FORM OF LEASE AGREEMENT Dated as of December 27, 2007 between OLD NATIONAL BANK, as the Tenant and [SUNTRUST EQUITY FUNDING, LLC AFFILIATE], as the Landlord
Exhibit 99.2
FORM OF LEASE AGREEMENT
Dated as of December 27, 2007
between
OLD NATIONAL BANK,
as the Tenant
as the Tenant
and
[SUNTRUST EQUITY FUNDING, LLC AFFILIATE],
as the Landlord
as the Landlord
THIS LEASE (as amended, supplemented or otherwise modified from time to time, this
“Lease”) made as of December 27, 2007, by and between [SUNTRUST EQUITY FUNDING, LLC
AFFILIATE], a Delaware limited liability company, as landlord, having an office at c/o SunTrust
Equity Funding, LLC, 000 Xxxxxxxxx Xxxxxx, 24th Floor, MC 3951, Xxxxxxx Xxxxxxx 00000,
and OLD NATIONAL BANK, a national banking association, as tenant, having an office at Xxx Xxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000.
In consideration of the rents and provisions herein stipulated to be paid and performed,
Landlord and Tenant, intending to be legally bound, hereby covenant and agree as follows:
1. Certain Definitions All capitalized terms, unless otherwise defined herein,
shall have the respective meanings ascribed to such terms in Appendix A annexed hereto and
by this reference incorporated herein.
2. Demise of Premises Landlord hereby demises and lets to Tenant and Tenant hereby
takes and leases from Landlord, for the term and upon the provisions hereinafter specified, the
Leased Premises.
3. Title and Condition.
(a) The Leased Premises are demised and let subject to (i) the Permitted Encumbrances, (ii)
all Legal Requirements and Insurance Requirements, including any existing violation of any thereof,
and (iii) the condition of the Leased Premises as of the commencement of the Term, without
representation or warranty by Landlord; it being understood and agreed, however, that the recital
of the Permitted Encumbrances herein shall not be construed as a revival of any thereof which for
any reason may have expired.
(b) LANDLORD WILL NOT MAKE ANY INSPECTION OF ANY OF THE LEASED PREMISES, AND LANDLORD LEASES
AND WILL LEASE, AND TENANT TAKES AND WILL TAKE, THE LEASED PREMISES “AS IS”, AND TENANT
ACKNOWLEDGES THAT LANDLORD (WHETHER ACTING AS LANDLORD HEREUNDER OR IN ANY OTHER CAPACITY) HAS NOT
MADE AND WILL NOT MAKE, NOR SHALL LANDLORD BE DEEMED TO HAVE MADE, ANY WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE LEASED PREMISES, INCLUDING ANY WARRANTY OR
REPRESENTATION AS TO ITS FITNESS FOR USE OR PURPOSE, DESIGN OR CONDITION FOR ANY PARTICULAR USE OR
PURPOSE, AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, LATENT OR PATENT, AS TO
LANDLORD’S TITLE THERETO, OR AS TO VALUE, COMPLIANCE WITH SPECIFICATIONS, LOCATION, USE, CONDITION,
MERCHANTABILITY, QUALITY, DESCRIPTION, DURABILITY OR OPERATION, IT BEING AGREED THAT ALL RISKS
INCIDENT THERETO ARE TO BE BORNE BY TENANT. Tenant acknowledges that the Leased Premises are of
its selection and to its specifications, and that the Leased Premises have been inspected by Tenant
and are satisfactory to it. In the event of any defect or deficiency in any of the Leased Premises
of any nature, whether patent or latent, Landlord shall not have any responsibility or liability
with respect thereto or for any special, incidental or consequential damages (including strict liability in
tort). The provisions of this Paragraph 3(b) have been negotiated, and the foregoing
provisions are intended to be a complete exclusion and negation of any warranties by Landlord,
express or implied, with respect to any of the Leased Premises, arising pursuant to the Uniform
Commercial Code or any other law now or hereafter in effect or otherwise.
(c) Tenant acknowledges and agrees that Tenant has examined the title to the Leased Premises
prior to the execution and delivery of this Lease and has found such title to be satisfactory for
the purposes contemplated by this Lease.
(d) Landlord hereby assigns, without recourse or warranty whatsoever, to Tenant, all
Guaranties. Such assignment shall remain in effect until the termination of this Lease. Landlord
shall also retain the right to enforce any Guaranties assigned in the name of Tenant during the
continuance of an Event of Default. Landlord hereby agrees to execute and deliver, at Tenant’s
expense, such further documents, including powers of attorney, as Tenant may reasonably request in
order that Tenant may have the full benefit of the assignment effected or intended to be effected
by this Paragraph 3(d). Upon the termination of this Lease, the Guaranties shall
automatically revert to Landlord, without recourse or warranty. The foregoing provision of
reversion shall be self-operative and no further instrument of reassignment shall be required. In
confirmation of such reassignment, Tenant shall execute and deliver promptly any certificate or
other instrument which Landlord may reasonably request. Any monies collected by Tenant under any
of the Guaranties after the occurrence of and during the continuation of an Event of Default shall
be held in trust by Tenant and promptly paid over to Landlord.
(e) Landlord agrees to enter into, at Tenant’s expense, such Easements as reasonably requested
by Tenant, subject to Landlord’s and Lender’s approval of the form thereof, not to be unreasonably
withheld; provided, however, that no such Easement shall result in any material
diminution in the value or utility of the Leased Premises for use as an office building, banking
facility or for any other lawful purpose and, further provided, that no such
Easement shall render the use of the Leased Premises dependent upon any other property or
condition, each of which Tenant shall certify to Landlord and Lenders in writing delivered with
Tenant’s request with respect to such Easement. Tenant’s request shall also include Tenant’s
written undertaking acknowledging that Tenant shall remain liable hereunder as principal and not
merely as a surety or guarantor and Lease Guarantor’s written undertaking acknowledging that Lease
Guarantor shall remain liable under the Lease Guaranty, in each case notwithstanding the
establishment of any Easement.
4. Use of Leased Premises; Quiet Enjoyment.
(a) Tenant may use the Leased Premises as an office building or banking facility or for any
other lawful purpose, so long as such other lawful purpose would not (i) have a material adverse
effect on the value of the Leased Premises, (ii) materially increase (when compared to use as an
office building or banking facility) the likelihood that Tenant, Landlord or any Lender would incur
liability under any provisions of any Environmental Laws, or (iii) result in or give rise to any
environmental deterioration or degradation of the Leased Premises, except to a de minimus extent.
In no event shall the Leased Premises be used for any purpose which shall violate, in any material
way, any of the provisions of any Permitted Encumbrance, any REA or
any covenants, restrictions or agreements hereafter created or consented to by Tenant
applicable to the Leased Premises. Tenant agrees that with respect to the Permitted Encumbrances,
each REA and any covenants, restrictions or agreements hereafter created or consented to by Tenant,
Tenant shall, at its expense, observe, perform and comply with and carry out the provisions thereof
required therein to be observed and performed by Landlord or Tenant.
(b) Subject to Tenant’s rights under Paragraph 18, Tenant shall not permit any
unlawful occupation, business or trade to be conducted on the Leased Premises or any use to be made
thereof contrary to applicable Legal Requirements or Insurance Requirements. Subject to Tenant’s
rights under Paragraph 18, Tenant shall not use, occupy or permit any of the Leased
Premises to be used or occupied, nor do or permit anything to be done in or on any of the Leased
Premises, in a manner which would (i) make void or voidable any insurance which Tenant is required
hereunder to maintain in force with respect to any of the Leased Premises, (ii) affect the ability
of Tenant to obtain any insurance which Tenant is required to furnish hereunder, or (iii) cause any
injury or damage to any of the Improvements except in connection with Alterations permitted under
Paragraph 12.
(c) Subject to all of the provisions of this Lease, so long as no Event of Default exists and
is continuing hereunder, Tenant shall not be disturbed in its possession of the Leased Premises by
Landlord or any other person lawfully claiming through or under Landlord.
(d) Subject to Tenant’s rights under Paragraph 17, Tenant covenants and agrees that
it, or its permitted assigns, licensees or subtenants, shall remain in actual physical possession
of the Leased Premises and shall continuously operate its business in the Leased Premises;
provided that Tenant may permit the Leased Premises to be vacant so long as such period of
vacancy does not exceed twelve (12) months at any one time and twenty-four (24) months over the
Term.
5. Term.
(a) Subject to the provisions hereof, Tenant shall have and hold the Leased Premises for the
Initial Term.
(b) Provided (i) this Lease shall not have been terminated pursuant to the provisions of
Paragraph 13 or 19, and (ii) no Event of Default has occurred and is continuing, in
each case on the applicable date of its Renewal Option Notice and on the Expiration Date (or the
expiration date of the then expiring Renewal Term, as applicable), Tenant shall have four (4)
consecutive options to extend the term of this Lease for a Renewal Term, commencing upon the day
after the Expiration Date (or the expiration date of the then expiring Renewal Term, as
applicable). If Tenant elects to exercise any one or more of such renewal options, it shall do so
by giving a Renewal Option Notice to Landlord at any time during the Term (or the then Renewal
Term, as applicable) but, in any event, on or before that date which is six (6) months prior to the
commencement of the Renewal Term for which such election is exercised, TIME BEING OF THE ESSENCE as
to the exercise of such renewal option and the giving of such notice. If Tenant shall elect to
exercise any such renewal option, the term of this Lease shall be automatically extended for five
(5) years without the execution of an extension or renewal lease. Any Renewal Term shall be
subject to all of the provisions of this Lease, and all such provisions shall continue in full
force and effect, except that the Basic Rent for each Renewal Term shall be
at the Basic Rent set forth for such renewal terms on Exhibit B attached hereto.
Within ten (10) days after request by either Landlord or Tenant, Landlord and Tenant shall execute,
acknowledge and deliver to the other party an instrument confirming that such option has been
effectively exercised, confirming the extended Expiration Date of this Lease and confirming the
Basic Rent for the related Renewal Term.
6. Rent.
(a) Tenant shall pay to Landlord, as rent for the Leased Premises during the Term, the Basic
Rent in advance, on the Commencement Date and on each Basic Rent Payment Date occurring after the
Commencement Date, and shall pay the same by wire transfer in immediately available federal funds,
by 3:00 p.m., New York time on the date due, to such account in such bank as Landlord shall
designate, from time to time. In the event that the Commencement Date is a date other than the
first Business Day of a calendar month, the Basic Rent due on the Commencement Date shall be an
amount equal to the amount of Basic Rent set forth on Exhibit B hereto for the first Basic
Rent Payment Date, times 1/30, times the number of days from and including the
Commencement Date to and excluding the first day of the following calendar month, and the Basic
Rent due on the first Business Day of the month following the month in which the Commencement Date
occurs shall be the amount set forth on Exhibit B for the first Basic Rent Payment Date.
(b) Subject to the rights of Tenant pursuant to Paragraph 18, Tenant shall timely pay
and discharge, as Additional Rent, all other amounts and obligations which Tenant assumes or agrees
to pay or discharge pursuant to this Lease, together with every fine, penalty, interest and cost
which may be legally added by the party to whom such payment is due for nonpayment or late payment
thereof. In the event of any failure by Tenant to pay or discharge any of the foregoing, Landlord
shall have all rights, powers and remedies provided herein, by law or otherwise, in the event of
nonpayment of Basic Rent. All payments of Additional Rent that are payable to Landlord shall be
paid by Tenant by electronic transfer in immediately available federal funds to such account in
such bank as Landlord (or the Lender, if so directed by Landlord) shall designate, from time to
time.
(c) If any installment of Basic Rent is not paid when the same is due, Tenant shall pay to
Landlord, on demand, as Additional Rent, interest on such installment from the date such
installment was due to the date such installment is paid at the Default Rate.
(d) Landlord and Tenant agree that this Lease is, and is intended to be, a true lease and does
not represent a financing arrangement. Each party shall reflect the transactions represented by
this Lease in all applicable books, records and reports (including, without limitation, income tax
filings) in a manner consistent with “true lease” treatment rather than “financing” treatment.
7. Net Lease; Non-Terminability.
(a) This is a net lease and Basic Rent and Additional Rent shall be paid, except as otherwise
expressly set forth in this Lease, without notice, demand, setoff, counterclaim, recoupment,
abatement, suspension, deferment, diminution, deduction, reduction or defense.
(b) Except as otherwise expressly provided in this Lease, this Lease shall not terminate and
Tenant shall not have any right to terminate this Lease, during the Term. Except as otherwise
expressly provided in this Lease, Tenant shall not be entitled to any setoff, counterclaim,
recoupment, abatement, suspension, deferment, diminution, deduction, reduction or defense of or to
Basic Rent or Additional Rent; and subject to the terms of this Lease and except as otherwise
expressly provided in this Lease (including Paragraphs 13 and 14), the obligations
of Tenant under this Lease shall not be affected by any interference with Tenant’s use of any of
the Leased Premises for any reason, including but not limited to the following: (i) any damage to
or destruction of any of the Leased Premises by any cause whatsoever, (ii) any Condemnation, (iii)
the prohibition, limitation or restriction of Tenant’s use of any of the Leased Premises, (iv) any
eviction by paramount title or otherwise, (v) Tenant’s acquisition of ownership of any of the
Leased Premises other than pursuant to an express provision of this Lease, (vi) any default on the
part of Landlord under this Lease or under any other agreement, (vii) any latent or other defect
in, or any theft or loss of, any of the Leased Premises, (viii) the breach of any warranty of any
seller or manufacturer of any of the Equipment, (ix) any violation of Paragraph 4(c) by
Landlord or any other person lawfully claiming through or under Landlord, or (x) any other cause,
whether similar or dissimilar to the foregoing, any present or future Law to the contrary
notwithstanding. It is the intention of the parties hereto that the obligations of Tenant under
this Lease shall be separate and independent covenants and agreements, and that Basic Rent and
Additional Rent shall continue to be payable in all events (or, in lieu thereof , Tenant shall pay
amounts equal thereto), and that the obligations of Tenant under this Lease shall continue
unaffected, unless this Lease shall have been terminated pursuant to an express provision of this
Lease. Notwithstanding the foregoing, Tenant shall have the right to pursue a cause of action
against Landlord for damages resulting from Landlord’s default under this Lease, it
being understood that Tenant shall have no right to set off any such damages
against the Rent payable under this Lease.
(c) Tenant agrees that it shall remain obligated under this Lease in accordance with its
provisions and that, except as otherwise expressly provided herein, it shall not take any action to
terminate, rescind or avoid this Lease, notwithstanding (i) the bankruptcy, insolvency,
reorganization, composition, readjustment, liquidation, dissolution, winding-up or other proceeding
affecting Landlord, (ii) the exercise of any remedy, including foreclosure, under the Mortgage
(subject to Tenant’s rights under Paragraph 16(a)(ii)), or (iii) any action with respect to
this Lease (including the disaffirmance hereof) which may be taken by Landlord under the Federal
Bankruptcy Code or by any trustee, receiver or liquidator of Landlord or by any court under the
Federal Bankruptcy Code or otherwise.
(d) This Lease is the absolute and unconditional obligation of Tenant. Tenant waives all
rights which are not expressly stated in this Lease but which may now or hereafter otherwise be
conferred by law (i) to quit, terminate or surrender this Lease or any of the Leased Premises, (ii)
to any setoff, counterclaim, recoupment, abatement, suspension, deferment, diminution, deduction,
reduction or defense of or to Basic Rent or any Additional Rent, except as otherwise expressly
provided in this Lease, and (iii) for any statutory lien or offset right against Landlord or its
property.
8. Payment of Impositions; Compliance with Legal Requirements and Insurance
Requirements.
(a) (i) Subject to the provisions of Paragraph 18, Tenant shall, before interest or
penalties are due thereon, pay and discharge all Impositions accrued prior to or during the Term.
If received by Landlord, Landlord shall promptly deliver to Tenant any xxxx or invoice with respect
to any Imposition.
(ii) Nothing herein shall obligate Tenant to pay, and the term “Impositions” shall exclude,
federal, state or local (A) transfer taxes as the result of a conveyance, encumbrance, transfer or
assignment by Landlord (unless attributable to, or made during the continuance of, an Event of
Default or arising in connection with the initial financing of the acquisition of the Leased
Premises by Landlord), (B) franchise, capital stock or similar taxes if any, of Landlord, except to
the extent such taxes would not have been payable absent Landlord’s ownership of the Leased
Premises, (C) income, excess profits or other taxes, if any, of Landlord, determined on the basis
of or measured by its net income, (D) any estate, inheritance, succession, gift, capital levy or
similar taxes, unless the taxes referred to in clauses (B) and (C) above are in lieu of or a
substitute for any other tax or assessment upon or with respect to any of the Leased Premises
which, if such other tax or assessment were in effect at the commencement of the Term, would be
payable by Tenant, or (E) any Tax that would not have been imposed but for the failure of
Indemnitee to comply with certification, information, documentation or other reporting requirements
applicable to Indemnitee, if compliance with such requirements is required by Law of the relevant
taxing authority as a precondition to relief or exemption from such Tax. In the event that any
assessment against any of the Leased Premises may be paid in installments, Tenant shall have the
option to pay such assessment in installments; and in such event, Tenant shall be liable only for
those installments which become due and payable during the Term. Tenant shall prepare and file all
tax reports required by Governmental Authorities which relate to the Impositions. Tenant shall
deliver to Landlord, within twenty (20) days after Landlord’s written request therefor, copies of
all settlements and notices pertaining to the Impositions which may be issued by any Governmental
Authority and receipts for payments of all Impositions made during each calendar year of the Term.
(b) Subject to the provisions of Paragraph 18, Tenant shall promptly comply with and
conform to, and shall keep the Leased Premises in compliance with, all of the Legal Requirements
and Insurance Requirements.
(c) Any payments required to be made by Tenant pursuant to this Paragraph 8 that are
not allowed to be paid directly to the appropriate Governmental Authority or such other Person to
whom such payment is due shall be made directly to Landlord on or before the date that is three (3)
Business Days prior to the date on which such payment is due to the related Governmental Authority
or such other Person at the location and in the manner specified by Landlord pursuant to
Paragraph 6 for the payment of Additional Rent. Landlord shall forward such payment to the
related Governmental Authority or such other Person to whom such payment is due within three (3)
Business Days of receipt thereof by Landlord. Any amount payable by Tenant to Landlord under this
Paragraph 8 that is not paid when due shall bear interest at the Default Rate, except in
the case of any payment for Taxes, such interest shall begin accruing on the later of (i) the due
date for payment of such Taxes to the appropriate Governmental Authority and (ii) the date Landlord
pays such amounts for Taxes to the appropriate Governmental Authority.
(d) If any report, return or statement (a “Filing”) is required to be filed with
respect to any Imposition that is subject to this Xxxxxxxxx 0, Xxxxxx shall, if permitted
by Applicable Laws to do so, timely file or cause to be filed such Filing with respect to such
Imposition and shall promptly provide notice of such filing to Landlord (except for any such Filing
that Landlord has notified Tenant in writing that Landlord intends to file, in which case Landlord
shall, if requested by Tenant, provide a copy of such Filing to Tenant) and will (if ownership of
the Leased Premises or any part thereof or interest therein is required to be shown on such Filing)
show the ownership of the Leased Premises in the name of Landlord and send a copy of such Filing to
Landlord. If Tenant is not permitted by Applicable Laws to file any such Filing, Tenant will
promptly notify Landlord of such requirement in writing and prepare and deliver to Landlord a
proposed form of such Filing and such information as is within Tenant’s reasonable control or
access with respect to such Filing within a reasonable time, and in all events at least ten (10)
days, prior to the time such Filing is required to be filed. Tenant shall hold Landlord harmless
from and against any liabilities, including, but not limited to penalties, additions to tax, fines
and interest, arising out of any insufficiency or inaccuracy in any such Filing, to the extent such
insufficiency or inaccuracy is attributable to Tenant. If Landlord has elected to make a Filing,
Landlord shall hold Tenant harmless from and against any liabilities, including, but not limited
to, penalties, additions to tax and interest arising out of any insufficiency or inaccuracy in any
such Filing to the extent such insufficiency or inaccuracy is attributable to Landlord.
(e) Notwithstanding anything herein to the contrary, any obligations of Tenant under the
provisions of this Paragraph 8 that accrue prior to the expiration or earlier termination
of this Lease shall survive such expiration or earlier termination of this Lease.
(f) If Landlord receives a refund with respect to any Impositions paid or indemnified by
Tenant, Landlord shall within fifteen (15) days of receipt thereof repay to the Tenant the amount
previously paid or indemnified by Tenant for such Impositions to the extent not in excess of the
refund amount actually received by the Landlord (“Refund”), plus any interest actually
received by the Landlord that is fairly attributable to the Refund; provided,
however, in the event that any portion of the Refund is later required to be repaid,
recaptured or disallowed, such portion of the Refund will be treated as a Claim for which the
Landlord is entitled to indemnification and Tenant shall pay such portion to Landlord within
fifteen (15) days of demand therefor, except if such loss of the Refund would not have occurred but
for the Landlord’s gross negligence or willful misconduct.
9. Liens; Recording and Title.
(a) Tenant shall not, directly or indirectly, create or permit to be created or, subject to
the provisions of Paragraph 18, to remain, and shall promptly discharge, any lien on the
Leased Premises, the Basic Rent or any Additional Rent, other than the Mortgage, the Permitted
Encumbrances and any mortgage, lien, encumbrance or other charge created by or resulting from any
act or omission by Landlord or those claiming by, through or under Landlord (except Tenant).
Notice is hereby given that Landlord shall not be liable for any labor, services or materials
furnished or to be furnished to Tenant, or to anyone holding any of the Leased Premises through or
under Tenant, and that no mechanic’s or other liens for any such labor, services or materials shall
attach to or affect the interest of Landlord in and to any of the Leased Premises.
(b) Each of Landlord and Tenant shall execute, acknowledge and deliver to the other a written
Memorandum of this Lease to be recorded in the appropriate land records of the jurisdiction in
which the Leased Premises is located, in order to give public notice and protect the validity of
this Lease. In the event of any discrepancy between the provisions of said recorded Memorandum of
this Lease and the provisions of this Lease, the provisions of this Lease shall prevail.
(c) Nothing in this Lease and no action or inaction by Landlord shall be deemed or construed
to mean that Landlord has granted to Tenant any right, power or permission to do any act or to make
any agreement which may create, give rise to, or be the foundation for, any right, title, interest
or lien in or upon the estate of Landlord in any of the Leased Premises.
10. Indemnification.
(a) Tenant agrees to assume liability for, and to indemnify, protect, defend, save and keep
harmless each Indemnitee from and against any and all Claims that may be suffered, imposed on or
asserted against any Indemnitee (including any Claims resulting from any Indemnitee’s negligence),
arising out of (i) the initial acquisition of the Leased Premises by Landlord, ownership of the
Leased Premises by Landlord, leasing by Landlord of the Leased Premises to Tenant, subleasing of
the Leased Premises by Tenant, assignment by Tenant of its interest in this Lease, or sale of the
Leased Premises by Landlord to Tenant, transfer of title to Tenant’s interest in this Lease,
renewal of this Lease, or the operation, possession, use, non-use, maintenance, modification,
alteration, construction, reconstruction, restoration, or replacement of the Leased Premises (or
any portion thereof), any easements or REAs affecting the Leased Premises or from the granting by
Landlord at Tenant’s request of easements, licenses or any rights with respect to all or any part
of the Leased Premises, or from the construction, design, purchase or condition of the Leased
Premises (including any Claims arising, directly or indirectly, out of the actual or alleged
presence, use, storage, generation or Release of any Hazardous Materials, and any Claims for
patent, trademark or copyright infringement and latent or other defects, whether or not
discoverable), including any liability under Applicable Laws (including, without limitation, any
Claims arising directly or indirectly out of any actual or alleged violation, now or hereafter
existing, of any Environmental Laws), (ii) this Lease or any modification, amendment or supplement
hereto, (iii) the non-compliance of the Leased Premises with Applicable Laws (including because of
the existence of the Permitted Encumbrances), (iv) any matter relating to all or any part of the
Leased Premises or any operations thereon, including matters relating to Environmental Laws or
Hazardous Materials, (v) the breach by Tenant of its representations, warranties, covenants and
obligations in this Lease whether or not such Claim arises or accrues prior to the date of this
Lease, (vi) the business and activities of Tenant and any other Person on or about the Leased
Premises (whether as an invitee, subtenant, licensee or otherwise), (vii) the cost of assessment,
containment and/or removal of any and all Hazardous Materials from all or any portion of the Leased
Premises or any surrounding areas for which Tenant or Landlord has any legal obligation, the cost
of any actions taken in response to a Release of any Hazardous Materials on, in, under or affecting
any portion of the Leased Premises or any surrounding areas for which Tenant or Landlord has any
legal obligation to prevent or minimize such Release so that it does not migrate or otherwise cause
or threaten danger to present or future public health, safety, welfare or the environment, and
costs incurred to comply with Environmental Laws in connection with all or any portion of the
Leased Premises or any surrounding areas for which Tenant or Landlord has any legal obligation, and all Claims
arising from the presence, release, maintenance or disposal of asbestos-containing materials at,
from or with respect to the Leased Premises, and (viii) any Event of Default. Notwithstanding the
foregoing, nothing herein shall be construed to obligate Tenant to indemnify, defend and hold
harmless any Indemnitee from and against any Claims imposed on or incurred by such Indemnitee by
reason of (i) such Indemnitee’s willful misconduct or gross negligence (other than willful
misconduct or gross negligence attributed to it by acts or omissions of Tenant), (ii) any liens and
liabilities of Landlord solely in connection with any financing by Landlord of the Leased Premises
or (iii) events that occur after termination of this Lease and return of the Leased Premises in
accordance with the terms of this Lease.
(b) In case any Claim shall be made or brought against any Indemnitee, such Indemnitee shall
give prompt written notice thereof to Tenant; provided that failure to so notify Tenant
shall not reduce Tenant’s obligations to indemnify any Indemnitee hereunder except to the extent
such failure materially affects Tenant’s rights to defend such Claim. Tenant shall be entitled, at
its expense, acting through counsel selected by Tenant (and reasonably satisfactory to such
Indemnitee), to participate in, or, except as otherwise provided herein, to assume and control (if
it promptly so elects upon notice of the Claim), and, to the extent that Tenant desires to assume
and control, in consultation with Indemnitee, the negotiation, litigation and/or settlement of any
such Claim (subject to the provisions of subparagraph (c) of this Paragraph 10).
Such Indemnitee may (but shall not be obligated to) participate at its own expense (unless Tenant
is not properly performing its obligations hereunder, and then at the expense of Tenant) and with
its own counsel in any proceeding conducted by Tenant in accordance with the foregoing, in which
case Tenant shall keep such Indemnitee and its counsel fully informed of all proceedings and
filings and afford such Indemnitee and counsel reasonable opportunity for comment. Notwithstanding
the foregoing, Tenant shall not be entitled to assume and control the defense of any Claim if (i)
an Event of Default has occurred and is continuing, (ii) the proceeding involves possible
imposition of any criminal liability or penalty or unindemnified civil penalty on such Indemnitee,
(iii) the proceeding involves the granting of injunctive relief against the Indemnitee not related
to this Lease, (iv) a significant counterclaim is available to the Indemnitee that would not be
available to and cannot be asserted by Tenant, (v) a conflict of interest exists between the
Indemnitee and Tenant with respect to the Claim, or (vi) the defense of such Claim would require
the delivery of material confidential and proprietary information of such Indemnitee that would
otherwise not be available to Tenant or its counsel.
(c) Upon payment in full of any Claim by Tenant pursuant to this Paragraph 10 to or on
behalf of an Indemnitee, Tenant, without any further action, shall be subrogated to any and all
Claims that such Indemnitee may have relating thereto (other than claims in respect of insurance
policies maintained by such Indemnitee at its own expense or claims against another Indemnitee for
which Tenant would have indemnity obligations hereunder) to the extent of such payment, and such
Indemnitee shall execute such instruments of assignment and conveyance, evidence of Claims and
payment and such other documents, instruments and agreements as may be reasonably necessary to
preserve any such Claims and otherwise reasonably cooperate with Tenant to enable Tenant to pursue
such Claims.
(d) The obligations of Tenant under this Paragraph 10 shall survive any termination
expiration of this Lease.
11. Maintenance and Repair.
(a) Except for any Alterations that Tenant is permitted to make pursuant to this Lease, Tenant
shall at all times from and after the Commencement Date, including any Requisition period, put,
keep and maintain the Leased Premises (including, without limitation, the roof, landscaping, walls,
footings, foundations and structural components of the Leased Premises) and the Equipment in a
similar (or better) condition and order of repair as exists as of the Commencement Date, except for
ordinary wear and tear and the loss of a part of the Leased Premises pursuant to a partial
Condemnation with respect to which restoration is not practically feasible, and shall promptly make
all repairs and replacements of every kind and nature, whether foreseen or unforeseen, which may be
required to be made upon or in connection with the Leased Premises in order to keep and maintain
the Leased Premises in the order and condition required by this Paragraph 11(a). Tenant
shall do or cause others to do all shoring of the Leased Premises or of foundations and walls of
the Improvements and every other act necessary or appropriate for preservation and safety thereof,
by reason of or in connection with any excavation or other building operation upon any of the
Leased Premises, whether or not Landlord shall, by reason of any Legal Requirements or Insurance
Requirements, be required to take such action or be liable for failure to do so. LANDLORD SHALL
NOT BE REQUIRED TO MAKE ANY REPAIR, WHETHER FORESEEN OR UNFORESEEN, OR TO MAINTAIN ANY OF THE
LEASED PREMISES OR ADJOINING PROPERTY IN ANY WAY, AND TENANT HEREBY EXPRESSLY WAIVES THE RIGHT TO
MAKE REPAIRS AT THE EXPENSE OF THE LANDLORD, WHICH RIGHT MAY BE PROVIDED FOR IN ANY LAW NOW OR
HEREAFTER IN EFFECT. Tenant shall, in all events, make all repairs for which it is responsible
hereunder promptly, and all repairs shall be in a good, proper and workmanlike manner.
(b) Subject to Paragraph 18, in the event that any Improvement shall violate any Legal
Requirements or Insurance Requirements and as a result of such violation enforcement action is
threatened or commenced against Tenant or with respect to the Leased Premises, then Tenant, at the
request of Landlord, shall either (i) obtain valid and effective waivers or settlements of all
claims, liabilities and damages resulting from each such violation, whether the same shall affect
Landlord, Tenant or both, or (ii) take such action as shall be necessary to remove such violation,
including, if necessary, the making of an Alteration. Any such repair or Alteration shall be made
in conformity with the provisions of Paragraph 12.
(c) If Tenant shall be in default under any of the provisions of this Xxxxxxxxx 00,
Xxxxxxxx may after thirty (30) days written notice given to Tenant and failure of Tenant to cure
during said period, but with such shorter notice that is appropriate under the circumstances in the
event of an emergency, do whatever is reasonably necessary to cure such default as may be
appropriate under the circumstances for the account of and at the expense of Tenant. In the event
of an emergency Landlord shall notify Tenant of the situation by phone or other available
communication. All reasonable sums so paid by Landlord and all reasonable costs and expenses
(including, without limitation, reasonable attorneys’ fees and expenses) so incurred, together with
interest thereon at the Default Rate from the date of payment or incurring the expense, shall
constitute Additional Rent payable by Tenant under this Lease and shall be paid by Tenant to
Landlord within five (5) Business Days of demand.
(d) Tenant shall from time to time replace with Replacement Equipment any of the Equipment
which shall have become worn out or unusable for the purpose for which it is intended, been taken
by a Condemnation as provided in Paragraph 13 (provided that Landlord or its Lender
releases the Net Award to Tenant as provided in Paragraph 15), or been lost, stolen,
damaged or destroyed as provided in Paragraph 14 (provided that Landlord or its
Lender releases the Net Proceeds to Tenant as provided in Paragraph 15). Tenant shall
repair at its sole cost and expense all damage to the Leased Premises caused by the removal of
Equipment or Replaced Equipment or other personal property of Tenant or the installation of
Replacement Equipment. All Replacement Equipment shall become the property of Landlord, shall be
free and clear of all liens and rights of others and shall become a part of the Equipment as if
originally demised herein.
12. Alterations.
(a) Upon prior written notice to Landlord, Tenant shall have the right to make any
Alteration(s) to the Leased Premises, that are non-structural and the cost of which does not exceed
the Threshold Amount, in the aggregate, in any calendar year; provided, that, Tenant
complies with clause (c) of this Paragraph 12.
(b) Upon at least 30 days’ prior written notice to Landlord, Tenant shall have the right to
make any Alteration(s) to the Leased Premises, that are structural and/or the cost of which exceeds
the Threshold Amount, in the aggregate, in any calendar year; provided, that, (i) no Event
of Default has occurred and is then continuing, (ii) Tenant complies with clause (c) of
this Xxxxxxxxx 00, (xxx) prior to making any such Alteration(s), Tenant shall provide
Landlord with the plans and specifications, estimated budgets and proposed schedule of construction
with respect thereto, and (iv) Landlord shall have consented to such Alterations in writing, which
consent shall not be unreasonably withheld, conditioned or delayed.
(c) In connection with any Alteration: (i) the fair market value of the Leased Premises shall
not be lessened after the completion of any such Alteration, or its structural integrity impaired;
(ii) all such Alterations shall be performed in a good and workmanlike manner, and shall be
expeditiously completed in material compliance with all Legal Requirements; (iii) no such
Alteration shall change the permitted use of the Leased Premises (as described in Paragraph
4), (iv) all work done in connection with any such Alteration shall comply with all Insurance
Requirements; (v) Tenant shall timely pay all costs and expenses of any such Alteration and shall
(subject to and in compliance with the provisions of Paragraph 18) discharge all liens
filed against any of the Leased Premises arising out of the same; (vi) Tenant shall procure and pay
for all permits and licenses required in connection with any such Alteration; (vii) no such
Alteration shall create any debt or other encumbrance(s) on the Leased Premises and (viii) in the
case of any Alteration the estimated cost of which in any one instance exceeds the Threshold
Amount, such Alterations shall be made under the supervision of an architect or engineer and in
accordance with plans and specifications which shall be submitted to Landlord prior to the
commencement of the Alterations.
(d) All Alterations (excluding Trade Fixtures installed in connection therewith) shall become
the property of Landlord, shall be free and clear of all liens and rights of others and shall
become a part of the Leased Premises as if originally demised herein.
13. Condemnation; Termination of this Lease for Total Taking or Total Casualty.
(a) Tenant, promptly upon obtaining knowledge of the institution of any proceeding for
Condemnation, shall notify Landlord thereof and Landlord shall be entitled to participate in any
Condemnation proceeding at its sole cost and expense (unless an Event of Default has occurred and
is continuing, in which case Tenant shall be responsible for such costs and expenses). Landlord,
promptly after obtaining knowledge of the institution of any proceeding for Condemnation, shall
notify Tenant thereof. Subject to Landlord’s and Lender’s right to participate in the proceeding
and to the terms of Paragraph 13(f) and so long as no Event of Default is continuing,
Tenant shall have the right to control the Condemnation proceedings. Subject to the provisions of
this Paragraph 13 and Paragraph 15, Tenant hereby irrevocably assigns to the Lender
and to Landlord, in that order, any award or payment in respect of any Condemnation of the Leased
Premises, except that (except as hereinafter provided) nothing in this Lease shall be deemed to
assign to Landlord or any Lender any Tenant’s Award to the extent Tenant shall have a right to make
a separate claim therefor against the condemnor.
(b) (i) If (A) the entire Leased Premises shall be subject to a Taking by a duly constituted
authority or agency having jurisdiction, (B) a material portion of the Land or the building
constructed on the Land or any means of ingress, egress or access to the Leased Premises, the loss
of which even after restoration would, in Tenant’s reasonable business judgment, be substantially
and materially adverse to the business operations of Tenant at the Leased Premises, shall be
subject to a Taking by a duly constituted authority or agency having jurisdiction, or (C) any means
of ingress, egress or access to the Leased Premises which does not result in at least one method of
ingress and egress to and from the Leased Premises remaining, provided the same is permitted under
then existing Legal Requirements, shall be subject of a Taking by a duly constituted authority or
agency having jurisdiction, then Tenant may terminate this Lease upon written notice delivered to
Landlord within 120 days of such taking. In the event that Tenant terminates this Lease pursuant
to the foregoing sentence, such termination shall be effective upon the date that possession is
required to be surrendered to the applicable authority (the “Taking Termination Date”).
Upon such termination date, Tenant shall pay to Landlord the sum of (x) all accrued and unpaid
Basic Rent as of such date, and (y) all Additional Rent due and payable on or prior to such date
that remains unpaid and upon such payment, this Lease shall terminate and, except for those
provisions that survive termination, neither Tenant nor Landlord shall have any further obligations
hereunder.
(ii) During the period of time between the total Taking and the Taking Termination Date, this
Lease shall stay in full force and effect, Tenant’s obligation to pay Basic Rent shall continue and
Tenant shall otherwise remain fully liable hereunder, it being understood
that so long as Tenant pays Basic Rent as and when due and no Event of Default has occurred and is
continuing, Tenant shall be entitled to retain possession of, and the use and enjoyment of, the
Leased Premises during such period.
(c) If a casualty occurs during the last eighteen (18) months of the Initial Term, during any
Renewal Term or at anytime during the Term if Landlord has not borrowed a Loan on or prior to May
1, 2009, the cost of Restoration as a result thereof is reasonably expected by Tenant to exceed 70%
of the replacement cost of the Leased Premises, then Tenant may, not later than one hundred twenty
(120) days after such casualty has occurred, terminate this Lease upon written notice to Landlord.
If a casualty occurs, the cost of Restoration as a result thereof
is reasonably expected by Tenant to exceed 70% of the replacement cost of the Leased Premises, the
foregoing sentence is not applicable, it is impractical, as reasonably determined by Tenant, to
restore the Leased Premises and the insurance proceeds paid to the Landlord in connection with such
casualty are in an amount at least equal to the Casualty Loan Amount as of the termination date,
then Tenant may, not later than one hundred twenty (120) days after such casualty has occurred,
terminate this Lease upon written notice to Landlord. If a casualty occurs, the cost of
Restoration as a result thereof is reasonably expected by Tenant to exceed 70% of the replacement
cost of the Leased Premises, it is impractical, as reasonably determined by Tenant, to restore the
Leased Premises, the first sentence of this Paragraph 13(c) is not applicable and the
insurance proceeds paid to the Landlord in connection with such casualty are not in an amount at
least equal to the Casualty Loan Amount as of the termination date, then Tenant may, not later than
one hundred twenty (120) days after such casualty has occurred, notify Landlord of its desire to
terminate this Lease and Landlord shall cooperate with Tenant, in good faith, to attempt to obtain
the Lender’s consent to the termination of the Lease or to arrange for a transaction that will
generate sufficient proceeds to pay the Loan (a “Termination Transaction”); such
cooperation shall include considering, in good faith, refinancing opportunities, rebuilding and
re-leasing options and sale options. During such discussion period, neither Tenant nor Landlord
shall exercise any option with respect to whether the casualty insurance provider will be required
to pay replacement cost or actual cash value without the other party’s written consent,
provided that the parties shall make such decision prior to the time under such casualty
policy when the option to replace the damaged Leased Premises is no longer available. In the event
that Tenant terminates this Lease pursuant to this Paragraph 13(c), such termination shall
be effective upon the date set forth in the notice to Landlord, which date shall be no earlier than
the date than is thirty (30) days after delivery of such notice. Upon such termination date,
Tenant shall pay to Landlord the sum of (x) all accrued and unpaid Basic Rent as of such date, (y)
all Additional Rent due and payable on or prior to such date that remains unpaid and upon such
payment and (z) the amount of any deductible under the casualty insurance and any proceeds received
by Tenant under such casualty insurance for the Leased Premises, this Lease shall terminate and,
except for those provisions that survive termination, neither Tenant nor Landlord shall have any
further obligations hereunder. During the period of time between the casualty and the termination
date, and if the parties cannot consummate a Termination Transaction, this Lease shall stay in full
force and effect, Tenant’s obligation to pay Basic Rent shall continue and Tenant shall otherwise
remain fully liable hereunder.
(d) In the event that this Lease is terminated as described in subparagraph (b) or
subparargraph (c) above, this Lease and the Term hereof shall terminate on the date set
forth in such subparagraph; and in such event Tenant shall have no obligation to commence or
complete the Restoration and all of the awards and insurance proceeds payable in connection with
the Taking or casualty, as the case may be (other than Tenant’s business interruption insurance
proceeds), shall be adjusted and negotiated by, and paid to, Landlord (or to Lender if there is a
Lender at such time).
(e) (i) In the event of a Condemnation of any part of the Leased Premises which does not
result in a termination of this Lease, subject to the requirements of Paragraph 15, the Net
Award of such Condemnation shall be retained by Landlord; and promptly after such
Condemnation, Tenant shall commence and diligently continue to completion the Restoration of
the Leased Premises.
(ii) Upon the payment to Landlord of the Net Award of a Taking which falls within the
provisions of this Paragraph 13(e), Landlord and Lenders shall, to the extent received,
make the Restoration Award available to Tenant for Restoration, in accordance with the provisions
of Paragraph 15, and promptly after completion of the Restoration, the balance of the Net
Award shall be paid to Landlord and all Basic Rent and Additional Rent shall continue unabated and
unreduced.
(iii) In the event of a Requisition of the Leased Premises, Landlord shall apply the Net Award
of such Requisition, to the extent available, to the installments of Basic Rent or Additional Rent
thereafter payable and Tenant shall pay any balance remaining thereafter. Upon the expiration of
the Term, any portion of such Net Award which shall not have been previously credited to Tenant on
account of the Basic Rent and Additional Rent shall be retained by Landlord.
(f) Except with respect to Tenant’s Award or proceeds of business interruption insurance as
provided in Paragraph 14(a)(v), no agreement with any condemnor in settlement of or under
threat of any Condemnation shall be made by either Landlord or Tenant (provided no Event of
Default then exists and is continuing) without the written consent of the other, and of Lenders, if
the Leased Premises are then subject to a Mortgage, which consent, in each case, shall not be
unreasonably withheld, conditioned or delayed.
14. Insurance.
(a) Tenant shall maintain at its sole cost and expense the following insurance on the Leased
Premises:
(i) Insurance against loss of or damage to the Improvements, the Equipment, Tenant’s Trade
Fixtures and other personal property located on or at the Leased Premises under an ISO special form
or broader coverage insurance policy, which shall include coverage against all risks of direct
physical loss or damage (which shall include terrorism insurance, windstorm insurance, flood
insurance if the Leased Premises is located within either a Special Flood Hazard Area or a
Non-Special Flood Hazard Area as determined by FEMA flood zone ratings of A or V, and earthquake
insurance if the Leased Premises is located in an area where earthquake insurance is customarily
maintained for similar commercial properties). Such insurance shall also include (A) ordinance and
law coverage (hazards A, B and C, with limits for A of not less than replacement cost and limits
for B and C not less than $1,000,000 in the aggregate) and (B) a condition that permits the insured
to elect to rebuild on another site, provided that such rebuilding does not increase the amount of
loss or damage that would otherwise be payable to rebuild at the original site (it
being understood that Tenant may not rebuild at another site without Landlord’s and
Lender’s prior written approval, which approval may conditioned, among other things, on the
fulfillment of certain conditions precedent). Such insurance shall be in amounts sufficient to
prevent Landlord or Tenant from becoming a co-insurer under the applicable policies, and in any
event in amounts not less than the actual replacement cost of the Improvements and Equipment
related to such Leased Premises
(excluding footings and foundations and other parts of the Improvements which are not
insurable). Such insurance policies may contain reasonable exclusions and deductible amounts, all
in accordance with industry standards. Landlord hereby approves Tenant’s current deductible for
property insurance of $100,000, provided that, if Old National Bank assigns its rights
under this Lease, other than in connection with a sale of all or substantially all of its assets or
a merger, then such deductible shall not exceed $25,000.
(ii) Commercial general liability insurance against claims for bodily injury, death or
property damage occurring on, in or about the Leased Premises, which insurance shall (A) be written
on an “Occurrence Basis”, and shall provide minimum protection with a combined single limit in an
amount not less than the greater of (x) $5,000,000 or (y) the aggregate amount of such insurance
carried by prudent owners or operators of similar commercial properties, for bodily injury, death
and property damage in any one occurrence and (B) include premises and operations liability
coverage, products and completed operations liability coverage, and blanket contractual liability
coverage. In addition, Tenant shall maintain auto liability insurance in an amount not less than
$1,000,000. It is expressly acknowledged and agreed that Tenant may utilize an umbrella policy to
satisfy the insurance requirements set forth in this subparagraph (ii).
(iii) Workers’ compensation insurance covering all persons employed by Tenant on the Leased
Premises in connection with any work done on or about any of the Leased Premises for which claims
for death or bodily injury could be asserted against Landlord, Tenant or the Leased Premises.
(iv) Boiler and machinery coverage on a comprehensive form in an amount not less than the
actual replacement cost of the Improvements and Equipment (excluding footings and foundations and
other parts of the Improvements which are not insurable).
(v) Business interruption insurance (A) covering all risks required to be covered by the
insurance provided for in subparagraph (i) above for a period commencing at the time of
loss for such length of time as it takes to repair or replace with the exercise of due diligence,
(B) containing an indemnity coverage extension which provides that after the physical loss to the
Leased Premises has been repaired, the continued loss of income will be insured until such income
either returns to the same level it was at prior to the loss or the expiration of twelve months,
whichever occurs first, and (C) in an amount not less than $15,000,000.
(vi) Such additional and/or other insurance with respect to the Leased Premises and in such
amounts as may be reasonably required by Landlord or Lender.
(b) The insurance required by Paragraph 14(a) shall be written by companies having a
term insurer financial strength rating by Standard & Poor’s of not less than A- and an A.M. Best
Insurance Reports rating of not less than “A-” and a financial size category of “VIII”, and all
such companies shall be authorized to do an insurance business in the State, or otherwise agreed to
by Landlord and Lenders. The foregoing notwithstanding, to the extent permitted by law, Tenant
shall be permitted to self insure for the insurance required under Paragraph 14(a)(iii).
The insurance policies (i) shall be in amounts sufficient at all times to satisfy any coinsurance
requirements thereof, and (ii) shall (except for the worker’s compensation insurance referred to in
Paragraph 14(a)(iii)) name Landlord, Tenant and each Lender as additional insured
parties, as their respective interests may appear. If said insurance or any part thereof shall
expire, be withdrawn, become void by breach of any condition thereof by Tenant or become void or
unsafe by reason of the failure or impairment of the capital of any insurer, Tenant shall obtain
new or additional insurance reasonably satisfactory to Landlord and Lenders prior to the expiration
of such existing policy or policies or as promptly as practicable after such existing policies
becoming void or unsafe, as the case may be.
(c) Each insurance policy referred to in clauses (i), (iv) and (v) of
Paragraph 14(a), shall contain standard non-contributory mortgagee clauses in favor of each
Lender. Each policy shall provide that it may not be canceled except after thirty (30) days’ prior
notice to Landlord and each Lender. Each policy shall also provide that any losses otherwise
payable thereunder shall be payable notwithstanding (i) any act or omission of Landlord, Tenant or
any other Person which might, absent such provision, result in a forfeiture of all or a part of
such insurance payment, or (ii) the occupation or use of any of the Leased Premises for purposes
more hazardous than permitted by the provisions of such policy. Notwithstanding anything to the
contrary in this Lease, Landlord and Tenant mutually waive their respective rights of recovery
against each other and each other’s officers, directors, constituent partners, members, agents and
employees, and Tenant further waives such rights against each Lender, to the extent any loss is
insured against or required to be insured against under this Lease, including, but not limited to,
losses, deductibles or self-insured retentions covered by Landlord’s or Tenant’s commercial
property, general liability, automobile liability or workers’ compensation policies described
above. The foregoing sentence is intended to waive, fully and for the benefit of each party to
this Lease, any and all rights and claims that might give rise to a right of subrogation by any
insurance carrier. Each party shall cause its respective insurance policies to be endorsed to
evidence compliance with such waiver. Nothing set forth in this paragraph shall abrogate any of
Landlord’s or any Lender’s right to pursue any claim against Tenant for damages resulting from
Tenant’s failure to maintain the insurance required under this Lease.
(d) Tenant shall pay as they become due all premiums for the insurance required by this
Paragraph 14 and shall renew or replace each policy prior to the Insurance Expiration Date
of each policy. Tenant shall deliver to Landlord and Lenders a certificate or other evidence (on
an XXXXX 28 form, in the case of property insurance, and otherwise reasonably satisfactory to
Lenders and Landlord) of the existing policy and such renewal or replacement policy at least thirty
(30) days prior to the Insurance Expiration Date of each policy. Each such policy shall provide
that it shall not expire or be cancelled until the Landlord and each Lender listed as additional
insured or loss payee shall receive a notice from the insurer to the effect that such policy will
expire on, or be cancelled prior to, the Insurance Expiration Date, as set forth in such notice,
which shall be thirty (30) days following the date of the receipt by Landlord and such Lender of
such notice. In the event of Tenant’s failure to comply with any of the foregoing requirements of
this Xxxxxxxxx 00, Xxxxxxxx shall be entitled to procure such insurance. Any reasonable
sums expended by Landlord in procuring such insurance shall be Additional Rent and shall be repaid
by Tenant, together with interest thereon at the Default Rate, from the time of payment by Landlord
until fully paid by Tenant within five (5) Business Days after Tenant’s receipt of written demand
therefor by Landlord.
(e) Anything in this Paragraph 14 to the contrary notwithstanding, any insurance which
Tenant is required to obtain pursuant to Paragraph 14(a) may be carried under a “blanket”
policy or policies covering other properties or liabilities of Tenant, provided that such “blanket”
policy or policies otherwise comply with the provisions of this Paragraph 14. In the event
any such insurance is carried under a blanket policy, Tenant shall deliver to Landlord and Lenders
evidence of the issuance and effectiveness of the policy, the amount and character of the coverage
with respect to the Leased Premises and the presence in the policy of provisions of the character
required in the above sections of this Paragraph 14.
(f) In the event of any property loss exceeding the Threshold Amount, Tenant shall give
Landlord immediate notice thereof. Tenant shall adjust, collect and compromise any and all claims,
with the consent of Lenders and Landlord, not to be unreasonably withheld, conditioned or delayed
and Landlord and Lenders shall have the right to join with Tenant therein (except with respect to
any property loss of the Threshold Amount or less, in which case no consent of the Lenders or
Landlord shall be required). If the estimated cost of Restoration or repair shall be the Threshold
Amount or less, all proceeds of any insurance required under clauses (i), (iv) and
(v) of Paragraph 14(a) shall be payable to Tenant. Each insurer is hereby
authorized and directed to make payment under the property insurance policies (i) for all property
losses of the Threshold Amount or less, directly to Tenant and (ii) for all other property losses,
directly to the Lender instead of to Landlord and Tenant jointly; and Tenant and Landlord each
hereby appoints the Lender as its attorney-in-fact to endorse any draft therefor for the purposes
set forth in this (or to Landlord if there is no Lender at such time). Except as expressly set
forth below, in the event of any casualty (whether or not insured against) resulting in damage to
the Leased Premises or any part thereof, the Term shall nevertheless continue and there shall be no
abatement or reduction of Basic Rent or Additional Rent. Promptly after any casualty, but subject
to the provisions of Paragraph 13(c), Tenant, as required in Paragraphs 11(a) and
12, shall commence and diligently continue to perform the Restoration to the Leased
Premises. The Net Proceeds of all insurance payments for property losses exceeding the Threshold
Amount shall be retained by the Lender (or Landlord if there are is no Lender at such time). Upon
payment to the Lender of such Net Proceeds, the Lender shall, to the extent available, make the Net
Proceeds available to Tenant for restoration, in accordance with the provisions of Paragraph
15. Subject to Paragraph 13(c), Tenant shall, whether or not the Net Proceeds are
sufficient for the purpose, promptly repair or replace the Improvements and Equipment in accordance
with the provisions of Paragraph 11(a) and the Net Proceeds of such loss shall thereupon be
payable to Tenant, subject to the provisions of Paragraph 15. In the event that any damage
or destruction shall occur at such time as Tenant shall not have maintained third-party insurance
in accordance with Paragraph 14(a)(i), (iv) and (v), Tenant shall pay to
the Lender Tenant’s Insurance Payment. Notwithstanding anything herein to the contrary, all
proceeds of any business interruption insurance maintained by Tenant shall be payable directly to
Tenant.
15. Restoration. The Restoration Fund shall be disbursed by the Lender in accordance
with the following conditions:
(a) If the cost of Restoration will exceed the Threshold Amount, prior to commencement of the
Restoration the architects, general contractor(s), and plans and specifications for the Restoration
shall be approved by Landlord and Lender, which approval shall not be unreasonably withheld,
conditioned or delayed; and which approval shall be granted
to the extent that the plans and specifications depict a Restoration which is substantially
similar to the Improvements and Equipment which existed prior to the occurrence of the casualty or
Taking, whichever is applicable.
(b) At the time of any disbursement, no Event of Default shall exist and no mechanics’ or
materialmen’s liens shall have been filed and remain undischarged or unbonded (provided,
however, that no release or bond shall be required in the event that the title company
shall have committed to insure over such lien).
(c) Disbursements shall be made from time to time in an amount not exceeding the hard and soft
cost of the work and costs incurred since the last disbursement upon receipt of (i) satisfactory
evidence, including architects’ certificates of the stage of completion, of the estimated cost of
completion and of performance of the work to date in a good and workmanlike manner in accordance
with the contracts, plans and specifications, (ii) partial releases of liens, and (iii) other
reasonable evidence of cost and payment so that Landlord and Lender can verify that the amounts
disbursed from time to time are represented by work that is completed in place or delivered to the
site and free and clear of mechanics’ lien claims.
(d) Each request for disbursement shall be sent by Tenant to Landlord and to the Lender,
accompanied by a certificate of Tenant describing the work, materials or other costs or expenses,
for which payment is requested, stating the cost incurred in connection therewith, stating that no
Event of Default exists and that no mechanics’ or materialmen’s liens shall have been filed and
remain undischarged or unbonded, and stating that Tenant has not previously received payment for
such work or expense and the certificate to be delivered by Tenant upon completion of the work
shall, in addition, state that the work has been substantially completed and complies with the
applicable requirements of this Lease. The Lender shall not release funds from the Restoration
Fund unless and until it has received a written authorization from Landlord approving such release,
which Landlord agrees to promptly give if Tenant has satisfied all of the requirements set forth in
this Paragraph 15 in connection with such release.
(e) The Lender shall retain ten percent (10%) of the Restoration Fund until the Restoration is
at least fifty percent (50%) complete, and thereafter five percent (5%) until the Restoration is
substantially complete.
(f) The Restoration Fund shall be held by the Lender and shall be invested in Permitted
Investments, as directed by Landlord. All interest shall become a part of the Restoration Fund.
(g) At all times the undisbursed balance of the Restoration Fund held by the Lender, plus any
funds contributed thereto by Tenant, at its option, shall be not less than the estimated cost of
completing the Restoration, free and clear of all Liens. However, notwithstanding anything to the
contrary contained in this Lease, at no time shall Tenant be required to pay any amounts into the
Restoration Fund, including, without limitation, any deductibles under any insurance policies so
long as the Restoration Fund remains In Balance. The Restoration Fund shall be deemed to be
“In Balance” only at such time, and from time to time, that the remaining amount of the
Restoration Fund equals or exceeds the cost of completing the Restoration, free and clear of Liens
(as reasonably estimated by Tenant, provided that Tenant shall provide to
Landlord the basis for such estimate, in reasonable detail, promptly after Landlord’s request
therefor). In lieu of making any payments into the Restoration Fund, Tenant may contribute funds
directly toward the cost of the Restoration in order to bring the Restoration Fund In Balance.
(h) In addition, prior to commencement of Restoration and at any time during Restoration, if
the estimated cost of Restoration, as reasonably determined by Tenant, exceeds the amount of the
Net Proceeds, the Restoration Award and Tenant Insurance Payment available for such Restoration,
the amount of such excess shall be paid by Tenant to the Lender to be added to the Restoration Fund
or Tenant shall fund at its own expense the costs of such Restoration until the Restoration Fund is
In Balance. Any sum in the Restoration Fund which remains in the Restoration Fund upon the
completion of Restoration shall be paid to Tenant.
16. Subordination to Financing.
(a) (i) Subject to the provisions of Paragraph 16(a)(ii), Tenant agrees that this
Lease shall at all times be subject and subordinate to the lien of any Mortgage, and Tenant agrees,
upon demand, without cost, to execute instruments as may be required to further effectuate or
confirm such subordination.
(ii) Except as expressly provided in this Lease by reason of the occurrence of an Event of
Default, and as a condition to the subordination described in Paragraph 16(a)(i) above,
Tenant’s tenancy and Tenant’s rights under this Lease shall not be disturbed, terminated or
otherwise adversely affected, nor shall this Lease be affected, by the existence of, or any default
under, any Note or any Mortgage, and in the event of a foreclosure or other enforcement of any
Mortgage, or sale in lieu thereof, the purchaser at such foreclosure sale shall be bound to Tenant
for the Term of this Lease and any Renewal Term, the rights of Tenant under this Lease shall
expressly survive, and this Lease shall in all respects continue in full force and effect so long
as no Event of Default has occurred and is continuing. Tenant shall not be named as a party
defendant in any such foreclosure suit, except as may be required by law. Any Mortgage to which
this Lease is now or hereafter subordinate shall provide, in effect, that during the time this
Lease is in force and no Event of Default has occurred and is then continuing hereunder, insurance
proceeds and any condemnation award shall be disbursed pursuant to the provisions of this Lease.
(b) Notwithstanding the provisions of Paragraph 16(a), the holder of any Mortgage to
which this Lease is subject and subordinate shall have the right, at its sole option, at any time,
to subordinate and subject the Mortgage, in whole or in part, to this Lease by recording a
unilateral declaration to such effect, provided that such holder shall have agreed that during the
time this Lease is in force and no Event of Default shall have occurred and be continuing, any
insurance proceeds and any condemnation award shall be disbursed pursuant to the provisions of this
Lease.
(c) At any time prior to the expiration of the Term, Tenant agrees, at the election and upon
demand of any owner of the Leased Premises, or of a Lender who has granted non-disturbance to
Tenant pursuant to Paragraph 16(a) above, to attorn, from time to time, to any such owner
or Lender, upon the terms and conditions of this Lease, for the remainder of the
Term. The provisions of this Paragraph 16(c) shall inure to the benefit of any such
owner or Lender, shall apply notwithstanding that, as a matter of law, this Lease may terminate
upon the foreclosure of the Mortgage, and shall be self-operative upon any such demand (and no
further instrument shall be required to give effect to such provisions).
(d) Each of Tenant and Landlord agrees that, if requested by the other or by any Lender, each
shall (and Landlord shall cause each Lender), without charge, enter into a Subordination,
Non-Disturbance and Attornment Agreement, in the form reasonably requested by a Lender and
reasonably acceptable to Tenant, provided such agreement contains provisions relating to
non-disturbance in accordance with the provisions of Paragraph 16(a) and Tenant hereby
agrees for the benefit of each Lender, that Tenant will not, (i) without in each case the prior
written consent of such Lender, which shall not be unreasonably withheld, conditioned or delayed,
amend or modify this Lease in any material respect (provided, however, such Lender,
in such Lender’s sole discretion may withhold or condition its consent to any amendment or
modification which would or could (A) alter in any way the amount or time for payment of any Basic
Rent or Additional Rent, (B) alter in any way the absolute and unconditional nature of Tenant’s
obligations hereunder or materially diminish any such obligations, (C) result in any termination
hereof prior to the end of the Initial Term, or (D) otherwise, in such Lender’s reasonable
judgment, affect the rights or obligations of Landlord or Tenant hereunder in a manner which is
adverse to such Lender), or enter into any agreement with Landlord so to do, (ii) without the prior
written consent of such Lender which may be withheld in such Lender’s sole discretion, cancel or
surrender or seek to cancel or surrender the Term hereof, or enter into any agreement with Landlord
to do so (the parties agreeing that the foregoing shall not be construed to affect the rights or
obligations of Tenant, Landlord or Lenders with respect to any termination permitted under the
express terms hereof following certain events of condemnation or casualty as provided in
Paragraph 13), or (iii) pay any installment of Basic Rent more than one (1) month in
advance of the due date thereof or otherwise than in the manner provided for in this Lease.
17. Assignment, Subleasing.
(a) With the exception of a tenant that would render the Leased Premises or a portion thereof
a “tax-exempt use property” within the meaning of Section 168(h) of the Code, Tenant may assign its
interest in this Lease and may sublet or grant licenses to the Leased Premises in whole or in part,
from time to time, without the consent of Landlord, provided that, in the case of an
assignment (whether or not Tenant is released in connection therewith pursuant to subparagraph
(b) below), Lease Guarantor reaffirms its obligations under the Lease Guaranty after giving
effect to such assignment. Tenant shall have no rights to mortgage or otherwise hypothecate its
leasehold interest under this Lease. With respect to any sublease to an entity that is not an
Affiliate of Tenant and which relates to at least 10% of the usable square feet of the Leased
Premises, Tenant shall provide Landlord with a written summary of the material terms of such
sublease prior to the commencement date thereof. For purposes of this Paragraph 17(a), the
term “assignment” and “assign” shall not include any sale of the stock of Tenant, provided
that (i) the Lease Guarantor reaffirms its obligations under the Lease Guaranty after giving effect
to such sale and (ii) such sale does not result in an Event of Default.
(b) Each sublease or license of the Leased Premises or any part thereof shall be subject and
subordinate to the provisions of this Lease, and the term of each such sublease shall terminate on
or before the Expiration Date. No assignment or sublease shall affect or reduce any of the
obligations of Tenant hereunder, and all such obligations shall continue in full force and effect
as obligations of a principal and not as obligations of a guarantor, as if no assignment or
sublease had been made, provided that if Tenant assigns its interest hereunder to any
entity that has acquired all, or substantially all, of Tenant’s assets, Tenant shall be relieved of
all of its obligations under this Lease from and after the effective date of such assignment so
long as (i) the assignee has executed the agreement referred to below in this paragraph and (ii)
such sale or transfer of assets by Tenant does not result in an Event of Default. Notwithstanding
any assignment or subletting, but subject to the foregoing sentence, Tenant shall continue to
remain primarily liable and responsible for the payment of the Basic Rent and Additional Rent and
the performance of all its other obligations under this Lease. No assignment or sublease shall
impose any obligations on Landlord, except as otherwise provided in this Lease. Tenant agrees that
in the case of an assignment of this Lease, Tenant shall, within fifteen (15) days after the
execution and delivery of any such assignment, deliver to Landlord (i) a duplicate original of such
assignment in recordable form and (ii) an agreement executed and acknowledged by Tenant and its
assignee in recordable form wherein the assignee shall agree to assume and agree to observe and
perform all of the terms and provisions of this Lease on the part of the Tenant to be observed and
performed from and after the date of such assignment. In the case of a sublease which relates to
more than 10% of the usable square feet of the Leased Premises, Tenant shall, within fifteen (15)
days after the execution and delivery of such sublease, deliver to Landlord a duplicate original of
such sublease; with respect to each other sublease, Tenant shall provide a copy thereof to Landlord
promptly after Landlord’s request therefor.
(c) Upon the occurrence and during the continuance of an Event of Default under this Lease,
Landlord shall have the right to collect and enjoy all rents and other sums of money payable under
any sublease or license of any of the Leased Premises, and Tenant hereby irrevocably and
unconditionally assigns such rents and money to Landlord, which assignment may be exercised upon
and after (but not before) the occurrence of an Event of Default, provided,
however, that if such Event of Default is subsequently cured and this Lease has not been
terminated, Landlord shall pay to Tenant all amounts it received pursuant to such assignment that
have not been applied to the obligations of Tenant hereunder.
18. Permitted Contests.
(a) So long as no Event of Default has occurred and is continuing, after prior written notice
to Landlord, Tenant shall not be required to (i) pay any Imposition, (ii) comply with any Legal
Requirement, (iii) discharge or remove any lien referred to in Paragraph 9 or 12,
or (iv) take any action with respect to any violation referred to in Paragraph 11(b) so
long as Tenant shall contest, in good faith and at its expense, the existence, the amount or the
validity thereof, the amount of the damages caused thereby, or the extent of its or Landlord’s
liability therefor, by appropriate proceedings which shall operate during the pendency thereof to
prevent (A) the collection of, or other realization upon, the Imposition or lien so contested, (B)
the sale, forfeiture or loss of any of the Leased Premises, any Basic Rent or any Additional Rent
to satisfy the same or to pay any damages caused by the violation of any such Legal Requirement or
by any such violation, (C) any interference with the use or occupancy of any of the Leased
Premises, (D) any interference with the payment of any Basic Rent or any Additional Rent, and
(E) the cancellation of any fire or other insurance policy. So long as no Event of Default has
occurred and is continuing, Tenant shall control any such contest proceeding and Landlord shall
reasonably cooperate with Tenant (including, without limitation, executing any documents reasonably
required to be signed by Landlord in such contest proceeding, so long as such documents will not
subject Landlord to any liability that is not indemnified against by Tenant hereunder and do not
admit any liability on Landlord’s part) in connection with such contest, all at Tenant’s expense.
So long as no Event of Default has occurred and is continuing, Landlord shall not settle any such
contest without the prior written consent of Tenant, which consent shall not be unreasonably
withheld.
(b) In no event shall Tenant pursue any contest with respect to any Imposition, Legal
Requirement, lien, or violation, referred to above in such manner that exposes Landlord or any
Lender to (i) criminal liability, penalty or sanction, (ii) any civil liability, penalty or
sanction for which Tenant has not made provisions reasonably acceptable to Landlord or (iii)
defeasance of its interest (including the subordination of the lien of any Mortgage to a lien to
which such Mortgage is not otherwise subordinate prior to such contest) in the Leased Premises.
(c) Tenant agrees that each such contest shall be promptly and diligently prosecuted to a
final conclusion, except that Tenant shall have the right to attempt to settle or compromise such
contest through negotiations. Tenant shall pay and save each Lender and Landlord harmless against
any and all losses, judgments, decrees and costs (including all reasonable attorneys’ fees and
expenses) in connection with any such contest and shall, promptly after the final determination of
such contest, fully pay and discharge the amounts which shall be levied, assessed, charged or
imposed or be determined to be payable therein or in connection therewith, together with all
penalties, fines, interest, costs and expenses thereof or in connection therewith, and perform all
acts the performance of which shall be ordered or decreed as a result thereof.
19. Conditional Limitations; Default Provisions.
(a) If any Event of Default shall have occurred, Landlord shall have the right at its option,
then or at any time thereafter (so long as Landlord commences one or more of the remedies set forth
below at a time when an Event of Default is continuing), to do any one or more of the following
without demand upon or notice to Tenant:
(i) Landlord may give Tenant notice of Landlord’s intention to terminate this Lease on a date
specified in such notice (which date shall be no sooner than thirty (30) days after the date of the
notice). Upon the date therein specified the Term and the estate hereby granted and all rights of
Tenant hereunder shall expire and terminate as if such date were the date hereinabove fixed for the
expiration of the Term, but Tenant shall remain liable for all its obligations hereunder through
the date hereinabove fixed for the expiration of the Term, including its liability for Basic Rent
and Additional Rent as hereinafter provided.
(ii) Landlord may, whether or not the Term of this Lease shall have been terminated pursuant
to clause (i) above give Tenant notice to surrender the Leased Premises to Landlord on a
date specified in such notice (which date shall be no sooner than thirty (30) days after the date
of the notice), at which time Tenant shall surrender and deliver possession of
the Leased Premises to Landlord. Upon or at any time after taking possession of the Leased
Premises, Landlord may remove any persons or property therefrom. Landlord shall be under no
liability for or by reason of any such entry, repossession or removal. No such entry or
repossession shall be construed as an election by Landlord to terminate this Lease unless Landlord
gives a written notice of such intention to Tenant pursuant to clause (i) above.
(iii) After repossession of any of the Leased Premises pursuant to clause (ii) above,
whether or not this Lease shall have been terminated pursuant to clause (i) above, Landlord
may relet the Leased Premises or any part thereof to such tenant or tenants for such term or terms
(which may be greater or less than the period which would otherwise have constituted the balance of
the Term) for such rent, on such conditions (which may include concessions or free rent) and for
such uses as Landlord, in its discretion, may determine; and Landlord shall collect and receive any
rents payable by reason of such reletting. The rents received on such reletting shall be applied
(A) first to the reasonable and actual expenses of such reletting and collection, including without
limitation necessary renovation and alterations of the Leased Premises, reasonable and actual
attorneys’ fees and any reasonable and actual real estate commissions paid, and (B) thereafter
toward payment of all sums due or to become due Landlord hereunder. If a sufficient amount to pay
such expenses and sums shall not be realized or secured, then Tenant shall pay Landlord any such
deficiency monthly, and Landlord may bring an action therefor as such monthly deficiency shall
arise. Landlord shall not, in any event, be required to pay Tenant any sums received by Landlord
on a reletting of the Leased Premises in excess of the rent provided in this Lease, but such excess
shall reduce any accrued present or future obligations of Tenant hereunder. Landlord’s re-entry
and reletting of the Leased Premises without termination of this Lease shall not preclude Landlord
from subsequently terminating this Lease as set forth above. Landlord may make such Alterations as
Landlord in its reasonable discretion may deem advisable. Tenant agrees to pay Landlord, as
Additional Rent, immediately upon demand, all reasonable expenses incurred by Landlord in obtaining
possession, in performing Alterations and in reletting any of the Leased Premises, including fees
and commissions of attorneys, architects, agents and brokers.
(iv) If Tenant shall fail to make payment of any installment of Basic Rent or any Additional
Rent after the date when each such payment is due, Tenant shall pay to Landlord, as Additional
Rent, interest on the unpaid amount of Basic Rent or Additional Rent, at the Default Rate, such
interest to accrue from the date such item of unpaid Basic Rent or Additional Rent was due until
the date paid.
(v) Landlord may exercise any other right or remedy now or hereafter existing by law or in
equity.
(b) In the event of any expiration or termination of this Lease or repossession of any of the
Leased Premises by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord
Basic Rent and all Additional Rent required to be paid by Tenant to and including the date of such
expiration, termination or repossession and, thereafter, Tenant shall, until the end of what would
have been the Term in the absence of such expiration, termination or repossession, and whether or
not any of the Leased Premises shall have been relet, be liable to Landlord for and shall pay to
Landlord as liquidated and agreed current damages: (i) Basic Rent and Additional Rent which would
be payable under this Lease by Tenant in the absence of such
expiration, termination or repossession, less (ii) the net proceeds, if any, of any reletting
pursuant to Paragraph 19(a)(iii), after deducting from such proceeds all of Landlord’s
reasonable expenses in connection with such reletting (including all reasonable repossession costs,
brokerage commissions, legal expenses, attorneys’ fees, employees’ expenses, costs of Alteration
and expenses of preparation for reletting). Tenant hereby agrees to be and remain liable for all
sums aforesaid and Landlord may recover such damages from Tenant and institute and maintain
successive actions or legal proceedings against Tenant for the recovery of such damages. Nothing
herein contained shall be deemed to require Landlord to wait to begin such action or other legal
proceedings until the date when the Term would have expired by limitation had there been no such
Event of Default.
(c) At any time after such expiration or sooner termination of this Lease pursuant to
Paragraph 19 or pursuant to law or if Landlord shall have reentered the Leased Premises, as
the case may be, whether or not Landlord shall have recovered any amounts under Paragraph
19(a)(iii) or 19(b), Landlord shall be entitled to recover from Tenant and Tenant shall
pay to Landlord, on demand, as and for liquidated and agreed final damages for Tenant’s default, an
amount equal to the Basic Rent and all Additional Rent reserved hereunder for the unexpired portion
of the Term demised herein as if this Lease had not expired or been terminated, discounted to
present worth at the annual rate of six percent (6%), minus any such monthly deficiencies
previously recovered from Tenant under Paragraph 19(a)(iii). If any statute or rule of law
governing a proceeding in which such liquidated final damages provided for in this Paragraph
19(c) are to be proved shall validly limit the amount thereof to an amount less than the amount
above agreed upon, Landlord shall be entitled to the maximum amount allowable under such statute or
rule of law.
20. Additional Rights of Landlord and Tenant.
(a) No right or remedy conferred upon or reserved to Landlord in this Lease is intended to be
exclusive of any other right or remedy; and each and every right and remedy shall be cumulative and
in addition to any other right or remedy contained in this Lease. No delay or failure by Landlord
to enforce its rights under this Lease shall be construed as a waiver, modification or
relinquishment thereof. In addition to the other remedies provided in this Lease, Landlord shall
be entitled, to the extent permitted by applicable law, to injunctive relief in case of the
violation or attempted or threatened violation of any of the provisions of this Lease, or to
specific performance of any of the provisions of this Lease.
(b) Tenant hereby waives and surrenders for itself and all those claiming under it, including
creditors of all kinds, any right and privilege which it or any of them may have under any present
or future law to redeem any of the Leased Premises or to have a continuance of this Lease after
termination of this Lease or of Tenant’s right of occupancy or possession pursuant to any court
order or any provision hereof.
(c) Landlord hereby waives any right to distrain or levy upon any property of Tenant and any
Landlord’s lien or similar lien upon any property of Tenant regardless of whether such lien is
created or otherwise. Landlord agrees at the request of Tenant and at Tenant’s expense, to execute
a waiver of any Landlord’s or similar lien for the benefit of any present or future holder of a
security interest in or landlord or lessor of any personal property of Tenant.
(d) In the event that any action is filed in relation to this Lease, the unsuccessful party in
such action shall pay to the successful party, in addition to all sums that either party may be
required to pay as a result of such action, the successful party’s reasonable attorneys’ fees. Any
amount payable by Tenant to Landlord pursuant to this Paragraph 20(d) shall be due and
payable by Tenant to Landlord as Additional Rent.
(e) Landlord and Tenant also hereby waive and release any claims against the other party, and
its officers, directors, employees, managers, agents, invitees and contractors for any
consequential loss or damage, including any loss or damage to the other party’s business. The
waivers set forth in this paragraph will be in addition to, and not in substitution for, any other
waivers, indemnities, or exclusions of liabilities set forth in this Lease.
21. Notices. All Notices shall be in writing and shall be deemed to have been
given for all purposes (i) three (3) days after having been sent by United States mail, by
registered or certified mail, return receipt requested, postage prepaid, addressed to the other
party at its address as stated below, or (ii) one (1) day after having been sent for overnight
delivery by Federal Express, United Parcel Service or other nationally recognized air courier
service.
To the Addresses stated below:
If to Landlord:
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[SUNTRUST EQUITY FUNDING, LLC AFFILIATE] c/o SunTrust Equity Funding, LLC 000 Xxxxxxxxx Xxxxxx, 24th Floor MC 3951 Xxxxxxx, Xxxxxxx 00000 Attention: Xxxxxxx XxXxxx Telephone: (000) 000-0000 Fax: (000) 000-0000 E-mail: xxxxxxx.xxxxxx@xxxxxxxx.xxx |
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If to Tenant:
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Old National Bank Xxx Xxxx Xxxxxx Xxxxxxxxxx, Xxxxxxx 00000 Attention: Office of General Counsel Telephone: (000) 000 0000 Fax: (000) 000 0000 E-mail: xxxx_xxxxxx@xxxxxxxxxxx.xxx |
|
With a copy to:
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Xxxxx X. XxXxxxx Ziemer, Stayman, Xxxxxxx & Shoulders, LLP 00 X.X. Xxxxx Xxxxxx X.X. Xxx 000 Xxxxxxxxxx, Xxxxxxx 00000-0000 Telephone: (000) 000-0000 Fax: (000) 000-0000 E-mail: xxxxxxxx@xxxx.xxx |
If any Lender shall have advised Tenant by Notice in the manner aforesaid that it is the holder of
a Mortgage and states in said Notice its address for the receipt of Notices, then simultaneously
with the giving of any Notice by Tenant to Landlord, Tenant shall send a copy of such Notice to
Lender in the manner aforesaid. For the purposes of this Paragraph 21, any party may
substitute its address by giving fifteen days’ notice to the other party in the manner provided
above. Any Notice may be given on behalf of any party by its counsel.
22. Estoppel Certificates Landlord and Tenant shall at any time and from time to
time, upon not less than ten (10) days’ prior written request by the other, execute, acknowledge
and deliver to the other a statement in writing, certifying (i) that this Lease is unmodified and
in full effect (or, if there have been modifications, that this Lease is in full effect as
modified, setting forth such modifications), (ii) the dates to which Basic Rent payable hereunder
has been paid, (iii) that to the knowledge of the signer of such certificate no default by either
Landlord or Tenant exists hereunder or specifying each such default of which the signer may have
knowledge, (iv) the remaining Term hereof, (v) with respect to a certificate signed on behalf of
Tenant, that to the knowledge of the signer of such certificate, there are no proceedings pending
or threatened against Tenant before or by any court or administrative agency which if adversely
decided would materially and adversely affect the financial condition and operations of Tenant or
if any such proceedings are pending or threatened to said signer’s knowledge, specifying and
describing the same, and (vi) such other matters as may reasonably be requested by the party
requesting the certificate. It is intended that any such statements may be relied upon by Lenders,
the recipient of such statements or their assignees or by any prospective purchaser, assignee or
subtenant of the Leased Premises or of the membership interests in Landlord.
23. Surrender and Holding Over.
(a) Upon the expiration or earlier termination of this Lease, Tenant shall peaceably leave and
surrender the Leased Premises to Landlord. Tenant shall remove from the Leased Premises on or
prior to such expiration or earlier termination all Trade Fixtures and personal property which is
owned by Tenant or third parties other than Landlord, and Tenant at its expense shall, on or prior
to such expiration or earlier termination, repair any damage caused by such removal. All Trade
Fixtures and personal property not so removed at the end of the Term or within thirty days after
the earlier termination of the Term for any reason whatsoever shall become the property of
Landlord, and Landlord may thereafter cause such property to be removed from the Leased Premises.
The cost of removing and disposing of such property and repairing any damage to any of the Leased
Premises caused by such removal shall be borne by Tenant. Landlord shall not in any manner or to
any extent be obligated to reimburse Tenant for any property which becomes the property of Landlord
as a result of such expiration or earlier termination.
(b) Any holding over by Tenant of the Leased Premises after the expiration or earlier
termination of the term of this Lease or any extensions thereof, with the consent of Landlord,
shall operate and be construed as tenancy from month to month only, at one hundred ten percent
(110%) of the Basic Rent reserved herein and upon the same terms and conditions as contained in
this Lease. Notwithstanding the foregoing, any holding over without Landlord’s consent shall
entitle Landlord, in addition to collecting Basic Rent at a rate of one hundred ten percent (110%)
thereof, to exercise all rights and remedies provided by law or in equity, including the remedies
of Paragraph 19(b).
24. No Merger of Title There shall be no merger of this Lease nor of the leasehold
estate created by this Lease with the fee estate in or ownership of any of the Leased Premises by
reason of the fact that the same person, corporation, firm or other entity may acquire or hold or
own, directly or indirectly, (a) this Lease or the leasehold estate created by this Lease or any
interest in this Lease or in such leasehold estate and (b) the fee estate or ownership of any of
the Leased Premises or any interest in such fee estate or ownership. No such merger shall occur
unless and until all persons, corporations, firms and other entities having any interest in (i)
this Lease or the leasehold estate created by this Lease and (ii) the fee estate in or ownership of
the Leased Premises or any part thereof sought to be merged shall join in a written instrument
effecting such merger and shall duly record the same.
25. Definition of Landlord.
(a) Anything contained herein to the contrary notwithstanding, any claim based on or in
respect of any liability of Landlord under this Lease shall be enforced only against the Landlord’s
interest in the Leased Premises and shall not be enforced against the Landlord individually or
personally, or against any member or other Affiliate of Landlord.
(b) The term “Landlord” as used in this Lease so far as covenants or obligations on the part
of Landlord are concerned, shall be limited to mean and include only the owner or owners of the
Leased Premises or holder of the Mortgage in possession at the time in question of the Leased
Premises and in the event of any transfer or transfers of the title of the Leased Premises, the
Landlord herein named (and in case of any subsequent transfers or conveyances, the then grantor)
shall be automatically freed and relieved from and after the date of such transfer and conveyance
of all personal liability as respects the performance of any covenants or obligations on the part
of Landlord contained in this Lease thereafter to be performed, provided that the
subsequent assignee or grantee shall expressly assume all such obligations.
26. Hazardous Substances.
(a) Tenant agrees that it will not on, about, or under the Leased Premises, release, treat or
dispose of any Hazardous Materials; but the foregoing shall not prevent the use, storage or
existence of any Hazardous Materials in the ordinary course of Tenant’s business in accordance with
applicable laws and regulations. Tenant covenants that it will at all times comply, and will cause
the Leased Premises to be in compliance with, in all material respects with each applicable
Environmental Law. If asbestos or asbestos-containing materials are present in or at the Leased
Premises (“Asbestos”), Tenant shall: (i) prepare, maintain and timely comply with an
asbestos operations and maintenance plan (an “O&M Plan”) and shall provide a
copy of the O&M Plan to Landlord and, upon request of Landlord or Lender, promptly provide
periodic updates as to the progress and satisfaction of such O&M Plan, (ii) prevent any Asbestos
from becoming friable and if any Asbestos does become friable, Tenant shall xxxxx said Asbestos and
dispose of it at a properly licensed landfill in accordance with law as soon as practicable
following the discovery thereof, (iii) comply with all Environmental Laws related to Asbestos and
(iv) if the O&M Plan requires any remediation, provide Landlord and Lender with written notice when
such remediation is completed and expert certification that such remediation has been completed
satisfactorily and in accordance with the O&M Plan.
(b) To the extent required by Environmental Laws, Tenant shall respond to any release of, and
shall remove any Hazardous Materials, whether existing prior to, or occurring during, the Term on
the Leased Premises and whether or not arising out of or in any manner connected with Tenant’s
occupancy of the Leased Premises during the Term. In addition to, and without limiting
Paragraph 10, of this Lease, Tenant shall and hereby does agree to defend, indemnify and
hold each Lender and Landlord, their respective successors and assigns, officers, directors,
shareholders, partners, members, affiliates, beneficiaries and employees, harmless from and against
any and all causes of actions, suits, demands or judgments of any nature whatsoever, losses,
damages, penalties, expenses, fees, claims, costs (including response and remedial costs), and
liabilities, including, but not limited to, reasonable attorneys’ fees and costs of litigation,
arising out of or in any manner connected with (i) the violation of any Environmental Law with
respect to the Leased Premises or any prior ownership of the Leased Premises; (ii) the Release or
threatened Release of or failure to remove or otherwise remediate, as required by this
Paragraph 26, Hazardous Materials from, on or to the Leased Premises or any portion or
portions thereof, including any past or current Release and any Release or threatened release
during the Initial Term or any Renewal Term, whether or not arising out of or in any manner
connected with Tenant’s occupancy of the Leased Premises during the Initial Term or any extension
or Renewal Term.
(c) The Tenant agrees that it will not install any underground or above-ground storage tank at
the Leased Premises without specific, prior written approval from the Landlord. The Tenant agrees
that it will not store combustible or flammable materials on the Leased Premises except in
compliance with all applicable Environmental Laws.
27. Entry by Landlord Landlord and its authorized representatives shall have the
right upon reasonable notice (which shall be not less than two (2) Business Days except if a
shorter notice or no notice is appropriate in light of the circumstances if there is an emergency)
to enter the Leased Premises at all reasonable business hours (and at all other times in the event
of an emergency), accompanied by a representative of Tenant if Tenant so requests: (a) for the
purpose of inspecting the same or for the purpose of doing any work under Paragraph 11(c),
and may take all such action thereon as may be necessary or appropriate for any such purpose (but
nothing contained in this Lease or otherwise shall create or imply any duty upon the part of
Landlord to make any such inspection or do any such work), and (b) for the purpose of showing the
Leased Premises to prospective purchasers and mortgagees and, at any time within six (6) months
prior to the expiration of the Term of this Lease, for the purpose of showing the same to
prospective tenants. No such entry shall constitute an eviction of Tenant, but any such entry
shall be done by Landlord in such reasonable manner as to minimize any disruption of Tenant’s
business operation.
The foregoing notwithstanding, Landlord, by execution of this Lease, agrees and acknowledges
that Tenant’s primary business is the conduct of affairs and business of a financial institution
and confidentiality and privacy is statutorily mandated upon certain information and records that
may be located within the Leased Premises from time to time. Accordingly, in connection with any
entry into the Leased Premises pursuant to this Xxxxxxxxx 00, Xxxxxxxx covenants and agrees
with Tenant to undertake commercially reasonable efforts to maintain and preserve the privacy and
confidentiality of such information and records. Landlord’ failure to discharge and abide by this
covenant and undertaking shall constitute a breach of this Lease, entitling Tenant to pursue an
action for damages against Landlord, it being understood that in no event
shall Tenant be entitled to terminate this Lease or effect any offsets against any Rent payable
hereunder.
28. No Usury The intention of the parties being to conform strictly to the
applicable usury laws, whenever any provision herein provides for payment by Tenant to Landlord of
interest at a rate in excess of the legal rate permitted to be charged, such rate herein provided
to be paid shall be deemed reduced to such legal rate.
29. Financial Statements Tenant shall submit to Landlord and Lenders, either in
print or in electronic form, the following financial statements, all of which must be prepared in
accordance with generally accepted accounting principles consistently applied: (i) quarterly
financial statements for Tenant, within forty-five (45) days after the end of each fiscal quarter
of Tenant during the Term, and (ii) annual financial statements for Tenant, audited by an
independent certified public accountant, within ninety (90) days after the end of each fiscal year
of Tenant during the Term. For as long as Tenant shall be a publicly listed company and is
required to file quarterly and annual statements with the SEC, then Tenant shall submit to Landlord
and Lenders (in satisfaction of the requirements set forth in the preceding sentence), within ten
(10) days of being filed with the SEC, copies of Tenant’s forms 10Q and 10K (it
being understood that so long as such forms have been filed with XXXXX, Tenant
shall be deemed to have satisfied all of the requirements set forth in the foregoing sentences).
30. Special Tax Indemnity.
(a) Tenant hereby represents, warrants and covenants to Landlord as follows: (i) during the
Term, Tenant will not construct or install any component, improvement, alteration, or addition on
the Leased Premises, without prior written consent from Landlord, if such construction or
installation would cause the Leased Premises, or any part thereof, to be “limited use property,” as
such term is used in Section 5 of Revenue Procedure 2001-28, (ii) Tenant is not a “tax-exempt
entity” within the meaning of Section 168(h)(2) of the Code and will not take any action that would
cause the Leased Premises, or any part thereof, to constitute “tax-exempt use property” within the
meaning of Section 168(h) of the Code; (iii) neither Tenant nor any Affiliate will claim the
Depreciation Deductions or otherwise take the position that it is the owner of the Leased Premises,
or any part thereof, for federal income tax purposes; and (iv) to the best of Tenant’s knowledge,
all written information of a factual nature with respect to the Leased Premises that was provided
to Landlord or an appraiser engaged by Landlord to appraise the Leased Premises by or on behalf of
Tenant or any Affiliate of Tenant was true and accurate in all material respects as of the date
provided to Landlord or such appraiser. Notwithstanding the provisions of clause (iii)
above, Tenant may take the position that it is the owner of the Leased
Premises for federal income tax purposes if Tenant provides to Landlord an opinion of
independent tax counsel that such treatment is required by law, and Landlord consents to such
treatment, which consent shall not be unreasonably withheld, or to the extent required as a result
of the Internal Revenue Service making a claim or adjustment against Tenant in connection with such
tax reporting, and tax counsel (or Tenant’s outside accounting firm) has concluded that such
Internal Revenue Service claim or adjustment has a reasonable basis.
(b) If as a result of an Event of Default, or the misrepresentation of or breach by Tenant of
any of the warranties, representations and covenants set forth in clause (a) of this
Paragraph 30, the Depreciation Deductions are lost, disallowed, eliminated, reduced,
recaptured, compromised, delayed or otherwise made unavailable to Landlord in computing its
liability for federal income tax (a “Deduction Loss”), or, if as a result of the occurrence
of an Event of Default, Landlord is required to include in its income from this Lease amounts other
than Anticipated Lease Income (an “Inclusion”, any Inclusion or Deduction Loss referred to
as a “Loss”), subject to clause (c) of this Paragraph 30, Tenant shall make
the Tax Indemnity Payment to Landlord in accordance with this Paragraph 30. The “Tax
Indemnity Payment” shall be the amount that is required to be paid to Landlord in order to
insure that Landlord’s after-tax net return from this Lease (the “Net Return”) will be
equal to, but no greater than, the Net Return Landlord expected to receive as of the Commencement
Date (the “Expected Net Return”). The amount of the Tax Indemnity Payment shall be
computed using the same methodology and assumptions used in computing the Expected Net Return,
including without limitation, that the Depreciation Deductions are Landlord’s only tax deductions
with respect to this Lease, that Landlord is able to fully utilize the Depreciation Deductions and,
in the case of Inclusions, is fully taxable on its net income at the maximum federal income tax
rate then in effect for corporations. If Tenant requests that the amount of the Tax Indemnity
Payment be verified, Tenant and Landlord shall appoint a mutually acceptable unrelated recognized
lease broker or lease advisor (such acceptance not to be unreasonably withheld) to confirm the
calculations of the Tax Indemnity Payment. Landlord shall provide such broker or advisor with the
methodology and assumptions used in computing the Expected Net Return, as well as all other
information utilized by Landlord in computing the Tax Indemnity Payment, provided that such
broker or advisor agrees to maintain the confidentiality of such information (including from
Tenant) pursuant to a written agreement reasonably acceptable to Landlord. The conclusion of such
broker or advisor shall be conclusive and binding on Landlord and Tenant with respect to the
related Tax Indemnity Payment. If such broker or advisor concludes that Landlord’s calculation of
the Tax Indemnity Payment is correct or is lower than the correct Tax Indemnity Payment, Tenant
shall pay for the costs and expenses of such broker or advisor; if such broker or advisor concludes
that Landlord’s calculation of the Tax Indemnity Payment is too high, Landlord shall pay the costs
and expenses of such broker or advisor.
(c) Tenant shall pay to Landlord the Tax Indemnity Payment within 30 days of receiving written
notice from Landlord describing the Loss and the calculation of the Tax Indemnity Payment;
provided, however that Tenant shall not be required to pay the Tax Indemnity
Payment with respect to any Loss so long as such Loss is being contested pursuant to this
Paragraph 30.
(d) Landlord shall promptly notify Tenant in writing of any actual or proposed claim,
adjustment or other action of any tax authority received by Landlord in writing with respect to
which Tenant may be required to provide indemnification under this Paragraph 30
(“Proposed Adjustment”) (but failure of Landlord to so notify Tenant shall not relieve
Tenant of its obligations hereunder except to the extent that Tenant’s contest rights hereunder are
materially adversely affected). If Tenant shall request in writing within sixty (60) days after
Landlord’s notice described above that the Proposed Adjustment be contested (or such shorter period
specified in Landlord’s notice as the time period within which Landlord is required by the
applicable Governmental Authority to take action), Landlord shall contest the Proposed Adjustment
and will not settle any contest thereof without the consent of Tenant, which consent shall not be
unreasonably withheld; provided, however, that: (i) prior to taking such action,
Tenant shall have furnished Landlord with an opinion of independent tax advisor chosen by Tenant
and reasonably acceptable to Landlord, to the effect that Landlord has a reasonable possibility of
success in contesting the claim; (ii) prior to taking such action, Tenant shall have (A)
acknowledged its obligation to indemnify Landlord hereunder in the event Landlord does not prevail
in such contest and (B) agreed to reimburse Landlord promptly on demand (or, if so requested by
Landlord, in advance) for all reasonable out-of-pocket costs and expenses that Landlord incurs in
connection with contesting such claim, including without limitation reasonable attorneys’ and
accountants’ fees and expenses; (iii) no Event of Default shall exist and be continuing; (iv)
Landlord shall not be obligated to contest any proposed amount that is less than $100,000; and (v)
Landlord shall in all events control the contest, and Tenant shall not have any right to inspect
the books and records of Landlord, but shall have reasonable opportunity to review and comment on
portions of documentation, protests, memoranda or briefs (which may be redacted portions) relating
exclusively to a Proposed Adjustment.
(e) In the event Landlord pays the tax claimed and then seeks a refund, Landlord may require
Tenant to advance funds sufficient to pay the tax that would be indemnified by Tenant hereunder if
the refund claim were resolved adversely to Landlord. To the extent the refund claim is
successful, the refund received from the taxing authority and attributable to funds advanced by
Tenant shall be refunded to Tenant, including any interest actually received and fairly
attributable to amounts advanced by Tenant, unless the refund is needed to pay an indemnity.
Notwithstanding anything to the contrary in this Xxxxxxxxx 00, Xxxxxxxx may at any time
decline to take any further action with respect to a Proposed Adjustment or may settle any contest
without the consent of Tenant; provided, however, that if Tenant has properly
requested such action pursuant to this Xxxxxxxxx 00, Xxxxxxxx shall notify Tenant in
writing that Landlord waives its right to any indemnity payment by Tenant (other than with respect
to the expenses of the contest incurred prior to such notice) that Tenant would otherwise be
obligated to pay pursuant to this Paragraph 30 in respect of such adjustment, including any
indemnities arising from such adjustment in subsequent years or that would arise by reason of the
fact that the subject matter of such adjustment is of a continuing nature. In the case of any such
waiver by Landlord of its rights to an indemnity payment from Tenant, Landlord shall return to
Tenant any amounts previously paid by Tenant to Landlord for expenses or costs related to the
contest (to the extent not yet expended) and, if applicable, any amounts paid by Tenant for taxes
with respect to which Landlord has waived its right to an indemnity (plus interest on such tax
payment at the rate then applicable under the Code to refunds of federal income taxes).
(f) For purposes of this Paragraph 30, “Landlord” shall be deemed to include the
consolidated Federal taxpayer group of which Landlord is a member.
(g) If as a result of a Tax Loss for which Tenant has paid an indemnity hereunder, Landlord
shall actually realize any federal, state or local income tax savings that it would not have
realized but for such Tax Loss (or the event or circumstance giving rise thereto), which tax
savings have not previously been taken into account in computing the amount of the Tax Indemnity
Payment hereunder, then Landlord shall promptly pay to Tenant an amount equal to the sum of (A) the
amount of such tax savings and (B) the amount of any additional federal, state and local income tax
savings as a result of any payment made pursuant to this sentence; provided,
however, Landlord shall not be required to make any such payment to the extent that the
cumulative amount of such payments would exceed the amount of all Tax Indemnity Payment by Tenant
to Landlord pursuant to Paragraph 30 with respect to such Tax Loss. If for any reason any
tax benefit or savings taken into account in computing the amount of any Tax Indemnity Payment or
any payment to the Tenant pursuant to this Paragraph 30, shall be lost or otherwise
determined to be unavailable, such loss or unavailability shall be treated as a Loss for which
Tenant is required to indemnify the Landlord under this Paragraph 30. Landlord shall act
in good faith in filing its returns, dealing with tax authorities and pursuing tax benefits and
savings that would, in each case, minimize Tenant’s indemnity obligations hereunder.
(h) Notwithstanding anything herein to the contrary, the provisions of this
Paragraph 30 shall survive the earlier termination of this Lease.
31. Separability Each and every covenant and agreement contained in this Lease is,
and shall be construed to be, a separate and independent covenant and agreement, and the breach of
any such covenant or agreement by Landlord shall not discharge or relieve Tenant from its
obligation to perform the same. If any term or provision of this Lease or the application thereof
to any provision of this Lease or the application thereof to any person or circumstances shall to
any extent be invalid and unenforceable, the remainder of this Lease, or the application of such
term or provision to person or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be
valid and shall be enforced to the extent permitted by law.
32. Miscellaneous.
(a) The paragraph headings in this Lease are used only for convenience in finding the subject
matters and are not part of this Lease or to be used in determining the intent of the parties or
otherwise interpreting this Lease.
(b) As used in this Lease the singular shall include the plural as the context requires and
the following words and phrases shall have the following meanings: (i) “including” shall mean
“including but not limited to”; (ii) “provisions” shall mean “provisions, terms, agreements,
covenants and/or conditions”; (iii) “lien” shall mean “lien, charge, encumbrance; title retention
agreement, pledge, security interest, mortgage and/or deed of trust”; and (iv) “obligation” shall
mean “obligation, duty, agreement, liability, covenant or condition”.
(c) Any act which Landlord is permitted to perform under this Lease may be performed at any
time and from time to time by Landlord or any person or entity designated by Landlord. Any act
which Tenant is required to perform under this Lease shall be performed at Tenant’s sole cost and
expense.
(d) This Lease may be modified, amended, discharged or waived only by an agreement in writing
signed by the party against whom enforcement of any such modification, amendment, discharge or
waiver is sought and with the written consent of the Lenders.
(e) The covenants of this Lease shall run with the Land and bind Tenant, the successors and
assigns of Tenant and all present and subsequent encumbrances and subtenants of any of the Leased
Premises, and shall inure to the benefit of and bind Landlord, its successors and assigns.
(f) This Lease may be simultaneously executed in several counterparts, each of which when so
executed and delivered shall constitute an original, fully enforceable counterpart for all
purposes.
(g) This Lease shall be governed by and construed according to the laws of the State in which
the Leased Premises is located.
(h) This Lease and the Lease Guaranty embody the entire agreement and understanding between
Tenant and Landlord with respect to the transactions contemplated hereby and supersede all other
agreements and understandings between Tenant and Landlord with respect to the subject matter
thereof. This Lease and the Lease Guaranty represent the final agreement between the parties and
may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of
Tenant and Landlord or any coursed of prior dealings. There are no unwritten oral agreements
between the parties.
IN WITNESS WHEREOF, Landlord and Tenant have caused this instrument to be executed under seal
as of the day and year first above written.
| LANDLORD: | ||||
| [SUNTRUST EQUITY FUNDING, LLC AFFILIATE] | ||||
| By: | SunTrust Equity Funding, LLC, as Sole Member and Manager |
|||
| By: | ||||
| Name: | R. Xxxx Xxxxxxx | |||
| Title: | Senior Vice President and Manager | |||
| TENANT: | ||||
| OLD NATIONAL BANK | ||||
| By | ||||
| Name: | Xxxxxxxxxxx X. Xxxxxxx | |||
| Title: | Senior Executive Vice President and Chief Financial Officer | |||
S-1
EXHIBIT A
LEGAL DESCRIPTION
This Exhibit is intentially omitted because the information in the exhibit, a legal
description, is not material to an investment decision. The Company will furnish
supplementally to the Commission this omitted exhibit upon request.
EXHIBIT B
BASIC RENT
Basic Rent for each Basic Rent Payment Date occurring the first Lease Year shall be an amount
equal to [BASIC RENT].
Basic Rent shall be increased on November 1, 2008 and on each November 1 thereafter (each, an
“Adjustment Date”). During each Renewal Term, Basic Rent shall also be increased on each
Adjustment Date.
Such adjustments to Basic Rent shall be equal to one hundred fifty percent (150%) of any
cumulative increase in the Consumer Price Index (All Items) for Urban Consumers — US City Average,
published by the United States Department of Labor, Bureau of Labor Statistics (“Index”),
and shall be calculated as follows:
The Index published and in effect immediately prior to the first Adjustment Date (the
“First Adjustment Index”) and the Index published and in effect on October 1, 2007 (the
“Beginning Index”) shall be used to determine the amount of the first increase in Basic
Rent. The Basic Rent on the first Adjustment Date shall be increased by 150% of the same
percentage amount as the increase in the First Adjustment Index over the Beginning Index.
Thereafter, on each subsequent Adjustment Date, the Basic Rent for the ensuing one year period
shall be increased over the Basic Rent in effect immediately prior to the subject Adjustment Date
by 150% of the same percentage amount as the increase in the Index published and in effect
immediately prior to such Adjustment Date over the Index published and in effect on the immediately
preceding Adjustment Date; provided, however, that Basic Rent for any adjustment
period, including the first adjustment period and including during any Renewal Term, shall never be
less than the Basic Rent for the preceding period, nor shall the percentage increase in such Basic
Rent ever be more than 1.50%.
If the Index is changed so that the base period differs from that described above, the Index
shall be converted in accordance with the conversion factor published by the United States
Department of Labor, Bureau of Labor Statistics. If the Index is discontinued or revised during
the Term, such other government index or computation with which it is replaced shall be used in
order to obtain substantially the same result as would be obtained if the Index had not been
discontinued or revised.
On adjustment of the Basic Rent as provided in this Paragraph, Landlord shall promptly deliver
to Tenant written notice setting forth the new Basic Rent due on each Basic Rent Payment Date.
Landlord’s failure to promptly deliver such notice shall not constitute a waiver of the increase
in the Basic Rent as provided herein.
“Lease Year” shall mean each period from a November 1 to the following October 31.
SCHEDULE A
PERMITTED ENCUMBRANCES
This Exhibit is intentially omitted because the information in the exhibit, permitted encumbrances,
is not material to an investment decision. The Company will furnish supplementally to the
Commission this omitted exhibit upon request.
APPENDIX A
“Additional Rent” shall mean all amounts, costs, expenses, liabilities and obligations
(including Tenant’s obligation to pay any Net Awards or Default Rate interest hereunder) which
Tenant is required to pay pursuant to the terms of this Lease, other than Basic Rent.
“Affiliate” of any Person shall mean any other Person directly or indirectly
controlling, controlled by or under common control with, such Person and shall include, if such
Person is an individual, members of the immediate family of such Person, and trusts for the benefit
of such individual. For the purposes of this definition, the term “control” (including the
correlative meanings of the terms “controlling”, “controlled by” and “under common control with”),
as used with respect to any Person, shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
“Alteration” or “Alterations” shall mean any or all changes, additions
(whether or not adjacent to or abutting any then existing buildings), expansions (whether or not
adjacent to or abutting any then existing buildings), improvements, reconstructions, removals or
replacements of any of the Improvements or Equipment, both interior or exterior, and ordinary and
extraordinary.
“Anticipated Lease Income” shall mean the amounts expected to be included in gross
income with respect to this Lease, which shall include all Basic Rent on the dates and in the
amounts set forth in this Lease, all Additional Rent payable hereunder and all proceeds received by
Landlord as a result of a sale of the Leased Premises, but which shall not include the payment of
any liquidated or other damages, or any payments resulting from a transfer, sale or other
dispostion of the Leased Premises or any portion thereof, in connection with, or as a result of, an
Event of Default.
“Applicable Laws” shall mean all existing and future applicable laws (including common
laws), rules, regulations, statutes, treaties, codes, ordinances, permits, certificates, orders and
licenses of any Governmental Authorities, and applicable judgments, decrees, injunctions, writs,
orders or like action of any court, arbitrator or other administrative, judicial or quasi-judicial
tribunal or agency of competent jurisdiction (including those pertaining to the environment and
those pertaining to the construction, use or occupancy of the Leased Premises). Applicable Laws
shall include Environmental Laws.
“Basic Rent” shall mean the amounts set forth on Exhibit B annexed to this
Lease.
“Basic Rent Payment Dates” shall mean the Commencement Date and the first Business Day
of each month thereafter during the Term.
“Business Day” means any day other than a Saturday or a Sunday or other day on which
commercial banks in the State of Indiana or New York are required or are authorized to be closed.
“Casualty Loan Amount” as of any date means an amount equal to the then outstanding
principal amount of any outstanding Loan, provided that the original principal amount of
such Loan did not exceed 90% of the fair market value of the Leased Premises at the time such Loan
was originally made to Landlord.
A-1
“CERCLA” shall mean the Comprehensive Environmental Response, Compensation and
Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C.
SectionSection 9601-9657.
“Claims” shall mean Liens (including, without limitation, lien removal and bonding
costs), liabilities, obligations, damages, losses, demands, penalties, assessments, payments,
fines, claims, actions, suits, judgments, settlements, costs, expenses and disbursements
(including, without limitation, reasonable legal fees and expenses and costs of investigation) of
any kind and nature whatsoever, provided that, for the avoidance of doubt, the term
“Claims” shall not include any amounts for or with respect to any Taxes that are not Impositions
and are not owed by Tenant pursuant to Paragraph 30.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
“Commencement
Date” shall mean December 27, 2007.
“Condemnation” shall mean a Taking and/or a Requisition.
“Covered Tax” or “Covered Taxes” shall mean any and all present and future
taxes on or with respect to the Leased Premises or payments of Basic Rent or Additional Rent that
are or are in the nature of sales, use, transfer, real estate, property, ad valorem, excise, stamp
or similar taxes, municipal or other assessments, levies, imposts, duties, fees or other charges,
together with any penalties, fines, interest thereon or additions thereto imposed by any
Governmental Authority in a Related Jurisdiction; provided, however, for the
avoidance of doubt, the terms “Covered Tax” and “Covered Taxes” shall not include any taxes that
are Income Taxes, except if such Income Tax is a replacement for any non-income based Covered Tax.
“Default Rate” shall mean, for as long as any Notes are outstanding, the default or
late rate specified in such Notes, and otherwise, a rate of interest equal to four (4%) percent per
annum above the then current Prime Rate.
“Depreciable Property” shall mean the Equipment and the Improvements (which, for the
avoidance of doubt, shall not include Land).
“Depreciation Deductions” shall mean the cost recovery deductions under Section 167 of
the Code with respect to the Leased Premises, determined using the following assumptions: (a)
Landlord’s unadjusted basis in the Leased Premises shall be the purchase price paid by Landlord to
Tenant for the Leased Premises; (b) the Depreciable Property will be treated as a single integrated
unit of “nonresidential real property” within the meaning of Section 168(b)(3)(A) of the Code; and
(c) the cost basis of the Depreciable Property will be recovered using the straight-line
depreciation method pursuant to Section 168(b)(3) of the Code, an applicable recovery period of 39
years pursuant to Section 168(c) of the Code, zero salvage value, and the mid-month convention
pursuant to Section 168(d)(2)(A) of the Code.
A-2
“Easement” or “Easements” shall mean easements, covenants, waivers, approvals
or restrictions for utilities, parking or other matters as desirable for operation of the Leased
Premises or properties adjacent thereto.
“Environmental Laws” shall mean and include the Resource Conservation and Recovery Act
of 1976 (RCRA), 42 U.S.C. SectionSection 6901-6987, as amended by the Hazardous and Solid Waste
Amendments of 1984, CERCLA, the Hazardous Materials Transportation Act of 1975, 49 U.S.C.
SectionSection 1801-1812, the Toxic Substances Control Act, 15 U.S.C. SectionSection 2601-2671, the
Clean Air Act, 42 U.S.C. SectionSection 7401 et seq., the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. SectionSection 136 et seq and all other federal, state and local laws,
ordinances, rules, orders, statutes, codes and regulations applicable to the Leased Premises and
(i) relating to the environment, human health or natural resources, (ii) regulating, controlling or
imposing liability or standards of conduct concerning Hazardous Materials, or (iii) regulating the
clean-up or other remediation of the Leased Premises or any portion thereof, as any of the
foregoing may have been amended, supplemented or supplanted from time to time.
“Equipment” shall mean, collectively, the machinery and equipment which is attached to
the Improvements in such a manner as to become fixtures under applicable law, together with all
additions and accessions thereto, substitutions therefor and replacements thereof permitted by this
Lease.
“Event of Default” shall mean the occurrence of any one or more of the following
events under this Lease: (i) a failure by Tenant to make (regardless of the pendency of any
bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or
before any administrative tribunal which had or might have the effect of preventing Tenant from
complying with the provisions of this Lease) any payment of Basic Rent or Additional Rent when due
and payable and the continuance of such failure for three (3) Business Days after written notice
thereof to Tenant, provided that such notice shall only be required to be given once in any
calendar year; thereafter such failure to pay Basic Rent or Additional Rent when due and payable
shall become an Event of Default if it continues for five Business Days; (ii) failure by Tenant to
maintain in full force and effect the insurance required pursuant to Paragraph 14 hereof
(it being understood that if such lapse was the result of an administrative
or inadvertent error and Tenant reinstates the insurance and reimburses Landlord and Lenders in
full for any amounts expended by any of them to continue or replace such insurance prior to the
time that Landlord exercises any material remedy as a result of such Event of Default, such Event
of Default shall be deemed to have been cured); (iii) failure by Tenant to perform and observe, or
a violation or breach of, any other provision in this Lease and such default shall continue for a
period of thirty (30) days after written notice thereof to Tenant, or if such default is of such a
nature that it cannot reasonably be cured within such period of thirty (30) days, such period shall
be extended for such longer time as is reasonably necessary (not to exceed one hundred eighty (180)
days) provided that Tenant has commenced to cure such default within said period of thirty
(30) days and is actively, diligently and in good faith proceeding with continuity to remedy such
default; (iv) any representation or warranty made in this Lease, or in connection with this Lease,
by Tenant or Lease Guarantor is determined by Landlord or any Lender to have been false or
misleading in any material respect at the time made; (v) Tenant or Lease Guarantor shall (A)
voluntarily be adjudicated a bankrupt or insolvent, (B) voluntarily consent to the appointment of
a receiver or trustee for itself or for any of the Leased Premises,
A-3
(C) voluntarily file a
petition seeking relief under the bankruptcy or other similar laws of the United States, any state
or any jurisdiction, or (D) voluntarily file a general assignment for the benefit of creditors;
(vi) a court shall enter an order, judgment or decree appointing, with the voluntary consent of
Tenant or Lease Guarantor, a receiver or trustee for Tenant or Lease Guarantor or for the Leased
Premises or approving a petition filed against Tenant or Lease Guarantor which seeks relief under
the bankruptcy or other similar laws of the United States or any State, and such order, judgment or
decree shall remain in force, undischarged or unstayed, ninety (90) days after it is entered; (vii)
Tenant or Lease Guarantor shall in any insolvency proceedings be liquidated or dissolved or shall
voluntarily commence proceedings towards its liquidation or dissolution; (viii) the estate or
interest of Tenant in the Leased Premises shall be levied upon or attached in any proceeding and
such estate or interest is about to be sold or transferred or such process shall not be vacated or
discharged within ninety (90) days after such levy or attachment; (ix) Lease Guarantor shall fail
to perform any of its obligations under the Lease Guaranty and such failure shall continue for
thirty (30) days after notice thereof is given to Lease Guarantor; (x) Lease Guarantor shall merge
or consolidate with any other Person, or shall sell, transfer or otherwise dispose of all or
substantially all of its assets, or any Person or group (within the meaning of Section 13(d) of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder
as in effect on the date hereof) shall acquire ownership, directly or indirectly, beneficially or
of record, of shares representing more than 33 1/3% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Lease Guarantor and, after giving
effect to the foregoing transaction, the long term unsecured debt of the Lease Guarantor (or the
successor to the Lease Guarantor) shall be rated less than BBB- by Standard & Poor’s or Baa3 by
Xxxxx’x Investors Service, Inc. or shall be unrated; or (xi) Tenant shall merge or consolidate with
any other person (other than Lease Guarantor or any Subsidiary of Lease Guarantor), or shall sell,
transfer or otherwise dispose of all or substantially all of its assets, or Tenant shall cease to
be a wholly-owned subsidiary of Lease Guarantor, unless, at least ten (10) days prior to such
event, Landlord and the Lenders have received pro forma ratings by both Standard & Poor’s and
Xxxxx’x Investors Service, Inc. evidencing that the long term unsecured debt of Tenant (or the
successor to Tenant), after giving effect to the proposed transaction, shall be rated at least BBB-
by Standard & Poor’s and Baa3 by Xxxxx’x Investors Service, Inc..
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Expiration Date” shall mean [EXPIRATION DATE].
“Governmental Authority” shall mean any federal, state, county, municipal, foreign or
other governmental or regulatory authority, agency, board, body, instrumentality, court or quasi
governmental authority (or private entity in lieu thereof).
“Guaranties” shall mean all warranties, guaranties and indemnities, express or
implied, and similar rights which Landlord may have against any manufacturer, seller, engineer,
contractor or builder in respect of any of the Leased Premises, including, but not limited to, any
rights and remedies existing under contract or pursuant to the Uniform Commercial Code.
A-4
“Hazardous Materials” shall mean all chemicals, petroleum, crude oil or any fraction
thereof, hydrocarbons, polychlorinated biphenyls (PCBs), asbestos, asbestos-containing
materials and/or products, urea formaldehyde, or any substances which are classified as
“hazardous” or “toxic” under CERCLA; hazardous waste as defined under the Solid Waste Disposal Act,
as amended 42 U.S.C. Section 6901; air pollutants regulated under the Clean Air Act, as amended, 42
U.S.C. Section 7401, et seq.; pollutants as defined under the Clean Water Act, as amended, 33
U.S.C. Section 1251, et seq., any pesticide as defined by Federal Insecticide, Fungicide, and
Rodenticide Act, as amended, 7 U.S.C. Section 136, et seq., any hazardous chemical substance or
mixture or imminently hazardous substance or mixture regulated by the Toxic Substances Control Act,
as amended, 15 U.S.C. Section 2601, et Seq., any substance listed in the United States Department
of Transportation Table at 45 CFR 172.101; any chemicals included in regulations promulgated under
the above listed statutes or any similar federal or state statutes relating to the environment,
human health or natural resources; any explosives, radioactive material, and any chemical regulated
by state statutes similar to the federal statutes listed above and regulations promulgated under
such state statutes.
“Imposition” or “Impositions” shall mean, collectively, all Covered Taxes on
or with respect to the Leased Premises, or the use, lease, ownership or operation thereof; all
charges and/or Covered Taxes for any easement or agreement maintained for the benefit of the Leased
Premises; all general and special assessments, levies, permits, inspection and license fees on or
with respect to the Leased Premises; all water and sewer rents and other utility charges on or with
respect to the Leased Premises; all ground rents on or with respect to the Leased Premises, if any;
and all other public charges and/or Covered Taxes whether of a like or different nature, even if
unforeseen or extraordinary, imposed or assessed upon or with respect to the Leased Premises, prior
to or during the Term, against Landlord, Tenant or any of the Leased Premises as a result of or
arising in respect of the occupancy, leasing, use, maintenance, operation, management, repair or
possession thereof, or any activity conducted on the Leased Premises, or the Basic Rent or
Additional Rent, including without limitation, any Covered Tax levied by any Governmental Authority
on or with respect to such Basic Rent or Additional Rent; all payments required to be made to a
Governmental Authority that are in lieu of any of the foregoing, whether or not expressly so
designated; and any penalties, fines, additions or interest thereon or additions thereto;
provided further, for the avoidance of doubt, that the terms “Imposition” and
“Impositions” shall not include any Taxes other than Covered Taxes.
“Improvements” shall mean, collectively, the buildings, structures and other real
property improvements on the Land.
“Income Tax” or “Income Taxes” shall mean any and all present and future taxes
that are or are in the nature of a tax imposed on or with respect to, or measured by, net income or
receipts, capital, franchise, doing business or similar taxes or any ad valorem tax imposed in lieu
of or direct substitution for any of the foregoing (any of the forgoing being referred to herein
individually as an “Income Tax”).
“Indemnitee” shall mean Landlord, each Lender, any trustee under a Mortgage which is a
deed of trust, each of their assignees or other transferees and each of their Affiliates and their
respective officers, directors, employees, shareholders, members or other equity owners.
“Initial Term” shall mean the period of time commencing on the Commencement Date and
terminating on the Expiration Date.
A-5
“Insurance Expiration Date” shall mean, with respect to an insurance policy, the date
that such insurance policy will expire.
“Insurance Requirement” or “Insurance Requirements” shall mean, as the case
may be, any one or more of the terms of each insurance policy required to be carried by Tenant
under this Lease and the requirements of the issuer of such policy, and whenever Tenant shall be
engaged in making any Alteration or Alterations, repairs or construction work of any kind
(collectively, “Work”), the term “Insurance Requirement” or “Insurance Requirements” shall
be deemed to include a requirement that Tenant obtain or cause its contractor to obtain completed
value builder’s risk insurance when the estimated cost of the Work in any one instance exceeds the
sum of the Threshold Amount and that Tenant or its contractor shall obtain worker’s compensation
insurance or other adequate insurance coverage covering all persons employed in connection with the
Work, whether by Tenant, its contractors or subcontractors and with respect to whom death or bodily
injury claims could be asserted against Landlord.
“Land” shall mean the lot(s) or parcel(s) of land described in Exhibit A
attached to this Lease and made a part hereof, together with the easements, rights and
appurtenances thereunto belonging or appertaining.
“Landlord” shall mean [SUNTRUST EQUITY FUNDING, LLC AFFILIATE].
“Law” shall mean any constitution, statute, ordinance, regulation or rule of law
enacted or imposed by a Governmental Authority.
“Lease Guarantor” shall mean Old National Bancorp, an Indiana corporation.
“Lease
Guaranty” shall mean the Lease Guaranty, dated as of
December 27, 2007, issued
by the Lease Guarantor, as it shall be amended, supplemented or otherwise modified from time to
time.
“Leased Premises” shall mean, collectively, the Land, the Improvements and the
Equipment, together with any and all other property and interest in property conveyed to Landlord
pursuant to the deeds, bills of sale or other documents executed in connection with the purchase of
the Land, the Improvements and the Equipment by Landlord.
“Legal Requirement” or “Legal Requirements” shall mean, as the case may be,
any one or more of all present and future laws, codes, ordinances, orders, judgments, decrees,
injunctions, rules, regulations and requirements, even if unforeseen or extraordinary, of every
duly constituted governmental authority or agency (but excluding those which by their terms are not
applicable to and do not impose any obligation on Tenant, Landlord or the Leased Premises) and all
covenants, restrictions and conditions now of record which may be applicable to Tenant, Landlord
(with respect to the Leased Premises) or to all or any part of or interest in the Leased Premises,
or to the use, manner of use, occupancy, possession, operation, maintenance, alteration, repair or
reconstruction of the Leased Premises, even if compliance therewith (i) necessitates structural
changes or improvements (including changes required to comply with the “Americans with Disabilities
Act”) or results in interference with the use or enjoyment of the Leased Premises or (ii) requires
Tenant to carry insurance other than as specifically required by the provisions of this Lease.
A-6
“Lender” or “Lenders” shall mean each financial institution or other Person
that makes a Loan to Landlord, secured by a Mortgage and evidenced by a Note or which is the holder
of the Mortgage and a Note, or an interest therein, as a result of an assignment thereof or
otherwise. In the event that there is more than one Lender at any time, the rights granted under
this Lease to the Lender(s) to receive payments or to give approvals or consents shall be
exercisable only by that Lender that holds a first priority Mortgage.
“Lien” or “Liens” shall mean any lien, mortgage, pledge, charge, security
interest or encumbrance of any kind, or any type of preferential arrangement that has the practical
effect of creating a security interest, including, without limitation, any thereof arising under
any conditional sale agreement, capital lease or other title retention agreement.
“Loan” shall mean a loan made by a Lender to Landlord secured by a Mortgage and
evidenced by a Note.
“Make-Whole Premium” shall mean any make-whole premium, early termination fee or
similar payment or charge payable by Landlord in connection with the prepayment of any Loan.
“Mortgage” shall mean a mortgage, deed of trust or similar security instrument
hereafter executed covering the Leased Premises from Landlord to the Lender.
“Net Award” shall mean the entire award payable to Landlord or the Lender by reason of
a Condemnation, less any reasonable expenses incurred by Landlord in collecting such award and
excluding Tenant’s Award, if any (to the extent Tenant is entitled to Tenant’s Award pursuant to
the terms of this Lease).
“Net Proceeds” shall mean the entire proceeds of any insurance required under clause
(i), (iv), or (vi) of Paragraph 14 (a) of this Lease, less any actual and reasonable
expenses incurred by Landlord in collecting such proceeds.
“Note” or “Notes” shall mean a promissory note or notes hereafter executed
from Landlord to a Lender, which note or notes will be secured by a Mortgage and an assignment of
leases and rents.
“Notice” or “Notices” shall mean all notices, demands, requests, consents,
approvals, offers, statements and other instruments or communications required or permitted to be
given pursuant to the provisions of this Lease.
“Permitted Encumbrances” shall mean (a) those covenants, restrictions, reservations,
liens, conditions, encroachments, easements and other matters of title that affect the Leased
Premises as of the date of Landlord’s acquisition thereof, as shown on Schedule B hereto,
(b) liens for Impositions not yet due and payable or which are being contested in accordance with
Paragraph 18 and (c) liens of mechanics, materialmen, suppliers and vendors incurred in the
ordinary course of business for sums which under the terms of the related contract are not yet due,
provided that such reserve or other appropriate provision, if any, as shall be required by
generally accepted accounting principles shall have been made therefor by Tenant.
A-7
“Permitted Investments” means any one or more of the following:
(i) direct obligations of, or obligations guaranteed as to timely payment of principal
and interest by, the United States or any agency or instrumentality thereof provided that
such obligations are backed by the full faith and credit of the United States;
(ii) repurchase obligations with respect to any security described in clause
(i) above entered into with a depository institution or trust company (acting as
principal) whose long term unsecured debt obligations have received one of the two highest
ratings by at least two of the Rating Agencies;
(iii) units of taxable money market funds which funds are regulated investment
companies, seek to maintain a constant net asset value of $1 per share and invest solely in
obligations backed by the full faith and credit of the United States, and have been
designated in writing by at least two of the Rating Agencies in one of the two highest
credit rating categories; provided in each case, that no such investment shall be
purchased at a premium to its face value (disregarding interest accrued to the date of
acquisition) and that no such investment shall have a maturity later than the earlier of (x)
the Business Day before the proceeds of such investment are anticipated to be needed
pursuant to this Lease, or (y) one year from the date of acquisition;
(iv) commercial paper which is (a) rated at least A 1 by Standard & Poor’s Ratings
Service and, if rated by Xxxxx’x Investors Service, Inc., at least the equivalent Moody’s
ratings, (b) issued by a corporation or company (other than Tenant or affiliate thereof) and
(c) in certificated form; and
(v) investments in money market funds rated at least AAm or AAm-G or its equivalent
from any Rating Agency;
provided that at any time that a Loan is outstanding, Permitted Investments shall mean
those investments that are permitted pursuant to the Mortgage and the documents related thereto.
“Person” shall mean an individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability company, non-incorporated organization
or government or any agency or political subdivision thereof.
“Prime Rate” shall mean the prime rate of interest published in The Wall Street
Journal or its successor, from time to time.
“Rating Agency” means Standard & Poor’s Ratings Service; Fitch Investors Service,
Inc.; or Xxxxx’x Investors Service, Inc.
“REA” shall mean a reciprocal easement agreement or any other agreement or document of
record affecting the Leased Premises as of the Commencement Date, or which is created or imposed
after the Commencement Date by, or with the consent of, Tenant.
“Related Jurisdiction” shall mean any jurisdiction within the United States with the
authority to impose Taxes by virtue of the location of the Leased Premises, payments pursuant to
this Lease being made from within such jurisdiction or any transfer of the Leased Premises pursuant
to this Lease occurring within such jurisdiction.
A-8
“Release” shall mean the release under applicable Environmental Laws or the threatened
release of any Hazardous Materials into or upon any land or water or air, or otherwise into the
environment, including, without limitation, by means of burial, disposal, discharge, emission,
injection, spillage, leakage, seepage, leaching, dumping, pumping, pouting, escaping, emptying,
placement and the like.
“Renewal Option Notice” shall mean a written notice from Tenant to Landlord of its
election to extend the Term (or any then Renewal Term) of this Lease pursuant to Paragraph
5 of this Lease.
“Renewal Term” shall mean an additional Lease term of five (5) years.
“Rent Payment Period” shall mean each period beginning on the day after a Basic Rent
Payment Date through and including the day of the immediately succeeding Basic Rent Payment Date,
except that the first Rent Payment Period shall begin on the Commencement Date.
“Replaced Equipment” shall mean Equipment that has been replaced by Tenant with
Replacement Equipment.
“Replacement Equipment” shall mean operational equipment or other parts used by Tenant
to replace any of the Equipment.
“Requisition” shall mean any temporary condemnation or confiscation of the use or
occupancy of the Leased Premises by any governmental authority, civil or military, whether pursuant
to an agreement with such governmental authority in settlement of or under threat of any such
requisition or confiscation, or otherwise.
“Restoration” shall mean, following a casualty or Condemnation, the restoration of the
Leased Premises to as nearly as possible its value, condition and character immediately prior to
such casualty or Condemnation, in accordance with the provisions of this Lease, including but not
limited to the provisions of Paragraphs 11(a), 12 and 15. Notwithstanding
the foregoing, such Restoration may depart from the condition of the Leased Premises immediately
prior to the casualty or Condemnation, provided that (i) the fair market value of the
Leased Premises shall not be lessened after the completion of the Restoration, (ii) the use of the
Leased Premises shall not be changed as a result of any such Restoration, (iii) all such
Restoration shall be performed in a good and workmanlike manner, and shall be expeditiously
completed in compliance with all Legal Requirements, (iv) Tenant shall (subject to the provisions
of Paragraph 18) discharge all liens filed against any of the Leased Premises arising out
of the same, and (v) no such Alteration shall create any debt or other encumbrance(s) on the Leased
Premises.
“Restoration Award” shall mean that portion of the Net Award equal to the cost of
Restoration.
“Restoration Fund” shall mean, collectively, the Net Proceeds, Restoration Award and
Tenant Insurance Payment.
“SEC” means the Securities and Exchange Commission.
A-9
“State” shall mean the State or Commonwealth in which the Leased Premises is situated.
“Subsidiary” of a Person means any corporation, association, partnership, limited
liability company, joint venture or other business entity in which such Person or one or more of
its Subsidiaries or such Person and one or more of its Subsidiaries owns sufficient equity or
voting interest to enable it or them (as a group) ordinarily, in the absence of contingencies, to
elect a majority of the directors (or Persons performing similar functions) of such entity, and any
partnership or joint venture if more than a 50% interest in the profits or capital thereof is owned
by such Person or one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries (unless such partnership can and does ordinarily take major business actions without
the prior approval of such Person or one or more of its Subsidiaries) Unless the context otherwise
clearly requires, references herein to a “Subsidiary” refer to a Subsidiary of the Tenant.
“Taking” shall mean any taking of the Leased Premises, or any portion thereof, in or
by condemnation or other eminent domain proceedings pursuant to any law, general or special, or by
reason of any agreement with any condemnor in settlement of or under threat of any such
condemnation or other eminent domain proceedings or by any other means, or any de facto
condemnation.
“Taking Termination Date” has the meaning set forth in Paragraph 13(b)(i).
“Tax” or “Taxes” shall mean any and all present and future taxes, including
income (gross or net), gross or net receipts, sales, use, value added, franchise, doing business,
transfer, capital, property (tangible or intangible), ad valorem, municipal assessments, excise and
stamp taxes, levies, imposts, duties, charges, assessments or withholding, together with any
penalties, fines, additions or interest thereon or additions thereto (any of the forgoing being
referred to herein individually as a “Tax”), imposed by any Governmental Authority.
Without limiting the foregoing, if at any time during the term of this Lease the methods of
taxation prevailing at the execution hereof shall be changed or altered so that in lieu of or as a
supplement or addition to or a substitute for the whole or any part of the real estate taxes or
assessments now or from time to time thereafter levied, assessed or imposed by applicable taxing
authorities for the funding of governmental services, there shall be imposed (i) a tax, assessment,
levy, imposition or charge, wholly or partially as a capital levy or otherwise, on the gross rents
received or otherwise attributable to the Leased Premises, or (ii) a tax, assessment, levy
(including but not limited to any municipal, state or federal levy), imposition or charge measured
by or based in whole or in part upon the Leased Premises or this Lease, and imposed on the Landlord
under this Lease or any portion thereof, or (iii) a license fee or other fee or tax measured by the
gross rent payable under this Lease, or (iv) any other tax, assessment, levy, charge, fee or the
like payable with respect to the Leased Premises, the rents, issues and profits thereof, then all
such taxes, assessments, levies, impositions and/or charges, or the part thereof so measured or
based, shall be deemed to be Taxes.
“Tenant” shall mean Old National Bank.
“Tenant’s Award” shall mean, to the extent Tenant shall have a right to make a
separate claim therefor against the condemnor, a Condemnation award or payment (in connection with
a Condemnation) on account of Trade Fixtures, Tenant’s moving expenses and Tenant’s
out-of-pocket expenses incidental to the move, if available.
A-10
“Tenant’s Insurance Payment” shall mean, in the event of a damage or destruction, the
amount of the proceeds that would have been payable under the third-party insurance required to be
maintained pursuant to Paragraph 14(a)(i), (iv) or (vi) had such insurance
program been in effect.
“Term” shall mean the Initial Term, together with any Renewal Term.
“Threshold Amount” shall mean [THRESHOLD AMOUNT].
“Trade Fixtures” shall mean all fixtures, equipment and other items of personal
property (whether or not attached to the Improvements) which are owned by Tenant and used solely in
connection with the operation of the business conducted on the Leased Premises and which are not
necessary for the operation of the Leased Premises and which have not been financed by Landlord.
A-11
This Schedule sets forth the material details in which the lease agreements entered into
differ from this Form of Lease Agreement filed with the Securities and Exchange Commission.
| Site | Property | Suntrust Equity Funding, LLC | Lease | Basic | Threshold | |||||||||
| No. | Address | Affiliate | Expiration Date | Rent | Amount | |||||||||
1
|
0 X. Xxxxxxx Xxxxxx Xxxxxxxxxxx, XX 00000 |
ONB Site 1 Landlord, LLC | December 31, 2017 | $ | 17,000.00 | $ | 300,000.00 | |||||||
8
|
000 X. Xxxxxxxx Xxxxxxxxxxx, XX 00000 |
ONB Site 8 Landlord, LLC | December 31, 2022 | $ | 20,500.00 | $ | 300,000.00 | |||||||
9
|
000 X. Xxxx Xxxxxx Xxxxxxxxx, XX 00000 |
ONB Site 9 Landlord, LLC | December 31, 2022 | $ | 16,497.38 | $ | 300,000.00 | |||||||
38
|
0000 X. Xxxxxxxx Xxxxxx, XX 00000 |
ONB Site 38 Landlord, LLC | December 31, 2022 | $ | 9,566.67 | $ | 210.000.00 | |||||||
42
|
000 X. Xxxx Xxxxxx Xxxxxxxxx, XX 00000 |
ONB Site 42 Landlord, LLC | December 31, 2022 | $ | 11,813.47 | $ | 260,000.00 | |||||||
52
|
000 X. Xxxxx Xxxxxx Xxxxxxxxxx, XX 00000 |
ONB Traditional Portfolio Landlord, LLC | December 31, 2022 | $ | 4,210.70 | $ | 93,000.00 | |||||||
00
|
XX 00 Xxxxx Xxxxxxxxxxx, XX 00000 |
ONB Traditional Portfolio Landlord, LLC | December 31, 2022 | $ | 4,100.00 | $ | 90,000.00 | |||||||
A-12
