EXHIBIT 10.41
FIRST INDUSTRIAL FINANCING PARTNERSHIP, L.P.
INDUSTRIAL BUILDING LEASE
(MULTI TENANT)
ARTICLE 1: BASIC TERMS
This Article 1 contains the Basic Terms of this Lease between Landlord
and Tenant, named below. Other Articles, Sections and Paragraphs of the Lease
referred to in this Article 1 explain and define the Basic Terms and are to be
read in conjunction with the Basic Terms.
1.1 Date of Lease: 10/13/95
1.2 Landlord: First Industrial Financing Partnership, L.P., a
Delaware limited partnership
1.3 Tenant: Xxx Realty Co.
1.4 Premises, Building and Property: See Exhibit "A"
1.5 Lease Term: 10 years 3 months ("Initial Term"), commencing
October 1, 1995 ("Commencement Date") and ending
December 31, 2005 ("Expiration Date").
1.6 Permitted Uses: (See Article 4) manufacturing, distribution,
warehousing and administrative/sales offices
1.7 Tenant's Guarantor: (if none, so state) None
1.8 Brokers: (See Article 21; if none, so state)
(A) Tenant's Broker: None
(B) Landlord's Broker: Xxxxxx Xxxxxxxx, Realty Service
Group
1.9 Security Deposit: (See Article 4) $30,705.21
1.10 Vehicle Parking Allocated Tenant: SEE EXHIBIT "A"
1.11 Rent Payable by Tenant: See Exhibit "B"
1.12 Tenant's Proportionate Share: 37.83 percent
1.13 Riders to Lease: The following riders are attached to and made
a part of this Lease. (If none, so state) None
ARTICLE 2: LEASE OF PREMISES; RENT
2.1 LEASE OF PREMISES FOR LEASE TERM. Landlord hereby leases to
Tenant, and Tenant hereby rents from Landlord, for the Initial Term and as
extended for such additional periods as specified herein (collectively, the
"Term") and subject to the conditions of this Lease, the Premises.
2.2 TYPES OF RENTAL PAYMENTS. Tenant shall pay rents of (a) net
base rent payable in monthly installments as set forth in EXHIBIT "B" attached
hereto, in advance, on the first day of each and every calendar month during the
term of this Lease (the "Base Rent") and (b) the Additional Rent (as hereinafter
defined) in accordance with Article 3 below, to [LANDLORD, C/O FIRST INDUSTRIAL
MANAGEMENT CORPORATION, X.X. XXX 00000,
XXXXXXX, XXXXXXXX 00000-0000] (or such other entity designated as Landlord's
management agent, hereinafter referred to as "Agent"), or pursuant to such other
directions as Landlord shall designate. Notwithstanding anything to the contrary
herein, Tenant shall pay the October 1995 Base Rent by 5:00 p.m. on October
13,1995.
2.3 COVENANTS CONCERNING RENTAL PAYMENTS. Tenant shall pay the
Base Rent and the Additional Rent promptly when due, without notice or demand,
and without any abatement, deduction or setoff, except as may be expressly
provided in this Lease. No payment by Tenant, or receipt or acceptance by Agent
or Landlord, of a lesser amount than the correct Base Rent and Additional Rent
shall be deemed to be other than a payment on account, nor shall any endorsement
or statement on any check or letter accompanying any payment be deemed an accord
or satisfaction, and Agent or Landlord may accept such payment without prejudice
to its right to recover the balance due or to pursue any other remedy available
to Landlord. If the Commencement Date occurs on a day other than the first day
of a calendar month, the Base Rent and Additional Rent due for the partial
calendar months occurring at the commencement and the expiration of the Term
shall be prorated on a per diem basis.
2.4 OPTION TO RENEW. The Term may be extended, at the option of
Tenant, for two (2) consecutive periods of five (5) years each, such periods
being herein sometimes referred to as, respectively, the "First Extended Term"
and the "Second Extended Term," as follows:
(a) Each such option to extend shall be exercised by
Tenant's delivery of written notice to Landlord (an "Extension
Notice") on or before, but not later than (i) the date that is 6
months prior to the Expiration Date with respect to the First Extended
Term, and (ii) the date that is 6 months prior to the end of the First
Extended Term with respect to the Second Extended Term.
(b) The First Extended Term shall be on the same terms,
covenants and conditions of this Lease, except for the payment of Rent
during the First Extended Term. The Second Extended Term shall be on
the same terms, covenants and conditions of this Lease, excluding the
provisions of this Section 2.4, and except for the payment of Rent
during the Second Extended Term. Notwithstanding anything to the
contrary herein, Landlord shall not have any obligation under either
or both of Section 5.1 and Article 26 during either the First Extended
Term or the Second Extended Term. Tenant shall not be permitted to
extend this Lease beyond the Second Extended Term, nor may Tenant
elect the Second Extended Term if Tenant fails to timely and properly
elect the First Extended Term. In the event that this Lease is
terminated during the original Term, for any reason whatsoever, Tenant
shall have no further rights with respect to the First Extended Term.
(c) The Base Rent during the First Extended Term and the
Second Extended Term shall be payable at the rates set forth in
EXHIBIT "B" attached hereto. In addition to the payment of Additional
Rent (as hereinafter defined) required elsewhere in this Lease,
Additional Rent during the First Extended Term and the Second Extended
Term shall be increased as follows:
(i) In the event that the Consumer Price Index
(as hereinafter defined) published for December of 2001 (the
"Base Year") shall be less than the Consumer Price Index
published for December of any calendar year in the First
Extended Term or the Second Extended Term, Tenant shall pay to
Landlord or Landlord's agent, as Additional Rent (as
hereinafter defined) with respect to each such calendar year,
an amount (the "CPI Adjustment") equal to the product obtained
by multiplying the annual Base Rent (based on the rent per
rentable square foot) by ninety percent (90%) of the
percentage by which the Consumer Price Index for such calendar
year exceeds the Consumer Price Index for the Base Year.
"Consumer Price Index" shall mean the United States Department
of Labor, Bureau of Labor Statistics, Consumer Price Index-St.
Louis Metropolitan Area. All Urban Consumer All Items (1982
through 1984 = 100). The Consumer Price Index for any year
shall be that published for December of that year.
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(ii) The CPI Adjustments with respect to each
calendar year shall be paid and adjusted in the same manner as
other Additional Rent; that is, it shall be paid in monthly
installments in advance on the first day of each and every
calendar month during such calendar year in an amount
reasonably estimated by Landlord from time to time and
communicated to Tenant by written notice. At the same time as
the adjustment for other Additional Rent, Landlord shall
furnish Tenant a statement showing (1) the Consumer Price
Index for the Base Year, (2) the Consumer Price Index for the
applicable calendar year, (3) the amount of the CPI Adjustment
to be paid to Landlord for such calendar year, (4) the total
of the estimated monthly installments paid to Landlord during
such calendar year and (5) the amount of any excess or
deficiency with respect to such calendar year. Delay in
computation of the CPI Adjustment shall not be deemed a
default hereunder or a waiver of Landlord's right to collect
the CPI Adjustment.
(iii) If the manner in which the Consumer Price
Index as determined by the Department of Labor shall be
substantially revised, or if the 1982 through 1984 average
shall no longer be used as an index of 100, an adjustment
shall be made in such revised index which would have been
obtained if the Consumer Price Index had not been so revised
or if said average was still in use. If the Consumer Price
Index shall become unavailable to the public because
publication is discontinued, or otherwise, Landlord will
substitute therefor a comparable index based upon changes in
the cost of living or purchasing power of the consumer dollar
published by any other governmental agency or, if no such
index shall then be available, a comparable index published by
a major bank or other financial institution or by a university
or a recognized financial publication.
(d) It shall be a condition of Tenant's right to exercise
each of Tenant's options to extend the Term of this Lease that, at the
time that Tenant delivers an Extension Notice and upon the
commencement of the First Extended Term or the Second Extended Term,
as the case may be, Tenant is not in default under (nor has any event
occurred which, with the passage of time or the giving of notice, or
both, shall constitute a default under) any terms, covenants or
conditions of this Lease.
(e) In the event Tenant timely and properly exercises
either of Tenant's options under this Section 2.4, then within thirty
(30) days of Landlord's request, Tenant shall execute and deliver to
Landlord a Lease amendment in form and substance satisfactory to
Landlord confirming the applicable Base Rent during the First Extended
Term or the Second Amended Term, as the case may be, and setting forth
the applicable commencement and expiration dates of the applicable
Extended Term within (30) days after such request.
2.5 RIGHT OF FIRST REFUSAL. Throughout the Term and the Extended
Term(s), if applicable, Tenant shall have a continuing right of first refusal,
in accordance with the terms set forth below, to lease any and all of the
rentable space (the "Available Space") that becomes available in the Building
for lease to a third party (excluding space currently leased pursuant to renewal
options of other leases). The Available Space is depicted on EXHIBIT "A-1"
attached hereto and incorporated herein by this reference. In the event that
Landlord desires to lease any or all of the Available Space to a third party,
Landlord shall so notify Tenant, in writing (the "Available Space Notice"),
prior to Landlord entering into any lease for all or any part of the Available
Space. The Available Space Notice shall specify (i) that portion of the
Available Space that Landlord then desires to lease (the "Refusal Space"), and
(ii) the date on which the Refusal Space will be available for occupancy
("Refusal Space Occupancy Date"). During the Term, Landlord shall not extend the
term of the lease of any tenant which has leased any portion of the Available
Space (with respect to such Available Space), except pursuant to any existing
provision of such tenant's lease, existing as of 10/13/95 unless Tenant consents
thereto in writing or Landlord may lease such Available Space as provided in
Section 2.5(d).
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Tenant shall thereupon have a right (a "Refusal Right") to include in
the Premises all, but not less than all, the Refusal Space described in the
then-applicable Available Space Notice, effective as of the Refusal Space
Occupancy Date and for a term that is coterminous with the Term, and the First
and Second Extended Term(s), if applicable and as the case may be, of this
Lease. Each Refusal Right is granted upon the following terms and conditions:
(a) Tenant shall give Landlord written notice of its
election to exercise or not to exercise a Refusal Right ("Refusal
Right Response Notice") within ten (10) business days after Landlord
delivers to Tenant the applicable Available Space Notice that
activates such Refusal Right;
(b) Tenant is not in default of any terms, covenants or
conditions of this Lease (nor has any event occurred which, with the
giving of notice or passage of time, or both, shall constitute a
default under this Lease) either on the date Tenant delivers its
Refusal Right Response Notice or on the Refusal Space Occupancy Date;
(c) In the event Tenant timely and properly exercises any
Refusal Right, all of the terms and provisions of this Lease shall be
applicable to the Refusal Space thereby included in the Premises and
Additional Rent for such Refusal Space shall initially be based upon
the rate of Additional Rent in effect for the initial Premises as of
the applicable Refusal Space Occupancy Date (subject, however, to any
subsequent adjustments in the rate of Additional Rent, as imposed
under this Lease). In the event Tenant timely and properly exercises
any Refusal Right for any space in the Building other than the space
(the "Save A Lot Space") occupied, as of the date hereof, by Save A
Lot Ltd. (as depicted on EXHIBIT "A-2" attached hereto), the initial
rate of Base Rent for such Refusal Space shall be based upon the per
rentable square foot rate of Base Rent in effect for the initial
Premises as of the applicable Refusal Space Occupancy Date (subject,
however, to any subsequent adjustments in the rate of Base Rent, as
imposed under this Lease). In the event Tenant timely and properly
exercises any Refusal Right relating to the Save A Lot Space, then the
initial rate of Base Rent for the Save A Lot Space shall be based on
the Market Rental rate applicable as of the Refusal Space Occupancy
Date for the Save A Lot Space. For purposes of this Section, the
"Market Rental Rate" shall mean the average net rental rate, per annum
and per rentable square foot (as determined by Landlord in its
reasonable discretion), for the 12 month period immediately preceding
the Refusal Space Occupancy Date, for comparable space of comparable
size and for a similar term by reference to other buildings comparable
in age, construction, use and quality in St. Louis, Missouri, but
excluding those leases wherein the tenant has an equity interest in
the property.
(d) In the event that Tenant fails to timely and properly
exercise any Refusal Right, Landlord may, at any time thereafter,
lease the then-applicable Refusal Space to any third party tenant and
Tenant shall have no further interest, of any nature whatsoever, in
that Refusal Space;
(e) As of each Refusal Space Occupancy Date, the
then-applicable Refusal Space shall become part of the Premises
hereunder, and the annual Base Rent and the monthly installments of
Base Rent, shall be appropriately adjusted to reflect the addition of
such Refusal Space to the Premises, which adjustment shall be
applicable as of the Refusal Space Occupancy Date (prorated for the
initial and final months, if necessary). As of that Refusal Space
Occupancy Date, Tenant's Proportionate Share shall also be
appropriately adjusted by dividing the new total number of rentable
square feet in the Premises (inclusive of the Refusal Space), by the
total rentable square feet of the Building, and Additional Rent
payments with respect to the Refusal Space shall also commence on said
Refusal Space Occupancy Date (prorated for the initial and final
months, if necessary). If Landlord so elects, Landlord and Tenant
shall execute an amendment to this Lease (which shall be in form and
substance satisfactory to Landlord) confirming the modifications to
the Premises, the Base Rent, the monthly installment of Base Rent, and
Tenant's Proportionate Share; and
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(f) Tenant shall have no remedies for Landlord's failure to
deliver possession of the Refusal Space to Tenant on account of the
holding-over by any prior tenant of the Refusal Space in violation of
the terms of such tenant's lease. The Refusal Space Occupancy Date as
to such part of the Refusal Space that Landlord does not deliver to
Tenant shall not be deemed to occur until Landlord shall actually
deliver possession of such part of the Refusal Space to Tenant.
Notwithstanding anything to the contrary herein, Tenant, at its sole
cost and expense, may elect to pursue any legal remedies it may have
against any such prior tenant to cause such tenant to vacate the
Refusal Space.
All Refusal Rights granted in this Lease shall automatically terminate
upon the earlier to occur of (i) the expiration or termination of this Lease for
any reason; (ii) the termination of Tenant's right to possession of the Premises
for any reason; or (iii) the assignment of the entire Lease by Tenant or the
sublease by Tenant of any portion of the Premises (other than to an affiliate of
Tenant).
ARTICLE 3: ADDITIONAL RENT
3.1 DEFINITIONAL TERMS RELATING TO ADDITIONAL RENT. For purposes
of this Article and other relevant provisions of the Lease;
(a) OPERATING EXPENSES. The term "Operating Expenses" shall
mean all costs and expenses paid or incurred with respect to the
repair, replacement, restoration, maintenance and operation of the
Property and Building, including, without limitation, the following:
(i) all costs, wages and benefits of St. Louis employees of Landlord
or Agent engaged in the operation, maintenance or rendition of other
services to or for the Property and/or the Building; (ii) TO THE
EXTENT NOT SEPARATELY METERED, BILLED, OR FURNISHED, ALL CHARGES FOR
UTILITIES (INCLUDING, WITHOUT LIMITATION, WATER, SEWER AND ELECTRICAL)
AND SERVICES FURNISHED TO THE BUILDING (INCLUDING, WITHOUT LIMITATION,
THE COMMON AREAS THEREOF) AND TO THE PROPERTY, TOGETHER WITH ANY TAXES
ON SUCH UTILITIES; (iii) all premiums for casualty, workers'
compensation, dram shop, liability, boiler, flood and all other types
of insurance provided by Landlord and relating to the Property and/or
the Building; (iv) the cost of all supplies, tools, materials and
equipment utilized in the ownership and/or operation of the Building
and the Property, and sales and other taxes thereon; (v) amounts
charged by contractors for services, materials and supplies furnished
in connection with the operation, repair and/or maintenance of any
part of the Building and the Property, including, without limitation,
the Common Areas (as hereinafter defined); (vi) management fees to
Agent or other persons or management entities actually involved in the
management and/or operation of the Property (which persons or
management entities may be affiliates of Landlord); (vii) any capital
improvements made by, or on behalf of, Landlord to the Building and/or
the Property; (viii) legal, accounting and other professional fees
incurred in connection with the operation, management and/or
maintenance of the Property and/or the Building; (ix) Taxes, as
hereinafter defined; (x) all of the charges properly allocable to the
operation, maintenance or repair, replacement or restoration of the
Building and/or the Property, all in accordance with generally
accepted accounting principles; and (xi) Landlord's costs and expenses
relating to its obligations under Section 13.2. Notwithstanding
anything to the contrary, the Common Area Maintenance (CAM) charges
are hereby capped at $0.36/ft through December 31, 1996 and all
increases in the CAM charges to the Tenant shall not exceed 5% per
year during any calendar year.
(b) TAXES. The term "Taxes" as referred to in clause (ix)
above shall mean (i) all governmental taxes, assessments, fees,
penalties and charges of every kind or nature (other than Landlord's
income taxes), whether general, special, ordinary or extraordinary,
due in connection with the ownership, leasing, or operation of the
Property, the Building, or of the personal property and equipment
located therein or used in connection therewith; and (ii) any expenses
incurred by Landlord in contesting such taxes or assessments and/or
the assessed value of the Building and/or the Property. For purposes
hereof, Taxes for any year shall be Taxes that are due for payment or
paid in that year rather than Taxes that are assessed, become a lien,
or accrue during such year.
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(c) OPERATING YEAR. The term "Operating Year" shall mean
the calendar year commencing January 1st of each year (including the
calendar year within which the Commencement Date occurs) during the
Term.
3.2 OBLIGATION OF ADDITIONAL RENT. Tenant shall pay as additional
rent ("Additional Rent") its Proportionate Share of the Operating Expenses as
set forth in Section 3.3. The Additional Rent commences to accrue upon the
Commencement Date. The Additional Rent payable hereunder for the Operating Years
in which the Term begins and ends shall be prorated to correspond to that
portion of said Operating Years occurring within the Term. For the first
Operating Year and the Operating Year in which this Lease terminates, Tenant's
liability for Additional Rent shall be subject to a pro rata adjustment based
upon the number of days of such Operating Year during which the Term is in
effect. Additional Rent and any other sums due and payable under this Lease
shall be adjusted upon receipt of the actual bills therefor and the obligations
of this Article 3 shall survive the termination of the Lease.
3.3 PAYMENT OF ADDITIONAL RENT. Landlord shall have the right to
reasonably estimate the Additional Rent for each Operating Year. Upon Landlord's
or Agent's notice to Tenant of such estimated amount, Tenant shall pay, on the
first day of each month during that Operating Year, an amount (the "Estimated
Additional Rent") equal to the estimate of the Additional Rent divided by the
number of months in the applicable Operating Year or the fractional portion
thereof remaining at the time Landlord delivered its notice of estimated
Additional Rent due from Tenant. If the aggregate amount of Estimated Additional
Rent actually paid by Tenant during any Operating Year for such period is less
than Tenant's actual ultimate liability for Additional Rent determined pursuant
to Section 3.2, Tenant shall pay the deficiency within twenty (20) days of
demand. If the aggregate amount of Estimated Additional Rent actually paid by
Tenant during a given Operating Year exceeds Tenant's actual liability for such
Operating Year, the excess shall be credited against the Estimated Additional
Rent due from Tenant during the immediately subsequent Operating Year, except
that in the event that such excess is paid by Tenant during the final Lease
Year, then upon the expiration of the Term, Landlord or Agent shall promptly pay
Tenant the then-applicable excess after determination thereof. No interest shall
be payable to Tenant on account of such payments of Estimated Additional Rent
and such payments may be commingled.
3.4 STOPS. Notwithstanding anything to the contrary herein,
Operating Expenses shall not include any costs and expenses (collectively, the
"Stopped Expenses") paid by Landlord for (i) real estate taxes levied against
the Property, or (ii) premiums for insurance provided by Landlord relating to
the Property and/or the Building, except to the extent either category of
Stopped Expenses exceeds the corresponding amount of Stopped Expenses for such
category in 1995.
3.5 INITIAL OPERATING EXPENSE ESTIMATE. Landlord hereby notifies
Tenant that Landlord's initial estimate of Additional Rent for the first
Operating Year is $37,899.00; therefore, during that First Operating Year,
$3,158.25 shall be due monthly as initial Estimated Additional Rent.
ARTICLE 4: USE OF PREMISES AND COMMON AREAS; SECURITY DEPOSIT
4.1 USE OF PREMISES. It is agreed and understood that the Premises
shall be used for the purpose(s) set forth in Paragraph 1.6 above and for no
other purpose whatsoever. Tenant shall not, at any time, use or occupy, or
suffer or permit anyone to use or occupy, the Premises, or do or permit anything
to be done in the Premises, in any manner that may (a) violate any Certificate
of Occupancy for the Premises, the Property or for the Building; (b) cause, or
be liable to cause, injury to the Building, the Property or any equipment,
facilities or systems therein; (c) constitute a violation of the laws and
requirements of any public authority or the requirements of insurance bodies or
the rules and regulations of the Building or the Property; (d) impair or tend to
impair the character, reputation or appearance of the Building as a first-class
building; (e) impair or tend to impair the proper and economic maintenance,
operation, and repair of the Building or the Property and/or their equipment,
facilities or
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systems; or (f) unreasonably annoy, inconvenience or disrupt the operations or
tenancies of other tenants or users of the Building or the Property, if any, or
conflict with other tenants' leases.
4.2 USE OF COMMON AREAS. As used herein, "Common Areas" shall mean
all areas within the Building or Property which are available for the common use
of tenants of the Building and which are not leased or held for the exclusive
use of Tenant or other tenants, including, but not limited to, parking areas,
driveways, sidewalks, loading areas, access roads, corridors, landscaping and
planted areas. Landlord, from time to time, may change the size, location,
nature and/or use of any of the Common Areas (but in no event may Landlord
decrease the number of trailer parking spaces available to Tenant below the
number otherwise required herein), and Tenant acknowledges that such activities
may result in inconvenience to Tenant. Tenant's designated primary trailer
parking is identified in EXHIBIT "A". Notwithstanding such inconvenience, such
activities and changes are permitted if they do not materially affect Tenant's
use of the Property. Tenant shall have the nonexclusive right (in common with
other tenants and all others to whom Landlord has granted or may grant such
rights) to use the Common Areas for the purposes intended, subject to such
reasonable rules and regulations as Landlord may establish from time to time. At
any time, Landlord may close or suspend access to any Common Areas to perform
any acts in the Common Areas as, in Landlord's judgment, are desirable to
improve or maintain the Premises, Building or Property. Except in case of an
emergency, Landlord shall notify Tenant of any such closure or suspension at
least ten (10) days in advance. Tenant shall not interfere with the rights of
Landlord, other tenants or any other person entitled to use the Common Areas.
4.3 SIGNAGE. Tenant shall not affix any sign of any size or
character to the Building or any portion of the Property, without prior written
approval of Landlord, which Landlord may withhold in its sole and absolute
discretion. Tenant shall remove all signs of Tenant upon the expiration or
earlier termination of this Lease and immediately repair any damage to the
Property or the Building caused by, or resulting from, such removal.
4.4 SECURITY DEPOSIT. Simultaneously with the execution and
delivery of this Lease, Tenant shall deposit with Agent the sum set forth in
Paragraph 1.9 above, in cash (the "Security"), representing security for the
performance by Tenant of the covenants and obligations hereunder. The Security
shall be held by Agent, without interest, in favor of Tenant; provided, however,
that no trust relationship shall be deemed created thereby and the Security may
be commingled with other assets of Landlord. In the event Tenant defaults in the
performance of any of its covenants hereunder, Landlord or Agent may, without
notice to Tenant, apply the whole or any part of the Security, to the extent
required for the payment of any Base Rent, Additional Rent or any other sums
that may be due from Tenant hereunder, in addition to any other remedies
available to Landlord. In the event Landlord or Agent shall so apply the
Security, Tenant shall, upon demand, immediately deposit with Agent a sum equal
to the amount so used. Tenant's failure to do so shall constitute a default
under this Lease. If Tenant fully and faithfully complies with all the covenants
hereunder, the Security (or any balance thereof) shall be returned to Tenant
within thirty (30) days after the last to occur of (i) the date the Term has
expired or is terminated, (ii) delivery to Landlord of possession of the
Premises and (iii) Landlord's or Agent's inspection of the Premises and
determination that all obligations of Tenant under this Lease have been fully
satisfied. Landlord may deliver the Security to any purchaser of Landlord's
interest in the Premises [or any Successor Landlord (defined below), if
applicable], and thereupon Landlord and Agent shall be discharged from any
further liability with respect to the same. Each time the Base Rent is
increased, Tenant shall deposit additional funds with Landlord sufficient to
increase the Security to an amount which bears the same relationship to the
increased rent as the initial Security bore to the initial Base Rent,
Notwithstanding anything to the contrary herein, if during that portion of the
Term prior to and including January 1, 1997, Tenant has never been in breach of
or default under this Lease, Landlord shall apply the Security toward Tenant's
obligation to pay Base Rent on that date, after which this Section 4.4 shall be
of no further force or effect. In the event Tenant's obligation to pay Base Rent
on January 1, 1997 exceeds the amount of the Security, Tenant shall be obligated
to pay the difference to Landlord on such date as Base Rent.
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ARTICLE 5: CONDITION AND DELIVERY OF PREMISES
5.1 CONDITION OF PREMISES. Tenant agrees that Tenant is familiar
with the condition of the Premises, the Building and the Property and Tenant
hereby accepts the foregoing on an "AS-IS," "WHERE-IS" basis. Tenant
acknowledges that neither Landlord nor Agent nor any representative of Landlord
has made any representation as to the condition of the foregoing or the
suitability of the foregoing for Tenant's intended use. Tenant represents and
warrants that Tenant has made its own inspection of the foregoing and is not
relying on any representation of Landlord with respect thereto. Neither Landlord
nor Agent shall be obligated to make any repairs, replacements or improvements
of any kind or nature to the foregoing in connection with, or in consideration
of, this Lease, except with respect to any repairs and improvements expressly
and specifically described in EXHIBIT "C" attached hereto ("Work Items").
Landlord agrees to enforce, or cause Agent to enforce, upon Tenant's request,
all manufacturer's or contractor's warranties, if any, given in connection with
the Work Items.
5.2 DELAY IN COMMENCEMENT. Landlord shall not be liable to Tenant
if Landlord does not deliver possession of the Premises to Tenant on the
Commencement Date. The obligations of Tenant under the Lease shall not thereby
be affected, except that the Commencement Date shall be delayed until Landlord
delivers possession of the Premises to Tenant, and the Lease Term shall be
extended by a period equal to the number of days of delay in delivery of
possession of the Premises to Tenant, plus the number of days necessary to end
the Lease Term on the last day of a month. If Landlord does not deliver
possession of the Premises to Tenant within sixty (60) days after the
Commencement Date, Tenant may elect to cancel this Lease by giving written
notice to Landlord within ten (10) days after the sixty (60) day period ends. If
Tenant does not give such notice, Tenant's right to cancel the Lease shall
conclusively and irrevocably expire and the Lease Term shall commence upon the
delivery of possession of the Premises to Tenant.
ARTICLE 6: SUBORDINATION; NOTICES TO SUPERIOR LESSORS AND MORTGAGEES;
ATTORNMENT
6.1 SUBORDINATION OF LEASE. This Lease, and all rights of Tenant
hereunder, are subject and subordinate to all ground leases of the Property now
or hereafter existing and to all mortgages or trust deeds (all of which are
hereafter referred to collectively as "Mortgages"), which may now or hereafter
affect or encumber all or any portion of the Property and the Building. This
subordination shall apply to each and every advance made, or to be made, under
such Mortgages; to all renewals, modifications, replacements and extensions of
such Mortgages; and to "spreaders" and consolidations of such Mortgages. In
confirmation of such subordination, Tenant shall from time to time promptly
execute, acknowledge and deliver any instrument that Landlord may from time to
time reasonably require in order to evidence or confirm such subordination.
Subject to the provisions of Section 6.3. If Tenant fails to execute,
acknowledge or deliver any such instrument within twenty (20) days after request
therefor, Tenant hereby irrevocably constitutes and appoints Landlord as
Tenant's attorney-in-fact, which appointment is coupled with an interest, to
execute and deliver any such instruments for and on behalf of Tenant. Tenant
acknowledges that this Lease has been (and, in the future, may be) assigned by
Landlord to a Superior Mortgagee (defined below) as additional collateral
security for the loans secured by the Superior Mortgage (defined below) held by
such Superior Mortgagee. Any ground lease to which this Lease is subject and
subordinate is hereinafter referred to as a "Superior Lease," the lessor under a
Superior Lease is hereinafter referred to as a "Superior Lessor," and the lessee
thereunder, a "Superior Lessee"; and any Mortgage to which this Lease is subject
and subordinate is hereinafter referred to as a "Superior Mortgage," and the
holder of a Superior Mortgage is hereinafter referred to as a "Superior
Mortgagee." Notwithstanding the foregoing, at Landlord's election, this Lease
may be made senior to the lien of any Superior Mortgage, if and only if the
Superior Mortgage thereunder so requests.
6.2 NOTICE IN THE EVENT OF DEFAULT. If any act or omission of
Landlord or Agent would give Tenant the right to cancel or terminate this Lease,
or to claim a partial or total eviction, Tenant shall not exercise such right
(a) until it has given, by registered or certified mail, return receipt
requested, written notice of such act or omission
8
to Landlord and to each Superior Mortgagee and Superior Lessor whose name and
address shall previously have been furnished to Tenant, and (b) until a thirty
(30)-day period for remedying such act or omission shall have elapsed following
the giving of such notice; provided, however, that said thirty (30)-day cure
period shall be automatically extended in the event that the act or omission
cannot, by its nature, be cured within thirty (30) days and one or more of
Landlord, the Superior Mortgagee or the Superior Lessor is diligently proceeding
to cure said default.
6.3 SUCCESSOR LANDLORD. If any Superior Lessor or Superior
Mortgagee shall succeed to the rights of Landlord hereunder, then, at the
request of such party (hereinafter referred to as "Successor Landlord"), Tenant
shall attorn to and recognize each Successor Landlord as Tenant's landlord under
this Lease and shall promptly execute and deliver any instrument such Successor
Landlord may reasonably request to further evidence such attornment. Tenant
hereby acknowledges that in the event of such succession, then from and after
the date on which the Successor Landlord acquires Landord's rights and interest
under this Lease (the "Succession Date"), the rights and remedies available to
Tenant under this Lease with respect to any obligations of any Successor
Landlord shall be limited to the equity interest of the Successor Landlord in
the Property; and the Successor Landlord shall not (a) be liable for any act,
omission or default of Landlord or other prior lessor under this Lease; (b) be
required to make or complete any tenant improvements or capital improvements, or
to repair, restore, rebuild or replace the Premises or any part thereof in the
event of damage, casualty or condemnation; or (c) be required to pay any amounts
to Tenant that are due and payable, under the express terms of this Lease, prior
to the Succession Date. Additionally, from and after the Succession Date,
Tenant's obligation to pay Base Rent and Additional Rent (as provided in
Articles 2 and 3 hereof) shall not be subject to any abatement, deduction,
set-off or counterclaim against the Successor Landlord that arises as a result
of, or due to, a default of Landlord or any other lessor that occurs prior to
the Succession Date. Moreover, no Successor Landlord shall be bound by any
advance payments of Base Rent and Additional Rent made prior to the calendar
month in which the Succession Date occurs, nor by any security deposit that is
not actually delivered to, and received by, the Successor Landlord. Landlord,
shall request of any Superior Mortgagee that such Superior Mortgagee execute the
subordination, non-disturbance and attornment agreement with Tenant, in the form
as attched in Exhibit "F".
ARTICLE 7: QUIET ENJOYMENT
So long as Tenant pays all of the Base Rent and Additional Rent and
performs all of its other obligations hereunder, Tenant shall not be disturbed
in its possession of the Premises by Landlord, Agent or any other person
lawfully claiming through or under Landlord, subject to the provisions of this
Lease. This covenant shall be construed as a covenant running with the Property
and is not a personal covenant of Landlord.
ARTICLE 8: ASSIGNMENT, SUBLETTING AND MORTGAGING
8.1 PROHIBITION. Tenant acknowledges that this Lease and the Base
Rent and Additional Rent due under this Lease have been agreed to by Landlord in
reliance upon Tenant's reputation and creditworthiness; therefore, Tenant shall
not, whether voluntarily, or by operation of law, or otherwise: (a) assign or
otherwise transfer this Lease; (b) sublet the Premises or any part thereof, or
allow the same to be used or occupied by anyone other than Tenant; or (c)
mortgage, pledge, encumber, or otherwise hypothecate this Lease or the Premises,
or any part thereof, in any manner whatsoever, without in each instance
obtaining the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed. Any violation of the foregoing provisions
shall constitute a default under this Lease and, thereupon, Landlord shall have
the option to cancel the same and proceed, at Landlord's election, in accordance
with the provisions set forth in this Lease. Any consent by Landlord to a
particular assignment, sublease or mortgage shall not constitute consent or
approval of any subsequent assignment, sublease or mortgage, and Landlord's
written approval shall be required in all such instances. In the event that
Landlord consents to any assignment or sublease, Landlord shall not be deemed to
have agreed to release Tenant from its obligation hereunder and Tenant shall
remain liable hereunder. Any purported assignment, mortgage,
9
transfer, pledge or sublease made without the prior written consent of Landlord
shall be absolutely null and void and of no legal force or effect.
Notwithstanding anything to the contrary herein, Landlord hereby consents to
Tenant subleasing the Premises, as of the date hereof, to Tenant's affiliate
United Industries Corporation.
8.2 RIGHTS OF LANDLORD. If this Lease is assigned, or if the
Premises (or any part thereof) are sublet or used or occupied by anyone other
than Tenant, whether or not in violation of this Lease, Landlord or Agent may
(without prejudice to, or waiver of its rights), collect rent from the assignee,
subtenant or occupant. Landlord or Agent may apply the net amount collected to
the Base Rent and Additional Rent herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of any of the
provisions of this Article 8 or the acceptance of the assignee, subtenant or
occupant as a successor tenant, or a release of Tenant from the performance of
its obligations hereunder. Tenant covenants that, notwithstanding any assignment
or transfer, and notwithstanding the acceptance of Base Rent and/or Additional
Rent by Landlord or Agent from an assignee, transferee, or any other party, it
shall remain fully liable for the payment of the Base Rent and Additional Rent
and for the other obligations of this Lease to be performed or observed by
Tenant. With respect to the allocable portion of the Premises sublet, in the
event that the total rent and any other considerations (whether cash or
non-cash) received under any sublease by Tenant is greater than the total Base
Rent and Additional Rent required to be paid, from time to time, under this
Lease, Tenant shall pay to Agent one hundred percent (100%) of such excess as
received from any subtenant and such amount shall be deemed a component of
Additional Rent under this Lease. Notwithstanding anything to the contrary
herein, the provisions of this Section 8.2 shall not apply to the sublease
contemplated by the last sentence of Section 8.1.
8.3 PERMITTED TRANSFERS. The provisions of Section 8.1(a) shall
apply to a transfer of a majority of the voting stock of Tenant or to any other
change in voting control of Tenant (if Tenant is a corporation), in one (1) or
more transactions, or to a transfer of a majority of the general partnership
interests in Tenant or managerial control of Tenant (if Tenant is a
partnership), or to any comparable transaction involving any other form of
business entity, whether effectuated in one (1) or more transactions, as if such
transfer were an assignment of this Lease; but said provisions shall not apply
to a transfer to a corporation into or with which Tenant is merged or
consolidated, or to which substantially all of Tenant's assets are transferred,
or to any corporation that controls or is controlled by Tenant, or is under
common control with Tenant, provided in any of such events (a) the successor to
Tenant has a net worth (computed in accordance with generally accepted
accounting principles), at least equal to the greater of (i) the net worth of
Tenant immediately prior to such merger, consolidation or transfer or (ii) the
net worth of Tenant on the date of this Lease AND (b) proof satisfactory to
Landlord of such net worth shall have been delivered to Landlord at least ten
(10) days prior to the effective date of any such transaction. Any such
permitted transferee shall execute and deliver to Landlord any and all
documentation reasonably required by Landlord in order to evidence assignee's
assumption of all obligations of Tenant hereunder.
ARTICLE 9: COMPLIANCE WITH LAWS
If any license or permit is required for the conduct of Tenant's
business in the Premises, Tenant, at its expense, shall procure such license
prior to the first day of the Term, and shall maintain in good standing and
renew such license or permit. Tenant shall give prompt notice to Landlord of any
notice it receives of the violation of any law or requirement of any
governmental or administrative authority with respect to the Premises or the use
or occupation thereof. Tenant shall, at Tenant's expense, comply with all laws
and requirements of any governmental or administrative authorities that impose
any duty on Landlord, Agent or Tenant arising from Tenant's actions regarding
its business operations or use of the Premises and Tenant shall pay all
expenses, fines and damages that are imposed upon any or all of Landlord, Agent,
any Superior Lessee, Superior Lessor or Superior Mortgagee, by reason or arising
out of Tenant's failure to fully and promptly comply with and observe the
provisions of this Article.
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ARTICLE 10: INSURANCE
10.1 TENANT ACTIVITIES. Tenant shall not violate, or permit the
violation of, any condition imposed by any insurance policy issued in respect of
the Property and/or the Building and shall not do, or permit anything to be
done, or keep or permit anything to be kept in the Premises, that would: (a)
subject any or all of Landlord, Agent, any Superior Lessor, any Superior Lessee
or any Superior Mortgagee to any liability or responsibility for personal injury
or death or property damage; (b) result in insurance companies of good standing
refusing to insure (or imposing special conditions on insuring) any or all of
the Property, the Building or the property therein, in amounts reasonably
satisfactory to Landlord; and (c) result in the cancellation of (or the
assertion of any defense by the insurer, in whole or in part, to claims under)
any policy of insurance with respect to any or all of the Property, the Building
or the property therein. Landlord acknowledges that Tenant sells consumer
insecticides and lawn and garden products.
10.2 WAIVER OF RIGHT OF RECOVERY. None of Landlord, Agent or Tenant
shall be liable to one another [or to any insurance company (by way of
subrogation or otherwise) insuring any such party] for any loss or damage to the
Building, the Premises, the Property, the structure of the Building, other
tangible property located on the Property or in the Building, or any resulting
loss of income, or losses under workers' compensation laws and benefits, despite
the fact that such loss or damage might have been occasioned by the negligence
or misconduct of such party, its agents or employees, provided that any such
loss or damage is covered by insurance benefitting the party suffering such loss
or damage. Each of Landlord, Agent and Tenant shall secure an appropriate clause
in, or an endorsement upon, each insurance policy obtained by it and covering or
applicable to the Property, the Building, the Premises and the personal
property, fixtures, and equipment located therein or thereon, pursuant to which
the insurance company consents to such waiver of right of recovery. The waiver
of right of recovery set forth above in this Section 10.2 shall extend to
Landlord, Agent, Tenant, and their respective agents and employees, and each
Superior Lessor, Superior Mortgagee, and to other appropriate parties designated
by Landlord (collectively, "Superior Parties").
10.3 INSURANCE TO BE MAINTAINED BY TENANT. Tenant shall, at is sole
cost and expense, at all times during the Term (and any extensions thereof)
obtain and pay for and maintain in full force and effect the insurance policy or
policies described in EXHIBIT "D" attached hereto. Certified copies of all
insurance policies required pursuant to this Lease (or certificates thereof, in
form and substance acceptable to Landlord), shall be delivered to Landlord not
less than ten (10) days prior to the Commencement Date. If Tenant fails to
submit such policies or certificates to Landlord within the specified time, or
otherwise fails to obtain and maintain insurance coverages in accordance with
this Section 10.3, then Landlord, at Landlord's sole option, may, but shall not
be obligated to, procure such insurance on behalf of, and at the expense of,
Tenant. Tenant shall reimburse Landlord for such amounts upon demand, it being
understood that any such sums for which Tenant is required to reimburse Landlord
shall constitute Additional Rent under this Lease.
ARTICLE 11: ALTERATIONS
11.1 PROCEDURAL REQUIREMENTS. Tenant may, from time to time, at its
expense, make such alterations or improvements in and to the Premises
(hereinafter collectively referred to as "Alterations") excluding structural
changes, as Tenant may reasonably consider necessary for the conduct of its
business in the Premises; provided, however, that the written consent of
Landlord is first obtained for all such Alterations equal to or greater than
$10,000 in cost. Landlord's consent to Alterations shall not be unreasonably
withheld, provided that: (a) the Alterations are non-structural and the
structural integrity of the Building shall not be affected; (b) Tenant shall
have provided Landlord with detailed plans for such Alterations in advance of
requesting Landlord's consent; (c) the Alterations are to the interior of the
Premises and no part of the interior not used exclusively by Tenant (common area
or otherwise) or the exterior of the Building shall be affected; (d) the proper
functioning of the mechanical, electrical, sanitary and other service systems of
the Building shall not be adversely affected and the usage of such systems by
Tenant shall not be increased; (e) Tenant shall have appropriate insurance
coverage reasonably
11
satisfactory to Landlord regarding the performance and installation of the
Alterations; (f) the Alterations shall conform with all other requirements of
this Lease; (g) the Alterations have no effect on other Premises in the
Building; and (h) before proceeding with any Alterations, Tenant shall submit to
Agent, for Landlord's approval, plans and specifications and all permits for the
work to be done and Tenant shall not proceed with such work until it has
received said approval. Tenant shall obtain and deliver to Agent (if so
requested) either (i) a performance bond and a labor and materials payment bond
in form satisfactory to Landlord, each in an amount equal to one hundred fifteen
percent (115%) of the estimated cost of the Alterations, or (ii) such other
security as shall be reasonably satisfactory to Landlord.
11.2 PERFORMANCE OF ALTERATIONS. Tenant, at its expense, shall
obtain all necessary governmental permits and certificates for the commencement
and prosecution of Alterations and for the final approval thereof upon
completion, and shall cause the Alterations to be performed in compliance with
all applicable permits, laws and requirements of public authorities, or all
entities holding mortgages on the Building and with Landlord's rules and
regulations or any other restrictions that Landlord or Agent may impose on the
Alterations. Tenant shall cause the Alterations to be diligently performed in a
good and workmanlike manner, using new materials and equipment at least equal in
quality and class to the standards for the Building established by Landlord or
Agent. Alterations shall be performed by contractors first approved by Landlord,
and Tenant's agents, contractors, workmen, mechanics, suppliers and invitees
shall work in harmony, and not interfere with, Landlord and its agents and
contractors (if any) or with any other tenants or occupants of the Building.
Tenant shall provide Landlord with "as built" plans, copies of all construction
contracts, governmental permits and certificates and proof of payment for all
labor and materials, including, without limitation, copies of paid invoices and
final lien waivers.
11.3 LIEN PROHIBITION.
11.3.1 BY TENANT. Tenant shall pay when due all claims for
labor and material furnished to the Premises in connection with the Alterations.
Tenant shall give Landlord at least twenty (20) days prior written notice of the
commencement of any work at the Premises, and Landlord may elect to record and
post notices of non-responsibility at the Premises. Tenant shall not permit any
mechanics or materialmen's liens to attach to the Premises, the Building, the
Property, or Tenant's leasehold estate. Tenant, at its expense, shall procure
the satisfaction or discharge of record of all such liens and encumbrances
within fifteen (15) days after the filing thereof. In the event Tenant has not
so performed, Landlord may, at its option, pay and discharge such liens and
Tenant shall be responsible to reimburse Landlord for all costs and expenses
incurred in connection therewith, together with interest thereon at the rate set
forth in Section 21.3 below, which expenses shall include reasonable fees of
attorneys of Landlord's choosing, and any costs in posting bond to effect
discharge or release of the lien as an encumbrance against the Premises, the
Building or the Property.
11.3.2 BY LANDLORD. Landlord shall pay when due all claims for
labor and material furnished to the Premises in connection with alterations
which it performs. Landlord shall give Tenant at least twenty (20) days prior
written notice of the commencement of any such work at the Premises, and Tenant
may elect to record and post notices of non-responsibility at the Premises.
Landlord shall not permit any mechanics or materialmen's liens resulting from
Landlord's alterations to Tenant's leasehold estate. Landlord, at its expense
and option, shall either procure the satisfaction or discharge of record of all
such liens and encumbrances within fifteen (15) days after the filing thereof or
post a reasonable bond therefor.
ARTICLE 12: LANDLORD'S AND TENANT'S PROPERTY
12.1 LANDLORD'S PROPERTY. All fixtures, machinery, equipment,
improvements and appurtenances to, or built into, the Premises at the
commencement of, or during the Term, whether or not placed there by or at the
expense of Tenant, shall be and remain a part of the Premises; shall be deemed
the property of Landlord (the "Landlord's Property"), without compensation or
credit to Tenant; and shall not be removed by Tenant unless Landlord requests
their removal. Further, any personal property in the Premises on the
Commencement Date,
12
movable or otherwise, unless installed and paid for by Tenant, shall be and
shall remain the property of Landlord and shall not be removed by Tenant. In no
event shall Tenant remove any of the following materials or equipment without
Landlord's prior written consent: any power wiring or power panels, lighting or
lighting fixtures, wall or window coverings, carpets or other floor coverings,
heaters, air conditioners or any other heating or air conditioning equipment,
fencing or security gates, or other similar building operating equipment and
decorations.
12.2 TENANT'S PROPERTY. All movable non-structural partitions,
business and trade fixtures, machinery and equipment, communications equipment
and office equipment, whether or not attached to, or built into, the Premises,
which are installed in the Premises by, or for the account of, Tenant without
expense to Landlord and that can be removed without structural damage to the
Building, and all furniture, furnishings and other articles of movable personal
property owned by Tenant and located in the Premises (collectively, the
"Tenant's Property") shall be and shall remain the property of Tenant and may be
removed by Tenant at any time during the Term, provided Tenant repairs or pays
the cost of repairing any damage to the Premises or to the Building resulting
from the installation and/or removal thereof.
12.3 REMOVAL OF TENANT'S PROPERTY. At or before the Expiration
Date, or the date of any earlier termination, Tenant, at its expense, shall
remove from the Premises all of Tenant's Property (except such items thereof as
Landlord shall have expressly permitted, in writing, to remain, which property
shall become the property of Landlord), and Tenant shall repair any damage to
the Premises or the Building resulting from any installation and/or removal of
Tenant's Property. Any other items of Tenant's Property that shall remain in the
Premises after the Expiration Date, or following an earlier termination date,
may, at the option of Landlord, be deemed to have been abandoned, and in such
case, such items may be retained by Landlord as its property or be disposed of
by Landlord, in Landlord's sole and absolute discretion and without
accountability, at Tenant's Expense. Notwithstanding the foregoing, if Tenant is
in default under the terms of this Lease, it may remove its Property from the
Premises only upon the express written direction of Landlord.
ARTICLE 13: REPAIRS AND MAINTENANCE
13.1 TENANT REPAIRS AND MAINTENANCE. Tenant shall, at its expense,
throughout the Term, maintain and preserve, in first-class condition, the
Premises, the fixtures and appurtenances therein, including, without limitation,
any demising walls, doors, glass and docks. Subject to the requirements of
Section 13.2, Tenant shall also be responsible for all structural and
non-structural repairs and replacements, interior and exterior, ordinary and
extraordinary, in and to the Premises and the Building and the facilities and
systems thereof, if and to the extent that the need for such repairs or
replacements, arises directly or indirectly from (a) the performance or
existence of any Alterations, (b) the installation, use or operation of Tenant's
Property in the Premises, (c) the moving of Tenant's Property in or out of the
Premises and/or the Building, or (d) any act, omission, misuse, or neglect of
Tenant or any of its subtenants or its or their respective employees, agents,
contractors, invitees, or others entering into the Premises by act or omission
of Tenant or any subtenant. Tenant, at its expense, shall promptly replace or
repair all scratched, damaged, or broken doors and glass in and about the
Premises and floor coverings in the Premises and repair and maintain all
sanitary and electrical fixtures therein; provided, however, that all
replacement materials and methods of replacement shall be approved in writing by
Landlord prior to installation. Tenant shall promptly make, at Tenant's expense,
all repairs in or to the Premises other than those for which Landlord has agreed
to be responsible pursuant to Paragraph 13.2, and any repairs or replacements
required to be made by Tenant to the mechanical, electrical, sanitary, heating,
ventilating, air conditioning, or other systems of the Building or Premises
shall be performed by contractors approved by Landlord, which approval shall not
be unreasonably withheld. All such repairs or replacements shall be subject to
the supervision and control of Landlord or Agent, and all repairs and
replacements shall be made with materials of equal or better quality than the
items being repaired or replaced.
13.2 LANDLORD REPAIRS. Notwithstanding anything contained herein to
the contrary, Landlord (and not Tenant) shall be responsible for the repair,
replacement and restoration of the foundation, exterior load bearing
13
walls, roof structure and roof covering, tuckpointing of the Building, and the
Common Areas, including, without limitation, the parking lots and service roads
(including snow removal), any landscaping, lawns and lawn sprinklers, fire alarm
systems (and the monitoring thereof), sprinkler systems and the central HVAC
plant; provided, however, that in the event that any such repair, replacement or
restoration is necessitated by any or all of the matters set forth in Clauses
13.1(a), (b), (c) or (d), then Tenant shall be required to reimburse Landlord
for all costs and expenses that Landlord incurs in order to perform such repair,
replacement or restoration, and such reimbursement shall be paid, in full,
within ten (10) days after Landlord's delivery of demand therefor. Landlord
agrees to commence the repairs, replacements or restoration described in this
Paragraph 13.2 within a reasonable period of time after receiving from Tenant
written notice of the need for such repairs.
13.3 TENANT EQUIPMENT. Tenant shall not place a load upon any floor
of the Premises that exceeds either the load per square foot that such floor was
designed to carry or that which is allowed by law. Business machines and
mechanical equipment belonging to Tenant that cause noise or vibrations that may
be transmitted to the structure of the Building or to the Premises to such a
degree as to be objectionable or of concern to Landlord shall, at Tenant's
expense, be placed and maintained by Tenant in settings or cork, rubber or
spring-type vibration eliminators sufficient to eliminate such noise or
vibration. Tenant, at its sole costs and expense, shall be permitted to install,
operate and maintain a microwave transmitter/receiver system without any
additional consideration to be paid to Landlord. The placement of the equipment
must be approved by Landlord prior to its installation. Tenant shall be
responsible for the removal of said equipment prior to the expiration of this
Lease or any extensions of the Term.
ARTICLE 14: UTILITIES
14.1 PURCHASING UTILITIES. Tenant shall purchase all utility
services from the utility or municipality providing such service; shall provide
for scavenger, cleaning and extermination services; and shall pay for such
services when payments are due. Tenant shall be solely responsible for the
repair and maintenance of any meters necessary in connection with such services.
14.2 USE OF ELECTRICAL ENERGY BY TENANT. Tenant's use of electrical
energy in the Premises shall not, at any time, exceed the capacity of (i) any of
the electrical conductors and equipment in or otherwise servicing the Premises;
or (ii) the Building's heating, ventilating and air-conditioning ("HVAC")
systems. In order to insure that such capacity is not exceeded and to avert
possible adverse effects upon the Building's electric service, Tenant shall not,
without Landlord's prior written consent in each instance, make any alteration
or addition to the electrical and HVAC systems of the Premises existing on the
Commencement Date.
ARTICLE 15: INVOLUNTARY CESSATION OF SERVICES
Landlord reserves the right, without any liability to Tenant and
without affecting Tenant's covenants and obligations hereunder, to stop service
of the heating, air conditioning, electric, sanitary, elevator (if any), or
other Building systems serving the Premises, or to stop any other services
required by Landlord under this Lease, whenever and for so long as may be
necessary by reason of (i) accidents, emergencies, strikes, or the making of
repairs or changes which Landlord or Agent in good xxxxx xxxxx necessary or (ii)
any other cause beyond Landlord's reasonable control. Further, it is also
understood and agreed that Landlord or Agent shall have no liability or
responsibility for a cessation of services to the Premises, in the Building or
to the Property that occurs as a result of causes beyond Landlord's or Agent's
reasonable control. No such interruption of service shall be deemed an eviction
or disturbance of Tenant's use and possession of the Premises or any part
thereof, or render Landlord or Agent liable to Tenant for damages, or relieve
Tenant from performance of Tenant's obligations under this Lease, including, but
not limited to, the obligation to pay Base Rent and Additional Rent.
14
ARTICLE 16: LANDLORD'S RIGHTS
16.1 LANDLORD'S RIGHTS OF ACCESS. Landlord, Agent and their
respective agents, employees and representatives shall have the right to enter
and/or pass through the Premises at any time or times (a) to examine and inspect
the Premises and to show them to actual and prospective Superior Parties or
prospective purchasers or mortgagees of the Building or providers of capital to
Landlord and its affiliates and all consultants and advisors relating therefor;
and (b) to make such repairs, alterations, additions and improvements in or to
the Premises and/or in or to the Building or its facilities and equipment as
Landlord is required or desires to make; provided, however, that Landlord shall
use (and cause Agent to use) reasonable efforts to avoid disturbing Tenant,
Tenant's employees and Tenant's business operations. Landlord and Agent shall be
allowed to take all materials into and upon the Premises that may be required in
connection therewith, without any liability to Tenant and without any reduction
or modification of Tenant's covenants and obligations hereunder. During the
period of six (6) months prior to the Expiration Date (or at any time, if Tenant
has vacated or abandoned the Premises), Landlord and its agents may exhibit the
Premises to prospective tenants. Landlord shall give Tenant reasonable prior
notice of its entry, except in the case of emergency.
16.2 LANDLORD'S RIGHT TO REPAIR AND MAINTAIN. Landlord and Agent
reserve the right, at any time, without incurring any liability to Tenant, and
without affecting or reducing any of Tenant's covenants and obligations
hereunder, to decorate and to make, at Landlord's expense, repairs, alterations,
additions and improvements (structural or otherwise), in or to the Premises, the
Building or any part thereof, or the Property (including, without limitation,
those described in Section 4.2) and during such operations to take into and
through the Premises or any part of the Building all material required, and to
close or temporarily suspend operation of entrances, doors, corridors, elevators
or other facilities. Landlord or Agent may do any such work during regular
business hours, or such other hours upon which Landlord and Tenant may agree.
Nothing set forth above implies obligations of improvement beyond the Work Items
per EXHIBIT "C".
16.3 OTHER LANDLORD RIGHTS. Landlord and Agent shall have the
following rights exercisable, without notice and without liability to Tenant,
for damage or injury to persons, property or business and without being deemed
an eviction or disturbance of Tenant's use or possession of the Premises or
giving rise to any claim for setoff or abatement of rent: (i) to designate
and/or approve, prior to installation, all types of signs; (ii) to sell or
otherwise transfer the Property or Building and assign and pass through all of
Landlord's obligations hereunder to the new owner; (iii) to have pass keys,
access cards, or both, to the Premises; and (iv) to decorate, remodel, repair,
alter or otherwise prepare the Premises for reoccupancy at any time after Tenant
vacates or abandons the Premises with no intention of reoccupying the Premises.
ARTICLE 17: NON-LIABILITY AND INDEMNIFICATION
17.1 NON-LIABILITY. None of Landlord, Agent, Landlord Affiliates,
any other managing agent, Superior Parties, or their respective affiliates,
owners, partners, directors, officers, agents and employees shall be liable to
Tenant for any loss, injury, or damage, to Tenant or to any other person, or to
its or their property, irrespective of the cause of such injury, damage or loss,
unless caused by, or resulting from, the negligence of Landlord, Agent or their
respective agents, servants or employees in the operation or maintenance of the
Premises, the Building, or the Property (subject, however, to the doctrine of
comparative negligence in the event of negligence on the part of Tenant or any
of its contractors). Further, none of Landlord, Agent, any other managing agent,
Superior Parties, or their respective partners, directors, officers, agents and
employees shall be liable (a) for any such damage caused by other tenants or
persons in, upon or about the Building or the Property, or caused by operations
in construction of any private, public or quasi-public work; or (b) with respect
to matters for which Landlord is liable, for consequential or indirect damages
purportedly arising out of any loss of use of the Premises or any equipment or
facilities therein by Tenant or any person claiming through or under Tenant.
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17.2 TENANT INDEMNIFICATION. Tenant hereby indemnifies, defends,
and holds Landlord and all Landlord Affiliates harmless from and against any and
all claims, causes of action, liabilities, damages, costs, losses and expenses
(including, but not limited to reasonable legal, engineering and consulting fees
of engineers, attorneys and consultants selected by Landlord) arising from or in
connection with (a) the conduct or management of the Premises or any business
therein, or any work or Alterations done, or any condition created (other than
by Landlord) in or about the Premises during the Term or during the period of
time, if any, prior to the Commencement Date that Tenant may have been given
access to the Premises, including any and all mechanics and other liens and
encumbrances; (b) any act, omission or negligence of Tenant or any of its
subtenants or licensees or their partners, directors, officers, agents,
employees, invitees or contractors; (c) any accident, injury or damage
whatsoever (unless caused by Landlord's negligence) occurring in, at or upon the
Premises; (d) any breach or default by Tenant in the full and prompt payment and
performance of Tenant's obligations under this Lease; (e) any breach by Tenant
of any of its warranties and representations under this Lease; and (f) any
actions necessary to protect Landlord's interest under this Lease in a
bankruptcy proceeding or other proceeding under the Bankruptcy Code. In case any
action or proceeding is brought against Landlord or any Landlord Affiliate by
reason of any such claim, Tenant, upon notice from any or all of Landlord, Agent
or any Superior Party, shall resist and defend such action or proceeding by
counsel reasonably satisfactory to, or selected by, Landlord or such Superior
Lessor or Superior Mortgagee. Tenant's obligations under this Section 17.2 shall
survive the termination of this Lease for any reason.
17.3 FORCE MAJEURE. The obligations of Tenant hereunder shall not
be affected, impaired or excused, and Landlord shall have no liability
whatsoever to Tenant, with respect to any act, event or circumstance arising out
of (a) Landlord's failure to fulfill, or delay in fulfilling any of its
obligations under this Lease by reason of labor dispute, governmental preemption
of property in connection with a public emergency or shortages of fuel,
supplies, or labor, or any other cause, whether similar or dissimilar, beyond
Landlord's reasonable control; or (b) any failure or defect in the supply,
quantity or character of utilities furnished to the Premises, or by reason of
any requirement, act or omission of any public utility or others serving the
Building or the Property, beyond Landlord's reasonable control. Tenant shall not
hold Landlord or Agent liable for any latent defect in the Premises or the
Building, nor shall Landlord be liable for injury or damage to person or
property caused by fire, or theft, or resulting from the operation of heating or
air conditioning or lighting apparatus, or from falling plaster, or from steam,
gas, electricity, water, rain, snow, ice, or dampness, that may leak or flow
from any part of the Building, or from the pipes, appliances or plumbing work of
the same. Tenant agrees that under no circumstances shall Landlord or Agent be
liable to Tenant or any third party for any loss of, destruction of, damage to
or shortage of any property; including, but not limited to, Tenant's Property.
17.4 LIMITATION OF LIABILITY. Notwithstanding anything to the
contrary contained in this Lease, the liability of Landlord (and of any
Successor Landlord hereunder) to Tenant shall be limited to the interest of
Landlord in the Property, and Tenant agrees to look solely to Landlord's
interest in the Property for the recovery of any judgment or award against
Landlord, it being intended that Landlord shall not be personally liable for any
judgment or deficiency. Tenant hereby covenants that, prior to the filing of any
suit for an alleged default by Landlord hereunder, it shall give Landlord and
all Superior Mortgagees about whom Tenant has been notified, notice and
reasonable time to cure such alleged default by Landlord. In addition, Tenant
acknowledges that Agent is acting solely in its capacity as agent for Landlord
and, shall not be liable for any obligations, liabilities, losses or damages
arising out of or in connection with this Lease, all of which are expressly
waived by Tenant.
ARTICLE 18: DAMAGE OR DESTRUCTION
18.1 NOTIFICATION. Tenant shall give prompt notice to Landlord and
Agent of (a) any occurrence in or about the Premises, the Building or the
Property for which Landlord or Agent might be liable, (b) any fire or other
casualty to the Premises, the Building or the Property, (c) any damage to, or
defect in, the Premises, the Building or the Property, for the repair of which
Landlord or Agent might be responsible, and (d) any damage to or defect in any
part or appurtenance of the Building's sanitary, electrical, HVAC, elevator or
other systems located in or passing through the Premises or any part thereof.
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18.2 REPAIR PROVISIONS. Subject to the provisions of Section 18.4
below, if the Building or the Premises are damaged by fire or other casualty,
Landlord shall repair or cause Agent to repair the damage and restore and
rebuild the Building and/or the Premises (except for Tenant's Property) with
reasonable dispatch after (a) notice to it of the damage or destruction and (b)
the collection of the insurance proceeds attributable to such damage, and Tenant
shall repair the damage to and restore and repair Tenant's Property, with
reasonable dispatch after such damage or destruction. Such work by Tenant shall
be deemed Alterations for the purposes of this Lease.
18.3 RENTAL ABATEMENT. If (a) the Building is damaged by fire or
other casualty thereby causing the Premises to be inaccessible or (b) the
Premises are partially damaged by fire or other casualty, the Base Rent and the
Additional Rent shall be abated.
18.4 TOTAL DESTRUCTION. If the Building or the Premises shall be
totally destroyed by fire or other casualty, or if the Building shall be so
damaged by fire or other casualty that (in the opinion of a reputable contractor
or architect designated by Landlord) (i) its repair or restoration requires more
than one hundred eighty (180) days or (ii) such repair or restoration requires
the expenditure of more than fifty percent (50%) of the full insurable value of
the Building immediately prior to the casualty or (iii) the damage is less than
the amount stated in (ii) above, but occurs during the last two (2) years of
Lease Term, Landlord and Tenant shall each have the option to terminate this
Lease within five (5) days after said contractor or architect has given written
notice of its opinion to Landlord and Tenant, but in all events prior to the
commencement of any restoration of the Premises or the Building by Landlord. In
such event, the termination shall be effective as of the 180th date after the
date on which the casualty occurs. If (A) any Superior Party or other party
entitled to the insurance proceeds fails to make such proceeds available to
Landlord in an amount sufficient for restoration of the Premises or the
Property, or (B) the issuer of any casualty insurance policies on the Property
fails to make available to Landlord sufficient proceeds for restoration of the
Premises or the Property, then Landlord may, at Landlord's sole option,
terminate this Lease, effective as of the one hundred eightieth (180th) day
after such casualty, by giving Tenant written notice to such effect within one
hundred eighty (180) days after the date of the casualty. The provisions of the
prior sentence notwithstanding, within one hundred twenty (120) days after
Landlord learns that either (A) or (B) will occur (whichever is later), Landlord
will notify Tenant thereof, which notice shall specify the amount of the
deficiency in proceeds available for restoration along with a detailed
explanation of all cost components used in establishing the amounts available
vs. amounts needed for restoration. Tenant shall have ten (10) business days
after receipt of Landlord's notice to determine whether to advance funds
sufficient to eliminate the deficiency. If Tenant decides to advance the funds,
it shall notify Landlord within the said ten (10) business days. Upon Landlord's
receipt of Tenant's notice, Landlord's option to terminate the lease because of
(A) or (B) shall be extinguished. The amount of funds advanced by Tenant under
this paragraph shall be a credit against the purchase price payable by Tenant
for the Property under Article 26 ("Option to Purchase"). For the purposes of
this Section 18.4 only, "full insurable value" shall mean replacement cost, less
the cost of footings, foundations and other structures below grade.
18.5 REPAIR OR RESTORATION. Subject to the provisions of
Section 18.4 above, Tenant shall not be entitled to terminate this Lease and no
damages, compensation or claim shall be payable by Landlord for purported
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Premises or of the Building pursuant to this
Article. Landlord or Agent shall use its diligent, good faith efforts to make
such repair or restoration promptly and in such manner as not to unreasonably
interfere with Tenant's use and occupancy of the Premises, but Landlord or Agent
shall not be required to do such repair or restoration work except during normal
business hours of business days.
18.6 LIABILITY OF TENANT. Notwithstanding any of the foregoing
provisions of this Article, if by reason of any act or omission on the part of
Tenant or any of its subtenants or its or their partners, directors, officers,
servants, employees, agents, or contractors, Landlord, any Superior Party, or
other appropriate party shall be unable to collect all of the insurance proceeds
(including, without limitation, rent insurance proceeds) applicable to damage
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or destruction of the Premises or the Building by fire or other casualty, then,
without prejudice to any other remedies that may be available against Tenant,
there shall be no abatement or reduction of the Base Rent or Additional Rent
notwithstanding lack of usability. Further, nothing contained in this Article 18
shall relieve Tenant from any liability that may exist as a result of any damage
or destruction by fire or other casualty.
ARTICLE 19: EMINENT DOMAIN
19.1 TOTAL CONDEMNATION. If, in Landlord's opinion, the whole of
the Building or the Premises, or if any part of the Building or the Property
that materially affects Tenant's use and occupancy of the Premises, shall be
taken by condemnation or in any other manner for any public or quasi-public use
or purpose, this Lease and the term and estate hereby granted shall terminate as
of the date of vesting of title on such taking (herein called "Date of the
Taking"), and the Base Rent and Additional Rent shall be prorated and adjusted
as of such date.
19.2 AWARD. Landlord shall be entitled to receive the entire award
or payment in connection with any taking; provided, however, Tenant shall have
the right to separately pursue, against the condemning authority, an award in
respect of the loss, if any, to leasehold improvements or other interest of
Tenant in the Premises paid for by Tenant, without any credit or allowance from
Landlord and further provided that such separate award does not diminish or
interfere with Landlord's pursuit of its own award.
19.3 COMPENSATION TO TENANT FOR TEMPORARY USE. If the temporary use
or occupancy of all or any part of the Premises shall be taken by condemnation
or in any other manner for any public or quasi-public use or purpose during the
Term, Tenant shall be entitled, except as hereinafter set forth, to receive that
portion of the award or payment for such taking which represents compensation
for the use and occupancy of the Premises, for the taking of Tenant's Property
and for moving expenses, and Landlord shall be entitled to receive that portion
that represents reimbursement for the cost of restoration of the Premises. This
Lease shall be and remain unaffected by such taking, and Tenant shall continue
to be responsible for all of its obligations hereunder insofar as such
obligations are not affected by such taking and shall continue to pay, in full,
the Base Rent and Additional Rent when due. If the period of temporary use or
occupancy shall extend beyond the Expiration Date, that part of the award that
represents compensation for the use and occupancy of the Premises (or a part
thereof) shall be prorated between Landlord and Tenant so that Tenant shall
receive so much thereof as represents the period up to and including such
Expiration Date and Landlord shall receive so much thereof as represents the
period after such Expiration Date. All monies paid as, or as part of, an award
for temporary use and occupancy for a period beyond the date to which the Base
Rent and Additional Rent have been paid shall be received, held and applied by
Landlord as a trust fund for payment of the Base Rent and Additional Rent
becoming due.
19.4 PARTIAL OR TEMPORARY TAKING. Subject to the rights of any
Superior Mortgagee or Superior Lessor, and other parties having rights to
condemnation proceeds, in the event of any taking of less than the whole of the
Building and/or the Property, which taking does not result in termination of
this Lease, or in the event of a taking for a temporary use or occupancy of all
or any part of the Premises, or other partial taking of the Premises, that does
not result in a termination of this Lease: (a) Landlord, at its expense, and
provided that a condemnation award or awards shall be sufficient for the
purpose, shall proceed with reasonable diligence to repair the remaining parts
of the Building and the Premises (other than those parts of the Premises that
are Tenant's Property) to substantially their former condition, to the extent
that the same is feasible (subject to those changes which Landlord reasonably
deems desirable, and to building and other governmental codes and regulations)
and so as to constitute a complete and tenantable Building and Premises, and (b)
Tenant, at its expense, and whether or not any award or awards shall be
sufficient for the purpose, shall proceed with reasonable diligence to repair
Tenant's Property, to substantially its former condition, to the extent
feasible, subject to such reasonable changes as Landlord and Tenant shall agree
upon, in writing. Such work by Tenant shall be deemed Alterations. Furthermore,
in the event of a partial taking of the Premises that does not result in a
termination of this Lease, the Base Rent and Additional Rent due hereunder shall
be reduced in a proportionate amount, based upon the proportion that the area
that has been taken bears to the total area of the Premises. Such reduction
shall be effective from the date on which the partial taking occurs until
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the date, if any, on which the partial taking terminates and the Premises have
been restored in accordance with the terms of this Lease.
ARTICLE 20: SURRENDER AND HOLDOVER
On the last day of the Term, or upon any earlier termination of this
lease, or upon any re-entry by Landlord upon the Premises, Tenant shall quit and
surrender the Premises to Landlord "broom-clean" and in good order, condition
and repair, except for ordinary wear and tear and such damage or destruction as
Landlord is required to repair or restore under this Lease, and Tenant shall
remove all of Tenant's Property therefrom, except as otherwise expressly
provided in this Lease. If Tenant remains in possession after the Expiration
Date hereof or after any earlier termination date of this Lease or of Tenant's
right to possession: (a) Tenant shall be deemed a tenant-at-will; (b) Tenant
shall pay one hundred fifty percent (150%) of the aggregate of the Base Rent and
Additional Rent last prevailing hereunder, and also shall pay all direct damages
sustained by Landlord, by reason of such remaining in possession after the
expiration or termination of this Lease; (c) there shall be no renewal or
extension of this Lease by operation of law; and (d) the tenancy-at-will may be
terminated upon thirty (30) days' notice from Landlord; or, at the sole option
of Landlord expressed by written notice to Tenant, but not otherwise, such
holding over shall constitute a renewal of this Lease for a period of one (1)
year on the same terms and conditions as provided in this Lease. The provisions
of this Article 20 shall not constitute a waiver by Landlord of any re-entry
rights of Landlord provided hereunder or by law.
ARTICLE 21: EVENTS OF DEFAULT
21.1 BANKRUPTCY OF TENANT. In the event that Tenant shall make an
assignment for the benefit of creditors, or shall file a voluntary petition
under any state or federal bankruptcy or insolvency law, or an involuntary
petition alleging an act of bankruptcy or insolvency shall be filed against
Tenant under any state or federal bankruptcy or insolvency law, or whenever a
petition shall be filed by or against Tenant under the reorganization provisions
of the United States Bankruptcy Code or under the provisions of any law or like
import, or whenever a petition shall be filed by Tenant under the arrangement
provisions of the United States Bankruptcy Code or similar law, or whenever a
receiver of Tenant, or of, or for, the property of Tenant shall be appointed, or
Tenant admits it is insolvent or is not able to pay it debts as they mature,
then Landlord or Agent may give Tenant a notice of default, and may exercise its
remedies as provided in Article 22.
21.2 DEFAULT PROVISIONS. This Lease and the term and estate hereby
granted are subject to the following limitations, each of which shall constitute
a breach of this Lease by Tenant: (a) if Tenant fails to pay Base Rent or
Additional Rent or any other payment when due hereunder; (b) if any event shall
occur, or any contingency shall arise, whereby this Lease or the estate hereby
granted or the unexpired balance of the term hereof would, by operation of law
or otherwise, devolve upon or pass to any person, firm or corporation other than
Tenant; (c) if Tenant shall vacate or abandon the Premises and shall fail to
properly maintain the Premises after such vacation or abandonment; (d) if Tenant
violates the requirements of the first sentence of Article 20 and remains in
possession of the Premises after the Expiration Date or any earlier termination
of this Lease; or (e) if Tenant shall, whether by action or inaction, be in
default of any of its other obligations under this Lease.
21.3 LANDLORD'S RIGHTS UPON DEFAULT OF TENANT. If Tenant defaults
in the performance of any of its obligations under this Lease, Landlord, without
thereby waiving such default, may (but shall not be obligated to) perform the
same for the account, and at the expense of, Tenant, without notice in a case of
emergency, and in any other case only if such default continues after the
expiration of thirty (30) days from the date Landlord or Agent gives Tenant
notice of the default (or sixty (60) days, under the circumstances described in
clause (e) of Section 21.2). Any expenses incurred by Landlord or Agent in
connection with any such performance, and all costs, expenses, and disbursements
of every kind and nature whatsoever, including reasonable attorneys' fees
(through all appellate proceedings) involved in collecting or endeavoring to
collect the Base Rent or Additional Rent or any part thereof or enforcing or
endeavoring to enforce any rights against Tenant or Tenant's obligations
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hereunder, shall be due and payable upon Landlord's submission of an invoice
therefor. All sums advanced by Landlord or Agent on account of Tenant under this
Article, or pursuant to any other provision of this Lease, and all Base Rent and
Additional Rent, if delinquent or not paid by Tenant and received by Landlord
when due hereunder, shall bear interest at the rate of nine percent (9%) per
annum above the "prime" or "reference" or "base" rate of interest publicly
announced as such, from time to time, by The First National Bank of Chicago,
from the due date thereof until paid, and such interest shall be and constitute
Additional Rent and be due and payable upon Landlord's or Agent's submission of
an invoice therefor.
21.4 CURE. For defaults identified in Subsection 21.2(e), Landlord
shall not exercise its remedies identified in Subsections 22.1(a) and 22.1(b)
unless any such default continues and is not remedied within thirty(30) days
after Landlord has given to Tenant a notice specifying the same; provided,
however, that if the default cannot, by its nature, be cured within such thirty
30 day period, but Tenant has commenced and is diligently pursuing a cure of
such default, then Landlord shall not exercise such remedies unless such default
remains uncured for more than sixty (60) days after notice from Landlord.
ARTICLE 22: REMEDIES
22.1 LANDLORD'S REMEDIES. In the event of any breach of this Lease
by Tenant, Landlord, at its option, and after the proper notice and cure period,
if any, as provided in Section 21.4 has expired, without further notice or
demand to Tenant, may, in addition to all other rights and remedies provided in
this Lease, or otherwise at law or in equity: (a) terminate this Lease and
Tenant's right of possession of the Premises, and recover all damages to which
Landlord is entitled under law, specifically including, without limitation,
accelerated Base Rent and Additional Rent attributable to the balance of the
Term, and all Landlord's expenses of reletting (including repairs, alterations,
improvements, additions, decorations, legal fees and brokerage commissions), or
(b) terminate Tenant's right of possession of the Premises without terminating
this Lease; provided, however, that Landlord shall use its reasonable efforts,
whether Landlord elects to proceed under Subsections (a) or (b) above, to relet
the Premises, or any part thereof for the account of Tenant, for such rent and
term and upon such terms and conditions as are acceptable to Landlord. If
Landlord shall elect to pursue its rights and remedies under Subsection (b),
then Landlord shall at any time have the further right and remedy to rescind
such election and pursue its rights and remedies under Subsection (a), including
but not limited to such time as Landlord has obtained a tenant to relet the
Premises, which, in Landlord's reasonable judgment, is a suitable tenant. For
purposes of such reletting, Landlord is authorized to decorate, repair, alter
and improve the Premises to the extent deemed necessary by Landlord, in its sole
and absolute discretion. If Landlord fails to relet the Premises or if the
Premises are relet and a sufficient sum is not realized therefrom, after payment
of all Landlord's expenses of reletting (including repairs, alterations,
improvements, additions, decorations, legal fees and brokerage commissions), to
satisfy the payment, when due, of Base Rent and Additional Rent reserved under
this Lease for any monthly period, then Tenant shall pay to Landlord a sum equal
to the accelerated amount of Base Rent and Additional Rent due under this Lease
attributable to the balance of the Term, or if the Premises have been relet,
Tenant shall pay any such deficiency monthly. Tenant agrees that Landlord may
file suit to recover any sums due to Landlord hereunder from time to time and
that such suit or recovery of any amount due Landlord hereunder shall not be any
defense to any subsequent action brought for any amount not theretofore reduced
to judgment in favor of Landlord. In the event Landlord elects, pursuant to
Subsection (b) of this Section 22.1, to terminate Tenant's right of possession
only, without terminating this Lease, Landlord may, at Landlord's option, enter
into the premises, remove Tenant's Property. Tenant's signs and other evidences
of tenancy, and take and hold possession thereof, as provided in Article 20
hereof; provided, however, that such entry and possession shall not terminate
this Lease or release Tenant, in whole or in part, from Tenant's obligation to
pay the Base Rent and Additional Rent reserved hereunder for the full Term, or
from any other obligation of Tenant under this Lease. Any and all property that
may be removed from the Premises by Landlord pursuant to the authority of the
Lease or of law, to which Tenant is or may be entitled, may be handled, removed
or stored by Landlord at the risk, cost and expense of Tenant, and in no event
or circumstance shall Landlord be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the
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same shall be in Landlord's possession or under Landlord's control. Any such
property of Tenant not retaken from storage by Tenant within thirty (30) days
after the end of the Term, however terminated, shall be conclusively presumed to
have been conveyed by Tenant to Landlord under this Lease as in a xxxx of sale,
without further payment or credit by Landlord to Tenant. Tenant hereby grants to
Landlord a first lien upon the interest of Tenant under this Lease to secure the
payment of moneys due under this Lease, which lien may be enforced in equity;
and Landlord shall be entitled as a matter of right to have a receiver appointed
to take possession of the Premises and relet the same under order of court.
22.2 RIGHTS OF LANDLORD. Suit or suits for the recovery of such
damages, or any installments thereof, may be brought by Landlord from time to
time at its election, and nothing contained herein shall be deemed to require
Landlord to postpone suit until the Expiration Date, nor limit or preclude
recovery by Landlord against Tenant of any sums or damages to which, in addition
to the damages particularly provided above, Landlord may lawfully be entitled by
reason of any default hereunder on the part of Tenant. The various rights,
remedies and elections of Landlord reserved, expressed or contained herein are
cumulative and no one of them shall be deemed to be exclusive of the others or
of such other rights, remedies, options or elections as are now or may hereafter
be conferred upon Landlord by law.
22.3 EVENT OF BANKRUPTCY. In addition to, and in no way limiting
the other remedies set forth herein, Landlord and Tenant agree that if Tenant
ever becomes the subject of a voluntary or involuntary bankruptcy,
reorganization, composition, or other similar type proceeding under the federal
bankruptcy laws, as now enacted or hereinafter amended, then:
22.3.1 "Adequate assurance of future performance" by Tenant
and/or any assignee of Tenant pursuant to Bankruptcy Code Section 365
will include (but not be limited to) payment of an additional/new
security deposit in the amount of three (3) times the then-current
Base Rent payable hereunder.
22.3.2 Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code, shall be deemed,
without further act or deed, to have assumed all of the obligations of
Tenant arising under this Lease on and after the effective date of
such assignment. Any such assignee shall, upon demand by Landlord,
execute and deliver to Landlord an instrument confirming such
assumption of liability.
22.3.3 Notwithstanding anything in this Lease to the
contrary, all amounts payable by Tenant to or on behalf of Landlord
under this Lease, whether or not expressly denominated as "Rent,"
shall constitute "rent" for the purposes of Section 502(b)(6) of the
Bankruptcy Code.
22.3.4 If this Lease is assigned to any person or entity
pursuant to the provisions of the Bankruptcy Code, any and all monies
or other considerations payable or otherwise to be delivered to
Landlord or Agent (including Base Rent, Additional Rent and other
amounts hereunder), shall be and remain the exclusive property of
Landlord and shall not constitute property of Tenant or of the
bankruptcy estate of Tenant. Any and all monies or other
considerations constituting Landlord's property under the preceding
sentence not paid or delivered to Landlord or Agent shall be held in
trust by Tenant or Tenant's bankruptcy estate for the benefit of
Landlord and shall be promptly paid to or turned over to Landlord.
ARTICLE 23: BROKER
Landlord covenants, warrants and represents that the broker set forth
in Paragraph 1.8(B) was the only broker to represent Landlord in the negotiation
of this Lease ("Landlord's Broker"). Landlord shall be solely responsible for
paying the commissions of Landlord's Broker. Each party agrees to and hereby
does defend, indemnify and hold the other harmless against and from any
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brokerage commissions or finder's fees or claims therefor by a party (other than
Tenant's Broker and Landlord's Broker) claiming to have dealt with the
indemnifying party and all costs, expenses and liabilities in connection
therewith, including, without limitation, reasonable attorneys' fees and
expenses, for any breach of the foregoing. The foregoing indemnification shall
survive the termination of this Lease for any reason.
ARTICLE 24: ESTOPPEL CERTIFICATES
Tenant shall, from time to time and within ten (10) days after any
request by Landlord, execute and deliver to Landlord (and to any existing or
prospective mortgage lender, ground lessor, or purchaser designated by
Landlord), a statement: (i) certifying that this Lease is unmodified and in full
force and effect (or if there have been modifications, that the same is in full
force and effect as modified and stating the modifications): (ii) certifying the
dates to which the Base Rent and Additional Rent have been paid; (iii) stating
whether Landlord is in default in performance of any of its obligations under
this Lease, and, if so, specifying each such default; (iv) stating whether any
event has occurred which, with the giving of notice or passage of time, or both,
would constitute such a default, and, if so, specifying each such event; and (v)
stating whether any rights of Tenant (e.g., options) have been waived. Any such
statement delivered pursuant hereto shall be deemed a representation and
warranty to be relied upon by the party requesting the certificate and by others
with whom Landlord may be dealing, regardless of independent investigation.
Tenant also shall include in any such statements such other information
concerning this Lease as Landlord or Agent may reasonably request including, but
not limited to, the amount of Base Rent and Additional Rent under this Lease,
and whether Landlord has completed all (if any) improvements to the Premises
required under this Lease. If Tenant fails to execute, acknowledge or deliver
any such statement within ten (10) days after such request, Tenant hereby
irrevocably constitutes and appoints Landlord and/or Agent as Tenant's
attorney-in-fact (which appointment is coupled with an interest), to execute and
deliver any such statements for and on behalf of Tenant.
ARTICLE 25: HAZARDOUS SUBSTANCES
25.1 DEFINITIONS. For purposes of this Article 25, "hazardous
substance" means any matter regulated under the Resources Conservation Recovery
Act ("RCRA"), 42 U.S.C. Section 6901 et seq., the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 52 U.S.C.
Section 9601 et seq., the [MISSOURI ENVIRONMENTAL PROTECTION ACT (MEPA)], or any
substance or matter giving rise to liability under any common law theory based
on nuisance or strict liability (the foregoing laws being referred to herein as
"Environmental Laws"). For purposes of this Article 25, "Landlord's
Environmental Liability" means: any and all losses, liabilities, obligations,
penalties, claims, fines, lost profits, demands, litigation, defenses, costs,
judgments, suits, proceedings, damages (including consequential, punitive and
exemplary damages), disbursements or expenses of any kind or nature whatsoever
(including attorneys' fees at trial and appellate levels and experts' fees and
disbursements and expenses incurred in investigating, defending against,
settling or prosecuting any suit, litigation, claim or proceeding) which may at
any time be either directly or indirectly imposed upon, incurred by or asserted
or awarded against Landlord or any of Landlord's parent and subsidiary
corporations and their affiliates, shareholders, directors, officers, employees,
and agents in connection with or arising from the following with respect to the
Property: (i) any hazardous substance used, exposed, emitted, released,
discharged, generated, manufactured, sold, transported, handled, stored,
treated, reused, presented, disposed of or recycled on, in or under all or any
portion of the Property, or any surrounding areas; (ii) any misrepresentation,
inaccuracy or breach of any warranty, covenant or agreement contained or
referred to in this Article 25; (iii) any violation, liability or claim of
violation or liability under any Environmental Laws; or (iv) the imposition of
any lien for damages caused by, or the recovery of any costs incurred for the
cleanup of, any release or threatened release of hazardous substance.
25.2 PROHIBITION. Tenant shall not conduct or authorize the
generation, transportation, storage, use, treatment or disposal on or in the
Property, the Building, or any portion of the Property or the Building, of any
hazardous substance without prior written authorization by Landlord, which
authorization may be given or withheld in Landlord's sole and absolute
discretion, and Tenant's failure to comply with the provisions of this
Section 25.2
22
shall constitute a default under this Lease. Notwithstanding the preceding
sentence, Landlord hereby authorizes Tenant to use and store reasonable
quantities of the following in the Building, in accordance with all applicable
laws and regulations: paints; oils; material utilized in printing operations;
and materials utilized in the normal course of Tenant's repair and maintenance
of the Building. No such purported authorization shall be binding on Landlord
unless signed by Landlord and not solely by Agent.
25.3 PERMITTED ACTIVITIES. If Landlord expressly authorizes Tenant,
in writing, to generate, transport, store, treat or dispose of any hazardous
substance on the Property, in the Building, or on or in any portion of the
Property or the Building: (i) Tenant shall, at its own cost, comply with all
laws (federal, state or local) relating to hazardous substance, including, but
not limited to, RCRA, CERCLA and the MEPA; (ii) Tenant shall promptly provide
Agent copies of all communications, permits or agreements with any governmental
authority or agency (federal, state or local) or any private entity relating in
any way to the presence, release, threat of release, placement on or in the
Property, the Building, or any portion of the Property or the Building, or the
generation, transportation, storage, use, treatment, or disposal at the
Premises, of any hazardous substance; (iii) Landlord, Agent and their respective
agents and employees shall have the right to enter the Premises and/or conduct
appropriate tests for the purposes of ascertaining Tenant compliance with all
applicable laws, rules or permits relating in any way to the presence of
hazardous substances on the Property, the Building, or any portion thereof; and
(iv) Upon written request by Landlord or Agent, Tenant shall provide Landlord
with the results of appropriate tests of air, water or soil to demonstrate that
Tenant complies with all applicable laws, rules or permits relating in any way
to the presence of hazardous substances on the Property, the Building, or any
portion thereof.
25.4 REMEDIAL ACTION. If, by reason of the acts or omissions of
Tenant or its employees, agents or contractors, the presence, release, threat of
release, placement on or in the Property, the Building, or any portion thereof,
or the generation, transportation, storage, use, treatment, or disposal at the
Property, the Building, or any portion thereof of any hazardous substance: (i)
gives rise to liability (including, but not limited to, a response action,
remedial action, or removal action) under RCRA, CERCLA, the MEPA, or any common
law theory based on nuisance or strict liability, (ii) causes an adverse public
health effect, or (iii) pollutes, or threatens to pollute, the environment,
Tenant, at its sole cost and expense, shall promptly take any and all remedial
and removal action necessary to clean up the Property, the Building, or any
portion thereof, and mitigate exposure to liability arising from the hazardous
substance, regardless whether required by law.
25.5 INDEMNITY AND RELEASE. Except as to losses arising from
Landlord's own negligent acts or omissions, Tenant shall and does hereby
protect, indemnify, defend (at trial and appellate levels and with counsel,
experts and consultants acceptable to Landlord and at Tenant's sole cost) and
hold Landlord and its Affiliates free and harmless from and against any loss,
cost or expense incurred by Landlord and resulting wholly or in part from
Tenant's breach of its obligations under this Article 25 (collectively,
"Tenant's Indemnification Obligations"). Tenant's Indemnification Obligations
shall survive in perpetuity with respect to any Landlord's Environmental
Liability. Tenant and its successors and assigns hereby waive, release and agree
not to make any claim or bring any cost recovery action against Landlord under
or with respect to any Environmental Laws. Tenant's obligation to Landlord under
this indemnity shall likewise be without regard to fault on the part of Tenant
or Landlord with respect to the violation or condition which results in
liability to Landlord or Trustee.
25.6 SURVIVAL. Tenant's obligations under this Article 25 shall
survive the termination or expiration of the Lease for any reason.
ARTICLE 26: OPTION TO PURCHASE
26.1 GRANT. Landlord hereby grants to Tenant an option (the
"Option") to purchase the Property and all improvements thereon, upon and
subject to the terms, conditions and limitations hereinafter set forth in this
Article 26 (including, without limitation, Section 26.7 below).
23
26.2 EXERCISE. The Option shall be exercised, if at all, by Tenant
(i) giving written notice (the "Option Notice") thereof to Landlord at any time
on or after January 1, 2001 and before December 31, 2002; provided, however,
that at both (a) the time Tenant delivers the Option Notice, and (b) on the date
of the Closing (defined below), there has occurred no event of default under
Article 21 or any event which, with the giving of notice or the passage of time,
or both, would constitute an event of default under Article 21 and (ii)
simultaneously with Tenant's delivery of the Option Notice, depositing into a
joint order escrow (to which Tenant and Landlord shall each be a party) with
Chicago Title and Trust Company ("Escrowee") the sum of $900,000, in cash, as
nonrefundable and noncontingent (except as provided in Section 26.9) xxxxxxx
money (the "Xxxxxxx Money") for the Property. At Closing, the Escrowee shall
deliver the Xxxxxxx Money to Landlord. The delivery of such Option Notice and
Xxxxxxx Money deposit shall create a binding contract between Tenant and
Landlord upon and subject to the terms and conditions set forth in this Article
26 (the "Contract"). In the event Tenant fails to properly exercise the Option
in accordance with (i) and (ii) above, the Option shall automatically be forever
terminated without further action by either party. This Option is not assignable
by Tenant except to affiliated corporation and except in connection with an
assignment of all of Tenant's rights under the Lease in accordance with the
terms of such Lease. Upon request by Landlord, after December 31, 2002 or at any
other time after which Tenant has no option to purchase the Property, Tenant
shall deliver to Landlord a certification, in a form reasonably acceptable to
Landlord, confirming that Tenant did not exercise its rights under this Article
26.
26.3 PRICE. The price at which Landlord, as seller, and Tenant, as
buyer, shall convey the Property and improvements pursuant to the Contract shall
be $9,000,000 (the "Purchase Price") payable at the Closing, by federal wire
transfer of good funds, less a credit for the Xxxxxxx Money and subject to all
credits and prorations provided in Section 26.5 below.
26.4 TITLE. If Tenant exercises the Option in accordance with
Section 26.2(i) and (ii) above, Landlord, as seller, will convey to Tenant (or
its permitted assignee), as purchaser, by recordable special warranty deed, fee
simple title to the Property, subject only to the following:
(a) all general taxes and special assessments not yet due
and payable;
(b) deed restrictions, easements and rights of way of
record;
(c) all private, public and utility easements;
(d) rights of possession under any other leases that may
affect the Property, as same may be amended from time
to time; subject to Tenant's rights hereunder;
(e) zoning, building and other regulations, restrictions,
rules and ordinances;
(f) acts or omissions of any or all of Tenant or anyone
acting by, through or under Tenant; and
(g) covenants, conditions and restrictions of record.
(The matters referred to in clauses (a) through (g) are
referred to collectively as the "Permitted Exceptions.")
Tenant shall obtain, at its sole expense, within fifteen (15) days after
exercise of the Option, a commitment for an ALTA owner's title insurance policy
in the amount of the Purchase Price covering title to the Property issued by
Chicago Title Insurance Company ("Title Insurer") (and copies of all recorded
documents described therein) and an ALTA survey of the Property. Copies of all
such items shall be promptly delivered to Landlord. In the event Tenant
disapproves of any matters, other than Permitted Exceptions, appearing on or
evidenced by such commitment
24
or survey, Tenant shall so advise Landlord, in writing, within such fifteen (15)
day period (the "Objection Notice"), whereupon Landlord shall have twenty (20)
days after Tenant's delivery of the Objection Notice to remedy or cause the
Title Insurer to insure over such defect(s), and if Landlord fails to do so,
Tenant, at its election, may either (A) elect to take title as it then is with
the right to deduct from the Purchase Price liens or encumbrances (x) caused
solely and directly by Landlord's actions and (y) of a definite or ascertainable
amount which may be removed by the payment of money at the Closing; or (B)
declare the Option Notice and Tenant's exercise of the Option null and void by
written notice to Landlord received within five (5) days after expiration of
such twenty (20) day period in which case (1) Escrowee shall immediately return
and pay over to Tenant the Xxxxxxx Money; and (2) Tenant shall have no further
Option to purchase all or any portion of the Property.
26.5 CLOSING. The time of closing of the Contract (the "Closing")
shall (unless mutually otherwise agreed) occur at the office of the Title
Insurer on the date thirty (30) days after the later of the exercise of the
Option pursuant to Section 26.2(A)(i) and (ii) or Landlord's receipt of both the
survey and title commitment. Rents, premiums under assignable insurance policies
(if any) and other similar items shall be adjusted ratably as of the date of
Closing, and such prorations shall be final. General taxes and assessments for
the Property shall be adjusted ratably as of the date of Closing on the basis of
the most currently available real estate tax xxxx, and shall be reprorated
between the parties upon receipt of the final tax bills therefor. Except as
otherwise expressly set forth herein (e.g., with respect to title insurance and
a survey), all expenses in connection with the Closing shall be allocated among
and borne by the parties in accordance with custom. This sale shall be closed
through a "New York-style" escrow with the Escrowee in accordance with the
general provisions of the usual form of Deed and Money Escrow Agreement then in
use by Escrowee with such special provisions inserted therein as may be required
to conform with the Contract. The costs of the Xxxxxxx Money and closing escrows
shall be divided equally between Landlord and Tenant. All prorations made
pursuant to this Section 26.5 shall take into account the tenancy of the Tenant
and the requirements imposed under this Lease with respect to Tenant's payment
of Base Rent and Additional Rent, including, but not limited to, its
proportionate share of Operating Expenses. Tenant shall acquire the Property on
a strict and absolute "as-is," "where-is" basis, without any representations or
warranties of any nature whatsoever from Landlord, nor shall Landlord have any
obligation whatsoever to perform any repairs of any nature at the Property as a
condition to Tenant's obligation to consummate the Closing after exercising the
Option.
26.6 DEFAULT. If Tenant defaults under the terms of this
Article 26, Landlord may unilaterally terminate the Contract by notice to
Tenant, whereupon Escrowee shall immediately deliver the Xxxxxxx Money to
Landlord, which Xxxxxxx Money shall be retained by Landlord as liquidated
damages, and such default shall also constitute an event of default by Tenant
under Article 21. If Landlord defaults under the terms of this Article 26, then
provided Tenant is not in default under this Article 26, Tenant may, as its sole
remedy, either (i) terminate the Contract, whereupon the Xxxxxxx Money shall be
returned to Tenant and neither party shall have any further liability or
obligation to the other, or (ii) file an action for specific performance of the
Contract.
26.7 INTENTIONALLY OMITTED.
26.8 LIKE-KIND EXCHANGE. In the event of a sale of the Property
under the terms of the Option, the parties agree as follows: In connection with
any tax-deferred exchange pursuant to Section 1031 of the Internal Revenue Code
of 1986, as amended, and the regulations promulgated thereunder, involving the
Property and other property owned or to be acquired by Landlord, Landlord may,
without the consent of Tenant, assign the Contract and its rights thereunder to
any qualified intermediary (an "Intermediary") participating with Landlord in
such exchange as contemplated by Treasury Regulation Section 1.1031(k)-1(g)(4)
and related regulations. In the event of any such assignment to an Intermediary:
(i) Landlord shall give written notice of such assignment and the identity of
the Intermediary to Tenant at least ten (10) days prior to the Closing: (ii)
except to the extent of any liabilities expressed assumed by the Intermediary in
writing in connection with such assignment, the Intermediary shall have no
personal liability to Tenant or any other person or entity under the Contract,
or under any other document or instrument at any time executed by Landlord or
the Intermediary in connection herewith or pursuant
25
hereto (each such document or instrument being referred to herein as a "Related
Document"), and neither Tenant or any other person or entity shall have any
recourse against the Intermediary or any of its assets on account of any breach
or default hereunder or under any Related Document; (iii) the Intermediary shall
have all of the rights and remedies of Landlord provided for under the Contract
or any Related Document; (iv) there shall be no diminution of Tenant's rights or
remedies, and no increase of Tenant's liabilities or obligations, under the
Contract or any Related Document on account of such assignment; and (v)
notwithstanding anything to the contrary contained herein, Landlord shall
continue to be liable for (x) all obligations imposed upon Landlord under the
Contract and any Related Document executed by Landlord and (y) all obligations
imposed upon the Intermediary in any Related Document required to be executed by
the Intermediary after the date of such assignment pursuant to the terms of the
Contract.
26.9 DUE DILIGENCE PERIOD. Tenant may terminate its election to
purchase the Property by delivering written notice of such termination to
Landlord within 15 days after the delivery of the Option Notice to Landlord. In
the event of such termination: (i) provided Tenant is not otherwise in default
hereunder, Escrowee shall return the Xxxxxxx Money to Tenant; and (ii) the
Option shall be automatically and irrevocably terminated and Tenant shall have
no further rights and Landlord shall have no further obligations under this
Article 26.
ARTICLE 27: RIGHT OF FIRST OFFER.
27.1 RIGHT. During the Term, Tenant shall have a continuing "right
of first offer," in accordance with the terms set forth below, to purchase the
Property. Landlord may only sell the Property to a party other than Tenant as
set forth in this Article 27. Landlord may at any time deliver Tenant a copy of
a proposed purchase agreement pursuant to the terms of which Landlord is
prepared to sell the Property to Tenant (the "Proposed Purchase Agreement"). The
Proposed Purchase Agreement shall specify, without limitation, the following
terms (the "Key Terms"): (i) the purchase price (the "Proposed Purchase Price");
(ii) the amount of xxxxxxx money; and (iii) the availability (if any) of
purchase money financing to be provided by Landlord. Tenant shall thereupon have
a right (a "First Offer Right") to purchase the Property on the terms set forth
in the Proposed Purchase Agreement. Each First Offer Right is granted subject to
the following terms and conditions:
(a) Tenant shall give Landlord written notice of its
election to exercise a First Offer Right within 10 days after Landlord
delivers to Tenant the applicable Proposed Purchase Agreement by
executing the Proposed Purchase Agreement and returning it to Landlord
together with the required xxxxxxx money deposit;
(b) Tenant is not in default nor has any event occurred
which with the giving of notice, the passage of time, or both, would
constitute a default by Tenant, under this Lease either on the date
Tenant exercises such First Offer Right or on any closing date
specified in the Proposed Purchase Agreement;
(c) In the event that Tenant does not timely or properly
exercise any First Offer Right, Landlord may, at any time during the
one-year period following the delivery of the Proposed Purchase
Agreement to Tenant, sell the Property to any third party on the same
or better Key Terms as were set forth in the Proposed Purchase
Agreement; provided, however, that the purchase price in any sale to
such a third party may be as little as 80% of the Proposed Purchase
Price. Tenant shall have a continuing right of first offer if Landlord
desires to sell the Property to a third party on Key Terms other than
as set forth in the preceding sentence. If Landlord does not sell the
Property to a third party within the one-year period described above,
on terms contemplated by the first sentence of this subparagraph (c),
then the Property shall once again be subject to Tenant's right of
first offer.
27.2 TERMINATION OF RIGHT. All rights of Tenant and obligations of
Landlord under this Article 27 shall automatically terminate upon the earlier to
occur of: (i) the expiration or termination of this Lease; (ii) the
26
termination of Tenant's right to possession of the Premises; (iii) the sale of
the Premises by Landlord; or (iv) the end of the initial Term.
ARTICLE 28: MISCELLANEOUS
28.1 MERGER. All prior understandings and agreements between the
parties are merged in this Lease, which alone fully and completely expresses the
agreement of the parties. No agreement shall be effective to modify this Lease,
in whole or in part, unless such agreement is in writing, and is signed by the
party against whom enforcement of said change or modification is sought.
28.2 NOTICES. Any notice required to be given by either party
pursuant to this Lease, shall be in writing and shall be deemed to have been
properly given, rendered or made only if personally delivered, if sent by
Federal Express or other comparable overnight delivery service, or if sent by
registered or certified mail, return receipt requested, postage prepaid,
addressed to the other party at the addresses set forth below (or to such other
address as Landlord or Tenant may designate to each other from time to time by
written notice), and shall be deemed to have been give, rendered or made on the
day so delivered or three (3) business days after having been mailed:
If to Landlord: First Industrial Financing Partnership, L.P.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
With a copy to: Barack, Xxxxxxxxxx, Xxxxxxxxxx & Xxxxxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx and
Xxxxxxx Xxxxxxxx-Xxxxx
and First Industrial Realty Trust, Inc.
0000 Xxxxxxxx Xxxxxxxxxx Xxxx.
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx
If to Tenant: Xxx Realty Co.
0000 Xxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx
Attn: Xxxxxxx XxXxxxxx
28.3 NON-WAIVER. The failure of either party to insist, in any one
or more instances, upon the strict performance of any one or more of the
obligations of this Lease, or to exercise any election herein contained, shall
not be construed as a waiver or relinquishment for the future of the performance
of such one or more obligations of this Lease or of the right to exercise such
election, but the Lease shall continue and remain in full force and effect with
respect to any subsequent breach, act or omission. The receipt and acceptance by
Landlord or Agent of Base Rent or Additional Rent with acknowledge of breach by
Tenant of any obligation of this Lease shall not be deemed a waiver of such
breach.
28.4 LEGAL COSTS. Any party in breach or default under this Lease
(the "Defaulting Party") shall reimburse the other party (the "Nondefaulting
Party") upon demand for any costs or expenses that the Nondefaulting Party
incurs in connection with the breach or default, regardless whether suit is
commenced or judgment entered.
27
Such costs shall include legal fees and costs incurred for the negotiation of a
settlement, enforcement of rights or otherwise. Furthermore, in the event of
litigation, the court in such action shall award to the party in whose favor a
judgment is entered, a reasonable sum as attorneys' fees and costs, which sum
shall be paid by the losing party. Tenant shall pay Landlord's reasonable
attorneys' fees incurred in connection with Tenant's request for Landlord's
consent under provisions of this Lease governing assignment and subletting, or
in connection with any other act which Tenant proposes to do and which requires
Landlord's consent.
28.5 PARTIES BOUND. Except as otherwise expressly provided for in
this Lease, this Lease shall be binding upon, and inure to the benefit of, the
successors and assignees of the parties hereto. Tenant hereby releases Landlord
named herein from any obligations of Landlord for any period subsequent to the
conveyance and transfer of Landlord's ownership interest in the Building. In the
event of such conveyance and transfer, Landlord's obligations shall thereafter
be binding upon each transferee (whether Successor Landlord or otherwise). No
obligation of Landlord shall arise under this Lease until the instrument is
signed by, and delivered to, both Landlord and Tenant.
28.6 RECORDATION OF LEASE. Tenant shall not record or file this
Lease in the public records of any county or state. Tenant may, however, at its
sole cost and expense, record a Memorandum of Lease in the form attached hereto
as EXHIBIT E.
28.7 SURVIVAL OF OBLIGATIONS. Upon the expiration or other
termination of this Lease, neither party shall have any further obligation or
liability to the other except as otherwise expressly provided in this Lease and
except for such obligations as, by their nature or under the circumstances, can
only be, or by the provisions of this Lease, may be performed after such
expiration or other termination. The provisions of Articles 3,13,16,17,20,23 and
25 shall survive any termination of this Lease.
28.8 GOVERNING LAW; CONSTRUCTION. This Lease shall be governed by
and construed in accordance with the laws of the state in which the Property is
located. If any provision of this Lease shall be invalid or unenforceable, the
remainder of this Lease shall not be affected but shall be enforced to the
extent permitted by law. The captions, headings and titles in this Lease are
solely for convenience of reference and shall not affect its interpretation.
This Lease shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Lease to be drafted. Each
covenant, agreement, obligation, or other provision of this Lease to be
performed by Tenant, shall be construed as a separate and independent covenant
of Tenant, not dependent on any other provision of this Lease. All terms and
words used in this Lease, regardless of the number or gender in which they are
used, shall be deemed to include any other number and any other gender as the
context may require.
28.9 TIME. Time is of the essence of this Lease. If the time for
performance hereunder falls on a Saturday, Sunday or a day that is recognized as
a holiday in the state in which the Property is located, then such time shall be
deemed extended to the next day that is not a Saturday, Sunday or holiday in
said state.
28.10 AUTHORITY OF TENANT. If Tenant is a corporation, partnership,
association or any other entity, it shall deliver to Landlord, concurrently with
the delivery to Landlord of an executed Lease, certified resolutions of Tenant's
directors or other governing person or body (i) authorizing execution and
delivery of this Lease and the performance by Tenant of its obligations
hereunder and (ii) certifying the authority of the party executing the Lease as
having been duly authorized to do so.
28.11 JOINT AND SEVERAL LIABILITY. All parties signing this Lease as
Tenant shall be jointly and severally liable for all obligations of Tenant
hereunder.
28.12 COUNTERPART EXECUTION. This Lease may be executed in
counterpart and, when all counterpart documents are executed, the counterparts
shall constitute a single binding instrument.
28
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the day and year first above written.
LANDLORD: First Industrial Financing Partnership, L.P.,
a Delaware limited partnership
By: First Industrial Management
Corporation, a Maryland corporation, Duly
Authorized Agent and Authorized Signatory
By: /s/ Xxxxx X. Xxxx
--------------------------------------------
Its: Xxxxx X. Xxxx Senior Regional Director
---------------------------------------
TENANT: Xxx Realty Co., a Delaware corporation
By: [ILLEGIBLE]
-----------------------------------------
Its: Vice President and General Counsel
29
LEASE EXHIBIT A
Premises: Approximately 105,275 rentable square feet in the building
commonly known as MidCounty Trade Center and located at 0000
Xxxxxx Xxxxxxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx (the "Building").
Property: See legal description attached hereto.
Parking: 75 spaces large enough for tractor-trailer units reserved
exclusively for Tenant's use as shown on attached plan.
30
LEASE EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
The "Property" as referenced in the attached Lease is located in the City of
Xxxxxx Park, St. Louis County, State of Missouri and is more particularly
described as follows:
PARCEL NO. 1: A tract of land in U.S. Survey 1920, Township 46 North, Range
6 East and being part of Lot 3 in St. Louis County, Missouri, as designated
on plat of Commissioners Report filed in Cause #302 of the City (former
County) Circuit Court, styled Xxxxx Xxxxx against Xxxxxxx X. Xxxxxx, et al,
a copy of which is recorded in Book Q4 page 360 of the St. Louis City
(former County) Records and described as follows, to-wit: Beginning at the
intersection of the South line of said Lot 3 with the East line of the
Right of Way of the St. Louis Belt and Terminal Railroad Company; thence
along the East line of said Right of Way North 19 degrees 33 minutes East
169.95 feet; North 18 degrees 4 minutes East 202.19 feet, North 14 degrees
32 minutes East 203.14 feet and North 11 degrees 55 minutes 28 seconds East
79.43 feet to a point; thence leaving said Right of Way and running South
82 degrees 08 minutes East 1127.00 feet to a point in the West line of land
conveyed to the County of St. Louis by deed recorded in Book 3705 page 74
of the St. Louis County Records; thence South along an arc of a curve to
the left having a radius of 465.47 feet a distance of 129.36 feet to a
point; thence continuing along the West line of said property so conveyed
to St. Louis County aforesaid and the prolongation Southwardly thereof
South 8 degrees 48 minutes West 519.09 feet to the South line of said Lot
3; thence along the South line of said Xxx 0 Xxxxx 00 degrees 08 minutes
West 1198.03 feet to the place of beginning.
PARCEL NO. 2: Lots 9 to 13 both inclusive of Xxxxxx Industrial Park,
according to the plat thereof recorded in Plat Book 118 page 53 of the
St. Louis County Records.
PARCEL NO. 3: A tract of land in U.S. Survey 1920, Township 46 North, Range
6 East and being part of Lot 3 in St. Louis County, Missouri, as designated
on plat of Commissioners Report filed in Cause #302 of the City (former
County) Circuit Court styled Xxxxx Xxxxx against Xxxxxxx X. Xxxxxx, et al,
a copy of which is recorded in Book Q4 page 360 of the St. Louis City
(former County) Records and described as follows, to-wit: Beginning at the
Northeast corner of property secondly described in deed to General Steel
Industries, Inc., by deed recorded in Book 6316 page 1975 of the
St. Louis County Records being also a point on the Western line of the
Right of Way of the St. Louis Belt and Terminal railroad (no Terminal
Railroad Association of St. Louis); thence South 82 degrees 08 minutes 00
seconds East, along a line which is the direct
LEASE EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY -- Page 2
prolongation Eastwardly of the North line of the aforesaid second parcel
described in Book 6316 page 1975, 102.12 feet to a point on the East line
of said Railroad Right-of-Way being also a point on the Western line of
property firstly described in said deed recorded in Book 6316 page 1975;
thence South 19 degrees 33 minutes 00 seconds West, along the Eastern line
of said railroad right of way being also the Western line of said Parcel 1
described in deed recorded in Book 6316 page 1975, 51.06 feet to the
Southwest corner of said last referred to parcel, being also a point on the
South line of said Lot 3; thence North 82 degrees 08 minutes 00 seconds
West along the South line of said Lot 3, 102.12 feet to the Southeast
corner of said Parcel 2 described in Book 6316 page 1975 being also a point
on the Western line of said railroad right of way; thence North 19 degrees
33 minutes 00 seconds East, along the Western line of said railroad right
of way being along the Eastern line of said Parcel 2 described in Book 6316
page 1975, 51.06 feet to the point of beginning.
commonly known as 0000 Xxxxxxx Xx.
PARCEL NO.4: Together with a 50' Grade Crossing easement granted in Grade
Crossing Agreement recorded at Book 6946, page 1250, of the St. Louis
County Records.
LEASE EXHIBIT A-1
AVAILABLE SPACE
[GRAPHIC]
LEASE EXHIBIT A-2
SAVE A LOT SPACE
[GRAPHIC]
FIRST INDUSTRIAL REALTY TRUST, INC
PROPERTY: MID COUNTY TRADE CENTER TENANT ROSTER XXXXXXX X. XXXXXXXXX, R.P.A.
ADDRESS: 0000 XXXXXXX XXXXX XXXXXXX XX FT 280.905 UPDATED ASSET MANAGER - (000) 000-0000
XXXXXX XXXX, XXXXXXXX 00000 SEPTEMBER 7, 1995 XXXX XXXXX, MAINTENANCE ENGINEER
------------------------------------------------------------------------------------------------------------------------------------
SUITE SQUARE PERCENT COMMENCEMENT EXPIRATION RENT / ANNUAL MONTHLY OPERATING LATE
TENANT NAME FEET OF BLDG DATE DATE SQ. FT. RENT RENT EXPENSES FEES
(BASE YR)
(BASE YR)
------------------------------------------------------------------------------------------------------------------------------------
9/15/87
XXXXX FOODS, INC 460-2 46,021 16.38% 6/1/94 $ 3.45 $ 125,820.80 $ 10,485.00 1987 for
dba SAVE A LOT, INC 9/1/94 $ 2.19 $ 100,630.80 $ 8,385.90 taxes &
OFFICE 10/1/94 $ 3.60 $ 160,630.80 $ 13,385.90 insurance
5/1/96 $ 3.60 $ 166,153.92 $ 13,846.16
8474 Delport 5/1/98 4/30/00 $ 3.80 $ 173,978.28 $ 14,498.19
TENANT TOPAY 100% OF INCREASES IN REAL ESTATE TAXES AND
INSURANCE AND INSURANCE PREMIUMS AS RESULT OF ADDITIONS
XXX XXXXX 0R XXXX XXXXX Corridor
000-000-0000 7,510 2.67% 6/1/94 $ 3.25 $ 20,526.96 $ 1,710.58
9/1/94 $ 3.25 $ 24,417.24 $ 2,034.77
5/1/96 $ 3.40 $ 25,544.16 $ 2,128.68
5/1/98 4/30/00 $ 3.65 $ 27,422.52 $ 2,285.21
------------------------------------------------------------------------------------------------------------------------------------
PULIZTER PUBLISHING 460-6 62,299 21.51% 8/3/87 $ 3.35 $ 208,701.65 $ 17,391.80 1987 for
dba 9/1/82 8/31/95 $ 3.60 $ 224,276.40 $ 18,689.70 taxes &
ST. LOUIS POST DISPATCH 9/1/95 8/31/98 $ 3.24 $ 201,848.76 $ 16,820.73 insurance
------------------------------------------------------------------------------------------------------------------------------------
UNITED VAN LINES, INC. 460-3 60,000 21.36% 7/1/95 6/30/97 $ 3.65 $ 219,000.00 $ 18,250.00 1995 FOR
7/1/97 6/30/98 $ 3.80 $ 228,000.00 $ 19,000.00 TAXES
XXX XXX insurance
------------------------------------------------------------------------------------------------------------------------------------
VACANCY 460-1 105,275 37.48% $ 3.50 $ 368,462.50 $ 30,705.21 1995 FOR
taxes &
insurance
------------------------------------------------------------------------------------------------------------------------------------
281,105
---------------------------------------------------------------
TENANT NAME OPTIONS/REMARKS
CONTACT
CONTACT
---------------------------------------------------------------
XXXXX FOODS, INC First Opportunity to Lea
dba SAVE A LOT, INC Options to Extend
OFFICE Rights of Expansion
8474 Delport
XXX XXXXX 0R XXXX XXXXX
000-000-0000
XXX XXXXX/XXXX XXXXX
428-2250
---------------------------------------------------------------
PULIZTER PUBLISHING One 1 year renewal at $224,276.40/yr
dba XXX XXXXXXXXXX 000-000-0000
ST. LOUIS POST DISPATCH XXX VEGENER 000-000-0000
---------------------------------------------------------------
CAN CAPED AT $0.25/FT FOR 1ST YR.
UNITED VAN LINES INC. INCREASES NOT TO EXCEED 5%
BASE YR TAXES 179,196
XXX XXX BASE YR INSURANCE 13,500
---------------------------------------------------------------
VACANCY
---------------------------------------------------------------
LEASE EXHIBIT B
BASE RENTAL PAYMENTS
October 1,1995 - March 31,1995 $ 30,705.21/month
April 1, 1996- June 30,1996 $ 0.00/month
July 1, 1996 - December 31,2000 $ 30,705.21/month
January 1,2001-December 31,2005 $ 34,653.02/month
Pursuant to Article 4.4, January 1997's Base Rent shall be zero with the
application of the Security Deposit towards the Base Rent.
33
LEASE EXHIBIT C
LANDLORD'S CONTRIBUTION TO BUILDING AND TENANT IMPROVEMENTS
Landlord at its sole costs and expense shall complete the following
Building improvements:
not withstanding anything to the contrary, this improvements shall not be
included as operating expenses under Section 3.1
(a) Within the first twelve months of Tenant's occupancy,
Landlord shall repair all parking lots, services roads and driveways
Landlord and Tenant shall coordinate parking lot repairs prior to the
start of any work and install Building Signage identifying all
tenants of the Property.
(b) Within the first thirty (30) days of Tenant's
occupancy, Landlord shall repair all exterior lighting servicing the
property, clean out all sanitary storm sewers, and will remove all
debris from the parking lots and service roads.
Landlord shall contribute the sum of Two Hundred Thousand and No/100 Dollars
($200,000.00) towards Tenant's Leasehold improvements. Tenant shall submit plans
and specifications to Landlord for prior approval and co-ordination, prior to
the start of any construction. Landlord's approval shall not be unreasonably
withheld or delayed. Any expense over said contribution will be paid for by
Tenant. Tenant agrees to that it will fully comply with the covenants and
agreements set forth below.
A. In connection with the performance of my construction
activities ("Construction") at the Premises or relating thereto, Tenant
covenants and agrees as follows:
(i) To require its contractors, agents and employees to
comply with all regulations, ordinances and laws of all public and
private authorities having jurisdiction over the Property and with all
rules and regulations of any governmental agency to locate the
improvements on the Premises according to the plans and to comply with
all building requirements.
(ii) To furnish Landlord with copies of contractors' sworn
statements and draw requests received from its contractors and copies
of all lien waivers in customary form for all Construction. In the
event of the recording of a mechanic's lien against the Premises
arising from the Construction, Tenant shall either (i) pay the lien
claim within fifteen (15) days of recording, or (ii) provide Landlord
with a bond or title indemnity acceptable to Landlord in the full
amount of such lien in which event Tenant may defend the validity of
the claimed mechanic's lien. In all cases, Tenant shall notify
Landlord of such filings within five (5) working days.
(iii) Not to permit any changes in or additions which affect
the building structure or systems, without the prior written approval
of Landlord, which may be granted or withheld in Landlord's sole and
absolute discretion.
(v) To comply with the requirements of Section 11 of the
Lease with regard to the Construction.
B. Landlord and Tenant further covenant and agree as follows:
(i) Landlord shall fund disbursement requests to Tenant or
at Tenant's direction within thirty (30) business days after receipt
of Tenant's request and will produce documents reasonably requested by
Landlord in support thereof. Documents Landlord shall have the right
to request include, without
34
limitation, statements from Tenant's architect or engineer stating
work has been completed in a workmanlike manner and comply with all
applicable building codes and/or ordinances, copies of sub-contractors
invoices, all changes in or additions to said plans and
specifications, contractor's sworn statements and lien waivers. If
Landlord fails to disburse a draw request, in whole or in part due to
incomplete or inadequate documentation presented by Tenant, then
Landlord shall advise the Tenant in writing of deficiencies in the
draw request within said thirty (30) day period and Landlord shall be
permitted to withhold funds equal in amount to the portion of the draw
request which is incomplete or inadequate and Landlord shall
immediately pay the balance of the draw request. Thereafter, Landlord
shall disburse the balance of the draw request promptly after receipt
of additional or corrected documentation from Tenant.
(ii) If the total costs of the work to be performed pursuant
to this Exhibits C is less than $200.000.00, then any such savings
shall inure to the benefit of Landlord and shall be retained by
Landlord.
(iii) Landlord, through its agents and inspectors, may enter
upon the Premises at any time to inspect the progress of construction;
provided, however, that Landlord shall not interrupt or interfere with
construction at the Premises by virtue of such inspections.
(iv) The contractors, subcontractors and material suppliers
performing work or supplying materials to the Premises shall be deemed
to be agents of the Tenant.
(v) Tenant will not install or cause or permit to be
installed any fixtures or equipment included in the plans and
specifications, for which the payment shall be secured by a chattel
mortgage or vendor's lien.
(vi) Tenant shall not permit the Construction to interfere
with the rights or operations of other tenants at the Property.
35
LEASE EXHIBIT D
REQUIRED INSURANCE
(a) "ALL-RISK" PROPERTY AND LOSS OF INCOME COVERAGE FOR TENANT'S
PROPERTY. " All Risk" (including, but not limited to, earthquake and flood (i)
property insurance on a replacement cost basis, covering all of Tenant's
Property (as defined in Section 12.2), all merchandise and trade fixtures and
furnishings and equipment and all other personal property of Tenant and all
leasehold improvements installed in the Premises by, or on behalf of, Tenant all
in an amount not less than the full replacement cost of all such property and
(ii) loss-of-income insurance in an amount sufficient to assure that Landlord
shall recover the loss of any rental income due and owing to Landlord from
Tenant under the terms of this Lease, which coverage shall provide such
protection to Landlord for a period of not less than twelve (12) consecutive
months. The total amount of the deductible required under each policy providing
such coverage shall be no more than $10,000.00 per loss. Landlord, Agent and any
other parties designated by Landlord (including, but not limited to, its
beneficiary, its general and limited partners, and Superior Parties) shall be
included as loss payee(s).
(b) LIABILITY COVERAGE. Commercial general public liability and
comprehensive automobile liability (and, if necessary to comply with any
conditions of this Lease, umbrella liability insurance) covering Tenant against
any claims arising out of liability for bodily injury and death and personal
injury and advertising injury and property damage occurring in and about the
Premises, and/or the Building and otherwise resulting from any acts and
operations of Tenant, its agents and employees, with limits of not less than
total limits of $2,000,000.00 per occurrence and $5,000,000.00 annual general
aggregate, per location. The total amount of a deductible or otherwise
self-insured retention with respect to such coverage shall be not more than
$10,000.00 per occurrence. Such insurance shall include, inter alia: (i)
"occurrence" rather than "claims made" policy forms unless such "occurrence"
policy forms are not available; (ii) any and all liability assumed by Tenant
under the terms of this Lease, to the extent such insurance is available; (iii)
premises medical-operations expenses in an amount not less than $5,000.00 per
person, per accident; (iv) Landlord, Agent and any other parties designated by
Landlord or Agent (including, but not limited to, its beneficiary, its general
and limited partners, and Superior Mortgagees) shall be designated as Additional
Insured(s) with respect to (x) the Premises, and (y) all operations of Tenant,
and (z) any property and areas and facilities of Landlord used by Tenant, its
employees, invitees, customers or guests; and (v) severability of insured
parties and cross-liability so that the protection of such insurance shall be
afforded to Landlord in the same manner as if separate policies had been issued
to each of the insured parties.
(c) WORKERS' COMPENSATION COVERAGE. Workers' compensation and
employer's liability insurance in the state in which the Premises and any other
operations of Tenant are located and any other state in which Tenant or its
contractors or subcontractors may be subject to any statutory or other liability
arising in any manner whatsoever out of the actual or alleged employment of
others. The total limits of the employer's liability coverage shall be not less
than the amounts specified in Subsection (b) above. Tenant represents and
warrants that it is self-insured in Missouri for worker's compensation insurance
and that its self-insurance plan is consistent with all applicable laws,
regulations and ordinances. Notwithstanding anything to the contrary herein, and
in reliance on the foregoing representation and warranty, Landlord consents to
Tenant's provision of its own worker's compensation insurance, provided such
insurance otherwise meets all requirements set forth in this Lease.
(d) OTHER COVERAGE. Such other policy or policies as are either:
(i) reasonably required of Landlord by any Superior Mortgagee or any other party
having any interest in the Building and/or the property; or (ii) deemed
reasonably necessary by Landlord; or (iii) required by insurers by reasons of a
change in Tenant's use of, or activities at, the Premises.
All insurance policies required under this lease exhibit shall: (i) be issued by
companies licensed to do business in the State in which the Property is located
and acceptable to Landlord and any Superior Mortgagees and any other
38
party having any interest in the Property and/or the Building; (ii) not be
subject to cancellation or material change or non-renewal without at least
thirty (30) days' prior written notice to Landlord and any other parties
designated by Landlord (A) to be loss payee(s) or additional insured(s) under
the insurance policies required from Tenant, or (B) to receive such notices;
(iii) be deemed to be primary insurance in relation to any other insurance
maintained by Landlord or Agent; and (iv) at the sole option and discretion of
Landlord, include other appropriate endorsements or extensions of coverage as
would be required of Landlord by any Superior Mortgagees or any other party
having any interest in the Property.
39
LEASE EXHIBIT E
MEMORANDUM OF LEASE
This Memorandum of Lease is entered into this _________ day of
October, 1995 by and between First Industrial Financing Partnership, L.P., a
Delaware limited partnership with principal offices at _____________________
____________________________________________("Landlord") and Xxx Realty Co.
("Tenant"), a Delaware corporation, with its principal offices at 0000 Xxxx
Xxxx., Xx. Xxxxx, XX 00000, as follows:
That pursuant to an industrial building lease ("Lease") executed on October
____, 1995 by Landlord and Tenant Landlord leases to Tenant for a term beginning
on October 1, 1995 and continuing until December 31, 2005 (the "Term") with two
(2) five-year renewal options thereafter, approximately 105,275 square feet (the
"Premises") of improvements in a building (the "Building") located at 0000
Xxxxxx Xxxxxxxxxx Xxxxx in the City of Xxxxxx Park, St. Louis County, Missouri.
Said Building and the Premises therein are situated on a tract of land (the
"Property") more particularly described in Appendix A hereto and by this
reference made a part hereof. Landlord by said Lease has granted Tenant certain
rights to use the common areas not otherwise occupied by Tenant or other tenants
in the Building on the Property.
Landlord has granted to Tenant an option to purchase the Property at any time
between January 1, 2001 and December 31, 2002 under terms and conditions set
forth in the Lease. Landlord has also granted to Tenant a "right of first offer"
at all times during the Term of the Lease by which Tenant may elect to purchase
the Property on the same terms as those offered by a third party, and as more
particularly set forth in the Lease. Landlord has further granted Tenant a right
of first refusal to lease any space becoming available in the Building during
the Term or any extensions thereof, at rental rates and subject to such other
terms and conditions as are set forth in the Lease.
The provisions set forth in the Lease between Landlord and Tenant are
incorporated in this Memorandum of Lease.
IN WITNESS WHEREOF, the undersigned authorized representatives of Landlord and
Tenant have entered into this Memorandum of Lease on the date above written.
FIRST INDUSTRIAL FINANCING PARTNERSHIP, L.P. REX REALTY CO.
By: By:
--------------------------- ---------------------------
Title: Title:
--------------------------- ---------------------------
40
ACKNOWLEDGEMENTS
STATE OF MISSOURI )
) ss.
COUNTY OF ST. LOUIS )
On this ___day of __________________, 1995 before me, a Notary Public
in and for said County, personally appeared ____________________________, to me
personally known, who being by me duly sworn, did say that he is Vice President
of XXX REALTY CO., and the foregoing instrument was signed and sealed on behalf
of the said corporation by authority of its Board of Directors, and that the
seal affixed to the foregoing instrument is the seal of said corporation, and
the said __________________acknowledged the execution of the foregoing
instrument to be the voluntary act and deed of said corporation by it
voluntarily executed.
---------------------------------------
Notary Public
STATE OF _____________)
) ss.
COUNTY OF ____________)
On this _____ day of ________________, 1995 before me, a Notary Public
in and for said County, personally appeared __________________________________,
to me personally known, who being by me duly sworn, did say that he is
_______________________ of FIRST INDUSTRIAL FINANCING PARTNERSHIP, L.P., and the
foregoing instrument was signed and sealed on behalf of the said corporation by
authority of its Board of Directors, and that the seal affixed to the foregoing
instrument is the seal of said corporation, and the said ______________________
______________________ acknowledged the execution of the foregoing instrument to
be the voluntary act and deed of said corporation by it voluntarily executed.
---------------------------------------
Notary Public
41
APPENDIX A TO MEMORANDUM OF LEASE
LEGAL DESCRIPTION OF PROPERTY
The "Property" as referenced in the attached Memorandum of Lease is situated in
the City of Xxxxxx Park, St. Louis County, State of Missouri, and is more
particularly described as follows:
PARCEL NO. 1: A tract of land in U.S. Survey 1920, Township 46 North,
Range 6 East and being part of Lot 3 in St. Louis County, Missouri, as
designated on plat of Commissioners Report filed in Cause #302 of the City
(former County) Circuit Court, styled Xxxxx Xxxxx against
Xxxxxxx X. Xxxxxx, et al, a copy of which is recorded in Book Q4 page 360
of the St. Louis City (former County) Records and described as follows,
to-wit: Beginning at the intersection of the South line of said Lot 3 with
the East line of the Right of Way of the St. Louis Belt and Terminal
Railroad Company; thence along the East line of said Right of Way North 19
degrees 33 minutes East 169.95 feet; North 18 degrees 4 minutes East 202.19
feet, North 14 degrees 32 minutes East 203.14 feet and North 11 degrees 55
minutes 28 seconds East 79.43 feet to a point; thence leaving said Right of
Way and running South 82 degrees 08 minutes East 1127.00 feet to a point in
the West line of land conveyed to the County of St. Louis by deed recorded
in Book 3705 page 74 of the St. Louis County Records; thence South along an
arc of a curve to the left having a radius of 465.47 feet a distance of
129.36 feet to a point; thence continuing along the West line of said
property so conveyed to St. Louis County aforesaid and the prolongation
Southwardly thereof South 8 degrees 48 minutes West 519.09 feet to the
South line of said Lot 3; thence along the South line of said Xxx 0 Xxxxx
00 degrees 08 minutes West 1198.03 feet to the place of beginning.
PARCEL NO. 2: Lots 9 to 13 both inclusive of Xxxxxx Industrial Park,
according to the Plat thereof recorded in plat Book 118 page 53 of the
St. Louis County Records.
PARCEL NO. 3: A tract of land in U.S. Survey 1920, Township 46 North,
Range 6 East and being part of Lot 3 in St. Louis County, Missouri, as
designated on plat of Commissioners Report filed in Cause #302 of the City
(former County) Circuit Court styled Xxxxx Xxxxx against Xxxxxxx X. Xxxxxx,
et al, a copy of which is recorded in Book Q4 page 360 of the St. Louis
City (former County) Records and described as follows, to-wit: Beginning at
the Northeast corner of property secondly described in deed to General
Steel Industries, Inc., by deed recorded in Book 6316 page 1975 of the
St. Louis County Records being also a point on the Western line of the
Right of Way of the St. Louis Belt and Terminal railroad (now Terminal
Railroad Association of St. Louis); thence South 82 degree 08 minutes 00
seconds East, along a line which is the direct
APPENDIX A TO MEMORANDUM OF LEASE
LEGAL DESCRIPTION OF PROPERTY -- Page 2
prolongation Eastwardly of the North line of the aforesaid second parcel
described in Book 6316 page 1975,102.12 feet to a point on the East line of
said Railroad Right-of-Way being also a point on the Western line of
property firstly described in said deed recorded in Book 6316 page 1975;
thence South 19 degrees 33 minutes 00 seconds West, along the Eastern line
of said railroad right of way being also the Western line of said Parcel 1
described in deed recorded in Book 6316 page 1975; 51.06 feet to the
Southwest corner of said last referred to parcel, being also a point on the
South line of said Lot 3; thence North 82 degrees 08 minutes 00 seconds
West along the South line of said Lot 3, 102.12 feet to the Southeast
corner of said Parcel 2 described in Book 6316 page 1975 being also a point
on the Western line of said railroad right of way; thence North 19 degrees
33 minutes 00 seconds East, along the Western line of said railroad right
of way being along the Eastern line of said Parcel 2 described in Book 6316
page 1975, 51.06 feet to the point of beginning.
commonly known as 8474 Delport Dr.
PARCEL NO. 4: Together with a 50' Grade Crossing easement granted in Grade
Crossing Agreement recorded at Book 6496, page 1250, of the St. Louis
County Records.
LEASE EXHIBIT F
SUBORDINATION, NON-
DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-
DISTURBANCE AND ATTORNMENT AGREEMENT ("Agreement")
is made as of the ____ day of __________, 1995 by and among First Industrial
Financing Partnership, L.P., a Delaware limited partnership ("Landlord"),
_______________________________________ as trustee ("Trustee") for
__________________________________________________ ("Lender") and XXX REALTY
CO., a Delaware corporation (hereinafter referred to as Tenant).
WITNESSETH:
WHEREAS, Landlord is the owner of certain property (the "Property")]
situate in the City of Xxxxxx Park, County of St. Louis, State of Missouri, and
more particularly described in Exhibit "A" attached hereto;
WHEREAS, Landlord and Tenant are parties to a lease ("Lease") dated October
__, 1995 covering a portion of the Property ("Leased Premises") which Leased
Premises are more fully described in the Lease;
WHEREAS, the Property is encumbered by a certain Deed of Trust and note
secured thereby executed by Landlord to Trustee for the benefit of Lender in
order to secure certain obligations of Landlord to the Lender, which Deed of
Trust is more fully described as follows:
Deed of Trust executed by Landlord to Trustee for Lender dated and
recorded in the office of , County of , State of Missouri in
Book Page as Document Daily No. ,[If subsequently assigned,
recite parties/date/recording information here].
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration the receipt and sufficiency of which
is hereby acknowledged and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Lender warrants and represents to Tenant that it is the owner of the
Deed of Trust; that the Deed of Trust has not been assigned [except as set forth
above] and that Lender has caused no other liens or encumbrances to be created
against the Property other than the Deed of Trust.
2. Tenant, for itself and its successors and assigns, does hereby agree
that all right, title and interest which Tenant, its successors and assigns, may
have in and to the Leased Premises or any part thereof, shall be, and the same
hereby is made, subject and subordinate to the lien of the Deed of Trust Lender
hereby agrees that all condemnation awards and property insurance proceeds
payable with respect to the Property or the Leased Premises shall be applied and
paid in the manner set forth in the Lease.
3. So long as Tenant is not in default, beyond any applicable cure
period, in the payment of rent or in the performance of any of the terms,
covenants or conditions of the Lease requiring performance on the part of
Tenant, (a) Lender will not join Tenant as a party defendant in any action or
proceeding for the purpose of foreclosing the Deed of Trust; (b) any sale or
transfer of the Property or of the Landlord's interest in the Lease, pursuant to
foreclosure of the Deed of Trust or voluntary conveyance or other proceeding in
SUBORDINATION AGREEMENT
FIRST INDUSTRIAL/XXX REALTY
PAGE 2 OF 4
lieu of foreclosure, will be subject and subordinate to Tenant's possession
under the Lease; and (c) the Lease will continue in full force and effect
according to its terms.
4. So long as Tenant is not in default, beyond any applicable cure
period, in the payment of rent or in the performance of any of the terms,
covenants or conditions of the Lease requiring performance on the part of
Tenant, if the Property shall be transferred to and owned by Lender, or any
assignee of Lender or purchaser at judicial sale or any transferee under an
action in lieu thereof, by reason of foreclosure or other remedial proceedings
brought by Lender or any assignee of Lender or by any other similar manner,
Tenant's rights to possession of the Leased Premises under the Lease shall not
be disturbed or terminated thereby, but rather Tenant shall attorn to and be
bound to Lender or any such assignee, purchaser or transferee under all of the
terms, covenants and conditions of the Lease for the balance of the term thereof
remaining; and Lender or any such assignee, purchaser or transferee shall be
bound, as the Landlord, to Tenant under all of the terms, covenants and
conditions of the Lease for the balance of the term thereof remaining.
5. Subject to the provisions hereof, the Lease now is, and shall at all
times continue to be, subject and subordinate in each and every respect to the
lien of the Deed of Trust and to any and all amendments and renewals thereof.
6. This Agreement shall be binding upon and shall inure to the benefit of
Landlord, Lender and Tenant, and their respective heirs, personal
representatives, transferees, successors and assigns. Except as provided in said
Lease, no action on the part of any party to this Agreement shall be construed
to be a waiver, release or relinquishment of any rights under this Agreement
unless said waiver, release or relinquishment is expressly contained in an
instrument executed by the party against whom the waiver, release or
relinquishment is being enforced.
7. This Agreement is made and executed under and in all respects is to be
governed by and construed in accordance with the laws of the State of Missouri.
8. Any notices required or given under this Agreement shall be in writing
and shall be sent by U.S. Certified Mail, postage prepaid and shall be sent to
the following addresses:
To Lender:
-------------------
-------------------
-------------------
-------------------
To Landlord: First Industrial Financing Partnership LP
Attn: Xx. Xxxxxxx Xxxxxxxxx
0000 Xxxxxxxx Xxxxxxxxxx Xxxxx
Xx. Xxxxx XX 00000
SUBORDINATION AGREEMENT
FIRST INDUSTRIAL/XXX REALTY
PAGE 3 OF 4
To Tenant: Xxx Realty Co.
Attn: X. XxXxxxxx, V.P.
0000 Xxxx Xxxx.
Xx. Xxxxx XX 00000
The addresses for such notices may be changed by written notice to the
other party of at least 30 days given as provided above. Notices given as
provided above shall be deemed complete upon mailing.
This Agreement may be signed in counterparts and each counterpart shall be
effective as an original when a counterpart has been signed by all parties.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
duly executed as of the day and year first above written.
Lender: TENANT:
---------------------- XXX REALTY CO., a Delaware corporation
By: By:
------------------- ------------------
Its: Its: Vice President
------------------ -----------------
LANDLORD:
FIRST INDUSTRIAL FINANCING PARTNERSHIP LP
By:
-------------------
Its:
------------------
SUBORDINATION AGREEMENT
FIRST INDUSTRIAL/XXX REALTY
PAGE 4 OF 4
ACKNOWLEDGMENTS
STATE OF MISSOURI )
) ss.
COUNTY OF ST. LOUIS )
On this ____ day of _________, 19____, before me, a Notary Public in and
for said County, personally appeared _____________, to me personally known, who
being by me duly sworn, did say that he is Vice President of XXX REALTY CO., and
that the foregoing instrument was signed and sealed on behalf of the said
corporation by authority of its Board of Directors, and that the seal affixed to
the foregoing instrument is the seal of said corporation, and the said
________________ acknowledged the execution of the foregoing instrument to be
the voluntary act and deed of said corporation by it voluntarily executed.
-----------------------------
Notary Public
STATE OF _____________)
) ss.
COUNTY OF ____________)
On this ____ day of __________, 19___, before me, a Notary Public in and
for said County, personally appeared _____________, to me personally known, who
being by me duly sworn, did say that he is _________ of FIRST INDUSTRIAL
FINANCING PARTNERSHIP, LP., and that the foregoing instrument was signed and
sealed on behalf of the said corporation by authority of its board of directors,
and that the seal affixed to the foregoing instrument is the seal of said
corporation, and the said ________________ acknowledged the execution of the
foregoing instrument to be the voluntary act and deed of said corporation by it
voluntarily executed.
-----------------------------
Notary Public
STATE OF ____________ )
) ss.
COUNTY OF ___________ )
On this ____ day of ________, 19____, before me, a Notary Public in and for
said County, personally appeared ____________, to me personally known, who being
by me duly sworn, did say that he is ______________ of [LENDER'S NAME], and that
the foregoing instrument was signed and sealed on behalf of the said corporation
by authority of its board of directors, and that the seal affixed to the
foregoing instrument is the seal of said corporation, and the said __________
acknowledged the execution of the foregoing instrument to be the voluntary act
and deed of said corporation by it voluntarily executed.
-----------------------------
Notary Public
