EXHIBIT 10.35
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INDUSTRIAL LEASE
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Basic Lease Information
Date: April 18, 2003
Landlord: Cabot Acquisition, LLC, a Delaware limited liability company.
Tenant: Xxxx X. Xxxxxxxxxx & Son, Inc. a Delaware corporation
Guarantor: N/A
Premises (section 1.1): The building depicted on Exhibit A,
containing approximately 230,768 square feet (more or less) of
building area, the street address of which is known as 0000
Xxxxxx Xxxxxx, Xxx Xxxxx Xxxxxxx, Xxxxxxxx.
Property (section 1.1): The land and the building(s) outlined in
Exhibit A, containing approximately 230,768 square feet (more or
less) of total building area, located in Elk Grove Village,
Illinois and known as 0000 Xxxxxx Xxxxxx.
Term (section 2.1): Five (5) years
Commencement Date (section 2.1): April 18, 2003
Expiration Date (section 2.1): March 31, 2008
Monthly Base Rent (dollars per month) (section 3.1(a)):
April 1, 2003 to March 31, 2004 $57,692.00
April 1, 2004 to March 31, 2005 $59,615.07
April 1, 2005 to March 31, 2006 $61,538.13
April 1, 2006 to March 31, 2007 $63,461.20
April 1, 2007 to March 31, 2008 $65,384.27
Tenant's Percentage Share (section 3.1(b)): 100%
Initial Additional Monthly Rent Estimate (dollars per month)
(section 3.2(a)): $26,922.93
Security Deposit (section 3.3): $84,614.93
Rent Payment Address (section 3.7): 00000 Xxxxxxxxxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000
Permitted Use of the Premises (section 4.1): Warehouse and
Distribution of Non-Perishable Food Products.
Landlord's Address (section 14.1): Cabot Acquisition, LLC, c/o
LaSalle Investment Management, Inc., 000 Xxxx Xxxxxxxx Xxxxx,
00xx Xxxxx; Xxxxxxx, Xxxxxxxx 00000; Attention: Xxxxxx Xxxxxxxxx,
and a copy simultaneously to LaSalle Investment Management, Inc.;
00 Xxxx Xxxxx Xxxxxx; Xxxxxxxx, Xxxx 00000; Attention: Xxxxxxx
Xxxxxxxxx; and a copy simultaneously to Xxxxxxxx Xxxx Company,
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx #000, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: CalEast Senior Property Manager.
Tenant's Address (section 14.1): Xxxx X. Xxxxxxxxxx & Son, Inc., 0000
Xxxxx Xxxx, Xxx Xxxxx Xxxxxxx, Xxxxxxxx 00000
Guarantor's Address (section 14.1):N/A
Real Estate Broker(s) (section 15.5): Xxxxxxxx Xxxx Company (Landlord
Representative) and Colliers Xxxxxxx & Xxxxxxxxxx, Inc.
(Tenant Representative)
Exhibit A - Plan(s) Outlining the Premises and the Property
Exhibit B - Description of Landlord's work
Exhibit C - Form of Memorandum Confirming Term
Exhibit D - Additional Maintenance
Other Attachments (if any): None
The foregoing Basic Lease Information is incorporated in and made
a part of the Lease to which it is attached. If there is any conflict
between the Basic Lease Information and the Lease, the Basic Lease
Information shall control.
XXXX X. XXXXXXXXXX & SON, INC.
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXXX XXXXX ACQUISITION, LLC, a Delaware
------------------------ limited liability company
Title: Chief Financial Officer
By: CALEAST INDUSTRIAL INVESTORS, LLC,
Date: April 18, 2003 a California limited liability
company, it sole member
By: LASALLE INVESTMENT MANAGEMENT, INC.,
a Maryland corporation, Manager
By: /s/ XXXXXX XXXXXXXX
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Title: Vice President
Date: April 18, 2003
TABLE OF CONTENTS
Page
ARTICLE 1 Premises 1
1.1 Lease of Premises 1
ARTICLE 2 Term 1
2.1 Term of Lease 1
2.2 Improvements 1
2.3 Adjustment of Commencement Date 2
2.4 Holding Over 2
ARTICLE 3 Rent 2
3.1 Base Rent and Additional Rent 2
3.2 Procedures 3
3.3 Security Deposit 4
3.4 Late Payment 4
3.5 Other Taxes Payable by Tenant 4
3.6 Certain Definitions 4
3.7 Rent Payment Address 5
3.8 No Accord and Satisfaction 5
ARTICLE 4 Use of the Premises 5
4.1 Permitted Use 5
4.2 Environmental Definitions 6
4.3 Environmental Requirements 6
4.4 Compliance With Law 7
4.5 Rules and Regulations 7
4.6 Entry by Landlord 7
ARTICLE 5 Utilities and Services 7
5.1 Tenant's Responsibilities 7
ARTICLE 6 Maintenance and Repairs 8
6.1 Obligations of Landlord 8
6.2 Obligations of Tenant 8
ARTICLE 7 Alteration of the Premises 9
7.1 No Alterations by Tenant 9
7.2 Landlord's Property 9
ARTICLE 8 Indemnification and Insurance 10
8.1 Damage or Injury 10
8.2 Insurance Coverages and Amounts 10
8.3 Insurance Requirements 10
8.4 Subrogation 11
8.5 Landlord Insurance Requirements 11
ARTICLE 9 Assignment or Sublease 11
9.1 Prohibition 11
9.2 Landlord's Consent or Termination 12
9.3 Completion 12
9.4 Tenant Not Released 12
ARTICLE 10 Events of Default and Remedies 13
10.1 Default by Tenant 13
10.2 Termination 13
10.3 Continuation 14
10.4 Remedies Cumulative 14
10.5 Tenant's Primary Duty 14
10.6 Abandoned Property 14
10.7 Landlord Default 14
10.8 Landlord's Lien 14
ARTICLE 11 Damage or Destruction 15
11.1 Restoration 15
11.2 Termination of Lease 15
ARTICLE 12 Eminent Domain 15
12.1 Condemnation 15
12.2 Award 16
12.3 Temporary Use 16
12.4 Definition of Taking 16
ARTICLE 13 Subordination and Sale 16
13.1 Subordination 16
13.2 Sale of the Property 16
13.3 Estoppel Certificate 16
ARTICLE 14 Notices 17
14.1 Method 17
ARTICLE 15 Miscellaneous 17
15.1 General 17
15.2 No Waiver 17
15.3 Attorneys' Fees 18
15.4 Exhibits 18
15.5 Broker(s) 18
15.6 Waivers of Jury Trial and Certain Damages 18
15.7 Entire Agreement 18
15.8 Termination Option. 18
EXHIBIT A PLAN(S) OUTLINING THE PREMISES AND THE PROPERTY
EXHIBIT B DESCRIPTION OF LANDLORD'S WORK
EXHIBIT C MEMORANDUM CONFIRMING TERM
EXHIBIT D ADDITIONAL MAINTENANCE
INDUSTRIAL LEASE
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THIS LEASE, made as of the date specified in the Basic Lease
Information, by and between CABOT ACQUISITION, LLC, a Delaware limited
liability company ("Landlord"), and XXXX X. XXXXXXXXXX & SON, INC., a
Delaware corporation ("Tenant"),
W I T N E S S E T H:
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ARTICLE 1
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Premises
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1.1 Lease of Premises. Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, for the term and subject to the
covenants hereinafter set forth, to all of which Landlord and Tenant
hereby agree, the real property specified in the Basic Lease
Information (the "Property"), together with all improvements located
thereon (the improvements, together with the Property are sometimes
referred to herein as the "Premises"), all as outlined on the plan(s)
attached hereto as Exhibit A. The Property includes the land and the
building(s) in which the Premises is located. Landlord and Tenant
agree that, for purposes of this Lease, the Premises and the Property,
respectively, each contains the number of square feet of the building
area specified in the Basic Lease Information and Tenant's Percentage
Share specified in the Basic Lease Information is the ratio of such
building area of the Premises to such building area of the Property.
ARTICLE 2
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Term
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2.1 Term of Lease. The term of this Lease shall be the term
specified in the Basic Lease Information, which shall commence on the
commencement date specified in the Basic Lease Information (the
"Commencement Date") and, unless sooner terminated as hereinafter
provided, shall end on the expiration date specified in the Basic
Lease Information or as may be sooner terminated pursuant to Section
15.8 hereunder (the "Expiration Date"). If Landlord, for any reason
whatsoever, does not deliver possession of the Premises to Tenant on
the Commencement Date, this Lease shall not be void or voidable and
Landlord shall not be liable to Tenant for any loss or damage
resulting therefrom, but, in such event, the Commencement Date shall
be postponed until the date on which Landlord delivers possession of
the Premises to Tenant and the Expiration Date shall be extended for
an equal period (subject to adjustment in accordance with section 2.3
hereof). Tenant acknowledges that Xxxxxx has inspected the Premises
and the Property or has had the Premises and the Property inspected by
professional consultants retained by Tenant, Tenant is familiar with
the condition of the Premises and the Property, the Premises and the
Property are suitable for Tenant's purposes, and, except for the
improvements to be constructed or installed by Landlord pursuant to
Exhibit B (if any), and as otherwise required under this Lease, the
condition of the Premises and the Property is acceptable to Tenant.
Except for the improvements to be constructed or installed by Landlord
pursuant to Exhibit B (if any), Landlord shall have no obligation to
construct or install any improvements in the Premises or the Property
or to remodel, renovate, recondition, alter or improve the Premises or
the Property in any manner, and Tenant shall accept the Premises "as
is" on the Commencement Date. Xxxxxx agrees that upon termination of
this Lease, Xxxxxx shall surrender the Premises in the same or better
condition as of the Commencement Date, normal wear and tear excepted.
Landlord and Tenant expressly agree that there are and shall be no
implied warranties of merchantability, habitability, fitness, for a
particular purpose or of any other kind arising out of this Lease and
there are no warranties which extend beyond those expressly set forth
in this Lease. Notwithstanding the foregoing, Landlord acknowledges
that it shall deliver the mechanical and electrical systems of the
Building, including the HVAC system, lighting and dock equipment in
good working order and shall deliver the Premises in a broom clean
condition.
2.2 Improvements. This section 2.2 shall apply only if
Landlord is required to construct or install improvements in the
Premises or the Property pursuant to Exhibit B (the "Landlord's
Improvements"). Landlord shall construct or install the improvements
to be constructed or installed by Landlord pursuant to Exhibit B.
Landlord shall deliver possession of the Premises to Tenant on the
Commencement Date. If however on the date listed in the Basic Lease
Information as the Commencement Date, the Landlord's Improvements are
not substantially completed then and in that case the Commencement
Date shall be extended until such date the Landlord's Improvements are
substantially completed and possession of the Premises is delivered to
Tenant. All references in this Lease to the Commencement Date shall
be deemed to include said additional time. "Substantial Completion"
for the purposes of this Section 2.2 shall mean that the Landlord's
Improvements are sufficiently complete, substantially in accordance
with the plans and specifications, so the improvements may be used or
occupied for their intended purpose as permitted under this Lease. If
Landlord is delayed in substantially completing the improvements by
any cause of delay for which Tenant is responsible, then Tenant shall
pay to Landlord, as additional rent, the monthly Base Rent (based on
the first month for which the Base Rent is to be paid) and the
additional monthly rent payable under section 3.1 hereof, calculated
on a per diem basis, multiplied by the number of days of such delay,
which shall be due and payable on the Commencement Date specified in
the Basic Lease Information for such delay before such date and
monthly in arrears on the first day of each month thereafter for such
delay after such date. If the improvements are substantially complete
and the Premises is ready for occupancy by Tenant prior to the
Commencement Date, Tenant shall have the right to take early occupancy
of the Premises prior to the Commencement Date and the term of this
Lease shall commence on such date of early occupancy by Tenant, in
which event the Commencement Date shall be advanced to such date of
early occupancy and the Expiration Date shall be advanced by an equal
period (subject to adjustment in accordance with section 2.3 hereof).
Tenant shall give Landlord written notice of Xxxxxx's determination to
take early occupancy of the Premises at least ten (10) days in
advance, which notice shall specify the date of such early occupancy.
2.3 Adjustment of Commencement Date. If the Commencement Date
as determined in accordance with section 2.1 or section 2.2 hereof
would not be the first day of the month and the Expiration Date would
not be the last day of the month, then the Expiration Date shall be
the last day of the calendar month in which the Expiration Date, as
initially calculated falls. Tenant shall pay to Landlord, as
additional rent, the monthly Base Rent (based on the first month for
which the Base Rent is to be paid) and the additional monthly rent
payable under section 3.1 hereof, calculated on a per diem basis, for
the period of the fractional month between the Commencement Date and
the end of the calendar month in which the Commencement Date falls.
Landlord and Tenant each shall, promptly after the actual Commencement
Date and the actual Expiration Date have been determined, execute and
deliver to the other a Memorandum Confirming Term in the form of
Exhibit C attached hereto, which shall set forth the actual
Commencement Date and the actual Expiration Date for this Lease, but
the term of this Lease shall commence and end in accordance with this
Lease whether or not the Memorandum Confirming Term is executed.
2.4 Holding Over. In the event that Tenant shall continue in
occupancy of the Premises after the expiration of the Term, such
occupancy shall not be deemed to extend or renew the term of this
Lease, but such occupancy shall continue as a tenancy at will upon the
covenants, provisions and conditions herein contained at a daily Base
Rental equal to one fifteenth (1/15) of the monthly Base Rental in
effect at the expiration of the term of this Lease. In addition to
any other rights Landlord may have either in equity or at law,
Landlord may terminate such tenancy at any time on three (3) days'
written notice.
ARTICLE 3
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Rent
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3.1 Base Rent and Additional Rent. Tenant shall pay to
Landlord the following amounts as rent for the Premises:
(a) On a monthly basis during the Term of this Lease, Tenant
shall pay to Landlord, as "Base Rent", the amount of Monthly Base Rent
specified in the Basic Lease Information. So long as Tenant is not
default hereunder, Tenant shall be permitted to xxxxx all Base Rent
due hereunder for the following periods: For the first six (6) months
of the Term following the Commencement Date and for the thirty-seventh
(37th) month, thirty-eighth (38th) month, thirty-ninth (39th) month, and
for the first fourteen (14) days of the fortieth (40th) month of the
Term. Notwithstanding the foregoing, during such abatement periods,
Tenant shall be responsible for the payment of all Additional Rent due
hereunder.
(b) During each calendar year (or part thereof) during the term
of this Lease, Tenant shall pay to Landlord, as additional monthly
rent:
(i) Tenant's Percentage Share specified in the Basic Lease
Information of all Property Taxes paid or incurred by Landlord in
such year.
(ii) Tenant's Percentage Share specified in the Basic Lease
Information of all Insurance Costs paid or incurred by Landlord
in such year.
(c) Throughout the term of this Lease, Tenant shall pay, as
additional rent, all other amounts of money and charges required to be
paid by Tenant under this Lease, whether or not such amounts of money
or charges are designated "additional rent." As used in this Lease,
"rent" shall mean and include all Base Rent, additional monthly rent
and additional rent payable by Tenant in accordance with this Lease.
3.2 Procedures. The additional monthly rent payable by Tenant
pursuant to section 3.1(b) hereof (Property Taxes and Insurance Costs)
shall be calculated and paid in accordance with the following
procedures:
(a) On or before the Commencement Date, or as soon thereafter
as practicable, and on or before the first day of each subsequent
calendar year during the term of this Lease, or as soon thereafter as
practicable, Landlord shall give Tenant written notice of Landlord's
estimate of the amounts payable under section 3.1(b) for the balance
of the first calendar year after the Commencement Date or for the
ensuing calendar year, as the case may be. Notwithstanding the
foregoing, Xxxxxxxx's estimate of the initial additional monthly rent
payable by Tenant under section 3.1(b) hereof for each month of the
balance of the first calendar year after the Commencement Date is
specified in the Basic Lease Information. Tenant shall pay such
estimated additional monthly rent amounts to Landlord in equal monthly
installments, in advance, on or before the Commencement Date and on or
before the first day of each month during such balance of the first
calendar year after the Commencement Date or during such ensuing
calendar year, as the case may be. If such notice is not given for
any calendar year, Tenant shall continue to pay additional monthly
rent on the basis of the prior year's estimate until the month after
such notice is given, and subsequent additional monthly rent payments
by Tenant shall be based on Landlord's current estimate. If, at any
time, Landlord determines that the additional monthly rent amounts
payable under section 3.1(b) hereof for the current calendar year will
vary from Landlord's estimate, Landlord may, by giving written notice
to Xxxxxx, revise Landlord's estimate of additional monthly rent for
such year, and subsequent payments by Tenant for such year shall be
based on such revised estimate.
(b) Within 180 days after the end of each calendar year,
Landlord shall give Tenant a written statement of the amounts of
additional monthly rent payable by Tenant under section 3.1(b) hereof
for such calendar year certified by Landlord. If such statement shows
a total amount of additional monthly rent owing by Tenant that is less
than the estimated payments for such calendar year previously made by
Tenant, Landlord shall credit the excess to the next monthly
installments of the amounts payable by Tenant under section 3.1(b)
hereof (or, if the term of this Lease has ended, Landlord shall refund
the excess to Tenant with such statement). If such statement shows a
total amount of additional monthly rent owing by Tenant that is more
than the estimated payments for such calendar year previously made by
Tenant, Tenant shall pay the deficiency to Landlord within ten (10)
days after delivery of such statement. Tenant or Tenant's authorized
agent or representative shall have the right once each calendar year
to inspect the books of Landlord relating to Property Taxes and
Insurance Costs for the prior calendar year, after giving reasonable
prior written notice to Landlord and during the business hours of
Landlord at the office of Xxxxxxxx's property manager for the
Property, for the purpose of verifying the information in such
statement. Failure by Landlord to give any notice or statement to
Tenant under this section 3.2 shall not waive Landlord's right to
receive, or Tenant's obligation to pay, the amounts of additional
monthly rent payable by Tenant under section 3.1(b) hereof.
(c) If the term of this Lease commences or ends on a day other
than the first or last day of a calendar year, respectively, the
amounts payable by Tenant under section 3.1(b) hereof applicable to
the calendar year in which such term commences or ends shall be
prorated according to the ratio which the number of days during the
term of this Lease in such calendar year bears to three hundred
sixty-five (365). Termination of this Lease shall not affect the
obligations of Landlord and Tenant pursuant to section 3.2(b) hereof
to be performed after such termination.
3.3 Security Deposit. Upon signing this Lease, Tenant shall
pay to Landlord (a) an amount equal to the Base Rent for the first
month of the term of this Lease for which the Base Rent is to be paid,
which amount Landlord shall apply to the Base Rent for such first
month, and (b) the amount of the security deposit specified in the
Basic Lease Information (the "Security Deposit"). The Security
Deposit shall be held by Landlord as security for the performance by
Tenant of all of the covenants of this Lease to be performed by
Xxxxxx, and Tenant shall not be entitled to interest thereon. If
Tenant fails to perform any of the covenants of this Lease to be
performed by Xxxxxx, then Landlord shall have the right, but no
obligation, to apply the Security Deposit, or so much thereof as may
be necessary, to cure any such failure by Tenant. If Landlord applies
the Security Deposit or any part thereof to cure any such failure by
Tenant, then Tenant shall immediately pay to Landlord the sum
necessary to restore the Security Deposit to the full amount required
by this section 3.3. If no Event of Default then exists thereunder,
Landlord shall return any remaining portion of the Security Deposit to
Tenant within thirty (30) days after termination of this Lease. Upon
termination of the original Landlord's or any successor owner's
interest in the Premises, the original Landlord or such successor
owner shall be released from further liability with respect to the
Security Deposit upon the original Landlord's or such successor
owner's transferring the Security Deposit to the new owner.
3.4 Late Payment. Tenant acknowledges that the late payment by
Tenant of any monthly installment of Base Rent or additional monthly
rent will cause Landlord to incur costs and expenses, the exact amount
of which is extremely difficult and impractical to fix. Such costs
and expenses will include administration and collection costs and
processing and accounting expenses. Therefore, if any monthly
installment of Base Rent or additional monthly rent is not received by
Landlord within five (5) days after such installment is due, Tenant
shall immediately pay to Landlord a late charge equal to five percent
(5%) of such delinquent installment. Landlord and Tenant agree that
such late charge represents a reasonable estimate of such costs and
expenses and is fair reimbursement to Landlord. In no event shall
such late charge be deemed to grant to Tenant a grace period or
extension of time within which to pay any rent or prevent Landlord
from exercising any right or enforcing any remedy available to
Landlord upon Tenant's failure to pay each installment of rent due
under this Lease when due, including the right to terminate this Lease
and recover all damages from Tenant. All amounts of money payable by
Tenant to Landlord hereunder, if not paid when due, shall bear
interest from the due date until paid at the rate of ten percent (10%)
per annum, and Tenant shall pay such interest to Landlord on written
demand.
3.5 Other Taxes Payable by Xxxxxx. Tenant shall reimburse
Landlord upon written demand for all taxes, assessments, excises,
levies, fees and charges, including all payments related to the cost
of providing facilities or services, whether or not now customary or
within the contemplation of Landlord and Tenant, that are payable by
Landlord and levied, assessed, charged, confirmed or imposed by any
public or government authority upon, or measured by, or reasonably
attributable to (a) the cost or value of Tenant's furniture, fixtures,
equipment and other personal property located in the Premises or the
cost or value of any improvements made in or to the Premises by or for
Tenant, regardless of whether title to such improvements is vested in
Tenant or Landlord, (b) any rent payable under this Lease, including
any gross income tax or excise tax levied by any public or government
authority with respect to the receipt of any such rent so long as such
tax is a tax on rent, (c) the possession, leasing, operation,
management, maintenance, alteration, repair, use or occupancy by
Tenant of the Premises, or (d) this transaction or any document to
which Tenant is a party creating or transferring an interest or an
estate in the Premises. Such taxes, assessments, excises, levies,
fees and charges shall not include net income (measured by the income
of Landlord from all sources or from sources other than solely rent)
or franchise taxes of Landlord, unless levied or assessed against
Landlord in whole or in part in lieu of, as a substitute for, or as an
addition to any such taxes, assessments, excises, levies, fees and
charges. All taxes, assessments, excises, levies, fees and charges
payable by Tenant under this section 3.5 shall be deemed to be, and
shall be paid as, additional rent.
3.6 Certain Definitions. As used in this Lease, certain words
are defined as follows:
(a) "Property Taxes" shall mean all taxes, assessments,
excises, levies, fees and charges (and any tax, assessment, excise,
levy, fee or charge levied wholly or partly in lieu thereof or as a
substitute therefor or as an addition thereto) of every kind and
description, general or special, ordinary or extraordinary, foreseen
or unforeseen, secured or unsecured, whether or not now customary or
within the contemplation of Landlord and Tenant, that are levied,
assessed, charged, confirmed or imposed by any public or government
authority on or against, or otherwise with respect to, the Property or
any part thereof or any personal property used in connection with the
Property. Property Taxes shall not include net income (measured by
the income of Landlord from all sources or from sources other than
solely rent) or franchise taxes of Landlord, unless levied or assessed
against Landlord in whole or in part in lieu of, as a substitute for,
or as an addition to any Property Taxes. Property Taxes shall not
include charges payable by Tenant pursuant to section 3.5 hereof.
(b) "Insurance Costs" shall mean all premiums and other charges
for all property, earthquake, flood, loss of rental income, business
interruption, liability and other insurance relating to the Property
carried by Landlord.
3.7 Rent Payment Address. Tenant shall pay all Base Rent and
additional monthly rent under section 3.1 hereof to Landlord, in
advance, on or before the first day of each and every calendar month
during the term of this Lease. Tenant shall pay all rent to Landlord
without notice, demand, deduction or offset, in lawful money of the
United States of America, at the address for the payment of rent
specified in the Basic Lease Information, or to such other person or
at such other place as Landlord may from time to time designate in
writing.
3.8 No Accord and Satisfaction. No payment by Tenant or
receipt by Landlord of a lesser amount of Base Rent, additional
monthly rent, additional rent or any other sum due hereunder, shall be
deemed to be other than on account of the earliest due rent or
payment, nor shall any endorsement or statement on any check or any
letter accompanying any such check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such rent or
payment or pursue any other remedy available in this Lease, at law or
in equity. Landlord may accept any partial payment from Tenant
without invalidation of any contractual notice required to be given
herein (to the extent such contractual notice is required) and without
invalidation of any notice required by any law pertaining to eviction
or summary remedy for regaining possession of real property in the
event of tenant default.
ARTICLE 4
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Use of the Premises
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4.1 Permitted Use. Tenant shall use the Premises only for the
Permitted Use of the Premises specified in the Basic Lease Information
and for lawful purposes incidental thereto, and no other purpose
whatsoever. Tenant shall not do or permit to be done in, on or about
the Premises, nor bring or keep or permit to be brought or kept
therein, anything which is prohibited by or will in any way conflict
with any law, ordinance, rule, regulation or order now in force or
which may hereafter be enacted, or which is prohibited by any
insurance policy carried by Landlord for the Property, or will in any
way increase the existing rate of, or disallow any fire rating or
sprinkler credit, or cause a cancellation of, or affect any insurance
for the Property. If Tenant causes any increase the premium for any
insurance covering the Property carried by Landlord, Tenant shall pay
to Landlord, on written demand as additional rent, the entire amount
of such increase. Tenant shall not do or permit anything to be done
in or about the Premises which will in any way obstruct or interfere
with the rights of Landlord or other tenants of the Property, or
injure or annoy them. Tenant shall not use or allow the Premises to
be used for any improper, immoral, unlawful or objectionable activity,
nor shall Tenant cause, maintain or permit any nuisance in, on or
about the Premises or commit or suffer to be committed any waste in,
on or about the Premises. Tenant shall not store any materials,
equipment or vehicles outside the Premises and agrees that no washing
of any type (including washing vehicles) shall take place in or
outside the Premises. Tenant shall not receive, store or otherwise
handle any product or material that is explosive or highly
inflammable. Tenant shall not install any signs on the Premises
without the prior written consent of Landlord. Tenant shall, at
Tenant's expense, remove all such signs prior to or upon termination
of this Lease, repair any damage caused by the installation or removal
of such signs, and restore the Premises to the condition that existed
before installation of such signs.
4.2 Environmental Definitions. As used in this Lease,
"Hazardous Material" shall mean any substance that is (a) defined
under any Environmental Law as a hazardous substance, hazardous waste,
hazardous material, pollutant or contaminant, (b) a petroleum
hydrocarbon, including crude oil or any fraction or mixture thereof,
(c) hazardous, toxic, corrosive, flammable, explosive, infectious,
radioactive, carcinogenic or a reproductive toxicant, or (d) otherwise
regulated pursuant to any Environmental Law. As used in this Lease,
"Environmental Law" shall mean all federal, state and local laws,
statutes, ordinances, regulations, rules, judicial and administrative
orders and decrees, permits, licenses, approvals, authorizations and
similar requirements of all federal, state and local governmental
agencies or other governmental authorities pertaining to the
protection of human health and safety or the environment, now existing
or later adopted during the term of this Lease. As used in this
Lease, "Permitted Activities" shall mean the lawful activities of
Tenant that are part of the ordinary course of Tenant's business in
accordance with the Permitted Use specified in the Basic Lease
Information. As used in this Lease, "Permitted Materials" shall mean
the materials, which are not Hazardous Materials, handled by Tenant in
the ordinary course of conducting Permitted Activities and any
Hazardous Material that is used and handled by Tenant in the ordinary
course of its business and which is stored, used and disposed of in
compliance with all applicable laws.
4.3 Environmental Requirements. Tenant hereby agrees that:
(a) Tenant shall not conduct, or permit to be conducted, on the
Premises any activity which is not a Permitted Activity; (b) Tenant
shall not use, store or otherwise handle, or permit any use, storage
or other handling of, any Hazardous Material which is not a Permitted
Material on or about the Premises; (c) Tenant shall obtain and
maintain in effect all permits and licenses required pursuant to any
Environmental Law for Tenant's activities on the Premises, and Tenant
shall at all times comply with all applicable Environmental Laws;
(d) Tenant shall not engage in the storage, treatment or disposal on
or about the Premises of any Hazardous Material except for any
temporary accumulation of waste generated in the course of Permitted
Activities; (e) Tenant shall not install any aboveground or
underground storage tank or any subsurface lines for the storage or
transfer of any Hazardous Material, except for the lawful discharge of
waste to the sanitary sewer, and Tenant shall store all Hazardous
Materials in a manner that protects the Premises, the Property and the
environment from accidental spills and releases; (f) Tenant shall not
cause or permit to occur any release of any Hazardous Material or any
condition of pollution or nuisance on or about the Premises, whether
affecting surface water or groundwater, air, the land or the
subsurface environment; (g) Tenant shall promptly remove from the
Premises any Hazardous Material introduced, or permitted to be
introduced, onto the Premises by Tenant which is not a Permitted
Material and, on or before the date Tenant ceases to occupy the
Premises, Tenant shall remove from the Premises all Hazardous
Materials and all Permitted Materials handled by or permitted on the
Premises by Tenant; and (h) if any release of a Hazardous Material to
the environment, or any condition of pollution or nuisance, occurs on
or about or beneath the Premises as a result of any act or omission of
Tenant or its agents, officers, employees, contractors, invitees or
licensees, Tenant shall, at Tenant's sole cost and expense, promptly
undertake all remedial measures required to clean up and xxxxx or
otherwise respond to the release, pollution or nuisance in accordance
with all applicable Environmental Laws; and (i) Tenant shall not use,
store or handle any chlorinated solvent except for de minimus amounts
contained in cleaning supplies provided that such chlorinated solvents
and their de minimus amounts are used in conformance with
Environmental Laws and good environmental practice. Landlord and
Landlord's representatives shall have the right, but not the
obligation, to enter the Premises at any reasonable time for the
purpose of inspecting the storage, use and handling of any Hazardous
Material on the Premises in order to determine Tenant's compliance
with the requirements of this Lease and applicable Environmental Law.
If Landlord gives written notice to Tenant that Xxxxxx's use, storage
or handling of any Hazardous Material on the Premises may not comply
with this Lease or applicable Environmental Law, Tenant shall correct
any such violation within five (5) days after Xxxxxx's receipt of such
notice from Landlord. Tenant shall indemnify and defend Landlord
against and hold Landlord harmless from all claims, demands, actions,
judgments, liabilities, costs, expenses, losses, damages, penalties,
fines and obligations of any nature (including reasonable attorneys'
fees and disbursements incurred in the investigation, defense or
settlement of claims) that Landlord may incur as a result of, or in
connection with, claims arising from the presence, use, storage,
transportation, treatment, disposal, release or other handling, on or
about or beneath the Premises, of any Hazardous Material introduced or
permitted on or about or beneath the Premises by any act or omission
of Tenant or its agents, officers, employees, contractors, invitees or
licensees. The liability of Tenant under this section 4.3 shall
survive the termination of this Lease with respect to acts or
omissions that occur before such termination.
4.4 Compliance With Law. Tenant shall, at Tenant's sole cost
and expense, promptly comply with all laws, ordinances, rules,
regulations, orders and other requirements of any government or public
authority now in force or which may hereafter be in force, with all
requirements of any board of fire underwriters or other similar body
now or hereafter constituted, and with all directions and certificates
of occupancy issued pursuant to any law by any governmental agency or
officer, insofar as any thereof relate to or are required by the
condition, use or occupancy of the Premises or the operation, use or
maintenance of any personal property, fixtures, machinery, equipment
or improvements in the Premises, but Tenant shall not be required to
make structural changes unless structural changes are related to or
required by Xxxxxx's acts or use of the Premises or by improvements
made by or for Tenant.
4.5 Rules and Regulations. Tenant shall faithfully observe and
fully comply with all rules and regulations (the "Rules and
Regulations") from time to time made in writing by Landlord for the
safety, care, use and cleanliness of the Property or the common areas
of the Property and the preservation of good order therein. If there
is any conflict, this Lease shall prevail over the Rules and
Regulations.
4.6 Entry by Landlord. Landlord shall have the right to enter
the Premises at any time, subject to the terms of this Section 4.6, to
(a) inspect the Premises, (b) exhibit the Premises to prospective
purchasers, lenders or tenants, (c) determine whether Tenant is
performing all of Tenant's obligations, (d) supply any service to be
provided by Landlord, (e) post notices of nonresponsibility, and (f)
make any repairs to the Premises, or make any repairs to any adjoining
space or utility services, or make any repairs, alterations or
improvements to any other portion of the Property, provided all such
work shall be done as promptly as reasonably practicable and so as to
cause as little interference to Tenant as reasonably practicable.
Except in the event of an emergency, Landlord shall give twenty-four
(24) hours notice of Xxxxxxxx's intent to enter the Premise. Except
for damages caused from Landlords' gross negligence or willful
misconduct, Tenant waives all other claims for damages for any injury
or inconvenience to or interference with Xxxxxx's business, any loss
of occupancy or quiet enjoyment of the Premises or any other loss
occasioned by such entry. All locks for all doors in, on or about the
Premises (excluding Tenant's vaults, safes and similar special
security areas designated in writing by Tenant) shall be keyed to the
master system for the Property. Landlord shall at all times have a
key to unlock all such doors and Landlord shall have the right to use
any and all means which Landlord may deem proper to open such doors in
an emergency to obtain entry to the Premises. Any entry to the
Premises obtained by Landlord by any of such means shall not under any
circumstances be construed or deemed to be a forcible or unlawful
entry into or a detainer of the Premises or an eviction, actual or
constructive, of Tenant from the Premises or any portion thereof.
ARTICLE 5
---------
Utilities and Services
----------------------
5.1 Tenant's Responsibilities. Tenant shall pay, directly to
the appropriate supplier before delinquency, for all water, gas, heat,
light, power, telephone, sewer, refuse disposal, landscaping, snow
removal, parking lot, sidewalks and loading area maintenance and
repair, fire sprinkler and fire suppression system maintenance and
monitoring and other utilities and services supplied to the Premises,
together with all taxes, assessments, surcharges and similar expenses
relating to such utilities and services. Tenant shall also be
responsible for all costs associated with permit and inspection fees;
security, guards, extermination, water treatment, rubbish removal,
plumbing and other services; supplies, tools, materials and equipment;
costs and expenses required by or resulting from compliance with any
laws, ordinances, rules, regulations or orders applicable to the
Property; and costs and expenses of contesting by appropriate
proceedings any matter concerning managing, operating, maintaining or
repairing the Property. If any utilities or services are jointly
metered with the Premises and another part of the Property, Landlord
shall determine Tenant's share of the cost of such jointly metered
utilities and services based on Landlord's estimate of usage, and
Tenant shall pay as additional rent Tenant's share of the cost of such
jointly metered utilities and services to Landlord within ten (10)
days after receipt of Landlord's written statement for such cost.
Tenant shall furnish the Premises with all telephone service, window
washing, security service, janitor, scavenger and disposal services,
and other services required by Tenant for the use of the Premises
permitted by this Lease. Tenant shall furnish all electric light
bulbs and tubes and restroom supplies used in the Premises. Landlord
shall not be in default under this Lease or be liable for any damage
or loss directly or indirectly resulting from, nor shall the rent be
abated or a constructive or other eviction be deemed to have occurred
by reason of, any interruption of or failure to supply or delay in
supplying any such utilities and services or any limitation,
curtailment, rationing or restriction on use of water, electricity,
gas or any resource or form of energy or other service serving the
Premises or the Property, whether such results from mandatory
restrictions or voluntary compliance with guidelines.
ARTICLE 6
---------
Maintenance and Repairs
-----------------------
6.1 Obligations of Landlord. At Landlord's cost and expense,
Landlord shall maintain and repair only the foundations, the exterior
walls (which shall not include windows, glass or plate glass, doors,
special fronts, entries, or the interior surfaces of exterior walls,
all of which shall be the responsibility of Tenant), the roof and
other structural components of the Premises and keep them in good
condition, reasonable wear and tear excepted. Tenant shall give
Landlord written notice of the need for any maintenance or repair for
which Landlord is responsible, after which Landlord shall have a
reasonable opportunity to perform the maintenance or make the repair,
and Landlord shall not be liable for any failure to do so unless such
failure continues for an unreasonable time after Xxxxxx gives such
written notice to Landlord. Tenant waives any right to perform
maintenance or make repairs for which Landlord is responsible at
Landlord's expense. Landlord's liability with respect to any
maintenance or repair for which Landlord is responsible shall be
limited to the cost of the maintenance or repair. Any damage to any
part of the Property for which Landlord is responsible that is caused
by Tenant or any agent, officer, employee, contractor, licensee or
invitee of Tenant shall be repaired by Landlord at Tenant's expense
and Tenant shall pay to Landlord, upon billing by Xxxxxxxx, as
additional rent, the cost of such repairs incurred by Landlord.
6.2 Obligations of Tenant. Tenant shall, at all times during
the term of this Lease and at Tenant's sole cost and expense, maintain
and repair the Premises and every part thereof (except only the parts
for which Landlord is expressly made responsible under this Lease) and
all equipment, fixtures and improvements therein (including windows,
glass, plate glass, doors, special fronts, entries, the interior
surfaces of exterior walls, interior walls, floors, heating and air
conditioning systems, dock boards, truck doors, dock bumpers, plumbing
fixtures and equipment, electrical components and mechanical systems)
and keep all of the foregoing clean and in good order and operating
condition, ordinary wear and tear excepted. Tenant shall also be
responsible for the providing for landscaping services and snow and
ice removal. Tenant shall not damage the Premises or disturb the
integrity and support provided by any wall. Tenant shall, at Tenant's
expense, promptly repair any damage to the Premises caused by Tenant
or any agent, officer, employee, contractor, licensee or invitee of
Tenant. Tenant shall take good care of the Premises and keep the
Premises free from dirt, rubbish, waste and debris at all times.
Tenant shall not overload the floors in the Premises or exceed the
load-bearing capacity of the floors in the Premises. Tenant shall, at
Tenant's expense, enter into a regularly scheduled preventative
maintenance and service contract with a maintenance contractor
approved in writing by Landlord for servicing all hot water, heating,
ventilating and air conditioning ("HVAC") systems and equipment in the
Premises. The maintenance and service contract shall include all
services suggested by the equipment manufacturer and shall become
effective (and Tenant shall deliver a copy to Landlord) within thirty
(30) days after the Commencement Date. Tenant and Tenant's
maintenance contractor shall at all times conduct maintenance on the
HVAC equipment at the Premises in accordance with all Federal, state
or local laws. In the event that a leak occurs in any portion of the
HVAC equipment at the Premises, Tenant shall cause Tenant's
maintenance contractor to repair promptly such leak in accordance with
such Federal, state or local laws and shall, in any event, cause such
leaks to be repaired within the deadline imposed by such Federal,
state or local laws. Tenant hereby agrees to indemnify, defend and
hold Landlord harmless against any and all damages, liabilities,
losses, costs and expenses, including, without limitation, reasonable
attorneys' fees, incurred by Landlord as a result of Tenant's failure
to cause maintenance to be conducted on the HVAC equipment at the
Premises in accordance with all Federal, state or local laws or as a
result of Tenant's failure to cause the repair of any leak in any
portion of the HVAC equipment at the Premises in accordance with
Federal, state or local laws. In the event of a replacement of a part
or portion of the HVAC equipment which is warranted by the
manufacturer and/or guaranteed by the installer, Tenant shall provide
the Landlord with a duplicate original of the warranty and/or
guarantee. Tenant shall, at the end of the term of this Lease,
surrender to Landlord the Premises and all alterations, additions,
fixtures and improvements therein or thereto in the same condition as
when received, ordinary wear and tear excepted. Additionally, Tenant
shall, at Tenant's expense, enter into a regularly scheduled
preventative maintenance and service contract with a maintenance
contractor approved in writing by Landlord for servicing all fire
prevention and life safety systems in the Premises including the
sprinkler system installed in the Premises. Such systems shall be
maintained by Tenant in accordance with all applicable governmental
regulations. Upon request from Landlord, Tenant shall provide
Landlord a copy of such maintenance and service contract. Tenant shall
also provide copies of all maintenance and service reports to Landlord
within thirty (30) days after such maintenance or service is performed
on any life safety or fire prevention systems in the Premises. Xxxxxx
also agrees that it shall perform maintenance to the Premises as set
forth on Exhibit D attached hereto and incorporated herein by this
reference.
ARTICLE 7
---------
Alteration of the Premises
--------------------------
7.1 No Alterations by Tenant. Tenant shall not make any
alterations, additions or improvements in or to the Premises or any
part thereof, or attach any fixtures or equipment thereto, without
Landlord's prior written consent. Notwithstanding the preceding
sentence, Tenant may make any particular alteration, addition or
improvement without Landlord's consent only if the total cost of any
such alteration, addition or improvement is fifteen thousand dollars
($15,000) or less and such alteration, addition or improvement will
not affect in any way the structural, exterior or roof elements of the
Property or the mechanical, electrical, plumbing or life safety
systems of the Property, but Tenant shall give prior written notice of
any such alteration, addition or improvement to Landlord. All
alterations, additions and improvements (except improvements made by
Landlord pursuant to Exhibit B, if any) (the "Work") in or to the
Premises to which Landlord consents shall be made by Tenant at
Tenant's sole cost and expense as follows:
(a) Tenant shall submit to Landlord, for Landlord's written
approval, complete plans and specifications for the Work. Such plans
and specifications shall be prepared by responsible licensed
architect(s) and engineer(s), shall comply with all applicable codes,
laws, ordinances, rules and regulations, shall not adversely affect
any systems, components or elements of the Property, shall be in a
form sufficient to secure the approval of all government authorities
with jurisdiction over the Property, and shall be otherwise
satisfactory to Landlord in Landlord's reasonable discretion.
(b) Tenant shall obtain all required permits for the Work.
Tenant shall engage responsible licensed contractor(s) to perform all
Work. Tenant shall perform all Work in accordance with the plans and
specifications approved by Landlord, in a good and workmanlike manner,
in full compliance with all applicable laws, codes, ordinances, rules
and regulations, and free and clear of any mechanics' liens. Tenant
shall pay for all Work (including the cost of all utilities, permits,
fees, taxes, and property and liability insurance premiums in
connection therewith). Tenant shall pay to Landlord all direct costs
and shall reimburse Landlord for all expenses incurred by Landlord in
connection with the review, approval and supervision of any
alterations, additions or improvements made by Tenant. Under no
circumstances shall Landlord be liable to Tenant for any damage, loss,
cost or expense incurred by Tenant on account of design of any work,
construction of any Work, or delay in completion of any Work.
(c) Tenant shall give written notice to Landlord of the date on
which construction of any Work will commence at least five (5) days
prior to such date. Tenant shall keep the Premises and the Property
free from mechanics', materialmen's and all other liens arising out of
any work performed, labor supplied, materials furnished or other
obligations incurred by Tenant. Tenant shall promptly and fully pay
and discharge all claims on which any such lien could be based.
Tenant shall have the right to contest the amount or validity of any
such lien, provided Xxxxxx gives prior written notice of such contest
to Landlord, prosecutes such contest by appropriate proceedings in
good faith and with diligence, and, upon request by Xxxxxxxx,
furnishes such bond as may be required by law or such security as
Landlord may reasonably require to protect the Premises and the
Property from such lien. Landlord shall have the right to post and
keep posted on the Premises any notices that may be provided by law or
which Landlord may deem to be proper for the protection of Landlord,
the Premises and the Property from such liens, and to take any other
action Landlord deems necessary to remove or discharge liens or
encumbrances at the expense of Tenant, provided however, that Landlord
shall not take such action to remove or discharge such lien so long as
Tenant, if requested by Xxxxxxxx, has posted a bond as set forth
above, and is contesting such lien in accordance with this section
7.1(c).
7.2 Landlord's Property. All alterations, additions, fixtures
and improvements, including improvements made pursuant to Exhibit B
(if any), whether temporary or permanent in character, made in or to
the Premises by Landlord or Tenant, shall become part of the Property
and Landlord's property. Upon termination of this Lease, Landlord
shall have the right, at Landlord's option, by giving written notice
to Tenant at any time before or within sixty (60) days after such
termination, to retain all such alterations, additions, fixtures and
improvements in the Premises, without compensation to Tenant, or to
remove all such alterations, additions, fixtures and improvements from
the Premises, repair all damage caused by any such removal, and
restore the Premises to the condition in which the Premises existed
before such alterations, additions, fixtures and improvements were
made, and in the latter case Tenant shall pay to Landlord, upon
billing by Landlord, the cost of such removal, repair and restoration
(including a reasonable charge for Landlord's overhead and profit).
All movable furniture, equipment, trade fixtures, computers, office
machines and other personal property shall remain the property of
Tenant. Upon termination of this Lease, Tenant shall, at Tenant's
expense, remove all such movable furniture, equipment, trade fixtures,
computers, office machines and other personal property from the
Property and repair all damage caused by any such removal.
Termination of this Lease shall not affect the obligations of Tenant
pursuant to this section 7.2 to be performed after such termination.
ARTICLE 8
---------
Indemnification and Insurance
-----------------------------
8.1 Damage or Injury. Landlord shall not be liable to Tenant,
and Tenant hereby waives all claims against Landlord, for any damage
to or loss or theft of any property or for any bodily or personal
injury, illness or death of any person in, on or about the Premises or
the Property arising at any time and from any cause whatsoever, except
to the extent caused by the gross negligence or willful misconduct of
Landlord. Tenant shall indemnify and defend Landlord against and hold
Landlord harmless from all claims, demands, liabilities, damages,
losses, costs and expenses, including reasonable attorneys' fees and
disbursements, arising from or related to any use or occupancy of the
Premises, or any condition of the Premises, or any default in the
performance of Tenant's obligations under this Lease, or any damage to
any property (including property of employees and invitees of Tenant)
or any bodily or personal injury, illness or death of any person
(including employees and invitees of Tenant) occurring in, on or about
the Premises or any part thereof arising at any time and from any
cause whatsoever (except to the extent caused by the gross negligence
or willful misconduct of Landlord) or occurring in, on or about any
part of the Property other than the Premises when such damage, bodily
or personal injury, illness or death is caused by any act or omission
of Tenant or its agents, officers, employees, contractors, invitees or
licensees. This section 8.1 shall survive the termination of this
Lease with respect to any damage, bodily or personal injury, illness
or death occurring prior to such termination. Where used in this
Section 8.1 "Landlord" shall mean to include Landlord's employees,
agents, licensees or contractors.
8.2 Insurance Coverages and Amounts. Tenant shall, at all
times during the term of this Lease and at Xxxxxx's sole cost and
expense, obtain and keep in force the insurance coverages and amounts
set forth in this section 8.2. Tenant shall maintain commercial
general liability insurance, including contractual liability, broad
form property damage liability, fire legal liability, premises and
completed operations, and medical payments, with limits not less than
one million dollars ($1,000,000) per occurrence and two million
dollars ($2,000,000) in the aggregate, insuring against claims for
bodily injury, personal injury and property damage arising from the
use, occupancy or maintenance of the Premises and the Property. The
policy shall contain an exception to any pollution exclusion which
insures damage or injury arising out of heat, smoke or fumes from a
hostile fire. Any general aggregate shall apply on a per location
basis. Tenant shall maintain business auto liability insurance with
limits not less than one million dollars ($1,000,000) per accident
covering owned, hired and non-owned vehicles used by Tenant. Tenant
shall maintain umbrella excess liability insurance on a following form
basis in excess of the required commercial general liability, business
auto and employers liability insurance with limits not less than five
million dollars ($5,000,000) per occurrence and aggregate. Tenant
shall carry workers' compensation insurance for all of its employees
in statutory limits in the state in which the Property is located and
employers liability insurance which affords not less than one million
dollars ($1,000,000) for each coverage. Tenant shall maintain all
risk property insurance for all personal property of Tenant and
improvements, fixtures and equipment constructed or installed by
Tenant in the Premises in an amount not less than the full replacement
cost, which shall include business income and extra expense coverage
with limits not less than one hundred percent (100%) of gross revenues
for a period of twelve (12) months. If required by Landlord, Tenant
shall maintain boiler and machinery insurance against loss or damage
from an accident from the equipment in the Premises in an amount
determined by Landlord and plate glass insurance coverage against
breakage of plate glass in the Premises. Any deductibles selected by
Tenant shall be the sole responsibility of Tenant.
8.3 Insurance Requirements. All insurance and all renewals
thereof shall be issued by companies with a rating of at least "A-"
"VIII" or better in the current edition of Best's Insurance Reports
and be licensed to do and doing business in the state in which the
Property is located. Each policy shall expressly provide that the
policy shall not be canceled or materially altered without thirty (30)
days' prior written notice to Landlord and shall remain in effect
notwithstanding any such cancellation or alteration until such notice
shall have been given to Landlord and such period of thirty (30) days
shall have expired. All liability insurance (except employers
liability) shall name Landlord and any other parties designated by
Landlord (including any investment manager, asset manager or property
manager) as an additional insured, shall be primary and
noncontributing with any insurance which may be carried by Landlord,
shall afford coverage for all claims based on any act, omission, event
or condition that occurred or arose (or the onset of which occurred or
arose) during the policy period, and shall expressly provide that
Landlord, although named as an insured, shall nevertheless be entitled
to recover under the policy for any loss, injury or damage to
Landlord. All property insurance shall name Landlord as loss payee as
respects Landlord's interest in any improvements and betterments.
Tenant shall deliver certificates of insurance, acceptable to
Landlord, to Landlord at least ten (10) days before the Commencement
Date and at least ten (10) days before expiration of each policy. If
Tenant fails to insure or fails to furnish any such insurance
certificate, Landlord shall have the right from time to time to effect
such insurance for the benefit of Tenant or Landlord or both of them,
and Tenant shall pay to Landlord on written demand, as additional
rent, all premiums paid by Landlord.
8.4 Subrogation. Tenant waives on behalf of all insurers under
all policies of property insurance now or hereafter carried by Tenant
insuring or covering the Premises, or any portion or any contents
thereof, or any operations therein, all rights of subrogation which
any such insurer might otherwise, if at all, have to any claims of
Tenant against Landlord. Landlord waives on behalf of all insurers
under all policies of property insurance now or hereafter carried by
Landlord insuring or covering the Property, or any portion or any
contents thereof, or any operations therein, all rights of subrogation
which any such insurer might otherwise, if at all, have to any claims
of Landlord against Tenant. Landlord and Tenant shall procure from
each of the insurers under all policies of property insurance now or
hereafter carried by Landlord or Tenant insuring or covering the
Premises, or any portion or any contents thereof, or any operations
therein, a waiver of all rights of subrogation which the insurer might
otherwise, if at all, have to any claims of Landlord against Tenant or
Tenant against Landlord as required by this section 8.4.
8.5 Landlord Insurance Requirements. Landlord shall, at all
times during the term of this Lease, secure and maintain:
(a) All risk property insurance coverage on the Property.
Landlord shall not be obligated to insure any furniture, equipment,
trade fixtures, machinery, goods, or supplies which Tenant may keep or
maintain in the Demised Premises or any alteration, addition or
improvement which Tenant may make upon the Demised Premises. In
addition, Landlord shall secure and maintain rental income insurance.
Landlord may elect to self-insure for the coverages required under
this Section 8.5. If the annual cost to Landlord for such property or
rental income insurance exceeds the standard rates because of the
nature of Tenant's operations, Tenant shall, upon the receipt of
appropriate invoices, reimburse Landlord for such increased cost.
(b) Commercial general liability insurance with limits not less
than $5,000,000 per occurrence and aggregate. Such insurance shall be
in addition to, and not in lieu of, insurance required to be
maintained by Tenant. Landlord may elect to self-insure for this
coverage. Tenant shall not be named as an additional insured on any
policy of liability insurance maintained by Landlord.
ARTICLE 9
---------
Assignment or Sublease
----------------------
9.1 Prohibition. Tenant shall not, directly or indirectly,
without the prior written consent of Landlord, assign this Lease or
any interest herein or sublease the Premises or any part thereof, or
permit the use or occupancy of the Premises by any person or entity
other than Tenant. Tenant shall not, directly or indirectly, without
the prior written consent of Landlord, pledge, mortgage or hypothecate
this Lease or any interest herein. This Lease shall not, nor shall
any interest herein, be assignable as to the interest of Tenant
involuntarily or by operation of law without the prior written consent
of Landlord. For purposes of this Lease, any of the following
transfers on a cumulative basis shall constitute an assignment of this
Lease that requires the prior written consent of Landlord: if Tenant
is a corporation, the transfer of more than forty-nine percent (49%)
of the stock of the corporation; if Tenant is a partnership, the
transfer of more than forty-nine percent (49%) of the capital or
profits interest in the partnership; if Tenant is a limited liability
company, the transfer of more than forty-nine percent (49%) of the
membership interests in the limited liability company or a change in
the manager of the limited liability company, if any; and if Tenant is
a trust, the transfer of more than forty-nine percent (49%) of the
beneficial interest under the trust. Any of the foregoing acts
without such prior written consent of Landlord shall be void and
shall, at the option of Landlord, constitute a default that entitles
Landlord to terminate this Lease. Notwithstanding anything herein to
the contrary contained in this Lease, the transfer of shares of Tenant
(if Tenant is a corporation) for purposes of this section 9.1 shall
not include that sale of shares by persons other than those deemed
"insiders" within the meaning of the Securities Exchange Act of 1934,
as amended, which sale is effected through the "over-the counter-
market" or through any recognized stock exchange. Tenant agrees that
the instrument by which any assignment or sublease to which Landlord
consents is accomplished shall expressly provide that the assignee or
subtenant will perform all of the covenants to be performed by Tenant
under this Lease (in the case of a sublease, only insofar as such
covenants relate to the portion of the Premises subject to such
sublease) as and when performance is due after the effective date of
the assignment or sublease and that Landlord will have the right to
enforce such covenants directly against such assignee or subtenant.
Any purported assignment or sublease without an instrument containing
the foregoing provisions shall be void. Tenant shall in all cases
remain liable for the performance by any assignee or subtenant of all
such covenants.
9.2 Landlord's Consent or Termination. If Tenant wishes to
assign this Lease or sublease all or any part of the Premises, Tenant
shall give written notice to Landlord identifying the intended
assignee or subtenant by name and address and specifying all of the
terms of the intended assignment or sublease. Tenant shall give
Landlord such additional information concerning the intended assignee
or subtenant (including complete financial statements and a business
history) or the intended assignment or sublease (including true copies
thereof) as Landlord requests. For a period of thirty (30) days after
such written notice is given by Xxxxxx, Landlord shall have the right,
by giving written notice to Tenant, (a) to consent in writing to the
intended assignment or sublease, unless Landlord determines not to
consent, or (b) in the case of an assignment of this Lease or a
sublease of substantially the entire Premises for substantially the
balance of the term of this Lease, to terminate this Lease, which
termination shall be effective as of the date on which the intended
assignment or sublease would have been effective if Landlord had not
exercised such termination right. If Landlord elects to exercise its
termination option under clause (b) above, Tenant may withdraw its
request for consent to such assignment or sublease by delivering to
Landlord a notice of such withdrawal within three (3) days after
receipt of notice from Landlord exercising its termination option
under clause (b) above, and upon receipt of such notice of withdrawal
from Tenant, the Lease shall remain in effect without regard to such
assignment or sublease.
9.3 Completion. If Landlord consents in writing, Tenant may
complete the intended assignment or sublease subject to the following
covenants: (a) the assignment or sublease shall be on the same terms
as set forth in the written notice given by Tenant to Landlord, (b) no
assignment or sublease shall be valid and no assignee or subtenant
shall take possession of the Premises or any part thereof until an
executed duplicate original of such assignment or sublease, in
compliance with section 9.1 hereof, has been delivered to Landlord,
(c) no assignee or subtenant shall have a right further to assign or
sublease, and (d) all "excess rent" (as hereinafter defined) derived
from such assignment or sublease shall be paid to Landlord only in the
event Tenant subleases or assigns the entire Premises. Such excess
rent shall be deemed to be, and shall be paid by Tenant to Landlord
as, additional rent. Tenant shall pay such excess rent to Landlord
immediately as and when such excess rent becomes due and payable to
Tenant. As used in this section 9.3, "excess rent" shall mean the
amount by which the total money and other economic consideration to be
paid by the assignee or subtenant as a result of an assignment or
sublease, whether denominated rent or otherwise, exceeds, in the
aggregate, the total amount of rent which Tenant is obligated to pay
to Landlord under this Lease (prorated to reflect the rent allocable
to the portion of the Premises subject to such assignment or
sublease), less only the reasonable costs paid by Tenant for
additional improvements installed in the portion of the Premises
subject to such assignment or sublease by Xxxxxx at Tenant's sole cost
and expense for the specific assignee or subtenant in question and
reasonable leasing commissions paid by Xxxxxx in connection with such
assignment or sublease, without deduction for carrying costs due to
vacancy or otherwise. Such costs of additional improvements and
leasing commissions shall be amortized without interest over the term
of such assignment or sublease. Notwithstanding anything herein to
the contrary, in the event Tenant subleases or assigns any or all of
the office space located in the Premises, Tenant shall not have to pay
Landlord any Excess Rent earned on such a sublease or assignment.
9.4 Tenant Not Released. No assignment or sublease whatsoever
shall release Tenant from Tenant's obligations and liabilities under
this Lease or alter the primary liability of Tenant to pay all rent
and to perform all obligations to be paid and performed by Xxxxxx. No
assignment or sublease shall amend or modify this Lease in any
respect, and every assignment and sublease shall be subject and
subordinate to this Lease. The acceptance of rent by Landlord from
any other person or entity shall not be deemed to be a waiver by
Landlord of any provision of this Lease. Consent to one assignment or
sublease shall not be deemed consent to any subsequent assignment or
sublease. Tenant shall pay to Landlord all direct costs and shall
reimburse Landlord for all expenses incurred by Landlord in connection
with any assignment or sublease requested by Xxxxxx. If any assignee,
subtenant or successor of Tenant defaults in the performance of any
obligation to be performed by Tenant under this Lease, Landlord may
proceed directly against Tenant without the necessity of exhausting
remedies against such assignee, subtenant or successor. Xxxxxxxx may
consent to subsequent assignments or subleases or amendments or
modifications to this Lease with assignees, subtenants or successors
of Xxxxxx, without notifying Tenant or any successor of Xxxxxx and
without obtaining any consent thereto from Tenant or any successor of
Xxxxxx, and such action shall not release Tenant from liability under
this Lease.
ARTICLE 10
----------
Events of Default and Remedies
------------------------------
10.1 Default by Xxxxxx. The occurrence of any one or more of
the following events ("Event of Default") shall constitute a breach of
this Lease by Xxxxxx:
(a) Tenant fails to pay any Base Rent, or any additional
monthly rent under section 3.1 hereof, or any additional rent or other
amount of money or charge payable by Tenant hereunder as and when such
rent becomes due and payable and such failure continues for more than
five (5) days after Xxxxxxxx gives written notice thereof to Tenant;
provided, however, that after the second such failure in a calendar
year, only the passage of time, but no further written notice, shall
be required to establish an Event of Default in the same calendar
year; or
(b) Tenant fails to perform or breaches any other agreement or
covenant of this Lease to be performed or observed by Tenant as and
when performance or observance is due and such failure or breach
continues for more than ten (10) days after Landlord gives written
notice thereof to Tenant; provided, however, that if, by the nature of
such agreement or covenant, such failure or breach cannot reasonably
be cured within such period of ten (10) days, an Event of Default
shall not exist as long as Tenant commences with due diligence and
dispatches the curing of such failure or breach within such period of
ten (10) days and, having so commenced, thereafter prosecutes with
diligence and dispatches and completes the curing of such failure or
breach; or
(c) Tenant (i) files, or consents by answer or otherwise to the
filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy or for liquidation or
to take advantage of any bankruptcy, insolvency or other debtors'
relief law of any jurisdiction, (ii) makes an assignment for the
benefit of its creditors, or (iii) consents to the appointment of a
custodian, receiver, trustee or other officer with similar powers of
Tenant or of any substantial part of Tenant's property; or
(d) Without consent by Xxxxxx, a court or government authority
enters an order, and such order is not vacated within thirty (30)
days, (i) appointing a custodian, receiver, trustee or other officer
with similar powers with respect to Tenant or with respect to any
substantial part of Tenant's property, or (ii) constituting an order
for relief or approving a petition for relief or reorganization or
arrangement or any other petition in bankruptcy or for liquidation or
to take advantage of any bankruptcy, insolvency or other debtors'
relief law of any jurisdiction, or (iii) ordering the dissolution,
winding-up or liquidation of Tenant; or
(e) This Lease or any estate of Tenant hereunder is levied upon
under any attachment or execution and such attachment or execution is
not vacated within thirty (30) days; or
(f) Tenant abandons the Premises and fails to (i) continue to
pay Base Rent or any additional monthly rent due under section 3.1
hereof or any other amount of money or charge payable by Tenant when
due; and (ii) fails to maintain the Premises in accordance with the
terms of this Lease.
10.2 Termination. If an Event of Default occurs, Landlord shall
have the right at any time to give a written termination notice to
Tenant and, on the date specified in such notice, Tenant's right to
possession shall terminate and this Lease shall terminate. Upon such
termination, Landlord shall have the full and immediate right to
possession of the Premises and Landlord shall have the right to
recover from Tenant all unpaid rent which had been earned at the time
of termination, all unpaid rent for the balance of the term of this
Lease after termination, and all other amounts necessary to compensate
Landlord for all the detriment proximately caused by Xxxxxx's failure
to perform all of Tenant's obligations under this Lease or which in
the ordinary course of things would be likely to result therefrom.
Landlord shall use reasonable good faith efforts to mitigate damages
if an Event of Default occurs.
10.3 Continuation. If an Event of Default occurs, this Lease
shall continue in effect for so long as Landlord does not terminate
Tenant's right to possession, and Landlord shall have the right to
enforce all its rights and remedies under this Lease, including the
right to recover all rent as it becomes due under this Lease. Acts of
maintenance or preservation or efforts to relet the Premises or the
appointment of a receiver upon initiative of Landlord to protect
Xxxxxxxx's interest under this Lease shall not constitute a
termination of Tenant's right to possession unless written notice of
termination is given by Landlord to Tenant.
10.4 Remedies Cumulative. Upon the occurrence of an Event of
Default, Landlord shall have the right to exercise and enforce all
rights and remedies granted or permitted by law. The remedies
provided for in this Lease are cumulative and in addition to all other
remedies available to Landlord at law or in equity by statute or
otherwise. Exercise by Landlord of any remedy shall not be deemed to
be an acceptance of surrender of the Premises by Xxxxxx, either by
agreement or by operation of law. Surrender of the Premises can be
effected only by the written agreement of Landlord and Xxxxxx.
10.5 Tenant's Primary Duty. All agreements and covenants to be
performed or observed by Tenant under this Lease shall be at Tenant's
sole cost and expense and without any abatement of rent. If Tenant
fails to pay any sum of money to be paid by Tenant or to perform any
other act to be performed by Tenant under this Lease, Landlord shall
have the right, but shall not be obligated, and without waiving or
releasing Tenant from any obligations of Tenant, to make any such
payment or to perform any such other act on behalf of Tenant in
accordance with this Lease. All sums so paid by Xxxxxxxx and all
costs incurred or paid by Landlord shall be deemed additional rent
hereunder and Tenant shall pay the same to Landlord on written demand,
together with interest on all such sums and costs from the date of
expenditure by Landlord to the date of repayment by Xxxxxx at the rate
of ten percent (10%) per annum.
10.6 Abandoned Property. If Tenant abandons the Premises, or is
dispossessed by process of law or otherwise, any movable furniture,
equipment, trade fixtures or personal property belonging to Tenant and
left in the Premises shall be deemed to be abandoned, at the option of
Landlord, and Landlord shall have the right to sell or otherwise
dispose of such personal property in any commercially reasonable
manner.
10.7 Landlord Default. If Landlord defaults under this Lease,
Tenant shall give written notice to Landlord specifying such default
with particularity, and Landlord shall have thirty (30) days after
receipt of such notice within which to cure such default. In the
event of any default by Landlord, Xxxxxx's exclusive remedy shall be
an action for damages. Notwithstanding any other provision of this
Lease, Landlord shall not have any personal liability under this
Lease. In the event of any default by Landlord under this Lease,
Xxxxxx agrees to look solely to the equity or interest then owned by
Landlord in the Property, and in no event shall any deficiency
judgment or personal money judgment of any kind be sought or obtained
against Landlord.
10.8 Landlord's Lien. As security for payment of rent, damages
and all other payments required to be made by this Lease, Tenant
hereby grants to Landlord a lien upon all property of Tenant now or
subsequently located upon the Premises. If Tenant abandons or vacates
any substantial portion of the Premises or is in default in the
payment of any rentals, damages or other payments required to be made
by this Lease or is in default of any other provisions of this Lease,
Landlord may enter upon the Premises, and take possession of all or
any part of the personal property, and may sell all or any part of the
personal property at a public or private sale, in one or more sales,
with or without notice to the extent permitted by law, to the highest
bidder for cash, and, on behalf of Tenant, sell and convey all or part
of the personal property to the highest bidder, delivering to the
highest bidder all of Tenant's title and interest in the personal
property sold. The proceeds from the sale of the personal property
shall be applied by Landlord toward the reasonable costs and expenses
of the sale, including attorney's fees, and then toward the payment of
all sums then due from Tenant under the terms of this Lease; any
excess remaining shall be paid to Tenant or any other person entitled
thereto by law.
This Lease is intended as and constitutes a security agreement
within the meaning of the Uniform Commercial Code of the state in
which the Premises are situated, and Landlord, in addition to the
right prescribed in this Lease, shall have all of the rights, titles,
liens and interests in and to Tenant's property now or hereafter
located upon the Premises which are granted a secured party, as that
term is defined under the Uniform Commercial Code, to secure the
payment to Landlord of the various amounts provided in this Lease.
Tenant will on request execute and deliver to Landlord a financing
statement for the purpose of perfecting Landlord's security interest
under this Lease or Landlord may file this Lease or a copy thereof as
a financing statement.
ARTICLE 11
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Damage or Destruction
---------------------
11.1 Restoration. If the Property or the Premises, or any part
thereof, is damaged by fire or other casualty before the Commencement
Date or during the term of this Lease, and this Lease is not
terminated pursuant to section 11.2 hereof, Landlord shall repair such
damage and restore the Property and the Premises to substantially the
same condition in which the Property and the Premises existed before
the occurrence of such fire or other casualty and this Lease shall,
subject to this section 11.1, remain in full force and effect. If
such fire or other casualty damages the Premises or common areas of
the Property necessary for Tenant's use and occupancy of the Premises
and if such damage is not the result of the negligence or willful
misconduct of Tenant or Tenant's agents, officers, employees,
contractors, licensees or invitees, then, during the period the
Premises is rendered unusable by such damage, Tenant shall be entitled
to a reduction in Base Rent in the proportion that the area of the
Premises rendered unusable by such damage bears to the total area of
the Premises. Landlord shall not be obligated to repair any damage
to, or to make any replacement of, any movable furniture, equipment,
trade fixtures or personal property in the Premises. Tenant shall, at
Tenant's sole cost and expense, repair and replace all such movable
furniture, equipment, trade fixtures and personal property.
11.2 Termination of Lease. If the Property or the Premises, or
any part thereof, is damaged by fire or other casualty before the
Commencement Date or during the term of this Lease and (a) such fire
or other casualty occurs during the last twelve (12) months of the
term of this Lease and the repair and restoration work to be performed
by Landlord in accordance with section 11.1 hereof cannot, as
reasonably estimated by Landlord, be completed within two (2) months
after the occurrence of such fire or other casualty, or (b) the
insurance proceeds received by Landlord in respect of such damage are
not adequate to pay the entire cost, as reasonably estimated by
Landlord, of the repair and restoration work to be performed by
Landlord in accordance with section 11.1 hereof (including inadequacy
resulting from the requirement of the holder of any indebtedness
secured by a mortgage or deed of trust covering the Premises that the
insurance proceeds be applied to such indebtedness), or (c) the repair
and restoration work to be performed by Landlord in accordance with
section 11.1 hereof cannot, as reasonably estimated by Landlord, be
completed within four (4) months after the occurrence of such fire or
other casualty, then, in any such event, Landlord shall have the
right, by giving written notice to Tenant within sixty (60) days after
the occurrence of such fire or other casualty, to terminate this Lease
as of the date of such notice. If Landlord does not exercise the
right to terminate this Lease in accordance with this section 11.2,
Landlord shall repair such damage and restore the Property and the
Premises in accordance with section 11.1 hereof and this Lease shall,
subject to section 11.1 hereof, remain in full force and effect. A
total destruction of the Property shall automatically terminate this
Lease effective as of the date of such total destruction.
ARTICLE 12
----------
Eminent Domain
--------------
12.1 Condemnation. Landlord shall have the right to terminate
this Lease if a substantial part of the Property (whether or not it
includes the Premises) is taken by exercise of the power of eminent
domain before the Commencement Date or during the term of this Lease.
Tenant shall have the right to terminate this Lease if a substantial
portion of the Premises is taken by exercise of the power of eminent
domain before the Commencement Date or during the term of this Lease
and the remaining portion of the Premises is not reasonably suitable
for Tenant's purposes. In each such case, Landlord or Tenant shall
exercise such termination right by giving written notice to the other
within thirty (30) days after the date of such taking. If either
Landlord or Tenant exercises such right to terminate this Lease in
accordance with this section 12.1, this Lease shall terminate as of
the date of such taking. If neither Landlord nor Tenant exercises
such right to terminate this Lease in accordance with this
section 12.1, this Lease shall terminate as to the portion of the
Premises so taken as of the date of such taking and shall remain in
full force and effect as to the portion of the Premises not so taken,
and the Base Rent and Tenant's Percentage Share shall be reduced as of
the date of such taking in the proportion that the area of the
Premises so taken bears to the total area of the Premises. If all of
the Premises is taken by exercise of the power of eminent domain
before the Commencement Date or during the term of this Lease, this
Lease shall terminate as of the date of such taking.
12.2 Award. If all or any part of the Premises is taken by
exercise of the power of eminent domain, all awards, compensation,
damages, income, rent and interest payable in connection with such
taking shall, except as expressly set forth in this section 12.2, be
paid to and become the property of Landlord, and Tenant hereby assigns
to Landlord all of the foregoing. Without limiting the generality of
the foregoing, Tenant shall have no claim against Landlord or the
entity exercising the power of eminent domain for the value of the
leasehold estate created by this Lease or any unexpired term of this
Lease. Tenant shall have the right to claim and receive directly from
the entity exercising the power of eminent domain only the share of
any award determined to be owing to Tenant for the taking of
improvements installed in the portion of the Premises so taken by
Tenant at Tenant's sole cost and expense based on the unamortized cost
actually paid by Tenant for such improvements, for the taking of
Tenant's movable furniture, equipment, trade fixtures and personal
property, for loss of goodwill, for interference with or interruption
of Tenant's business, or for removal and relocation expenses.
12.3 Temporary Use. Notwithstanding sections 12.1 and 12.2
hereof to the contrary, if the use of all or any part of the Premises
is taken by exercise of the power of eminent domain during the term of
this Lease on a temporary basis for a period less than the shorter of
(i) six (6) months or (ii) the term of this Lease remaining after such
taking, this Lease shall continue in full force and effect, Tenant
shall continue to pay all of the rent and to perform all of the
covenants of Tenant in accordance with this Lease, to the extent
reasonably practicable under the circumstances, and the condemnation
proceeds in respect of such temporary taking shall be paid to Tenant.
12.4 Definition of Taking. As used herein, a "taking" means the
acquisition of all or part of the Property for a public use by
exercise of the power of eminent domain or voluntary conveyance in
lieu thereof and the taking shall be considered to occur as of the
earlier of the date on which possession of the Property (or part so
taken) by the entity exercising the power of eminent domain is
authorized as stated in an order for possession or the date on which
title to the Property (or part so taken) vests in the entity
exercising the power of eminent domain.
ARTICLE 13
----------
Subordination and Sale
----------------------
13.1 Subordination. This Lease shall be subject and subordinate
at all times to the lien of all mortgages and deeds of trust securing
any amount or amounts whatsoever which may now exist or hereafter be
placed on or against the Property or on or against Landlord's interest
or estate therein, all without the necessity of having further
instruments executed by Tenant to effect such subordination.
Notwithstanding the foregoing, in the event of a foreclosure of any
such mortgage or deed of trust or of any other action or proceeding
for the enforcement thereof, or of any sale thereunder, this Lease
shall not be terminated or extinguished, nor shall the rights and
possession of Tenant hereunder be disturbed, if no Event of Default
then exists under this Lease, and Tenant shall attorn to the person
who acquires Landlord's interest hereunder through any such mortgage
or deed of trust. Xxxxxx agrees to execute, acknowledge and deliver
upon demand such further instruments evidencing such subordination of
this Lease to the lien of all such mortgages and deeds of trust as may
reasonably be required by Landlord. Notwithstanding anything in this
section 13.1 to the contrary, Xxxxxx's subordination of this Lease
shall be subject to the legal or beneficial owner of the lien of any
mortgage or deed of trust which may now exists or hereafter be placed
on or against the Property or on or against Xxxxxxxx's interest or
estate therein providing Tenant assurance, in the form of a non-
disturbance agreement, that Xxxxxx's possession and this Lease shall
not be disturbed so long as Tenant is not in default hereunder and
attorns to the record owner of the Property.
13.2 Sale of the Property. If the original Landlord hereunder,
or any successor owner of the Property, sells or conveys the Property,
all liabilities and obligations on the part of the original Landlord,
or such successor owner, under this Lease accruing after such sale or
conveyance shall terminate and the original Landlord, or such
successor owner, shall automatically be released therefrom, and
thereupon all such liabilities and obligations shall be binding upon
the new owner. Xxxxxx agrees to attorn to such new owner.
13.3 Estoppel Certificate. At any time and from time to time,
Tenant shall, within ten (10) days after written request by Landlord,
execute, acknowledge and deliver to Landlord a certificate certifying:
(a) that this Lease is unmodified and in full force and effect (or, if
there have been modifications, that this Lease is in full force and
effect as modified, and stating the date and nature of each
modification); (b) the Commencement Date and the Expiration Date
determined in accordance with Article 2 hereof and the date, if any,
to which all rent and other sums payable hereunder have been paid;
(c) that no notice has been received by Tenant of any default by
Tenant hereunder which has not been cured, except as to defaults
specified in such certificate; (d) that Landlord is not in default
under this Lease, except as to defaults specified in such certificate;
and (e) such other matters as may be reasonably requested by Landlord
or any actual or prospective purchaser or mortgage lender. Any such
certificate may be relied upon by Landlord and any actual or
prospective purchaser or mortgage lender of the Property or any part
thereof. Landlord shall, within ten (10) business days after written
request by Xxxxxx, execute, acknowledge and deliver to (a) a proposed
purchaser of all or substantially all of Tenant's assets, or (b) a
proposed lender of Tenant that has or will obtain a security interest
all or any portion of the assets of Tenant, an estoppel certificate
certifying: (a) that this Lease is unmodified and in full force and
effect (or, if there have been modifications, that this Lease is in
full force and effect as modified, and stating the date and nature of
each modification); (b) the Commencement Date and the Expiration Date
determined in accordance with Article 2 hereof and the date, if any,
to which all rent payable hereunder have been paid; (c) that no notice
has been received by Landlord of any default by Landlord hereunder
which has not been cured, except as to defaults specified in such
certificate; and (d) that to the best of Landlord's knowledge, Tenant
is not in monetary default under this Lease, except as to defaults
specified in such certificate. If Tenant has not received the
estoppel requested of Landlord within the time frame set forth herein,
Tenant may provide written notice to Landlord to deliver the estoppel
and upon receipt of such notice, Landlord shall have five (5) business
days to deliver the estoppel. Tenant shall only request such estoppel
certificates on a commercially reasonably basis, but in no event shall
Tenant request such estoppel certificates from Landlord more than
three (3) times during any calendar year. At any time and from time
to time, Tenant shall, within ten (10) days after written request by
Xxxxxxxx, deliver to Landlord copies of all current financial
statements (including a balance sheet, an income statement, and an
accumulated retained earnings statement), annual reports, and other
financial and operating information and data of Tenant prepared by
Tenant in the course of Tenant's business. Unless available to the
public, Landlord shall disclose such financial statements, annual
reports and other information or data only to actual or prospective
purchasers or mortgage lenders of the Property or any part thereof,
and otherwise keep them confidential unless other disclosure is
required by law. In the event Landlord discloses such information,
Landlord shall request the recipient of such information to hold the
same confidential.
ARTICLE 14
----------
Notices
-------
14.1 Method. All requests, approvals, consents, notices and
other communications given by Landlord or Tenant under this Lease
shall be properly given only if made in writing and either deposited
in the United States mail, postage prepaid, certified with return
receipt requested, or delivered by hand (which may be through a
messenger or recognized delivery, courier or air express service) and
addressed as follows: To Landlord at the address of Landlord
specified in the Basic Lease Information, or at such other place as
Landlord may from time to time designate in a written notice to
Tenant; to Tenant at the address of Tenant specified in the Basic
Lease Information, or at such other place as Tenant may from time to
time designate in a written notice to Landlord; and to Guarantor at
the address of Guarantor specified in the Basic Lease Information, or
at such other place as Guarantor may from time to time designate in a
written notice to Landlord. Such requests, approvals, consents,
notices and other communications shall be effective on the date of
receipt (evidenced by the certified mail receipt) if mailed or on the
date of hand delivery if hand delivered. If any such request,
approval, consent, notice or other communication is not received or
cannot be delivered due to a change in the address of the receiving
party of which notice was not previously given to the sending party or
due to a refusal to accept by the receiving party, such request,
approval, consent, notice or other communication shall be effective on
the date delivery is attempted. Any request, approval, consent,
notice or other communication under this Lease may be given on behalf
of a party by the attorney for such party.
ARTICLE 15
----------
Miscellaneous
-------------
15.1 General. The words "Landlord" and "Tenant" as used herein
shall include the plural as well as the singular. The words
"include," "includes" and "including" shall be deemed to be followed
by the phrase "without limitation." If there is more than one Tenant,
the obligations hereunder imposed upon Tenant shall be joint and
several. Time is of the essence of this Lease and each and all of its
provisions. This Lease shall benefit and bind Landlord and Xxxxxx and
the permitted personal representatives, heirs, successors and assigns
of Landlord and Xxxxxx. If any provision of this Lease is determined
to be illegal or unenforceable, such determination shall not affect
any other provision of this Lease and all such other provisions shall
remain in full force and effect. Tenant shall not record this Lease
or any memorandum or short form of it. This Lease shall be governed
by and construed in accordance with the laws of the state in which the
Property is located.
15.2 No Waiver. The waiver by Landlord or Tenant of any breach
of any covenant in this Lease shall not be deemed to be a waiver of
any subsequent breach of the same or any other covenant in this Lease,
nor shall any custom or practice which may grow up between Landlord
and Tenant in the administration of this Lease be construed to waive
or to lessen the right of Landlord or Tenant to insist upon the
performance by Landlord or Tenant in strict accordance with this
Lease. The subsequent acceptance of rent hereunder by Xxxxxxxx or the
payment of rent by Tenant shall not waive any preceding breach by
Tenant of any covenant in this Lease, nor cure any Event of Default,
nor waive any forfeiture of this Lease or unlawful detainer action,
other than the failure of Tenant to pay the particular rent so
accepted, regardless of Landlord's or Tenant's knowledge of such
preceding breach at the time of acceptance or payment of such rent.
15.3 Attorneys' Fees. If there is any legal action or
proceeding between Landlord and Tenant to enforce this Lease or to
protect or establish any right or remedy under this Lease, the
unsuccessful party to such action or proceeding shall pay to the
prevailing party all costs and expenses, including reasonable
attorneys' fees and disbursements, incurred by such prevailing party
in such action or proceeding and in any appeal in connection
therewith. If such prevailing party recovers a judgment in any such
action, proceeding or appeal, such costs, expenses and attorneys' fees
and disbursements shall be included in and as a part of such judgment.
15.4 Exhibits. The Lease Guaranty, Exhibit A (Plan(s) Outlining
the Premises and the Property), Exhibit B (Description of Landlord's
Work), Exhibit C (Form of Memorandum Confirming Term) and any other
attachments specified in the Basic Lease Information, are attached to
and made a part of this Lease.
15.5 Broker(s). Tenant warrants and represents to Landlord that
Xxxxxx has negotiated this Lease directly with the real estate
broker(s) specified in the Basic Lease Information and has not
authorized or employed, or acted by implication to authorize or to
employ, any other real estate broker to act for Tenant in connection
with this Lease. Xxxxxx agrees to indemnify, defend and hold
Landlord, its property manager and their respective employees harmless
from and against all claims, demands, actions, liabilities, damages,
costs and expenses (including, attorneys' fees) arising from either
(i) a claim for a fee or commission made by any broker, other than
Xxxxxx, claiming to have acted by or on behalf of Tenant in connection
with this Lease, or (ii) a claim of, or right to, lien under the
statutes of Illinois relating to real estate broker liens with respect
to any such broker retained by, or claiming to have acted by or on
behalf of, Xxxxxx. Xxxxxxxx agrees to pay Xxxxxx a commission in
accordance with a separate agreement between Landlord and Xxxxxx.
15.6 Waivers of Jury Trial and Certain Damages. Landlord and
Tenant each hereby expressly, irrevocably, fully and forever releases,
waives and relinquishes any and all right to trial by jury and any and
all right to receive punitive, exemplary and consequential damages
from the other (or any past, present or future board member, trustee,
director, officer, employee, agent, representative, or advisor of the
other) in any claim, demand, action, suit, proceeding or cause of
action in which Landlord and Tenant are parties, which in any way
(directly or indirectly) arises out of, results from or relates to any
of the following, in each case whether now existing or hereafter
arising and whether based on contract or tort or any other legal
basis: This Lease; any past, present or future act, omission, conduct
or activity with respect to this Lease; any transaction, event or
occurrence contemplated by this Lease; the performance of any
obligation or the exercise of any right under this Lease; or the
enforcement of this Lease. Landlord and Tenant reserve the right to
recover actual or compensatory damages, with interest, attorneys'
fees, costs and expenses as provided in this Lease, for any breach of
this Lease.
15.7 Entire Agreement. There are no oral agreements between
Landlord and Tenant affecting this Lease, and this Lease supersedes
and cancels any and all previous negotiations, arrangements,
brochures, offers, agreements and understandings, oral or written, if
any, between Landlord and Tenant or displayed by Landlord to Tenant
with respect to the subject matter of this Lease, the Premises or the
Property. There are no commitments, representations or assurances
between Landlord and Tenant or between any real estate broker and
Tenant other than those expressly set forth in this Lease and all
reliance with respect to any commitments, representations or
assurances is solely upon commitments, representations and assurances
expressly set forth in this Lease. This Lease may not be amended or
modified in any respect whatsoever except by an agreement in writing
signed by Landlord and Xxxxxx.
15.8 Termination Option. Landlord and Tenant agree that Tenant
shall have the right, upon at least twelve (12) months prior written
notice to Landlord, to terminate this Lease (the "Termination Right")
effective on the commencement of the fourth lease year (the
"Termination Effective Date"), provided that no Event of Default on
the part of Tenant has occurred and is continuing at the time of the
exercise of such option and at the time of the Termination Effective
Date. The Termination Right shall not affect Tenant's liability for
(i) post-term adjustments to Additional Rent applicable to the period
prior to the Termination Effective Date, (ii) unperformed obligations
which accrued prior to the Termination Effective Date, and (iii)
obligations which by their terms survive the expiration or earlier
termination of the Term of this Lease.
IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have executed this Lease
as of the date specified in the Basic Lease Information.
XXXX X. XXXXXXXXXX & SON, INC.
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXXX XXXXX ACQUISITION, LLC, a Delaware
------------------------ limited liability company
Title: Chief Financial Officer
By: CALEAST INDUSTRIAL INVESTORS, LLC,
Date: April 18, 2003 a California limited liability
company, it sole member
By: LASALLE INVESTMENT MANAGEMENT, INC.,
a Maryland corporation, Manager
By: /s/ XXXXXX XXXXXXXX
-------------------
Title: Vice President
Date: April 18, 2003
EXHIBIT A
---------
PLAN(S) OUTLINING THE PREMISES AND THE PROPERTY
-----------------------------------------------
(GRAPHIC OF FLOOR PLAN)
This site plan or floor plan is used solely for the purpose of
identifying the approximate location and size of the Premises.
Building sizes, site dimensions, access, common and parking areas, and
existing tenants and locations are subject to change at Landlord's
discretion.
EXHIBIT B
---------
Description of Landlord's Work
Landlord shall complete to following improvements prior to the
Commencement Date:
Power wash warehouse floor
Remove fluorescent light bulbs from abandoned fluorescent light
fixtures in warehouse
Clean out the storm sewer drain located in the northwest corner
of the warehouse
Landlord shall complete the following improvements within ninety (90)
days of Commencement Date:
Repairs and sealing to asphalt east and west parking areas
Repairs and maintenance to put all mechanical and electrical
systems in good working order, including HVAC, warehouse
lighting, dock doors, and dock levelers
Landlord shall complete the following improvements within one hundred
eighty (180) days of Commencement Date:
Replacement of concrete apron at west dock loading area
EXHIBIT C
---------
MEMORANDUM CONFIRMING TERM
--------------------------
THIS MEMORANDUM, made as of April 21, 2003, by and
between CABOT ACQUISITION, LLC, a Delaware limited liability company
("Landlord"), and XXXX X. XXXXXXXXX & SON, INC., a Delaware
corporation ("Tenant"),
W I T N E S S E T H:
--------------------
Recital of Facts:
Landlord and Tenant entered into the Industrial Lease (the
"Lease") dated April 18, 2003. Words defined in the
Lease have the same meanings in this Memorandum.
NOW, THEREFORE, in consideration of the covenants in the Lease,
Landlord and Tenant agree as follows:
1. Landlord and Tenant hereby confirm that:
(a) The Commencement Date under the Lease is April 21, 2003
,
(b) The Expiration Date under the Lease is April 21, 2008,; and
(c) The date on which Xxxxxxxx completed the improvements
pursuant to Exhibit B to the Lease (if any), Landlord delivered
possession of the Premises to Tenant as required by the Lease, and
Xxxxxx's obligation to pay rent begins under the Lease is April 21, 2003.
, .
2. Xxxxxx xxxxxx confirms that:
(a) All commitments, representations and assurances made to
induce Tenant to enter into the Lease have been fully satisfied;
(b) All improvements to the Property and in the Premises to be
constructed or installed by Landlord have been completed and furnished
in accordance with the Lease to the satisfaction of Tenant; and
(c) Xxxxxx has accepted and is in full and complete possession
of the Premises.
3. This Memorandum shall be binding upon and inure to the
benefit of Landlord and Xxxxxx and their permitted successors and
assigns under the Lease. The Lease is in full force and effect.
IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have executed this
Memorandum as of the date first hereinabove written.
XXXX X. XXXXXXXXXX & SON, INC.
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXXX XXXXX ACQUISITION, LLC, a Delaware
------------------------ limited liability company
Title: Chief Financial Officer
By: CALEAST INDUSTRIAL INVESTORS, LLC,
Date: April 18, 2003 a California limited liability
company, it sole member
By: LASALLE INVESTMENT MANAGEMENT, INC.,
a Maryland corporation, Manager
By: /s/ XXXXXX XXXXXXXX
-------------------
Title: Vice President
Date: April 18, 2003
EXHIBIT D
---------
Office Space Maintenance
Tenant shall perform maintenance to the office space of the Premises
as set forth below.
During summer months, maintain temperature of no more than 85' F
During winter months, maintain temperature of no less than 55' F
Maintain lighting in all emergency and exit signs
Flush toilets and urinals weekly to maintain valves and avoid
sewer gas seepage
Pour water down all floor drains weekly to avoid sewer gas
seepage
Inspect and report roof leaks to Landlord
Inspect and report broken windows to Landlord
Maintain pest control program
Regularly clean space, including dusting window ledges and
vacuuming or washing floors
