request of Landlord, Tenant will execute such
documents confirming the agreement referred to above and such other agreements
as Landlord may reasonably request, provided that such agreements do not
increase the liabilities and obligations of Tenant hereunder.
22. Events of Default.
(a) The occurrence of any one or more of the following (after expiration
of any applicable cure period as provided in Paragraph 22(b)) shall, at the sole
option of Landlord, constitute an "Event of Default" under this Lease:
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(i) a failure by Tenant to make any payment of any Monetary
Obligation on or prior to its due date, regardless of the reason for such
failure;
(ii) a failure by Tenant duly to perform and observe, or a
violation or breach of, any other provision hereof not otherwise specifically
mentioned in this Paragraph 22(a);
(iii) any representation or warranty made by any Tenant herein or
in any certificate, demand or request made pursuant hereto proves to be
incorrect when made in any material respect;
(iv) a default beyond any applicable cure period or at maturity
by Tenant in any payment of principal or interest on any obligations for
borrowed money having an original principal balance of $10,000,000 or more in
the aggregate, or in the performance of any other provision contained in any
instrument under which any such obligation is created or secured (including the
breach of any covenant thereunder), (x) if such payment is a payment at maturity
or a final payment, or (y) if an effect of such default is to cause, or permit
any Person to cause, such obligation to become due prior to its stated maturity;
(v) a default by any Tenant beyond any applicable cure period in
the payment of rent under, or in the performance of any other material provision
of, any other lease or leases that have, in the aggregate, rental obligations
over the terms thereof of $10,000,000 or more if the Landlord under any such
lease or leases commences to exercise its remedies thereunder;
(vi) a final, non-appealable judgment or judgments for the
payment of money in excess of $5,000,000 in the aggregate shall be rendered
against any Tenant and the same shall remain undischarged for a period of sixty
(60) consecutive days;
(vii) any Tenant shall (A) voluntarily be adjudicated a bankrupt
or insolvent, (B) seek or consent to the appointment of a receiver or trustee
for itself or for any of the Related Premises, (C) file a petition seeking
relief under the bankruptcy or other similar laws of the United States, any
state or any jurisdiction, (D) make a general assignment for the benefit of
creditors, or (E) be unable to pay its debts as they mature;
(viii) a court shall enter an order, judgment or decree
appointing, without the consent of Tenant, a receiver or trustee for it or for
any of the Related Premises or approving a petition filed against any Tenant
which seeks relief under the bankruptcy or other similar laws of the United
States, any state or any jurisdiction, and such order, judgment or decree shall
remain undischarged or unstayed sixty (60) days after it is entered;
(ix) any Related Premises shall have been totally vacant for more
than ninety (90) consecutive days (except in the event of a Casualty or
Condemnation) or shall have been abandoned;
(x) any Tenant shall be liquidated or dissolved or shall begin
proceedings towards its liquidation or dissolution, except for a liquidation or
dissolution in which such Tenant is merged or consolidated with, or the assets
of such Tenant are transferred to the
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other Tenant or to a Guarantor or a wholly-owned subsidiary of a Guarantor (so
long as Guarantors ratify the Guaranty in respect of the obligations of such
subsidiary) as part of a corporate reorganization;
(xi) the estate or interest of any Tenant in any of the Related
Premises shall be levied upon or attached in any proceeding unless Tenant is
contesting such action in accordance with and subject to the terms of Paragraph
14 and such estate or interest is about to be sold or transferred or such
process shall not be vacated or discharged within sixty (60) days after it is
made;
(xii) a failure by any Tenant to perform or observe, or a
violation or breach of, or a misrepresentation by any Tenant under, any
provision of any document between any Tenant and Lender or from any Tenant to
Lender, if such failure, violation, breach or misrepresentation gives rise to a
default beyond any applicable cure period with respect to any Loan;
(xiii) a failure by any Tenant to maintain in effect any license
or permit necessary for the use, occupancy or operation of any of the Related
Premises;
(xiv) any Tenant shall sell or transfer or enter into an
agreement to sell or transfer all or substantially all of its assets in a single
transaction or series of related transactions unless such sale or transfer is to
the other Tenant or to a Guarantor or a wholly-owned subsidiary of a Guarantor
(so long as Guarantors ratify the Guaranty in respect of the obligations of such
subsidiary) as part of a corporate reorganization;
(xv) any Tenant shall fail to deliver the estoppel described in
Paragraph 25 within the time period specified therein;
(xvi) Tenant shall fail to provide any required Security Deposit
as and when due or shall fail to replenish any then required Security Deposit to
its full amount in accordance with the requirements of Paragraph 36; or
(xvii) Tenant shall fail to complete the Post Closing Repairs and
Remediation within the time periods set forth in Exhibit "G-1" and Exhibit
"G-2", subject to extension for Force Majeure.
(b) No notice or cure period shall be required in any one or more of the
following events: (A) the occurrence of an Event of Default under clause (i)
(except as otherwise set forth below), (iii), (iv), (v), (vi), (vii), (viii),
(ix), (x), (xi), (xii), (xiii), (xiv), (xv), (xvi) or (xvii) of Paragraph 22(a);
(B) the default consists of a failure to provide any insurance required by
Paragraph 16 or an assignment or sublease entered into in violation of Paragraph
21; or (C) the default is such that any delay in the exercise of a remedy by
Landlord could reasonably be expected to cause irreparable harm to Landlord. If
the default consists of the failure to pay any Monetary Obligation under clause
(i) of Paragraph 22(a), the applicable cure period shall be five (5) days from
the date on which notice is given, but Landlord shall not be obligated to give
notice of, or allow any cure period for, any such default more than one (1) time
within any Lease Year. If the default consists of a default under clause (ii) of
Paragraph 22(a), other than the events specified in clauses (B) and (C) of the
first sentence of this Paragraph
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22(b), the applicable cure period shall be thirty (30) days from the date on
which notice is given or, if the default cannot be cured within such thirty (30)
day period and delay in the exercise of a remedy would not (in Landlord's
reasonable judgment) cause any material adverse harm to Landlord or any of the
Leased Premises, the cure period shall be extended for the period required to
cure the default (but such cure period, including any extension, shall not in
the aggregate exceed ninety (90) days), provided that Tenant shall commence to
cure the default within the said thirty-day period and shall actively,
diligently and in good faith proceed with and continue the curing of the default
until it shall be fully cured.
23. Remedies and Damages Upon Default.
(a) If an Event of Default shall have occurred and is continuing,
Landlord shall have the right, at its sole option, then or at any time
thereafter, to exercise its remedies and to collect damages from Tenant in
accordance with this Paragraph 23, subject in all events to applicable Law,
without demand upon or notice to Tenant except as otherwise provided in
Paragraph 22(b) and this Paragraph 23.
(i) Landlord may give Tenant notice of Landlord's intention to
terminate this Lease on a date specified in such notice. Upon such date, this
Lease, the estate hereby granted and all rights of Tenant hereunder shall expire
and terminate. Upon such termination, Tenant shall immediately surrender and
deliver possession of the Leased Premises to Landlord in accordance with
Paragraph 26. If Tenant does not so surrender and deliver possession of all of
the Leased Premises, Landlord may re-enter and repossess any of the Leased
Premises not surrendered, with or without legal process, by peaceably entering
any of the Leased Premises and changing locks or by summary proceedings,
ejectment or any other lawful means or procedure. Upon or at any time after
taking possession of any of the Leased Premises, Landlord may, by peaceable
means or legal process, remove any Persons or property therefrom. Landlord shall
be under no liability for or by reason of any such entry, repossession or
removal. Notwithstanding such entry or repossession, Landlord may (A) exercise
the remedy set forth in and collect the damages permitted by Paragraph
23(a)(iii) or (B) collect the damages set forth in Paragraph 23(b)(i) or
23(b)(ii).
(ii) After repossession of any of the Leased Premises pursuant to
clause (i) above, Landlord shall have the right to relet any of the Leased
Premises to such tenant or tenants, for such term or terms, for such rent, on
such conditions and for such uses as Landlord in its sole discretion may
determine, and collect and receive any rents payable by reason of such
reletting. Landlord may make such Alterations in connection with such reletting
as it may deem advisable in its sole discretion. Notwithstanding any such
reletting, Landlord may collect the damages set forth in Paragraph 23(b)(ii).
(iii) Landlord may, upon notice to Tenant, require Tenant to make
an irrevocable offer to terminate this Lease in its entirety for an amount (the
"Default Termination Amount") specified in the next sentence. The "Default
Termination Amount" shall be the greatest of (A) the sum of the Fair Market
Value of the Leased Premises and the applicable Prepayment Premium which
Landlord will be required to pay in prepaying any Loan with proceeds of the
Default Termination Amount or (B) the sum of the Acquisition Cost and the
applicable Prepayment Premium which Landlord will be required to pay in
prepaying any Loan
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with proceeds of the Default Termination Amount or (C) an amount equal to the
Present Value of the entire Basic Rent from the date of such purchase to the
date on which the then Term would expire, assuming that the Term has been
extended for all extension periods, if any, provided for in this Lease. Upon
such notice to Tenant, Tenant shall be deemed to have made such offer and shall,
if requested by Landlord, within ten (10) days following such request, deposit
with Landlord as payment against the Default Termination Amount the amount
described in (B) above, Landlord and Tenant shall promptly commence to determine
Fair Market Value. Within thirty (30) days after the Fair Market Value Date,
Landlord shall accept or reject such offer. If Landlord accepts such offer then,
on the tenth (10th) business day after such acceptance, Tenant shall pay to
Landlord the Default Termination Amount and, at the request of Tenant, Landlord
will convey the Leased Premises to Tenant or its designee in accordance with
Paragraph 20. Any rejection by Landlord of such offer shall have no effect on
any other remedy Landlord may have under this Lease.
(iv) Landlord may declare by notice to Tenant the entire Basic
Rent (in the amount of Basic Rent then in effect) for the remainder of the then
current Term to be immediately due and payable. Tenant shall immediately pay to
Landlord all such Basic Rent discounted to its Present Value, all accrued Rent
then due and unpaid, all other Monetary Obligations which are then due and
unpaid and all Monetary Obligations which arise or become due by reason of such
Event of Default (including any Costs of Landlord). Upon receipt by Landlord of
all such accelerated Basic Rent and Monetary Obligations, this Lease shall
remain in full force and effect and Tenant shall have the right to possession of
the Leased Premises from the date of such receipt by Landlord to the end of the
Term, and subject to all the provisions of this Lease, including the obligation
to pay all increases in Basic Rent and all Monetary Obligations that
subsequently become due, except that (A) no Basic Rent which has been prepaid
hereunder shall be due thereafter during the said Term and (B) Tenant shall have
no option to extend or renew the Term.
(b) The following constitute damages to which Landlord shall be entitled
if Landlord exercises its remedies under Paragraph 23(a)(i) or 23(a)(ii):
(i) If Landlord exercises its remedy under Paragraph 23(a)(i) but
not its remedy under Paragraph 23(a)(ii) (or attempts to exercise such remedy
and is unsuccessful in reletting the Leased Premises) then, upon written demand
from Landlord, Tenant shall pay to Landlord, as liquidated and agreed final
damages for Tenant's default and in lieu of all current damages beyond the date
of such demand (it being agreed that it would be impracticable or extremely
difficult to fix the actual damages), an amount equal to the Present Value of
the excess, if any, of (A) all Basic Rent from the date of such demand to the
date on which the Term is scheduled to expire hereunder in the absence of any
earlier termination, re-entry or repossession over (B) the then fair market
rental value of the Leased Premises for the same period. Tenant shall also pay
to Landlord all of Landlord's Costs in connection with the repossession of the
Leased Premises and any attempted reletting thereof, including all brokerage
commissions, legal expenses, reasonable attorneys' fees, employees' expenses,
costs of Alterations and expenses and preparation for reletting.
(ii) If Landlord exercises its remedy under Paragraph 23(a)(i) or
its remedies under Paragraph 23(a)(i) and 23(a)(ii), then Tenant shall, until
the end of what
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would have been the Term in the absence of the termination of the Lease, and
whether or not any of the Leased Premises shall have been relet, be liable to
Landlord for, and shall pay to Landlord, as liquidated and agreed current
damages all Monetary Obligations which would be payable under this Lease by
Tenant in the absence of such termination less the net proceeds, if any, of any
reletting pursuant to Paragraph 23(a)(ii), after deducting from such proceeds
all of Landlord's Costs (including the items listed in the last sentence of
Paragraph 23(b)(i) hereof) incurred in connection with such repossessing and
reletting; provided, that if Landlord has not relet the Leased Premises, such
Costs of Landlord shall be considered to be Monetary Obligations payable by
Tenant. Tenant shall be and remain liable for all sums aforesaid, and Landlord
may recover such damages from Tenant and institute and maintain successive
actions or legal proceedings against Tenant for the recovery of such damages.
Nothing herein contained shall be deemed to require Landlord to wait to begin
such action or other legal proceedings until the date when the Term would have
expired by its own terms had there been no such Event of Default.
(c) Notwithstanding anything to the contrary herein contained, in lieu
of or in addition to any of the foregoing remedies and damages, Landlord may
exercise any remedies and collect any damages available to it at law or in
equity. If Landlord is unable to obtain full satisfaction pursuant to the
exercise of any remedy, it may pursue any other remedy which it has hereunder or
at law or in equity.
(d) Landlord shall not be required to mitigate any of its damages
hereunder unless required to by applicable Law. If any Law shall validly limit
the amount of any damages provided for herein to an amount which is less than
the amount agreed to herein, Landlord shall be entitled to the maximum amount
available under such Law.
(e) No termination of this Lease, repossession or reletting of any of
the Leased Premises, exercise of any remedy or collection of any damages
pursuant to this Paragraph 23 shall relieve Tenant of any Surviving Obligations.
(f) WITH RESPECT TO ANY REMEDY OR PROCEEDING OF LANDLORD OR TENANT
HEREUNDER, LANDLORD AND TENANT HEREBY WAIVE THE SERVICE OF NOTICE WHICH MAY BE
REQUIRED BY ANY APPLICABLE LAW AND ANY RIGHT TO A TRIAL BY JURY.
(g) Upon the occurrence of any Event of Default, Landlord shall have the
right (but no obligation) to perform any act required of Tenant hereunder and,
if performance of such act requires that Landlord enter the Leased Premises,
Landlord may enter the Leased Premises for such purpose
(h) No failure of Landlord (i) to insist at any time upon the strict
performance of any provision of this Lease or (ii) to exercise any option,
right, power or remedy contained in this Lease shall be construed as a waiver,
modification or relinquishment thereof. A receipt by Landlord of any sum in
satisfaction of any Monetary Obligation with knowledge of the breach of any
provision hereof shall not be deemed a waiver of such breach, and no waiver by
Landlord of any provision hereof shall be deemed to have been made unless
expressed in a writing signed by Landlord.
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(i) Tenant hereby waives and surrenders, for itself and all those
claiming under it, including creditors of all kinds, (i) any right and privilege
which it or any of them may have under any present or future Law to redeem any
of the Leased Premises or to have a continuance of this Lease after termination
of this Lease or of Tenant's right of occupancy or possession pursuant to any
court order or any provision hereof, and (ii) the benefits of any present or
future Law which exempts property from liability for debt or for distress for
rent.
(j) Except as otherwise provided herein, all remedies are cumulative and
concurrent and no remedy is exclusive of any other remedy. Each remedy may be
exercised at any time an Event of Default has occurred and is continuing and may
be exercised from time to time. No remedy shall be exhausted by any exercise
thereof.
24. Notices. All notices, demands, requests, consents, approvals, offers,
statements and other instruments or communications required or permitted to be
given pursuant to the provisions of this Lease shall be in writing and shall be
deemed to have been given and received for all purposes when delivered in person
or by Federal Express or other reliable 24-hour delivery service or five (5)
business days after being deposited in the United States mail, by registered or
certified mail, return receipt requested, postage prepaid, addressed to the
other party at its address stated above or when delivery is refused. A copy of
any notice given by Tenant to Landlord shall simultaneously be given by Tenant
to Xxxx Xxxxx LLP, Xxx Xxxxxxx Xxxxx, Xxxxxxxxxxxx, XX 00000, Attention:
Chairman, Real Estate Department. For the purposes of this Paragraph, any party
may substitute another address stated above (or substituted by a previous
notice) for its address by giving fifteen (15) days' notice of the new address
to the other party, in the manner provided above.
25. Estoppel Certificate. At any time upon not less than fifteen (15) days'
prior written request by either Landlord or Tenant (the "Requesting Party") to
the other party (the "Responding Party"), the Responding Party shall deliver to
the Requesting Party a statement in writing, executed by an authorized officer
of the Responding Party, certifying (a) that, except as otherwise specified,
this Lease is unmodified and in full force and effect, (b) the dates to which
Basic Rent, Additional Rent and all other Monetary Obligations have been paid,
(c) that, to the knowledge of the signer of such certificate and except as
otherwise specified, no default by either Landlord or Tenant exists hereunder,
(d) such other matters as the Requesting Party may reasonably request, and (e)
if Tenant is the Responding Party that, except as otherwise specified or except
to the extent such information is confidential (in which event it shall be
disclosed if the Recipient acknowledges it is bound by Paragraph 28(d) with
respect to such information), there are no proceedings pending or, to the
knowledge of the signer, threatened, against Tenant before or by an court or
administrative agency which, if adversely decided, would materially and
adversely affect the financial condition and operations of Tenant. Any such
statements by the Responding Party may be relied upon by the Requesting Party,
any Person whom the Requesting Party notifies the Responding Party in its
request for the Certificate is an intended recipient or beneficiary of the
Certificate, any Lender or their assignees and by any prospective purchaser or
mortgagee of any of the Leased Premises. Any certificate required under this
Paragraph 25 and delivered by Tenant shall state that, in the opinion of each
person signing the same, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to the subject matter
of such certificate, and shall briefly state the nature of such examination or
investigation.
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26. Surrender. Upon the expiration or earlier termination of this Lease,
Tenant shall peaceably leave and surrender the Leased Premises or Affected
Premises, is applicable, to Landlord in the same condition in which the Leased
Premises or Affected Premises, if applicable, was at the commencement of this
Lease, except as repaired, rebuilt, restored, altered, replaced or added to as
permitted or required by any provision of this Lease, and except for ordinary
wear and tear. Upon such surrender, Tenant shall (a) remove from the Leased
Premises or Affected Premises, if applicable, all property which is owned by
Tenant or third parties other than Landlord and (b) repair any damage caused by
such removal. Property not so removed shall become the property of Landlord, and
Landlord may thereafter cause such property to be removed from the Leased
Premises or Affected Premises, if applicable. The cost of removing and disposing
of such property and repairing any damage to any of the Leased Premises or
Affected Premises, if applicable, caused by such removal shall be paid by Tenant
to Landlord upon demand. Landlord shall not in any manner or to any extent be
obligated to reimburse Tenant for any such property which becomes the property
of Landlord pursuant to this Paragraph 26.
27. No Merger of Title. There shall be no merger of the leasehold estate
created by this Lease with the fee estate in any of the Leased Premises by
reason of the fact that the same Person may acquire or hold or own, directly or
indirectly, (a) the leasehold estate created hereby or any part thereof or
interest therein and (b) the fee estate in any of the Leased Premises or any
part thereof or interest therein, unless and until all Persons having any
interest in the interests described in (a) and (b) above which are sought to be
merged shall join in a written instrument effecting such merger and shall duly
record the same.
28. Books and Records.
(a) If at any time any Tenant is not a wholly-owned subsidiary of Tower,
such Tenant shall keep adequate records and books of account with respect to the
finances and business of such Tenant generally and with respect to the Leased
Premises, in accordance with generally accepted accounting principles ("GAAP")
consistently applied, and shall permit Landlord and Lender by their respective
agents, accountants and attorneys (as long as such Person is not a Competitor),
upon reasonable notice to Tenant or any of them, to visit the corporate offices
of any Tenant and examine (and make copies of) the records and books of account
and to discuss the finances and business with the officers of Tenant or any of
them, at such reasonable times as may be requested by Landlord. Upon the request
of Lender or Landlord (either telephonically or in writing), Tenant shall
provide the requesting party with copies of any information to which such party
would be entitled in the course of a personal visit. Any such visit or copies
shall be at Landlord's expense so long as no Event of Default exists.
(b) If at any time any Tenant is not a wholly-owned subsidiary of Tower,
such Tenant shall deliver to Landlord and to Lender the following:
(i) as soon as available, but not later than one hundred twenty
(120) days after the end of each fiscal year, a copy of the audited consolidated
balance sheet of such Tenant and its consolidated subsidiaries as at the end of
such year and the related consolidated statements of income and operations,
shareholders' equity and cash flows for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, and
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accompanied by the opinion of Xxxxxx Xxxxxxxx LLP or another nationally
recognized independent public accounting firm ("Independent Auditor") which
report shall state that such consolidated financial statements present fairly in
all material respects the financial position and the results of operations of
such Tenant and its consolidated subsidiaries for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years. Such
opinion shall not be qualified or limited because of a restricted or limited
examination by the Independent Auditor or any material portion of such Tenant's
or any of its consolidated subsidiaries' records; and
(ii) as soon as available, but not later than 60 days after the
end of each of the first three fiscal quarters of each fiscal year, a copy of
the unaudited consolidated balance sheet of such Tenant and its consolidated
subsidiaries as of the end of such quarter and the related consolidated
statements of income, shareholders' equity and cash flows for the period
commencing on the first day of such year and ending on the last day of such
quarter, and certified by a duly authorized officer of such Tenant having
knowledge of the finances of such Tenant as fairly presenting, in all material
respects and in accordance with GAAP (subject to ordinary, good faith year-end
audit adjustments and the absence of required footnotes), the financial position
and the results of operations of such Tenant and its consolidated subsidiaries;
and
(iii) all annual financial statements shall be accompanied by the
affidavit of such Tenant, dated within five (5) days of the delivery of such
statement, stating that (A) the affiant knows of no Event of Default, or event
which, upon notice or the passage of time or both, would become an Event of
Default which has occurred and is continuing hereunder or, if any such event has
occurred and is continuing, specifying the nature and period of existence
thereof and what action Tenant has taken or proposes to take with respect
thereto and (B) except as otherwise specified in such affidavit, that Tenant has
fulfilled all of its obligations under this Lease which are required to be
fulfilled on or prior to the date of such affidavit.
(c) Tenant agrees to cause all quarterly and annual financial statements
that Tower is required to deliver in accordance with Section 2.02 of the
Guaranty to be accompanied by a certification ("Covenant Certification") of a
duly authorized officer of Tower having knowledge of the finances of Tenant and
Guarantors that Tower is in compliance with the Financial Ratio Tests (except as
otherwise specified in the Covenant Certification), together with a calculation
of each of the Financial Ratio Tests using the definitions in the Credit
Agreement or Replacement Credit Agreement, as the case may be, for each such
calculation; provided that the foregoing requirement may be satisfied by
delivery of a copy of the Compliance Certificate delivered under the Credit
Agreement or any Replacement Credit Agreement.
(d) Landlord, Lender and their respective agents, accountants and
attorneys shall consider and treat on a strictly confidential basis (i) any
information about Tenant's business operations and financial matters
specifically disclosed to such Person in the course of a visit under Paragraph
4(a), 5(c), 10(c) or 28(a) or contained in the books and records of any Tenant
and for which such Person has confirmed to Tenant in writing that it is bound by
the terms of this Paragraph 28(d) (and Tenant shall have the right to require
such confirmation as a condition to any such visit or examination of such books
and records), (ii) any copies of any books and records of any Tenant, and any
financial statements of any Tenant pursuant to
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Paragraph 28(b) which are delivered to or received by them and which are
conspicuously stamped "CONFIDENTIAL".
The restrictions contained in this Paragraph 28(d) shall not
prevent disclosure by Landlord or Lender of any information in any of the
following circumstances:
(i) Upon the order of any court or administrative agency to the
extent required by such order and not effectively stayed or by appeal or
otherwise;
(ii) Upon the request, demand or requirement of any regulatory
agency or authority having jurisdiction over such party, including the
Securities and Exchange Commission (whether or not such request or demand has
the force of law);
(iii) That has been publicly disclosed other than by breach of
this Paragraph 28(d) by Lender or Landlord or by any other Person who has agreed
with Landlord or Lender to abide by the provisions of this Paragraph 28(d);
(iv) To counsel, accountants or consultants for such other Person
who has agreed to abide by the provisions of this Paragraph 28(d) or counsel,
accountants or consultants for Lender or Landlord;
(v) While an Event of Default exists, in connection with the
exercise of any right or remedy under this Lease or any other related document;
(vi) Independently developed by Landlord or Lender to the extent
that confidential information provided by Tenant is not used to develop such
information;
(vii) With respect to financial information and information that
Landlord or its attorneys deem to be material in any reporting to the
shareholders of Landlord or the shareholders or prospective shareholders
(whether through a registered public offering or otherwise) of Landlord's parent
company;
(viii) In connection with any sale or financing of the Leased
Premises, provided that any recipient of such information who is a prospective
purchaser of the Leased Premises (except for a purchaser that purchases all or
substantially all of the assets of Landlord's parent company) shall agree to be
bound by the terms of Paragraph 28(d);
(ix) In connection with the securitization and/or sale of a Loan
or interest therein by a Lender, provided, however, that Landlord shall request
in writing that any Lender advises any Loan participants or Loan purchaser that
the Lease contains a confidentiality provision; or
(x) As otherwise required by Law.
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29. Determination of Value.
(a) Whenever a determination of Fair Market Value or Fair Market Rental
Value is required pursuant to any provision of this Lease, such Fair Market
Value or Fair Market Rental Value shall be determined in accordance with the
following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair
Market Value or Fair Market Rental Value within thirty (30) days after the date
(the "Applicable Initial Date") on which (A) Tenant provides Landlord with
notice of its intention to terminate this Lease and purchase the Affected
Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of
its intention to redetermine Fair Market Value or Fair Market Rental Value
pursuant to Paragraph 20(c) or (C) Landlord provides Tenant with notice of
Landlord's intention to require Tenant to make an offer to purchase the Leased
Premises pursuant to Paragraph 23(a)(iii). Landlord and Tenant shall endeavor to
agree on Fair Market Rental Value during the period following receipt by
Landlord of a Notice of Interest to Renew and prior to the latest date for
Tenant to deliver a Renewal Notice. Upon reaching such agreement, the parties
shall execute an agreement setting forth the amount of such Fair Market Value or
Fair Market Rental Value.
(ii) If the parties shall not have signed such agreement (A)
within thirty (30) days after the Applicable Initial Date or (B) with respect to
a renewal option, during the period following Tenant's delivery of a Notice of
Intent to Renew and, with respect to a Renewal Term, Tenant has nonetheless
delivered a Renewal Notice, Tenant shall within fifty (50) days after the
Applicable Initial Date or the date of the Renewal Notice, as applicable, select
an appraiser and notify Landlord in writing of the name, address and
qualifications of such appraiser. Within twenty (20) days following Landlord's
receipt of Tenant's notice of the appraiser selected by Tenant, Landlord shall
select an appraiser and notify Tenant of the name, address and qualifications of
such appraiser. Such two appraisers shall endeavor to agree upon Fair Market
Value or Fair Market Rental Value based on a written appraisal made by each of
them as of the Relevant Date (and given to Landlord by Tenant). If such two
appraisers shall agree upon a Fair Market Value or Fair Market Rental Value, the
amount of such Fair Market Value or Fair Market Rental Value as so agreed shall
be binding and conclusive upon Landlord and Tenant.
(iii) If such two appraisers shall be unable to agree upon a Fair
Market Value or Fair Market Rental Value within twenty (20) days after the
selection of an appraiser by Landlord, then such appraisers shall advise
Landlord and Tenant of their respective determination of Fair Market Value or
Fair Market Rental Value and shall select a third appraiser to make the
determination of Fair Market Value or Fair Market Rental Value. The selection of
the third appraiser shall be binding and conclusive upon Landlord and Tenant.
(iv) If such two appraisers shall be unable to agree upon the
designation of a third appraiser within ten (10) days after the expiration of
the twenty (20) day period referred to in clause (iii) above, or if such third
appraiser does not make a determination of Fair Market Value or Fair Market
Rental Value within twenty (20) days after his selection, then such third
appraiser or a substituted third appraiser, as applicable, shall, at the request
of either party hereto (with respect to the other party), be appointed by the
President or Chairman of
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the American Arbitration Association in New York, New York. The determination of
Fair Market Value or Fair Market Rental Value made by the third appraiser
appointed pursuant hereto shall be made within twenty (20) days after such
appointment.
(v) If a third appraiser is selected, Fair Market Value or Fair
Market Rental Value shall be the average of the determination of Fair Market
Value or Fair Market Rental Value made by the third appraiser and the
determination of Fair Market Value or Fair Market Rental Value made by the
appraiser (selected pursuant to Paragraph 29(a)(ii) hereof) whose determination
of Fair Market Value or Fair Market Rental Value is nearest to that of the third
appraiser. Such average shall be binding and conclusive upon Landlord and
Tenant.
(vi) All appraisers selected or appointed pursuant to this
Paragraph 29(a) shall (A) be independent qualified MAI appraisers (B) have no
right, power or authority to alter or modify the provisions of this Lease, (C)
utilize the definition of Fair Market Value or Fair Market Rental Value
hereinabove set forth above, and (D) be registered in the State if the State
provides for or requires such registration.
(vii) The Cost of the procedure described in this Paragraph 29(a)
above shall be borne equally by Tenant and Landlord except that if the
appraisals are conducted as a result of an Event of Default, the Cost shall be
borne solely by Tenant.
(b) If, by virtue of any delay, Fair Market Value or Fair Market Rental
Value is not determined by the expiration or termination of the then current
Term, then the date on which the Term would otherwise expire or terminate shall
be extended with respect to the Leased Premises or the Affected Premises, as
applicable, to the date specified for termination in the particular provision of
this Lease pursuant to which the determination of Fair Market Value or Fair
Market Rental Value is being made. If, by virtue of any delay, Fair Market
Rental Value is not determined by the expiration or termination of the then
current Term, then until Fair Market Rental Value is determined, Tenant shall
continue to pay Basic Rent during the succeeding Renewal Term in the same amount
which it was obligated under this Lease to pay prior to the commencement of the
Renewal Term. When Fair Market Rental Value is determined, the appropriate Basic
Rent shall be calculated retroactive to the commencement of the Renewal Term and
Tenant shall either receive a refund from Landlord (in the case of an
overpayment) or shall pay any deficiency to Landlord (in the case of an
underpayment).
(c) In determining Fair Market Value or Fair Market Rental Value as
defined in clause (b) of the definition of Fair Market Value or Fair Market
Rental Value, the appraisers shall add (a) the present value of the Rent for the
remaining Term, assuming the Term has been extended for all extension periods
provided herein (with assumed increases in the CPI to be determined by the
appraisers) using a discount rate (which may be determined by an investment
banker retained by each appraiser) based on the creditworthiness of Tenant and
(b) the present value of the Leased Premises as of the end of such Term (having
assumed the Term has been extended for all extension periods provided herein).
The appraisers shall further assume that no default then exists under the Lease,
that Tenant has complied (and will comply) with all provisions of the Lease.
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(d) In determining Fair Market Rental Value, the appraisers shall
determine with respect to each Related Premises the amount that a willing tenant
would pay, and a willing landlord of a comparable building located in a radius
of 125 miles of each Related Premises would accept, at arm's length, to rent a
building of comparable size and quality as the Improvements, taking into
account: (a) the age, quality, condition (as required by the Lease) of the
Improvements; (b) that the Leased Premises will be leased as a whole or
substantially as a whole to a single user; (c) a lease term of five (5) years;
(d) an absolute triple net lease; and (e) such other items that professional
real estate appraisers customarily consider.
30. Non-Recourse as to Landlord. Anything contained herein to the contrary
notwithstanding, any claim based on or in respect of any liability of Landlord
under this Lease shall be limited to actual damages and shall be enforced only
against the Leased Premises and, from and after the misapplication or
misappropriation of any Net Award or Escrow Payments, the rents payable by
Tenant and not against any other assets, properties or funds of (a) Landlord,
(b) any director, member, officer, general partner, limited partner, employee or
agent of Landlord, or any general partner of Landlord, any of its general
partners or shareholders (or any legal representative, heir, estate, successor
or assign of any thereof), (c) any predecessor or successor partnership or
corporation (or other entity) of Landlord, or any of its general partners,
either directly or through Landlord or its general partners or any predecessor
or successor partnership or corporation or their shareholders, officers,
directors, employees or agents (or other entity), or (d) any other Person
(including Xxxxx Property Advisors, Xxxxx Fiduciary Advisors, Inc., W. P. Xxxxx
& Co., LLC, Xxxxx Management LLC, and any Person affiliated with any of the
foregoing, or any director, officer, employee or agent of any thereof).
31. Financing.
(a) Tenant agrees to pay all reasonable costs and expenses incurred by
Landlord in connection with the purchase, leasing and initial financing of the
Leased Premises including, without limitation, the reasonable cost of
appraisals, environmental reports, title insurance, surveys, legal fees and
expenses and Lender's commitment fee.
(b) If Landlord desires to obtain or refinance any Loan, Tenant shall
negotiate in good faith with Landlord concerning any request made by any Lender
or proposed Lender for changes or modifications in this Lease, provided that
Tenant shall not be obligated to agree to any change which increases its
obligations hereunder in any material respect. In particular, Tenant shall
agree, upon request of Landlord, to supply any such Lender with such notices and
reasonable information as Tenant is required to give to Landlord hereunder and
to extend the rights of Landlord hereunder to any such Lender and to consent to
such financing if such consent is requested by such Lender. Tenant shall provide
any other consent or statement and shall execute any and all other documents
that such Lender requires in connection with such financing, including any
subordination, non-disturbance and attornment agreement, so long as the same do
not materially adversely affect any right, benefit or privilege of Tenant under
this Lease or materially increase Tenant's obligations under this Lease. Such
subordination, nondisturbance and attornment agreement may require Tenant to
confirm that (a) Lender and its assigns will not be liable for any
misrepresentation, act or omission of Landlord and (b) Lender and its assigns
will not be subject to any counterclaim, demand or offsets which Tenant may have
against Landlord (except for any Escrow Payments or Net Award actually held by
Lender).
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32. Subordination, Non-Disturbance and Attornment. This Lease and Tenant's
interest hereunder shall be subordinate to any Mortgage or other security
instrument hereafter placed upon the Leased Premises by Landlord, and to any and
all advances made or to be made thereunder, to the interest thereon, and all
renewals, replacements and extensions thereof, provided that any such Mortgage
or other security instrument (or a separate instrument in recordable form duly
executed by the holder of any such Mortgage or other security instrument and
delivered to Tenant) shall provide for the recognition of this Lease and all
Tenant's rights hereunder unless and until an Event of Default exists or
Landlord shall have the right to terminate this Lease pursuant to any applicable
provision hereof.
33. INTENTIONALLY DELETED.
34. Tax Treatment; Reporting. Landlord and Tenant each acknowledge that each
shall treat this transaction as a true lease for state law purposes and shall
report this transaction as a Lease for Federal income tax purposes. For Federal
income tax purposes each shall report this Lease as a true lease with Landlord
as the owner of the Leased Premises and Equipment and Tenant as the lessee of
such Leased Premises and Equipment including: (i) treating Landlord as the owner
of the property eligible to claim depreciation deductions under Section 167 or
168 of the Internal Revenue Code of 1986 (the "Code") with respect to the Leased
Premises and Equipment, (ii) Tenant reporting its Rent payments as rent expense
under Section 162 of the Code, and (iii) Landlord reporting the Rent payments as
rental income.
35. Right of First Refusal.
(a) Except as otherwise provided in Paragraph 35(g), and provided an
Event of Default does not then exist, if Landlord shall enter into a contract
(the "Sale Contract") for the sale of the Leased Premises or any Related
Premises (any such premises, a "Sale Premises") with a Third Party Purchaser
(and which may include other property owned by Landlord so long as a specific
purchase price is allocated to the Leased Premises), which Sale Contract shall
be conditioned upon Tenant's failure to exercise its right under this Paragraph
35, then promptly following the execution thereof, Landlord shall give written
notice to Tenant, together with a copy of the executed Sale Contract.
(b) For a period of fifteen (15) days following receipt of such notice,
Tenant shall have the right, exercisable by written notice to Landlord given
within said fifteen (15) day period, to elect to purchase the Sale Premises at
the purchase price (calculated on a comparable after-tax basis with respect to
capital gains, including depreciation) and upon all the terms and conditions set
forth in the Sale Contract except that no contingencies contained in such Sale
Contract as to environmental assessments, engineering studies, inspection of the
Sale Premises, availability of financing, sale of other property, state of the
title to or encumbrances on the Sale Premises, or any other condition or
contingency to the Third Party Purchaser's obligation to purchase the Sale
Premises which pertains to the condition of the Sale Premises, the Third Party
Purchaser's ability to take certain action or any other factor beyond the
control of Landlord, shall apply to Tenant's obligation to purchase the Sale
Premises under this Paragraph 35, and Tenant shall be obligated to purchase the
Sale Premises without any such condition or contingency.
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(c) If at the expiration of the aforesaid fifteen (15) day period Tenant
shall have failed to exercise the aforesaid option by written notice to
Landlord, Landlord may sell the Sale Premises to such Third Party Purchaser upon
the terms set forth in such contract.
(d) Except as otherwise specifically provided herein, the closing date
for any purchase of the Sale Premises by Tenant pursuant to this Paragraph 35
shall be the earlier to occur of (i) ninety (90) days after the date of Tenant's
notice to Landlord of its intention to purchase the Sale Premises upon the terms
of the Sale Contract with a Third Party Purchaser or (ii) the closing date
provided in such Sale Contract. At such closing Landlord shall convey the Sale
Premises to Tenant in accordance with, and Tenant shall pay to Landlord the
purchase price and other consideration set forth in, the applicable Sale
Contract.
(e) Tenant shall have the right during the Term to exercise the
foregoing right of first refusal upon each proposed sale of the Leased Premises
or any Related Premises. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IF THE TERM
OF THIS LEASE SHALL TERMINATE OR THIS LEASE SHALL EXPIRE, SUCH RIGHTS OF FIRST
REFUSAL GRANTED PURSUANT TO THIS PARAGRAPH 35 SHALL TERMINATE AND BE NULL AND
VOID AND OF NO FURTHER FORCE AND EFFECT. IN SUCH EVENT TENANT SHALL EXECUTE A
QUITCLAIM DEED AND SUCH OTHER DOCUMENTS AS LANDLORD SHALL REASONABLY REQUEST
EVIDENCING THE TERMINATION OF ITS RIGHT OF FIRST REFUSAL.
(f) If Tenant does not exercise its right of first refusal to purchase
the Sale Premises and the Sale Premises are transferred to a Third Party
Purchaser, Tenant will attorn to any Third Party Purchaser as Landlord so long
as such Third Party Purchaser and Landlord notify Tenant in writing of such
transfer. At the request of Landlord, Tenant will execute such documents
confirming the agreement referred to above and such other agreements as Landlord
may reasonably request, provided that such agreements do not increase the
liabilities and obligations of Tenant hereunder.
(g) The provisions of this Paragraph 35 shall not apply to or prohibit
(i) any mortgaging, subjection to deed of trust or other hypothecation of
Landlord's interest in the Sale Premises, (ii) any sale of the Sale Premises
pursuant to a private power of sale under or judicial foreclosure of any
Mortgage or other security instrument or device to which Landlord's interest in
the Sale Premises is now or hereafter subject, (iii) any transfer of Landlord's
interest in the Sale Premises to a Lender, beneficiary under deed of trust or
other holder of a security interest therein or their designees by deed in lieu
of foreclosure, (iv) any transfer of the Sale Premises to any governmental or
quasi-governmental agency with power of condemnation, (v) any transfer of the
Sale Premises or any interest therein to any affiliate or holder of an interest
in Landlord, (vi) any Person to whom Corporate Property Associates 15
Incorporated transfers or sells all or substantially all of its assets, or (vii)
any transfer of the Sale Premises to any of the successors or assigns of any of
the Persons referred to in the foregoing clauses (i) through (iv).
36. Security Deposit.
(a) (i) Concurrently with the execution of this Lease, Tenant shall
deliver to Landlord a security deposit (the "Initial Security Deposit") in the
amount of One
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Million One Hundred Seventy-Seven Thousand Nine Hundred Thirty-Eight and
No/100ths Dollars ($1,177,938.00). The Initial Security Deposit shall be
increased to an amount equal to eighteen (18) months of the Basic Rent then in
effect within twenty (20) days following the date on which Tower fails to be in
compliance at any time with either of the Financial Ratio Tests.
(A) If at any time Tower shall not be in compliance with
either of the Financial Ratio Tests set forth in the following subparagraph (B),
Tenant shall increase or cause Guarantors to increase the Initial Security
Deposit in accordance with Paragraph 36(a)(i) above.
(B) Financial Ratio Tests:
Dates Interest Coverage Ratio Leverage Ratio
6/30/01 to 6/29/02 3.00 to 1.00 4.00 to 1.00
6/30/02 to 6/29/03 3.25 to 1.00 3.75 to 1.00
6/30/03 to 6/29/04 3.50 to 1.00 3.50 to 1.00
6/30/04 thereafter 3.75 to 1.00 3.25 to 1.00
(C) If any of the Interest Coverage Ratio, the Leverage
Ratio or the definitions in the Credit Agreement or any Replacement Credit
Agreement are amended or are replaced by any Replacement Credit Agreement, and
Tenant delivers to Landlord a copy of such amendment or Replacement Credit
Agreement certified by Guarantors and Tenant to be true and correct, then the
Interest Coverage Ratio and/or the Leverage Ratio and/or the relevant
definitions shall be amended accordingly.
(D) If, at any time during the Term, the Credit Agreement or
a Replacement Credit Agreement is not in effect or Tenant and Guarantor are not
subject to both of the Financial Ratio Tests then the applicable definitions in
the Credit Agreement or the Replacement Credit Agreement to which Tenant and
Guarantors were last subject shall be binding upon Tenant for the balance of the
Term.
(ii) Any Assignment Security Deposit, Level 1 Sublease Security
Deposit and/or Level 2 Sublease Security Deposit that Tenant is required to
provide pursuant to Paragraph 21(b) and/or Paragraph 21(c) shall be governed by
the provisions of this Article 36 and shall remain in full force and effect for
the balance of the Term.
(b) Any Security Deposit shall be either in the form of an irrevocable
letter of credit (the "Letter of Credit") and shall be issued by a bank
acceptable to Landlord and in form and substance reasonably satisfactory to
Landlord or in the form of cash ("Cash Security Deposit"). Any Security Deposit
required under this Paragraph 36 shall remain in full force and effect during
the Term as security for the payment by Tenant of the Rent and all other charges
or payments to be paid hereunder and the performance of the covenants and
obligations contained herein. If Tenant fails to renew any Security Deposit that
is in the form of a Letter of Credit at least thirty (30) days prior to any
expiration thereof, time being of the essence, Landlord shall have the right at
any time after the thirtieth (30th) day before such expiration date to draw on
such Letter of Credit and to deposit the proceeds of such Letter of Credit
("Proceeds Deposit") in any account for the benefit of Landlord or to declare an
Event of Default. The Cash Security
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Deposit or Proceed Deposit shall not be commingled with other funds of Landlord
or other Persons, shall bear interest at the "day-in, day-out" passbook rate of
interest, and interest thereon shall accrue for the account of Tenant.
(c) If at any time an Event of Default shall have occurred and be
continuing, Landlord shall be entitled, at its sole discretion, to draw on such
Letter of Credit or to withdraw the Cash Security Deposit or Proceeds Deposit
from the above-described account and to apply the proceeds in payment of (i) any
Rent or other charges for the payment of which Tenant shall be in default, (ii)
prepaid Basic Rent, (iii) any expense incurred by Landlord in curing any default
of Tenant, and/or (iv) any other sums due to Landlord in connection with any
default or the curing thereof, including, without limitation, any damages
incurred by Landlord by reason of such default, including any rights of Landlord
under Paragraph 23 or to do any combination of the foregoing, all in such order
or priority as Landlord shall so determine in its sole discretion and Tenant
acknowledges and agrees that such proceeds shall not constitute assets or funds
of Tenant or its estate, or be deemed to be held in trust for Tenant, but shall
be, for all purposes, the property of Landlord (or Lender, to the extent
assigned) subject, however, to subparagraph (d) below. Tenant further
acknowledges and agrees that (1) Landlord's application of the proceeds of any
Letter of Credit or Cash Security Deposit towards the payment of Basic Rent,
Additional Rent or the reduction of any damages due Landlord in accordance with
Paragraph 23 of this Lease, constitutes a fair and reasonable use of such
proceeds, and (2) the application of such proceeds by Landlord towards the
payment of Basic Rent, Additional Rent or any other sums due under this Lease
shall not constitute a cure by Tenant of the applicable default provided that an
Event of Default shall not exist if Tenant restores the Security Deposit to its
full amount within five (5) days and in accordance with the requirements of this
Paragraph 36, so that the original amount of the Security Deposit shall be again
on deposit with Landlord.
(d) At the expiration of the Term and so long as no Event of Default
exists any Security Deposit shall be returned to Tenant.
(e) Landlord shall have the right to designate Lender or any other
holder of a Mortgage as the beneficiary of any Security Deposit during the term
of the applicable Loan, and such Lender or other holder of a Mortgage shall have
all of the rights of Landlord under this Paragraph 36. Tenant covenants and
agrees to execute such agreements, consents and acknowledgments as may be
reasonably requested by Landlord from time to time to change the holder of any
Security Deposit as hereinabove provided. The holder of any Security Deposit
shall be subject to the terms of this Paragraph 36.
-48-
37. Post-Closing Obligations.
(a) On the date hereof, Tenant has deposited in an account with Lender
at the direction of Landlord the following amounts (such account, the
"Remediation Escrow") which shall secure the obligation of Tenant to complete
the Post-Closing Remediation described in Exhibit "G-1" attached hereto for the
Relevant Premises listed next to each such amount:
Bluffton Premises Remediation $ 10,500
Milan Premises Remediation $ 21,000
The Remediation Escrow shall be held and disbursed as set forth in this
Paragraph 37. The Remediation Escrow shall not be commingled with other funds of
Landlord or other Persons, shall bear interest at the "day-in, day-out" passbook
rate of interest, and interest thereon shall accrue for the account of Tenant.
(b) Tenant covenants and agrees to complete the Post Closing Repairs and
Remediation by the applicable date specified in Exhibit "G-1" and Exhibit "G-2"
for the referenced items, subject to Force Majeure and in accordance with the
relevant provisions of Paragraphs 12 and 13 of this Lease.
(c) Within thirty (30) days following the date on which Landlord
receives evidence satisfactory to Landlord that the remediation for the
applicable Related Premises has been completed (which shall include evidence of
payment in full and lien releases), Landlord shall release to Tenant the portion
of the Remediation Escrow for such remediation, provided that no Event of
Default then exists.
(d) If, at any time prior to the release in full of the Remediation
Escrow, an Event of Default shall have occurred and be continuing, Landlord
shall use the proceeds of the Remediation Escrow to the extent required to
satisfy the Post Closing Remediation and be entitled, at its sole discretion, to
apply any remaining balance in payment of any Rent or other charges which have
not been made pursuant to this Lease and any other sums due to Landlord in
connection with any default or the curing thereof, including, without
limitation, any damages incurred by Landlord by reason of such default. Tenant
acknowledges and agrees that such proceeds shall not constitute assets or funds
of Tenant or its estate, or be deemed to be held in trust for Tenant, but shall
be, for all purposes, the property of Landlord (or Lender, to the extent
assigned), subject to subparagraph (c) above. Tenant further acknowledges and
agrees that (1) Landlord's application of the proceeds of the Remediation Escrow
towards the payment of Basic Rent, Additional Rent or the reduction of any
damages due Landlord in accordance with Paragraph 23 of this Lease, constitutes
a fair and reasonable use of such proceeds, and (2) the application of such
proceeds by Landlord towards the payment of Basic Rent, Additional Rent or any
other sums due under this Lease shall not constitute a cure by Tenant of the
applicable default provided that an Event of Default shall not exist if Tenant
restores the Remediation Escrow to its full amount then required within five (5)
days and in
-49-
accordance with the requirements of this Paragraph 36, so that the then required
amount of the Remediation Escrow shall be again on deposit with Landlord.
(e) Landlord shall have the right to designate Lender or any other
holder of a Mortgage as the holder of the Remediation Escrow during the term of
the applicable Loan who shall have all of the rights and obligations of Landlord
under this Paragraph 37. Tenant covenants and agrees to execute such agreements,
consents and acknowledgments as may be requested by Landlord from time to time
to change the holder of the Remediation Escrow as hereinabove provided.
38. Miscellaneous.
(a) The paragraph headings in this Lease are used only for convenience
in finding the subject matters and are not part of this Lease or to be used in
determining the intent of the parties or otherwise interpreting this Lease.
(b) As used in this Lease, the singular shall include the plural and any
gender shall include all genders as the context requires and the following words
and phrases shall have the following meanings: (i) "including" shall mean
"including without limitation"; (ii) "provisions" shall mean "provisions, terms,
agreements, covenants and/or conditions"; (iii) "lien" shall mean "lien, charge,
encumbrance, title retention agreement, pledge, security interest, mortgage
and/or deed of trust"; (iv) "obligation" shall mean "obligation, duty,
agreement, liability, covenant and/or condition"; (v) "any of the Leased
Premises" shall mean "the Leased Premises or any part thereof or interest
therein"; (vi) "any of the Land" shall mean "the Land or any part thereof or
interest therein"; (vii) "any of the Improvements" shall mean "the Improvements
or any part thereof or interest therein"; (viii) "any of the Equipment" shall
mean "the Equipment or any part thereof or interest therein"; and (ix) "any of
the Adjoining Property" shall mean "the Adjoining Property or any part thereof
or interest therein".
(c) Any act which Landlord is permitted to perform under this Lease may
be performed at any time and from time to time by Landlord or any person or
entity designated by Landlord. Each appointment of Landlord as attorney-in-fact
for Tenant hereunder is irrevocable and coupled with an interest. Landlord shall
not unreasonably withhold or delay its consent whenever such consent is required
under this Lease, except as otherwise provided herein and except that with
respect to any assignment of this Lease or subletting of any Related Premises
not expressly permitted by the terms of this Lease, Landlord may withhold its
consent for any reason or no reason. Time is of the essence with respect to the
performance by Tenant of its obligations under this Lease.
(d) Landlord shall in no event be construed for any purpose to be a
partner, joint venturer or associate of Tenant or of any subtenant, operator,
concessionaire or licensee of Tenant with respect to any of the Leased Premises
or otherwise in the conduct of their respective businesses.
(e) This Lease and any documents which may be executed by Tenant on or
about the effective date hereof at Landlord's request constitute the entire
agreement between the parties and supersede all prior understandings and
agreements, whether written or
-50-
oral, between the parties hereto relating to the Leased Premises and the
transactions provided for herein. Landlord and Tenant are business entities
having substantial experience with the subject matter of this Lease and have
each fully participated in the negotiation and drafting of this Lease.
Accordingly, this Lease shall be construed without regard to the rule that
ambiguities in a document are to be construed against the drafter.
(f) This Lease may be modified, amended, discharged or waived only by an
agreement in writing signed by the party against whom enforcement of any such
modification, amendment, discharge or waiver is sought.
(g) The covenants of this Lease shall run with the land and bind Tenant,
its successors and assigns and all present and subsequent encumbrancers and
subtenants of any of the Leased Premises, and shall inure to the benefit of
Landlord, its successors and assigns. If there is more than one Tenant, the
obligations of each shall be joint and several.
(h) Notwithstanding any provision in this Lease to the contrary, all
Surviving Obligations of Tenant shall survive the expiration or termination of
this Lease with respect to any Related Premises.
(i) If any one or more of the provisions contained in this Lease shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Lease, but this Lease shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
(j) All exhibits attached hereto are incorporated herein as if fully set
forth.
(k) This Lease shall be governed by and construed and enforced in
accordance with the laws of the State.
-51-
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
duly executed under seal as of the day and year first above written.
WITNESSES: LANDLORD:
MODULE (DE) LIMITED PARTNERSHIP,
a Delaware limited partnership
By: SUSPENSION (DE) QRS 51-1, INC.,
general partner
-----------------------------------------
By:
----------------------------------------- ---------------------------------------------
Title: Managing Director
WITNESSES: TENANT:
TOWER AUTOMOTIVE PRODUCTS
COMPANY, INC., a Delaware corporation
-----------------------------------------
By:
----------------------------------------- ---------------------------------------------
Title: Vice President
WITNESSES: TOWER AUTOMOTIVE TOOL LLC,
a Michigan limited liability company
By: Tower Automotive Michigan Limited
Partnership, a Michigan limited partnership,
Its sole member and manager
By: Tower Automotive Services
and Technology, Inc.
a Delaware corporation,
its general partner
-----------------------------------------
By:
----------------------------------------- ---------------------------------------------
Title: Vice President
-00-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 10th day of April in the year 2002 before me, the
undersigned, personally appeared Xxxxxx X. Xxxxxx, personally known to me
or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument,
the individual(s), or the person upon behalf of which the individual(s)
acted, executed the instrument.
-------------------------------------
Notary Public
-00-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 10th day of April in the year 2002 before me, the
undersigned, personally appeared Xxxxxx X. Xxxxxx, personally known to me
or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument,
the individual(s), or the person upon behalf of which the individual(s)
acted, executed the instrument.
-------------------------------------
Notary Public
-00-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 10th day of April in the year 2002 before me, the
undersigned, personally appeared Xxxxxx X. XxXxxx, personally known to me
or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument,
the individual(s), or the person upon behalf of which the individual(s)
acted, executed the instrument.
-------------------------------------
Notary Public
-55-
EXHIBIT A
PREMISES
LEGAL DESCRIPTION
AUBURN PREMISES
The land referred to in this policy is situated in the State of Indiana,
County of De Xxxx and is described as follows:
Part of the Northeast Quarter of Section 31, Township 34 North, Range 13
East of the Second Principal Meridian in De Xxxx County, Indiana more
particularly described as follows:
Commencing at the intersection of the east right-of-way line of
Xxxxxxxxxx Road with the South line of said Northeast Quarter; thence North 88
degrees 25 minutes 29 seconds East a distance of 534.3 feet along said south
line to the Point of Beginning; thence North 01 degrees 28 minutes 20 seconds
West a distance of 982.5 feet to the Southerly right-of-way line of 00xx Xxxxxx;
thence North 88 degrees 31 minutes 40 seconds East a distance of 750.0 feet to
the northwesterly right-of-way of the Auburn Port Authority (former Consolidated
Rail Corporation); thence South 22 degrees 16 minutes 22 seconds West a distance
of 465.3 feet along said northwesterly right-of-way line; thence southwesterly a
distance of 633.2 feet along a line being an arc to the right (chord bearing
South 27 degrees, 05 minutes, 03 seconds West, Ch. 633.1, R 3760.0 feet) to the
south line of said Northeast Quarter; thence South 88 degrees 25 minutes 29
seconds West a distance of 260.0 feet to the Point of Beginning.
EXHIBIT A - 1
BLUFFTON PREMISES
Parcel 1:
Situated in the Village of Bluffton, County of Xxxxxxx, and the State of
Ohio: Being part of the South half and also a part of the Southwest part of the
North half of the SW 1/4 of Section 6 Township 2 South, Range 9 East, and more
particularly described as follows:
Commencing at a point in the South line of said Section 6, South 89
degrees ?09'45" East 330.00 feet, and North 00 degrees 46'18" East, 330.00 feet
to the True Point of Beginning. Thence North 89 degrees 09'45" West, 330.00 feet
to the West line of Section 6 (Also the centerline of county line road C.R. 15),
Thence North 00 degrees 46'18" East, 947.88 feet, to the South Right-of-Way of
the N.Y.C. & St. L. R.R.; Thence North 50 degrees 46'18" East with the said
South Right-of-Way, 147.20 feet to a point of being the P.C. of a curve to the
Right; Thence Easterly, with said curve, an arc length of 379.65 feet to the
South Right-of-Way for the A.C. & Y. R.R. (Chord for said curve is North 83
degrees 40'38" East, 370.15 feet); Thence South 84 degrees 28'42" East with the
South Right-of-Way of said A.C. & Y. R.R., 494.00 feet; Thence South 01 degrees
29'45" West, 1048.50 feet, Thence North 89 degrees 09'45' West 959.13 feet to
the True Point of Beginning.
Property Address: 00000 XX 00, Xxxxxxxx, XX
Parcel Nos: Part of 65.90470 and Part of 65.90480 (New Parcel No. to
follow)
EXHIBIT A - 2
MILAN PREMISES
Part of the Industrial Development Board of the City of Milan, property,
in Xxxxxx County,
Tennessee and being more particularly described as follows:
Beginning at an iron pin set in the west line of Telecom Drive (X.X.
Xxxxx Drive) said point being 40 feet west of the centerline of the said Telecom
Drive and being in the southerly line of the United States of America Property
as described in Instrument 107, page 42;
Thence, North 89 degrees 00 minutes West a distance of 768.59 feet to an
iron pin set;
Thence, South 01 degree 15 minutes West a distance of 594.70 feet to an
iron pin set;
Thence, South 76 degrees 14 minutes West a distance of 113.0 feet to an
iron pin set in the easterly right-of-way of the Illinois Central Gulf Railroad
(50 feet east of the centerline);
Thence, South 13 degrees 18 minutes East and along the easterly line of
the said Illinois Central Gulf Railroad a distance of 2644.09 feet (call =
2644.25) to an iron pin set in the northerly line of the Graball-Xxxxxx Road
(State Highway #187) (25 feet north of the centerline);
Thence, South 87 degrees 21 minutes East and along the northerly line of
the said Graball-Xxxxxx Road a distance of 941.63 feet to an iron pin set in the
westerly line of Telecom Drive (X.X. Xxxxx Drive) (40 feet east of the
centerline);
Thence, North 01 degree 00 minutes East a distance of 2278.00 feet to an
iron pin set;
Thence, North 23 degrees 55 minutes West a distance of 140.0 feet to an
iron pin set;
Thence, North 35 degrees 50 minutes West a distance of 196.0 to an iron
pin set;
Thence, North 51 degrees 30 minutes West a distance of 150.0 feet to an
iron pin set;
Thence, North 64 degrees 40 minutes West a distance of 195.0 feet to an
iron pin set;
Thence, North 21 degrees 48 minutes West a distance of 411.42 feet to an
iron pin set;
Thence, North 00 degrees 17 minutes West a distance of 100.0 feet to an
iron pin set;
Thence, North 89 degrees 00 minutes West a distance of 80.0 feet to the
point of beginning. (Containing 3,840,011.7 sq. ft./ 88.15 acres) Less and
Except the Right-of-Way for Telecom Drive (X.X. Xxxxx Drive) pursuant to that
Dedication to the State of Tennessee pursuant to that Warranty Deed recorded
June 25, 1979 in Book 166, Page 565, among the land records for Xxxxxx County,
Tennessee.
More particularly described according to that survey prepared by Xxxxx
Engineering Co., Inc. dated March 11, 2002, as follows:
EXHIBIT A - 3
Part of the Industrial Development Board of the City of Milan property
less and except that portion of Telecom Drive dedicated to the State of
Tennessee for the benefit the Department of Highways as described in Book 166,
Page 565 in Milan, Xxxxxx County, Tennessee and being more particularly
described as follows:
Beginning at an iron pin set in the west line of Telecom Drive (X.X.
Xxxxx Drive) said point being 40 feet west of the centerline of the said Telecom
Drive and being in the southerly line of the United States of America Property
as described in Instrument 107, page 42;
Thence, North 89 degrees 00 minutes West a distance of 768.59 feet to an
iron pin set;
Thence, South 01 degree 15 minutes West a distance of 594.70 feet to an
iron pin set;
Thence, South 76 degrees 14 minutes West a distance of 113.0 feet to an
iron pin set in the easterly right-of-way of the Illinois Central Gulf Railroad
(50 feet east of the centerline);
Thence, South 13 degrees 18 minutes East and along the easterly line of
the said Illinois Central Gulf Railroad a distance of 2644.09 feet (call =
2644.25) to an iron pin set in the northerly line of the Graball-Xxxxxx Road
(State Highway #187) (25 feet north of the centerline);
Thence, South 87 degrees 21 minutes East and along the northerly line of
the said Graball-Xxxxxx Road a distance of 941.63 feet to an iron pin set in the
westerly line of Telecom Drive (X.X. Xxxxx Drive) (40 feet east of the
centerline);
Thence, North 01 degree 00 minutes East a distance of 40.00 feet to an
iron pin set in the west Right-of-Way line of Telecom Drive as described in Book
166, Page 565;
Thence northwardly with the west Right-of-Way line of Telecom Drive as
described in Book 166, Page 565 the following seven courses:
Thence, North 30 degrees 30 minutes 00 Seconds West a distance of 30.00
feet to a point;
Thence, North 13 degrees 19 minutes 05 seconds West a distance of 260.00
feet to a point;
Thence, North 01 degrees 00 minutes 00 Seconds East a distance of
1856.00 to a point;
Thence, Northwestwardly along a curve to the left having a radius of
384.41 feet, delta 54 Degrees 13 Minutes 43 Seconds West, arc length 363.83
feet, tangent 196.83 feet, chord North 26 Degrees 32 Minutes 56 Seconds West
350.40 feet to a point;
Thence, North 55 degrees 30 minutes 00 seconds West a distance of 315.00
feet to a point of curvature;
Thence, Northwestwardly along a curve to the left having a radius of
464.41 feet, delta 22 degrees 49 minutes 27 Seconds, arc length 185.00 feet,
tangent 93.74 feet, chord North 44 Degrees 05 Minutes 17 Seconds West 183.78
feet to a point on curve;
Thence, North 01 degrees 24 minutes 00 Seconds west a distance of 325.00
to a point.
EXHIBIT A - 4
Thence, North 00 degrees 17 minutes 00 seconds West a distance of 100.00
feet to a
Thence, North 89 degrees 00 minutes West a distance of 80.0 feet to the
point of beginning and containing 3,567,716.4 sq. ft./ 81.90 acres.
EXHIBIT A - 5
EXHIBIT B
MACHINERY AND EQUIPMENT
All fixtures, machinery, apparatus, equipment, fittings and appliances of every
kind and nature whatsoever now or hereafter affixed or attached to or installed
in any of the Leased Premises (except as hereafter provided), including all
electrical, anti-pollution, heating, lighting (including hanging fluorescent
lighting), incinerating, power, air cooling, air conditioning, humidification,
sprinkling, plumbing, lifting, cleaning, fire prevention, fire extinguishing and
ventilating systems, devices and machinery and all engines, pipes, pumps, tanks
(including exchange tanks and fuel storage tanks), motors, conduits, ducts,
steam circulation coils, blowers, steam lines, compressors, oil burners,
boilers, doors, windows, loading platforms, lavatory facilities, stairwells,
fencing (including cyclone fencing), passenger and freight elevators, overhead
cranes and garage units, together with all additions thereto, substitutions
therefor and replacements thereof required or permitted by this Lease, but
excluding all of Tenant's Personal Property.
EXHIBIT B - 1
EXHIBIT C
PERMITTED ENCUMBRANCES
AUBURN PREMISES
1. All assessments and taxes for the year 2001 payable in 2002 and all
subsequent years, a lien, not yet due and payable.
2. Reservation of an easement for an existing switch track upon and
across the northeast corner of the subject real estate as set out in a Warranty
Deed from Xxxxxx Tire and Rubber Company Employees' Retirement Trust to Auburn
Industrial Park, Inc., dated June 19, 1972 in Deed Record 152 at page 369, and
as shown on survey prepared by Xxxx X. Xxxxxxx, L.S., P.C., dated January 4,
2002 last revised March 27, 2002, Job #5046.
3. Release of Easement and Grant of New Easement in favor of Northern
Indiana Fuel and Light Company, Inc., dated May 16, 1985, recorded May 17, 1985
in Deed Record 182 at page 145, and as shown on survey prepared by Xxxx X.
Xxxxxxx, L.S., P.C., dated January 4, 2002 last revised March 27, 2002, Job
#5046.
4. Grant of Easement for utilities from X.X. Tower Corporation to the
City of Auburn, dated December 5, 1985, recorded December 5, 1985 in Deed Record
183 at page 393, and as shown on survey prepared by Xxxx X. Xxxxxxx, L.S., P.C.,
dated January 4, 2002 last revised March 27, 2002, Job #5046.
5. Survey prepared by Xxxx X. Xxxxxxx, L.S., P.C., dated January 4, 2002
last revised March 27, 2002, Job #5046 shows the following variations or
mislocations:
The Xxxxx Xxxxx Drain #219 area located in the southerly portion of subject
premises.
Exhibit C - 1
BLUFFTON PREMISES
1. Part of Parcel Number 65.90470: Taxes and assessments for the second
half of 2001, a lien, not yet due or payable. Part of Parcel Number 65.90480:
Taxes and assessments for the second half of 2001, a lien, not yet due or
payable. (Parcel Nos. to be corrected)
2. Easements to the Village of Bluffton recorded in O.R. Volume 1458,
Page 184; Xxxxxxx County Records and as shown on survey.
3. Annexation to Village of Bluffton from Xxxxxx-NI Industries, Inc.
filed in O.R. Volume 534, Page 488; Xxxxxxx County Records, as noted on survey
as blanket in nature.
4. Easements to Ohio Power Company recorded in O.R. Volume 576, Page
690; Xxxxxxx County records and as shown on survey.
5. Right of way easement to Trans-Ohio Pipeline Company, an Ohio
corporation recorded in O.R. Volume 374, Page 373, re-recorded in O.R. Volume
377, Page 361; Xxxxxxx County Records. Conveyance of Right of Way easement to
Columbia LNG Corporation recorded in Volume 388, Page 1103; Xxxxxxx County
Records; and Conveyance of Right of Way easement to Buckeye Pipe Line Company
recorded in Volume 422, Page 393; Xxxxxxx County Records, as noted on survey as
blanket in nature.
6. Right of way to Buckeye Pipe Line Company recorded in O.R. Volume
322, Page 207; Xxxxxxx County Records; Assignment of Right of way to Buckeye
Pipe Line Company recorded in Volume 967, Page 253; Xxxxxxx County Records;
Partially released Right of way recorded in Volume 352, Page 437; Xxxxxxx County
Records and as shown on survey.
7. Right of way to United Telephone Company of Ohio recorded in O.R.
Volume 338, Page 605; Xxxxxxx County records, as noted on survey as blanket in
nature.
8. Easements to the Ohio Power Company recorded in O.R. Volume 256, Page
15; Xxxxxxx County records.
9. Terms and conditions of that certain Agreement with the Standard Oil
Company recorded in Volume 341, page 190 related to pipeline recorded in O.R.
Volume 201, Page 626; Xxxxxxx County Records, as noted in survey as blanket in
nature.
10. Right of way to Buckeye Pipe Line Co. recorded in O.R. Volume 204,
Page 524; Xxxxxxx County Records; Partial Assignment Right of way to Mid-Valley
Pipeline Company recorded in Volume 404, Page 1185; Xxxxxxx County Records;
Partial Assignment of Right of way to Marathon Pipe Line Company recorded in
Volume 404, Page 1196; Xxxxxxx County Records, as noted on survey.
11. Easements to United Telephone Company of Ohio recorded in Volume
792, Page 200; Xxxxxxx County records and as shown on survey.
12. Survey prepared by Xxxx X. Xxxxxxxx for International Land Services,
Inc., dated March 19, 2002, Job No. 00-00-000:001 shows the following variations
or mislocations:
Exhibit C - 2
A. overhead utility lines, power poles located along the easterly
portion of subject premises, also being within the right of way of County Road
15, without the benefit of a recorded easement; and
B. sanitary sewer lines located in the easterly portion of subject
premises.
13. Rights of others for ingress and egress purposes to County Road 15
traversing the easterly portion of subject premises.
Exhibit C - 3
MILAN PREMISES
1. Taxes for the year 2002 and subsequent years, a lien not yet due and
payable.
2. Subject to easements in favor of Bellsouth Telecommunications for the
installation, maintenance and operation of systems of communication and
facilities as recorded in Book 501, page 12, and Book 501, page 656, among the
land records for Xxxxxx County, Tennessee and as shown on survey.
3. Subject to an easement executed by the Industrial Development Board
of the City of Milan and Tower Automotive Products Company, formerly X.X. Xxxxx
Corporation, in favor of the City of Milan, for the construction, operation and
maintenance of a tower for transmission of an audio emergency warning signal and
siren, as dated July 7, 1999 and recorded in Book 583, pages 184-188, among the
land records for Xxxxxx County, Tennessee and as shown on survey.
4. Subject to the possible right of the Illinois Central Gulf Railroad
to extend its rights of way to the full charter width, as excepted in the
current vesting deed of record in Book 172, pages 310-313, among the land
records for Xxxxxx County, Tennessee.
5. Survey prepared by Xxxxx Engineering Co. Inc., dated March 11, 2002,
Job No. 02S021 shows the following variations or mislocations:
a. water main, drainage, and corrugated metal pipes located on insured
premises without the benefit of a recorded easement;
b. sanitary sewer lines along State Road 187, also known as Graball -
Xxxxxx Road; and along Telecom Drive/X.X. Xxxxx Drive, without the benefit of a
recorded easement;
c. overhead power lines and power poles; guy wires, located throughout
subject premises;
d. high pressure gas line located along the westerly and northerly
portion of subject premises;
e. various railroad spur tracks located throughout subject premises; and
two (2) spur tracks extend into western portion of building in two (2) places;
f. rights of others for ingress and egress purposes in and to and the
use of Telecom Drive right of way as same affects the southeasterly portion of
subject property, without the benefit of a recorded easement.
g. financing Statement filed and recorded July 25, 2000 in Book 4388
Page 2364 as No. F28-589 wherein Tower Automotive Products Company appears as
debtor and Transamerica Equipment Financial Services Corporation appears as
secured party. (For Equipment)
h. conveyance of Lease and of Personal Property dated December 11, 1990
and recorded in Book 3607 Page 1229 made by and between X.X. Xxxxx Corporation,
as Lessee, and
Exhibit C - 4
The CIT Group/Equipment Financing, Inc., as Lessor. Said Lease is a personal
property lease affected by fixture filing in Book 3606 pg 2174, as continued and
amended.
6. Perpetual Easement for Highway Purposes granted to The State of
Tennessee, Department of Highways dated February 4, 1971, recorded September 9,
1971 in Book 46, page 560, among the land records for Xxxxxx County, Tennessee,
and as shown on survey.
Exhibit C - 5
EXHIBIT D
BASIC RENT AND ADDITIONAL BASIC RENT PAYMENTS
1. Basic Rent; Additional Basic Rent.
(a) Subject to the adjustments provided for in Paragraphs 2, 3 and 4
below, basic rent ("Basic Rent") payable in respect of the term for each annual
period shall be $2,355,875 per annum, payable quarterly in advance on each Basic
Rent Payment Date, in equal installments of $588,968.75 each. Pro rata Basic
Rent for the period from the date hereof through the twenty-fourth day of April,
2002 shall be paid on the date hereof, and pro rata Basic Rent for the period
from the twenty-fifth day of the last month of the Term through the last day of
the last month of the Term shall be paid with the final quarterly installment of
Basic Rent.
(b) On each of April 25, 2002, April 25, 2003 and April 25, 2004,
Landlord shall credit a portion of the Prepaid Rent in the following amounts as
payment in full of the Additional Basic Rent due and owing for the succeeding
twelve (12) month period:
April 25, 2002 $403,719
April 25, 2003 $605,578
April 25, 2004 $806,618
2. CPI Adjustments to Basic Rent. The Basic Rent shall be subject to
adjustment, in the manner hereinafter set forth, for increases in the index
known as United States Department of Labor, Bureau of Labor Statistics, Consumer
Price Index, All Urban Consumers, United States City Average, All Items,
(1982-84=100) ("CPI") or the successor index that most closely approximates the
CPI. If the CPI shall be discontinued with no successor or comparable successor
index, Landlord and Tenant shall attempt to agree upon a substitute index or
formula, but if they are unable to so agree, then the matter shall be determined
by arbitration in accordance with the rules of the American Arbitration
Association then prevailing in New York City. Any decision or award resulting
from such arbitration shall be final and binding upon Landlord and Tenant and
judgment thereon may be entered in any court of competent jurisdiction. In no
event will the Basic Rent as adjusted by the CPI adjustment be less than the
Basic Rent in effect for the three (3) year period immediately preceding such
adjustment.
3. Effective Dates of CPI Adjustments. Basic Rent shall not be adjusted to
reflect changes in the CPI until the third (3rd) anniversary of the Basic Rent
Payment Date on which the first full quarterly installment of Basic Rent shall
be due and payable (the "First Full Basic Rent Payment Date"). As of the third
(3rd) anniversary of the First Full Basic Rent Payment Date and thereafter on
the sixth (6th), ninth (9th), twelfth (12th), fifteenth (15th) eighteenth (18th)
and, if the initial Term is extended, on the twenty-first (21st), twenty-fourth
(24th), twenty-seventh (27th), thirtieth (30th), thirty-third (33rd),
thirty-sixth (36th) and thirty-ninth (39th) anniversaries of the First Full
Basic Rent Payment Date, Basic Rent shall be adjusted to reflect increases in
the CPI during the most recent three (3) year period immediately
EXHIBIT D - 1
preceding each of the foregoing dates (each such date being hereinafter referred
to as the "Basic Rent Adjustment Date").
4. Method of Adjustment for CPI Adjustment.
(a) As of each Basic Rent Adjustment Date when the average CPI
determined in clause (i) below exceeds the Beginning CPI (as defined in this
Paragraph 4(a)), the Basic Rent in effect immediately prior to the applicable
Basic Rent Adjustment Date shall be multiplied by a fraction, the numerator of
which shall be the difference between (i) the average CPI for the three (3) most
recent calendar months (the "Prior Months") ending prior to such Basic Rent
Adjustment Date for which the CPI has been published on or before the
forty-fifth (45th) day preceding such Basic Rent Adjustment Date and (ii) the
Beginning CPI, and the denominator of which shall be the Beginning CPI. The
product of such multiplication shall be added to the Basic Rent in effect
immediately prior to such Basic Rent Adjustment Date. As used herein, "Beginning
CPI" shall mean the average CPI for the three (3) calendar months corresponding
to the Prior Months, but occurring three (3) years earlier. If the average CPI
determined in clause (i) is the same or less than the Beginning CPI, the Basic
Rent will remain the same for the ensuing three (3) year period, subject,
however, to adjustment for Fair Market Rental Value as of the beginning of each
effective Renewal Term..
(b) Effective as of a given Basic Rent Adjustment Date, Basic Rent
payable under this Lease until the next succeeding Basic Rent Adjustment Date
shall be the Basic Rent in effect after the adjustment provided for as of such
Basic Rent Adjustment Date.
(c) Notice of the new annual Basic Rent shall be delivered to Tenant on
or before the tenth (10th) day preceding each Basic Rent Adjustment Date, but
any failure to do so by Landlord shall not be or be deemed to be a waiver by
Landlord of Landlord's rights to collect such sums. Tenant shall pay to
Landlord, within ten (10) days after a notice of the new annual Basic Rent is
delivered to Tenant, all amounts due from Tenant, but unpaid, because the stated
amount as set forth above was not delivered to Tenant at least ten (10) days
preceding the Basic Rent Adjustment Date in question.
5. Basic Rent During Each Renewal Term. During each Renewal Term, annual Basic
Rent for the Renewal Term shall be an amount equal to the Fair Market Rental
Value as of the first day of the applicable Renewal Term, determined in
accordance with Paragraph 29 of this Lease payable, shall be subject to
increases as provided in the foregoing Paragraphs 2, 3 and 4 and shall be
payable in equal quarterly installments on each Basic Rent Payment Date.
EXHIBIT D - 2
EXHIBIT E
ACQUISITION COST
Auburn, IN $ 4,502,104
Bluffton, OH $ 4,825,064
Milan, TN $13,569,936
-----------
$22,897,104
===========
EXHIBIT E - 1
EXHIBIT F
PREMISES PERCENTAGE ALLOCATION OF BASIC RENT
AND
ADDITIONAL BASIC RENT
Auburn, IN 19.95%
Bluffton, OH 17.71%
Milan, TN 62.34%
100.00%
If any Related Premises ceases to be subject to this Lease, the percentage shown
on this Exhibit F for each of the Related Premises which remains subject to this
Lease shall be adjusted proportionately so that the total of such percentages
shall be 100%.
EXHIBIT F - 1
EXHIBIT G-1
TENANT'S POST-CLOSING ENVIRONMENTAL OBLIGATIONS
Tenant shall perform the following actions and provide Landlord with a
written status report, on or before the 10th day of each month, with the first
report due on or before May 10, 2002 until the activities listed below are
completed to the reasonable satisfaction of Landlord and Lender. Tenant shall
reimburse Landlord for all of Landlord's reasonable costs, including reasonable
attorney fees, and reasonable inspection fees (if any) of Lender not to exceed
$500 per inspection incurred by Landlord in reviewing Tenant's progress in
completing the activities listed below.
A. AUBURN PREMISES
1. Outdoor Scrap Bays - On or before June 30, 2002,
Tenant shall have steamed clean or otherwise cleaned the lubricating/drawing
oils from the concrete floor in the area of the outdoor scrap bays under the
scrap metal conveyors and shall have properly disposed of any residual
lubricating/drawing oils and cleaning fluids. Tenant shall also have provided
secondary containment under the scrap metal conveyors which is sufficient to
prevent future drippings of oils from the scrap metal conveyors to the concrete
floor.
B. BLUFFTON PREMISES
1. Asbestos Operations and Maintenance Plan - On or
before June 30, 2002, Tenant shall have prepared an asbestos operations and
maintenance ("O&M") plan in compliance with 29 C.F.R. Section 1910.1001 and any
applicable Ohio state regulations. Such plan shall list a representative of
Tenant as the asbestos project manager for compliance with asbestos regulations
at the property. The O&M plan shall provide that all obligations relating to the
identification of asbestos-containing materials, notification to employees, and
other requirements of 29 C.F.R. Section 1910.1001 shall be the responsibility of
and undertaken by Tenant. Tenant shall provide Landlord with satisfactory proof
that such asbestos O&M plan has been prepared and is on-site on or before June
30, 2002.
2. Removal of Contaminated Soils - On or before
September 30, 2002 (subject to Force Majeure):
(a) Tenant shall have removed the oil contaminated soil
from the approximately 300 square foot area where machinery and other objects
are currently stored outside the north
EXHIBIT G-1- Page 1
side of the existing building and shall have properly disposed of such soil at
an approved off-site location. A minimum of four (4) confirmatory soil samples
shall be taken by Tenant and analyzed for SVOCs and petroleum hydrocarbons to
document that such oil contaminated soil has been removed and Tenant shall
backfill the area with appropriate clean fill material.
(b) Tenant shall have removed the oil contaminated soil
from the approximately 00 xxxx xxxxxx xxxx outside the south side of the
building where soils have been impacted from leaking machinery stored in this
location and shall have properly disposed of such soil at an approved off-site
location. A confirmatory soil sample shall be taken by Tenant and analyzed for
SVOCs and petroleum hydrocarbons to document that such oil contaminated soil has
been removed. Tenant shall backfill the excavated area with appropriate clean
fill material.
(c) Tenant shall have removed contaminated soil from the
approximately 00 xxxx xxxxxx xxxx adjoining the east side of the building where
soils have been impacted from spillage from loading detergent into a pipe
protruding from the building wall and shall have properly disposed of such soil
at an approved off-site location. A confirmatory soil sample shall be taken by
Tenant to document that such contaminated soil has been removed. Tenant shall
backfill the excavated area with appropriate clean fill material.
(d) Tenant shall provide a written report to Landlord
documenting, to Landlord's reasonable satisfaction, the removal and disposal of
these contaminated soils.
C. MILAN PREMISES
1. Asbestos Operations and Maintenance Plan - On or
before June 30, 2002, Tenant shall have prepared an asbestos O&M plan in
compliance with 29 C.F.R. Section 1910.1001 and any applicable Tennessee state
regulations. Such plan shall list a representative of Tenant as the asbestos
project manager for compliance with asbestos regulations at the property. The
O&M plan shall provide that all obligations relating to the identification of
asbestos-containing materials, notification to employees, and other requirements
of 29 C.F.R. Section 1910.1001 shall be the responsibility of and undertaken by
Tenant. Tenant shall provide Landlord with satisfactory proof that such asbestos
O&M plan has been prepared and is on-site Landlord on or before June 30, 2002.
EXHIBIT G-1- Page 2
2. Sealing of Wall/Flooring Interfaces - On or before
June 30, 2002, Tenant shall have sealed the interface between the wall and floor
in the fire system pump room and the interface between the upper metal portion
of the wall and the lower concrete portion in the auxiliary building located
adjacent to the northwest corner of the main building so that spills or releases
of materials can not enter the environment.
3. Capping of Drain - On or before May 1, 2002, Tenant
shall cap the drain line running from the drum storage area through the outside
wall of the drum storage building so that any oils spilled from the storage drum
area can not enter the drain and be released into the environment.
4.Removal of Stained Soils - On or before July 31, 2002;
(a) Tenant shall have removed the impacted soil in the
fork lift refueling area in the vicinity of soil sample B-1 and a minimum of
five (5) confirmatory soil samples shall be taken by Tenant and analyzed for
SVOCs and petroleum hydrocarbons to document that such impacted soil has been
removed. If required, the Tenant shall backfill the area with appropriate clean
fill.
(b) Tenant shall have removed the impacted sediment from
the three (3) stormwater drainage ditches as recommended in the April, 2002
Phase II Limited Subsurface Investigation prepared by Environmental Strategies
Corporation and shall have properly disposed of such impacted sediment at an
approved off-site location. A minimum of one (1) confirmatory soil sample per
100 feet shall be taken by Tenant in each stormwater drainage ditch and analyzed
for SVOCs and petroleum hydrocarbons to document that such impacted sediment has
been removed. If standing water is present after excavation, a minimum of two
water samples shall be taken by Tenant in each stormwater drainage ditch and
analyzed for SVOCs and petroleum hydrocarbons. If required, Tenant shall
backfill the excavated areas with appropriate clean fill materials.
(c) Tenant shall provide a written report to Landlord
documenting, to Landlord's reasonable satisfaction, the removal and disposal of
the impacted soils and sediments.
5. Best Management Practices Plan - Railroad Spurs - On or
before July 31, 2002, Tenant shall remove all equipment and materials stored
along the railroad spurs or provide appropriate secondary containment so that
the presence of equipment and other stored materials does not result in the
release of oil or other Hazardous Substances along the railroad spurs. Tenant
shall provide Landlord with a
EXHIBIT G-1- Page 3
best management practices plan by August 31, 2002 which describes the procedures
which Tenant will follow to insure that future storage of equipment and
materials in the vicinity of either railroad spur is conducted in a manner to
prevent any releases of oil or other Hazardous Substances in the vicinity of the
railroad spurs.
D. REPORTING AND NOTIFICATION
1. Monthly status reports and all other written reports of
submissions required to be made by Tenant in accordance with the provisions of
this Exhibit shall be addressed to:
Xxxxx Xxxxxx
Asset Management Department
W. P. Xxxxx & Co., Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxxx@xxxxxxx.xxx
with a second copy to:
Xxxxx X. Xxxxxx, Esquire
Xxxx Xxxxx LLP
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxxxx@xxxxxxxxx.xxx
EXHIBIT G-1- Page 4
EXHIBIT G-2
POST-CLOSING REPAIRS
All repairs are as described in Property Condition Assessments prepared
by Property Solutions Incorporated, copies of which have been provided to
Tenant. All repairs shall be completed by August 15, 2002, subject to Force
Majeure.
Auburn Premises Project No. 20020498
ITEM QUANTITY UNIT IMMEDIATE
COST COST
---- -------- ---- ---------
Repair heavily cracked and spalled concrete 1,000 sq.ft. $8.00 $8,000
Repair or replace damaged asphalt paving 500 sq.ft. $2.50 $1,250
Add seven handicapped accessible parking 7 $ 150 $1,050
spaces for ADA compliance
Provide required handrails at the handicapped Lump sum Lump sum $ 750
accessible ramp
-------
TOTAL COST: $11,050
Bluffton Premises Project No. 20020494
ITEM QUANTITY UNIT IMMEDIATE
COST COST
---- -------- ---- ---------
Replace damaged skylights on rooftops Six $400 $2,400
------
TOTAL COST: $2,400
EXHIBIT G-2 - Page 1
Milan Premises Project No. 20020494
ITEM NO. DESCRIPTION EST. COST
-------- ----------- ---------
1. Repair the reported roof leak(s). $1,000
2. Install 11 additional handicapped accessible parking spaces at $3,000
the subject property, and ensure that at least two of these are
van accessible spaces.
---------
Total $4,000
EXHIBIT G-2- Page 2
