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FIRST INDUSTRIAL FINANCING PARTNERSHIP, L.P.
STANDARD FORM
INDUSTRIAL BUILDING LEASE
(MULTI TENANT)
SECTION 1: BASIC TERMS
This Section 1 contains the Basic Terms of this Lease between Landlord and
Tenant, named below. Other Sections of the Lease referred to in this Section 1
explain and define the Basic Terms and are to be read in conjunction with the
Basic Terms.
1.1 Date of Lease: January ____, 1997
1.2 Landlord: First Industrial Financing Partnership, L.P., a Delaware
limited partnership
1.3 Tenant: Gantos, Inc., a Michigan corporation
1.4 Premises and Property: See Exhibit "A"
1.5 Lease Term: Five (5) years Four (4) months ("Term"), commencing
April 1, 1997 ("Commencement Date") and ending July 31, 2002
("Expiration Date").
1.6 Permitted Uses: (See Section 4) Storage and distribution of women's
apparel and accessories and related office activities
1.7 Tenant's Guarantor: (if none, so state) None.
1.8 Brokers: (See Section 23; if none, so state)
(A) Tenant's Broker: None.
(B) Landlord's Broker: Draft & Gantos Properties, LLC
1.9 Security Deposit: (See Section 4) None.
1.10 Vehicle Parking Allocated Tenant: Tenant shall have access to at
least one hundred sixty (160) parking spaces at the Property; of
those spaces, Tenant will have exclusive access only to those
parking spaces in front and on the perimeter of the Premises as
specified on attachment #1 to Exhibit A, and the balance will be
nonexclusive as to Tenant. Landlord is not responsible for policing
Tenant's reserved parking spaces nor will Landlord have liability
for non-Tenant use of Tenant's reserved parking area. Any signage
or enforcement policy proposed by Tenant as to its reserved parking
area is subject to Landlord's prior written consent, which will not
be unreasonably withheld.
1.11 Rent Payable by Tenant: See Exhibit "B" and Section III
1.12 Tenant's Proportionate Share: Fifty-Five percent (55%)
1.13 Riders to Lease: The following riders are attached to and made a
part of this Lease. (If none, so state) See attached Rider No. 1.
SECTION 2: LEASE OF PREMISES; RENT
2.1 LEASE OF PREMISES FOR LEASE TERM. (a) Landlord hereby leases the
Premises to Tenant, and Tenant hereby rents the Premises from Landlord, for the
Term and subject to the conditions of this Lease. Provided that no unwaived
default of Tenant has occurred under this Lease, Tenant shall have two (2)
consecutive options to renew the term of this Lease for a period of five (5)
years each. In order to exercise any such five (5) year renewal option, Tenant
must give Landlord written notice of such exercise at lease six (6) months and
not more than nine (9) months prior to the otherwise effective expiration date
of the Lease term. All of the provisions of this Lease shall apply and remain
effective during any renewal term, except that Base Rent shall be in the amounts
set forth in attached Exhibit B.
(b) Notwithstanding any other provision of this Lease to the
contrary, Tenant shall be permitted to take possession of only 50,000 square
feet of the Premises, as designated on attachment #2 to Exhibit A (the "Initial
Occupancy Area"), as of the Commencement Date; Tenant shall be permitted to take
possession of the balance of
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the Premises on May 1, 1997.
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 Section 3 below and other applicable
provisions of this Lease; and (c) in the event any monthly installment or other
required payment of Base Rent or Additional Rent, or both, is not paid within
ten (10) days of the date when due, a late charge in an amount equal to five
percent (5%) of the then-delinquent installment or payment of Base Rent and/or
Additional Rent (the "Late Charge"; the Late Charge, Base Rent and Additional
Rent shall collectively be referred to as "Rent"), 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, if any, and if
Landlord so appoints such a management agent, the "Agent"), or pursuant to such
other directions as Landlord shall designate in this Lease or otherwise.
2.3 COVENANTS CONCERNING RENTAL PAYMENTS. Tenant shall pay the Rent
promptly when due, without notice or demand, and without any abatement,
deduction or setoff, except as may otherwise be expressly and specifically
provided in this Lease. No payment by Tenant, or receipt or acceptance by Agent
or Landlord, of a lesser amount than the correct Rent shall be deemed to be
other than a payment on account, nor shall any endorsement or statement on any
check or 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 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.
SECTION 3: ADDITIONAL RENT
3.1 DEFINITIONAL TERMS RELATING TO ADDITIONAL RENT. For purposes of
this Section 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, including, without
limitation, the following: (i) all costs, wages and benefits of employees or
other agents of Landlord or Agent engaged in the operation, maintenance or
rendition of other services to or for the Property; (ii) to the extent not
separately metered, billed, or furnished, all charges for utilities and services
furnished to the Property (including, without limitation, the Common Areas [as
hereinafter defined]), 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; (iv) the cost of all supplies, tools, materials and equipment utilized
in the ownership and/or operation of the Property, and sales and other taxes
thereon; (v) amounts charged by contractors for services, materials and supplies
furnished in connection with the operation, replacement, repair and/or
maintenance of any part of the Property, including, without limitation, the
Common Areas; (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)
legal, accounting and other professional fees incurred in connection with the
operation, management and/or maintenance of the Property; (viii) Taxes, as
hereinafter defined; and (ix) all of the charges properly allocable to the
operation, maintenance or repair, replacement or restoration of the Property,
all in accordance with generally accepted accounting principles. The costs of
the following items shall be excluded from Tenant's share of the cost of
Operating Expenses:
1. Repairs or other work occasioned by (i) fire, windstorm or other
casualty of the type which Landlord has insured or is required under
this Lease to insure (excluding deductibles), or (ii) the exercise of
the right of eminent domain;
2. Leasing commissions, attorneys' fees, costs, disbursements and other
expenses incurred in connection with negotiations or disputes with
tenants, other occupants or, prospective tenants or other occupants,
or legal fees incurred in connection with this Lease;
3. Expenses incurred in tenant build-out, renovating or otherwise
improving or decorating, painting or redecorating space for tenants or
other occupants of vacant space (other than Common Areas);
4. Costs incurred by Landlord for alterations which are considered
capital improvements and replacements under generally accepted
accounting principles consistently applied;
5. All other costs of a capital nature including, but not limited to,
capital improvements, capital repairs, capital equipment and capital
tools all in conformity with generally accepted accounting principles
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consistently applied;
6. Costs incurred by Landlord due to violation by Landlord or any tenant
(other than Tenant) of the terms and conditions of any lease or other
rental arrangement covering space in the Property or Building;
7. Payment of principal and/or interest on debt or amortization payments
of any mortgage executed by Landlord covering the Property or Building
(or any portion thereof), rental concessions or negative cash flow
guaranties, and rental payments under any ground or underlying lease
or leases;
8. Advertising and promotional expenditures;
9. Any costs, fines or penalties incurred due to violations by Landlord
of any federal, state or local law, statute or ordinance, or any rule,
regulation, judgment or decree of any governmental rule or authority,
to the extent only that compliance therewith is the obligation of
Landlord under this Lease;
10. Any cost or expense associated with the removal or cleanup of any
hazardous or toxic waste, materials or substances from the Property or
Building caused by Landlord's or another Building tenant's acts; and
11. Amounts paid by Tenant as Additional Rent under clauses (ii) and (iii)
of the first sentence of Section 3.2 below.
(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 and Michigan Single
Business Tax), whether general, special, ordinary or extraordinary, due or
payable at any time or from time to time, during the Term and any extensions
thereof, in connection with the ownership, leasing, or operation of the
Property, 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 Property. For
purposes hereof, Taxes for any Operating Year shall be Taxes that are first due
for payment or paid in that Operating Year rather than Taxes that are assessed,
become a lien, or accrue during such Operating Year.
(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") (i) Tenant's Proportionate Share of the Operating
Expenses, (ii) one hundred percent (100%) of all costs and expenses incurred by
Landlord with respect to the repair, replacement, restoration and maintenance of
the "Improvements" (as that term is defined in Rider No. 1), including capital
improvements, capital repairs, and other costs considered to be capital in
nature (the "Improvements Maintenance Costs"), and (iii) one hundred percent
(100%) of the amount of all Taxes attributable or allocable to the
"Improvements" (the "Improvements Taxes"), all as set forth in Section 3.3. The
Additional Rent commences to accrue upon the Commencement Date; provided,
however, that for the period from April 1, 1997 through April 30, 1997, Tenant's
Proportionate Share shall be 20%, and for the period from May 1, 1997 through
the EARLIER of (a) July 31, 1997 or (b) the date a certificate of occupancy for
Tenant's newly constructed office area is issued, Tenant's Proportionate Share
shall be 50%. 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 the 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 Section 3 shall
survive the termination or expiration 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 delivers 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 is less than
Tenant's actual ultimate liability for Additional Rent for that particular
Operating Year, as determined pursuant to Section 3.2, Tenant shall pay the
deficiency within thirty (30) days of the delivery to Tenant of a statement
showing in reasonable detail the Operating Expenses, the Improvements
Maintenance Costs and the Improvements Taxes for such Operating Year together
with copies of applicable tax bills (the "Annual Additional Rent Statement").
Landlord shall make all reasonable effort to deliver the Annual Additional Rent
Statement to Tenant within 120 days after the end of each Operating Year during
the Term. If the aggregate amount of Estimated Additional Rent actually paid by
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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. Upon reasonable prior written notice
to Landlord, Tenant shall, at Tenant's sole expense, have the right to examine
Landlord's books and records pertaining to Operating Expenses, Improvements
Maintenance Costs and Improvements Taxes for the sole purpose of determining
whether Landlord has properly invoiced Tenant for Additional Rent under this
Lease.
3.4 INITIAL OPERATING EXPENSE ESTIMATE. Landlord hereby notifies
Tenant that Landlord's initial estimate of Additional Rent for the first
Operating Year is $75,900.00; therefore, during the first Operating Year,
$6,325.00 shall be due monthly as initial Estimated Additional Rent.
SECTION 4: USE OF PREMISES AND COMMON AREAS; SECURITY DEPOSIT
4.1 USE OF PREMISES. The Premises shall be used for the purpose(s)
set forth in Section 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 or
the Property; (b) cause, or be liable to cause, injury to 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 Property; (d) impair or tend to impair the
character, reputation or appearance of the Property as a first-class property;
(e) impair or tend to impair the proper and economic maintenance, operation, and
repair of the Property and/or its equipment, facilities or systems; or (f)
unreasonably annoy, inconvenience or disrupt the operations or tenancies of
other tenants or users of the Property, if any, or conflict with other tenants'
leases. Landlord represents to Tenant that, to the best of Landlord's
knowledge, the permitted uses specified in Section 1.6 do not violate the
existing Certificate of Occupancy for the Premises.
4.2 USE OF COMMON AREAS. As used herein, "Common Areas" shall mean
all areas within the Property that are available for the common use of tenants
of the Property and that 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. 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 and
nondiscriminatory rules and regulations as Landlord may establish from time to
time. Tenant shall not interfere with the rights of Landlord, other tenants or
any other person entitled to use the Common Areas. Landlord, from time to
time, may change any or all of the size, location, nature and use of any of the
Common Areas although such changes may result in inconvenience to Tenant, so
long as such changes do not materially and adversely affect Tenant's use of the
Property. In addition to the foregoing, Landlord may, at any time, temporarily
close or suspend access to any Common Areas to perform any acts in the Common
Areas as, in Landlord's reasonable judgment, are desirable to improve or
maintain the Premises or Property or are required in order to satisfy Landlord's
obligations under either or both of Sections 13.2 and 18, provided such does not
permanently deny Tenant ingress to or egress from the Premises or result in
Tenant having access to less than 160 parking spaces on the Property.
4.3 SIGNAGE. Tenant shall not affix any sign of any size or
character to any portion of the Property, without prior written approval of
Landlord, which approval shall not be unreasonably withheld or delayed. Tenant
shall remove all signs of Tenant upon the expiration or earlier termination of
this Lease and immediately repair any damage to the Property caused by, or
resulting from, such removal.
4.4 SECURITY DEPOSIT. Intentionally deleted.
SECTION 5: CONDITION AND DELIVERY OF PREMISES
5.1 CONDITION OF PREMISES. Tenant agrees that Tenant is familiar
with the condition of the Premises and the Property and (except only for
completion by Landlord of the Work Items) 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 (except as may be specifically provided in this
Lease) 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 (whether structural or otherwise) of any kind or
nature to the foregoing in connection with, or in
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consideration of, this Lease, except (a) as set forth in Sections 13.2 and 18,
and (b) 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.
Tenant shall have thirty (30) days after completion of the Work Items to object
in writing to Landlord's completion of same; if objection is not timely made,
Tenant shall be deemed to have accepted the Work Items on an "as-is", "where-is"
basis.
5.2 DELAY IN COMMENCEMENT. If possession of the Premises as
specified in Section 2.1(b) is not delivered to Tenant on a timely basis, Tenant
shall (as its sole remedy therefor) have the right to terminate this Lease by
giving written notice thereof to Landlord within fifteen (15) days after
possession was due. If not so terminated, 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.
SECTION 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 or deeds of trust (all
of which are hereafter referred to collectively as "Mortgages"), that may now or
hereafter affect or encumber all or any portion of Landlord's interest in the
Property. 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. This Section 6.1 shall be self-operative and no further instrument
of subordination shall be required; however, in confirmation of such
subordination, Tenant shall from time to time execute, acknowledge and deliver
any instrument that Landlord may from time to time reasonably require in order
to evidence or confirm such subordination. If Tenant fails to execute,
acknowledge or deliver any such instrument within twenty (20) days after request
therefor, Tenant will be in default under this Lease. Tenant acknowledges that
this Lease may have 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, this Lease may be made senior to the lien of any
Superior Mortgage, if and only if the Superior Mortgagee thereunder so requests.
Notwithstanding the foregoing to the contrary, (i) Landlord will use
commercially reasonable efforts to obtain a non-disturbance agreement in favor
of Tenant from Landlord's existing mortgagee of the Property, and (ii) as a
condition to Tenant subordinating its interest under this Lease to any future
mortgage, Landlord shall obtain a non-disturbance agreement in favor of Tenant,
the substance of which shall be subject to Tenant's reasonable approval.
6.2 NOTICE IN THE EVENT OF DEFAULT. In the event that Landlord
breaches or otherwise fails to timely perform any of its obligations under this
Lease, Tenant shall give written notice of such alleged breach or default to
Landlord and to each Superior Mortgagee and Superior Lessor whose name and
address shall previously have been furnished, in writing, to Tenant, whereupon
any or all of Landlord, a Superior Mortgagee or Superior Lessor may remedy or
cure such breach or default within thirty (30) days following the giving of such
notice; provided, however, that such thirty (30)-day cure period shall be
automatically extended in the event that the breach or default 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 such
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, provided that the
Successor Landlord agrees in writing to recognize this Lease and not to disturb
Tenant's possession of the Premises so long as Tenant is not in default under
this Lease. Tenant hereby acknowledges that in the event of such succession,
then from and after the date on which the Successor Landlord acquires Landlord'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
if and to the extent that such act, omission or default occurs prior to the
Succession Date; (b) except as required under Sections 13.2 and 18 of this
Lease, 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
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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 Rent (as provided in Sections 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 Rent made prior to
the calendar month in which the Succession Date occurs, nor by any Security that
is not actually delivered to, and received by, the Successor Landlord.
Notwithstanding the foregoing provisions of this Section 6.3 to the contrary, a
Successor Landlord shall have liability for completion of the Work Items in
accordance with Section 5.1 and the payment to Tenant of the Construction
Allowance in accordance with Rider No. 1, to the extent Landlord has not done so
prior to the Succession Date.
SECTION 7: QUIET ENJOYMENT
Subject to the provisions of this Lease, so long as Tenant duly pays all of
the Rent and duly 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. This covenant shall
be construed as a covenant running with the Property and is not a personal
covenant of Landlord.
SECTION 8: ASSIGNMENT, SUBLETTING AND MORTGAGING
8.1 PROHIBITION. Tenant acknowledges that this Lease and the Rent
due under this Lease have been agreed to by Landlord in reliance upon Tenant's
reputation and creditworthiness and upon the continued operation of the Premises
by Tenant for the particular use set forth in Section 4 above; 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 as to (a) and (b)
shall not be unreasonably withheld and as to (c) may be given or withheld in
Landlord's sole and absolute discretion. Any purported assignment, mortgage,
transfer, pledge or sublease made without the prior written consent of Landlord
shall be absolutely null and void and of no legal force and effect. No
assignment of this Lease shall be effective and valid unless and until the
assignee executes and delivers to Landlord any and all documentation reasonably
required by Landlord in order to evidence assignee's assumption of all
obligations of Tenant hereunder. 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. Any consent by Landlord to any
assignment or sublease shall not be deemed to release Tenant from its
obligations hereunder and Tenant shall remain fully liable for performance of
all obligations under this Lease. In the event that Landlord elects to reject
any proposed sublease or assignment, the Tenant's sole and exclusive remedy
shall be to seek a declaratory judgment against Landlord so as to enable Tenant
to avoid a termination of this Lease. Any violation of the provisions of this
Section 8.1 shall constitute a default under this Lease.
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 and without being deemed to have
consented thereto), collect Rent from the assignee, subtenant or occupant.
Landlord or Agent may apply the net amount collected to the Rent herein
reserved, but no such assignment, subletting, occupancy or collection shall be
deemed a waiver of any of the provisions of this Section 8. 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 Landlord fifty
percent (50%) of such excess as received from any subtenant and such amount
shall be deemed a component of the Additional Rent under this Lease.
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), 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 such 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
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Landlord any and all documentation reasonably required by Landlord in order to
evidence assignee's assumption of all obligations of Tenant hereunder.
Notwithstanding the foregoing to the contrary, any sale, transfer or issuance of
voting capital stock of Tenant not in connection with a merger, consolidation or
asset transfer shall not be deemed an assignment of this Lease.
SECTION 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
Commencement Date, 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
Section.
SECTION 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
any or all of the Property, 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 and the property therein, in amounts reasonably satisfactory to
Landlord; or (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 and the property therein.
10.2 INSURANCE TO BE MAINTAINED BY TENANT. Tenant shall, at its sole
cost and expense, at all times during the Term and any extensions thereof (plus
any period beyond the Expiration Date of the Lease term that Tenant remains in
possession of the Premises), 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 10.2, 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.
10.3 INSURANCE TO BE MAINTAINED BY LANDLORD. Landlord shall maintain
(a) "All-risk" property insurance covering the Property (at its replacement
cost), but excluding Tenant's Property, and (b) commercial general public
liability insurance covering Landlord for claims arising out of liability for
bodily injury, death, personal injury, advertising injury and property damage
occurring in and about the Property and otherwise resulting from any acts and
operations of Landlord, its agents and employees, each of the above with limits
that are required by any lender(s) of Landlord, or as are otherwise reasonably
determined by Landlord (collectively, "Landlord's Policies").
10.4 MUTUAL WAIVER OF SUBROGATION. 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,
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 and to
the extent that any such loss or damage would be covered by insurance that the
party suffering the loss is required to maintain pursuant to the terms of this
Lease. 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 or right of recovery. The waiver
of right of recover set forth above in this Section 10.4 shall extend to
Landlord, Agent, Tenant, and their respective agents and employees.
SECTION 11: ALTERATIONS
11.1 PROCEDURAL REQUIREMENTS. Tenant may, from time to time, at its
expense, make alterations or improvements in and to the Premises (hereinafter
collectively referred to as "Alterations"), provided that Tenant first obtains
the written consent of Landlord in each instance, except that no written consent
will be required for
Page 8
nonstructural alterations not requiring any roof or wall penetrations the cost
for which does not exceed $25,000 in any one instance, and up to a maximum cost
of $75,000 in any one calendar year. Landlord's consent to Alterations shall
not be unreasonably withheld, provided that: (a) the Alterations are non-
structural and the structural integrity of the Property shall not be affected;
(b) the Alterations are to the interior of the Premises; (c) the proper
functioning of the mechanical, electrical, heating, ventilating, air-
conditioning ("HVAC"), sanitary and other service systems of the Property shall
not be affected and the usage of such systems by Tenant shall not be increased;
(d) the Alterations have no effect on other leased premises in the Property; (e)
Tenant shall have appropriate insurance coverage reasonably satisfactory to
Landlord regarding the performance and installation of the Alterations; (f) the
Alterations shall conform with all other requirements of this Lease; and (g)
Tenant shall have provided Landlord with detailed plans (the "Plans") for such
Alterations in advance of requesting Landlord's consent. Additionally, after
obtaining Landlord's preliminary consent to the Plans, but before proceeding
with any Alterations, Tenant shall, at its expense, obtain all necessary
governmental permits and certificates for the commencement and prosecution of
Alterations and shall submit to Agent, for Landlord's written approval, working
drawings, plans and specifications and all permits for the work to be done and
Tenant shall not proceed with such Alterations until it has received said
approval. Tenant shall give Landlord at least twenty (20) days' prior written
notice of the commencement of any Alterations at the Premises, and Landlord may
elect to record and post notices of non-responsibility at the Premises.
11.2 PERFORMANCE OF ALTERATIONS. Tenant shall cause the Alterations
to be performed in compliance with all applicable permits, laws and requirements
of public authorities, and with Landlord's reasonable and nondiscriminatory
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 Property established
by Landlord or Agent. 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 Property. Tenant shall obtain all necessary permits and certificates for
final governmental approval of the Alterations and 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. Upon
completion of any Alterations, Tenant shall provide Landlord with a schematic
drawing incorporating the Alterations into the Premises and, if required, a new
or amended certificate of occupancy for the Premises.
11.3 LIEN PROHIBITION. Tenant shall pay when due all claims for labor
and material furnished to the Premises in connection with the Alterations.
Tenant shall not permit any mechanics or materialmen's liens to attach to the
Premises, the Property, or Tenant's leasehold estate. Tenant, at its expense,
shall procure the satisfaction or discharge of record (or shall bond over such
liens pursuant to statute) of all such liens and encumbrances within thirty (30)
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, on demand, for all costs and expenses
incurred in connection therewith, together with interest thereon at the rate set
forth in Section 22.3 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 or the
Property. Any sums due from Tenant pursuant to the preceding sentence shall
constitute Additional Rent under this Lease.
SECTION 12: LANDLORD'S AND TENANT'S PROPERTY
12.1 LANDLORD'S PROPERTY. Subject to Section 12.2 below, all
fixtures, machinery, equipment, improvements and appurtenances attached 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 become 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, 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 (other than Tenant's backup
generators), 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, including Tenant's
distribution equipment, satellite dish, backup generators, 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 Property, 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
Page 9
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
Property 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 Property resulting from any installation and/or removal of
Tenant's Property (reasonable and normal wear and tear excepted). 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.
SECTION 13: REPAIRS AND MAINTENANCE
13.1 TENANT REPAIRS AND MAINTENANCE. Except only for repairs required
as a result of the negligent acts or omissions of Landlord or its agents,
employees or contractors while on the Property, Tenant shall, at its expense,
throughout the Term, maintain and preserve, in first-class condition, the
Premises and the fixtures and appurtenances therein (including, but not limited
to, the Premises' plumbing and HVAC systems, and excluding, however, those
components of the Premises for which Landlord is expressly responsible under
Section 13.2). Tenant shall enter into a preventative maintenance and service
contract with a reputable service provider for maintenance of the HVAC systems
of the Premises. Tenant shall also be responsible for all repairs and
replacements (whether structural or non-structural; interior or exterior; and
ordinary or extraordinary), in and to the Premises and the Property 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 Property, 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. Without limiting the generality of the
foregoing, except only for reasonable and normal wear and tear and repairs
required as a result of the negligent acts or omissions of Landlord or its
agents, employees or contractors while on the Property, 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. Any repairs or
replacements required to be made by Tenant to the mechanical, electrical,
sanitary, HVAC, or other systems of the Premises shall be performed by
appropriately licensed contractors. 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 and interior load-
bearing walls, roof structure and roof covering and tuckpointing of the Property
(the cost for which shall be an Operating Expense under this Lease provided it
is a noncapital expenditure); 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) [collectively, "Tenant
Necessitated Repairs"], and provided further that Tenant fails to commence or
complete such repairs, replacements or restorations within 30 days after notice
from Landlord or if Tenant fails to diligently pursue the completion of such
repairs, replacements or restoration, then Tenant shall be required to reimburse
Landlord for all costs and expenses that Landlord incurs in order to perform
such Tenant Necessitated Repairs, 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
Section 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 Property 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.
SECTION 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. Unless expressly provided to the contrary in this Lease,
Tenant shall be solely
Page 10
responsible for the installation, repair, maintenance and replacement of any
meters necessary in connection with such services. Tenant shall pay when due
all charges for utility services billed or metered directly to the Premises;
provided, however, for the month of April, 1997, Tenant shall be directly
responsible for paying that percentage of the gas and electric utility charges
directly metered to the 100,000 square foot suite in which the Initial Occupancy
Area is located as is determined by the following formula: (50,000 SF minus new
mezzanine office area SF) divided by 100,000 SF; and provided, further, however,
that from May 1, 1997 until the date the Premises are separately metered as a
single unit for gas and electric utility service, Tenant shall be directly
responsible for paying all gas and electric utility charges directly metered to
the 100,000 square foot suite in which the Initial Occupancy Area is located.
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 either or
both of (i) any of the electrical conductors and equipment in or otherwise
servicing the Premises; and (ii) the Property's HVAC systems.
SECTION 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
HVAC, electric, sanitary, elevator (if any), or other 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 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 Rent.
SECTION 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 during business hours and
upon twenty four (24) hours notice to Tenant (except that no notice will be
required in the case of an emergency) (a) to examine and inspect the Premises
and to show them to actual and prospective Superior Parties or prospective
purchasers or mortgagees of the Property or providers of capital to Landlord and
its affiliates and all consultants and advisors relating thereto; and (b) to
make such repairs, alterations, additions and improvements in or to the Premises
and/or the Property or its facilities and equipment as Landlord is required or
desires to make. Landlord and Agent shall be allowed to take all materials into
and upon the Premises that may be required in connection with any repairs,
alterations, additions or improvements, 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 or is otherwise in
default under this Lease), Landlord and its agents may exhibit the Premises to
prospective tenants. In the exercise of each of the foregoing rights, Landlord
shall give Tenant reasonable prior notice of its entry, except in the case of
emergency. Nothing set forth above implies obligations of improvement beyond
the Work Items per EXHIBIT C.
16.2 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 or dispose of the Property, 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 for more than thirty (30) days or with no
intention of reoccupying the Premises. Notwithstanding any provision to the
contrary in this Section 16, if the work performed or actions taken by Landlord
under this Section 16 render the Premises untenantable, then Base Rent and
Additional Rent will be abated until such time as the Premises are again made
tenantable.
SECTION 17: NON-LIABILITY AND INDEMNIFICATION
17.1 NON-LIABILITY. Except as provided in this Lease, none of
Landlord, Agent, any other managing agent, Superior Parties, or their respective
affiliates, owners, partners, directors, officers, agents and employees
(collectively, "Landlord Affiliates") 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. Further,
none of Landlord, Agent, any other managing agent, Superior Parties, or their
respective partners, directors, officers, agents and
Page 11
employees shall be liable (a) for any such damage caused by other tenants or
persons in, upon or about 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; provided,
however, that in any event for which insurance coverage is available through the
insurance policies that Landlord is required to maintain pursuant to Section
10.3 ("Landlord's Policies"), Landlord hereby covenants and agrees that it shall
file an insurance claim and pursue the processing of that claim and the payment
of the applicable insurance proceeds with due diligence and in good faith.
17.2 TENANT INDEMNIFICATION. (a) Except only for the negligent acts
or omissions of Landlord or its agents, employees or contractors while on the
Property, 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
(except only for work performed by Landlord); (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 (collectively, "Tenant's Indemnified Matters"). 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.
(b) Landlord agrees to indemnify, defend and hold Tenant harmless
from and against all claims, demands and suits at law and in equity (excluding
consequential and exemplary damages, but including reasonable attorneys' fees
and court costs), resulting from the negligent acts or omissions of Landlord or
its agents, employees or contractors while on the Property.
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 Property, beyond Landlord's
reasonable control. Unless caused by the negligent acts or omissions of
Landlord or its agents, employees or contractors while on the Property, Tenant
shall not hold Landlord or Agent liable for any latent defect in the Premises or
the Property, 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 Property, or from the pipes, appliances or plumbing work of
the same, nor 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. 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.
SECTION 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 or the Property for which
Landlord or Agent might be liable, (b) any fire or other casualty to the
Premises or the Property, (c) any damage to, or defect in, the Premises 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 Property's
sanitary, electrical, HVAC, elevator or other systems located in or passing
through the Premises or any
Page 12
part thereof.
18.2 REPAIR PROVISIONS. Subject to the provisions of Section 18.4
below, if the Property or the Premises are damaged by fire or other insured
casualty, Landlord shall repair or cause Agent to repair the damage and restore
and rebuild the Property 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 Property 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 in the amount of any rent loss insurance
proceeds actually collected by Landlord on account of such damage.
18.4 TOTAL DESTRUCTION. If the Property or the Premises shall be
totally destroyed by fire or other casualty, or if the Property 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 Property immediately prior to the casualty or (iii) the damage is less than
the amount stated in (ii) above and materially and adversely affects Tenant's
operations at the Premises but occurs during the last year of Lease Term,
Landlord and Tenant shall each have the option to terminate this Lease within
five (5) days after the contractor or architect delivers 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 Property by Landlord. In such event, the
termination shall be effective as of the 180th date after the date on which the
casualty occurs. For 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 Property pursuant to this Section. 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 Section, 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 or
destruction of the Premises or the Property by fire or other casualty (the
"Insurance Proceeds"), 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, if and to
the extent that, as a result of or due to or because of any act or omission by
any or all of Tenant, its agents, employees, invitees and representatives,
Landlord, any Superior Party or any other appropriate party is unable to collect
all of the Insurance Proceeds, then Tenant shall be liable to Landlord for the
payment of an amount equal to that portion of the Insurance Proceeds that
Landlord, any Superior Party or any other appropriate party is unable to
collect.
SECTION 19: EMINENT DOMAIN
19.1 TOTAL CONDEMNATION. If, in Landlord's reasonable opinion, the
whole of the Property or the Premises, or if any part of 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
Page 13
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.
Notwithstanding the foregoing provisions of this Section 19.3 to the contrary,
if the temporary use is in excess of 90 days, then Tenant will within 30 days
thereafter have the option to terminate this Lease upon at least 30 days'
advance written notice to Landlord.
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
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 Property 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 Property 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 the date, if
any, on which the partial taking terminates and the Premises have been restored
in accordance with the terms of this Lease.
SECTION 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, (a) 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 (b) Tenant shall
remove all of Tenant's Property therefrom, except as otherwise expressly
provided in this Lease. The obligations imposed under the preceding sentence
shall survive the termination or expiration of 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 immediately (or any longer period specified by
Landlord in the notice) terminated by written notice from Landlord. The
provisions of this Section 20 shall not constitute a waiver by Landlord of any
re-entry rights of Landlord provided hereunder or by law.
SECTION 21: EVENTS OF DEFAULT
21.1 BANKRUPTCY OF TENANT. It shall be a default by Tenant under this
Lease if Tenant makes an assignment for the benefit of creditors, or files a
voluntary petition under any state or federal bankruptcy or insolvency law, or
an involuntary petition is filed against Tenant under any state or federal
bankruptcy or insolvency law and is not discharged within 60 days after filing,
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 its debts as they mature.
21.2 DEFAULT PROVISIONS. Each of the following shall constitute a
default by Tenant under this Lease: (a) if Tenant fails to pay Rent or any other
payment within seven (7) days of the date when due hereunder (provided, however,
that for the first occurrence within any period of twelve (12) consecutive
months of a failure by Tenant to pay Rent or another payment under this Lease on
or before the due date therefor as specified in this Lease, Tenant
Page 14
will not be in default under this Lease unless Tenant's failure to pay such Rent
or other payment continues for more than seven (7) days after written notice of
the failure is given to Tenant); or (b) if Tenant fails, whether by action or
inaction, to timely comply with, or satisfy, any or all of the obligations
imposed on Tenant under this Lease for a period of thirty (30) days after
Landlord's delivery to Tenant of written notice of such default under this
subsection 21.2(b); provided, however, that if the default cannot, by its
nature, be cured within such thirty (30) day period, but Tenant commences and
diligently pursues a cure of such default promptly within the initial thirty
(30) day cure period, then Landlord shall not exercise its remedies under
Section 22 unless such default remains uncured for more than sixty (60) days
after Landlord's initial delivery to Tenant of notice of such default.
SECTION 22: RIGHTS AND REMEDIES
22.1 LANDLORD'S CURE 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 upon
compliance with any notice requirements and cure periods set forth in Subsection
21.2.
22.2 LANDLORD'S REMEDIES. In the event of any default by Tenant under
this Lease, Landlord, at its option, and after the proper notice and cure
period, if any, as provided in Section 21.2 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 (discounted to present value if recovered and paid in a single lump sum),
and all Landlord's expenses of reletting the Premises (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
(discounted to present value if recovered and paid in a single lump sum), 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 22.2, 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 Section 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 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 at Landlord's option be conclusively
presumed to have been conveyed by Tenant to Landlord under this Lease as in a
xxxx of sale. If Landlord elects such option, then Landlord agrees to use
commercially reasonable efforts to sell such property of Tenant (either by
public or private sale), and the net proceeds realized from the sale (after
deducting Landlord's costs and expenses of storage and of organizing,
advertising and completing the sale) shall be applied against the sums owing by
Tenant to Landlord under this Lease. Tenant agrees to sign such instruments of
conveyance as may be necessary to complete any such sale(s), notwithstanding
that all of Tenant's rights to and interests in such property will conclusively
Page 15
be deemed to have been conveyed to Landlord by the express terms of this Lease.
22.3 ADDITIONAL RIGHTS OF LANDLORD. Any and all costs, expenses
and disbursements, of any kind or nature, incurred by Landlord or Agent in
connection with the enforcement of any and all of the terms and provisions of
this Lease, including reasonable attorneys' fees (through all appellate
proceedings), shall be due and payable (as Additional Rent) upon Landlord's
submission of an invoice therefor. All sums advanced by Landlord or Agent on
account of Tenant under this Section, 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 within seven (7) days of the date when due
hereunder, shall bear interest at the rate of three percent (3%) 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. 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 by 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.
22.4 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:
(a) "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.
(b) 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.
(c) 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.
(d) 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.
SECTION 23: BROKER
Tenant covenants, warrants and represents that the broker set forth in
Section 1.8(A) was the only broker to represent Tenant in the negotiation of
this Lease ("Tenant's Broker"). Landlord covenants, warrants and represents
that the broker set forth in Section 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 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,
Page 16
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.
SECTION 24: ESTOPPEL CERTIFICATES
Tenant shall, from time to time and within twenty (20) 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.
SECTION 25: HAZARDOUS SUBSTANCES
25.1 DEFINITIONS. For purposes of this Section 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., applicable state or local law, 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: (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 Section 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 or any portion of the Property, of any hazardous substance without
prior written authorization by Landlord (and then only to the extent
specifically authorized 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 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 Property,
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 Property. 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, or on or in any portion of the Property: (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 and CERCLA; (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 or any portion of the Property, 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 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,
Page 17
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 or any portion thereof.
25.4 REMEDIAL ACTION. If the presence, release, threat of release,
placement on or in the Property or any portion thereof, or the generation,
transportation, storage, use, treatment, or disposal at the Property or any
portion thereof of any hazardous substance by (or under the direction,
supervision or control of) Tenant or any parent, subsidiary, affiliate, agent,
employee, representative, customer, supplier, invitee, licensee, contractor,
subcontractor, assignee or subtenant of Tenant: (i) gives rise to liability
(including, but not limited to, a response action, remedial action, or removal
action) under RCRA, CERCLA, any state or local law, rule or statute, 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 or any
portion thereof, and mitigate exposure to liability arising from the hazardous
substance, regardless of whether required by law.
25.5 INDEMNITY AND RELEASE. 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 Section 25 (collectively, "Tenant's Indemnification
Obligations"). Tenant's Indemnification Obligations shall survive in perpetuity
with respect to any Landlord's Environmental Liability. The foregoing indemnity
and Tenant's other obligations under this Section 25 shall survive the
expiration or termination of this Lease for any reason.
25.6 LANDLORD'S INDEMNITY. Landlord shall and hereby does defend,
indemnify, and hold Tenant harmless from and against any and all expenses,
losses and liabilities incurred by Tenant (with the exception of consequential
and exemplary damages and those expenses, losses, and liabilities arising from
Tenant's own acts or omissions or the acts or omissions of any parent,
subsidiary, affiliate, customer, licensee, invitee, agent, employee,
representative, supplier, contractor, subcontractor, assignee or subtenant of
Tenant or anyone acting under their direction, supervision or control), by
reason of Landlord's storage, generation, handling, treatment, transportation,
disposal, or arrangement for transportation or disposal of any hazardous
substance (whether accidental, intentional, or negligent) at or from the
Premises. Tenant shall promptly notify Landlord of any action or investigation
under which the foregoing indemnity may arise and shall consult and cooperate
with Landlord during the pendency of any proceeding, investigation or
remediation related thereto. Landlord shall assume the defense of any such
discretion with regard to selection of counsel and all aspects of the action,
investigation, proceeding and remediation. The indemnity contained in this
Section 25.6 shall survive the termination or expiration of this Lease.
SECTION 26: MISCELLANEOUS
26.1 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.
26.2 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, or if sent by
Federal Express or other comparable commercial overnight delivery service,
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 given, rendered or made on the
day so delivered or on the first business day after having been deposited with
the courier service:
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 Xxxxxxxxx and Xxxxxxx Xxxxxxxx-Xxxxx
If to Tenant: On and after August 1, 1997 Prior to August 1, 1997
--------------------------- -----------------------
Gantos, Inc. Gantos, Inc.
0000 Xxxxx Xxxxxx, X.X. 0000 Xxxxxxxxx, X.X.
Xxxxx Xxxxxx, Xxxxxxxx 00000 Xxxxx Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxx Attn: Xxxxxxx Xxxxx
Page 18
26.3 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 knowledge of breach by
Tenant of any obligation of this Lease shall not be deemed a waiver of such
breach.
26.4 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. 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.
26.5 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 Property. 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.
26.6 RECORDATION OF LEASE. Tenant shall not record or file this Lease
(or any memorandum hereof) in the public records of any county or state.
26.7 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 Sections 3, 12, 17, 20, 23
and 25 shall survive any termination of this Lease.
26.8 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.
26.9 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.
26.10 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.
26.11 JOINT AND SEVERAL LIABILITY. All parties signing this Lease as
Tenant shall be jointly and severally liable for all obligations of Tenant
hereunder.
26.12 COUNTERPART EXECUTION. This Lease may be executed in counterpart
and, when all counterpart documents are executed, the counterparts shall
constitute a single binding instrument.
26.13 RIDERS. All Riders and Exhibits attached hereto and executed (or
initialed) both by Landlord
Page 19
and Tenant shall be deemed to be a part hereof and hereby incorporated herein.
26.14 SATELLITE DISH/BACKUP GENERATOR. Tenant shall be permitted at
its sole cost and expense to (i) place on the Building roof a satellite dish or
antenna for Tenant's business communication and data processing requirements,
and (ii) place on the Property a backup generator, provided that (w) Landlord
shall have the right to dictate the placement of both the satellite dish (or
antenna) and the generator, (x) Tenant shall at its sole expense comply with all
laws, rules, regulations and ordinances relating to the ownership, existence,
use and operation thereof, (y) Tenant shall first provide to Landlord
information as to the weight and method of installation of the satellite dish
(or antenna), which are subject to Landlord's prior approval (such approval not
to be unreasonably withheld), and (z) such items shall be deemed to be "Tenant's
Property" under this Lease.
26.15 WAIVER OF TRIAL BY JURY. THE LANDLORD AND THE TENANT, TO THE
FULLEST EXTENT THAT THEY MAY LAWFULLY DO SO, HEREBY WAIVE TRIAL BY JURY IN ANY
ACTION OR PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY COURT ACTION, BROUGHT
TO ANY PARTY TO THIS LEASE WITH RESPECT TO THIS LEASE, THE PREMISES, OR ANY
OTHER MATTER RELATED TO THIS LEASE OR THE PREMISES.
Page 20
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
By:
------------------------------------------
Xxxxx X. Draft, Signing Officer
TENANT:
GANTOS, INC., a Michigan corporation
By:
------------------------------------------
Its:
------------------------------------------
Page 21
LEASE EXHIBIT A
Premises: Approximately 110,000 rentable square feet in the building
commonly known as 0000 Xxxxx Xxxxxx, X.X., Xxxxx Xxxxxx,
Xxxxxxxx.
Property: See legal description attached hereto.
Page 22
LEASE EXHIBIT B
BASE RENT PAYMENTS
1. Total Base Rent during the initial Term equal to $1,925,016 shall be due
and payable in monthly installments as follows:
Period Monthly Installment
------ -------------------
4/1/97 - 7/31/97 $ 0.00
8/1/97 - 7/31/98 $30,250
8/1/98 - 7/31/00 $31,625
8/1/00 - 7/31/02 $33,459
2. Total Base Rent equal to $2,172,510 shall be due for the first five (5)
year renewal Term, payable in monthly installments as follows:
Period Monthly Installment
------ -------------------
8/1/02 - 1/31/05 $35,292
2/1/05 - 7/31/07 $37,125
3. Total Base Rent equal to $2,392,530 shall be due for the second five (5)
year renewal Term, payable in monthly installments as follows:
Period Monthly Installment
------ -------------------
8/1/07 - 1/31/10 $38,959
2/1/10 - 7/31/12 $40,792
Page 23
LEASE EXHIBIT C
LANDLORD'S REPAIRS AND IMPROVEMENTS
1. Replace all twelve (12) dock seals.
2. Separately meter gas and electric utility service to the Premises.
3. Construct a drywall wall separating the Premises from other portions of the
Building.
4. Remove the existing wall separating the front 50,000 SF of the Premises
from the back 60,000 SF of the Premises.
Items 1-3 to be completed by July 31, 1997.
Item 4 to be completed by May 15, 1997.
Page 24
LEASE EXHIBIT D
REQUIRED INSURANCE
(a) "ALL-RISK" PROPERTY AND LOSS OF INCOME COVERAGE FOR TENANT'S
PROPERTY. "All Risk" (i) property insurance on a replacement cost basis,
covering all of Tenant's Property (as defined in Section 12.2 of this Lease),
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
$50,000.00 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) (as
to the coverage in clause (ii) only) or additional insured(s), as appropriate.
(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 Property 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 applicable statutory limits. Tenant shall have the right to self-insure
for workers' compensation claims if permitted by the State of Michigan and other
governmental agencies and authorities having jurisdiction.
(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 Property; or (ii) 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 having an A.M. Best Co. rating of A+ or better; (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; and (iii) be
deemed to be primary insurance in relation to any other insurance maintained by
Landlord or Agent.
Page 25
RIDER NO. 1
[Lease dated January _____, 1997 between
First Industrial Financing Partnership, L.P.and Gantos, Inc.]
Landlord consents to (but does not require) Tenant's improvement of the Premises
as follows (the "Improvements"):
1. Construct a maximum of 25,000 square feet of mezzanined office area, that
will include a minimum of 10,000 square feet of finished office area on the
ground level.
2. Modify the existing Premises lighting and electrical systems to accommodate
800-1,000 amp service and increase the lighting level to 50 ft candles 3'
AFF upon initial occupancy.
3. Install (if necessary) two (2) openings and any concrete pads in the space
for trash compactors in north wall.
4. Construct or modify restrooms to accommodate 90 employees.
5. At Tenant's election, provide additional paved parking area on the Property
to accommodate Tenant's need for approximately 160 paved parking spaces.
All Improvements shall be constructed and coordinated solely by Tenant on a lien
free basis using new materials, and in accordance with plans, specifications and
standards approved by Landlord. All plans and specifications, as well as the
Improvements, shall comply with applicable building and construction codes,
zoning ordinances, ADA requirements, and other applicable laws, statutes, codes
and regulations. If any are started, all Improvements must be completed by
Tenant no later than July 31, 1997 (increased by any delay in the delivery of
possession to Tenant under Section 2.1(b)). Tenant shall be solely responsible
for obtaining a certificate of occupancy for the Improvements, and shall observe
and comply with all applicable provisions of the Michigan Construction Lien Act.
Landlord agrees to pay to Tenant a Construction Allowance to offset the total
hard and soft costs incurred to design and construct the Improvements; Tenant is
solely liable and responsible for directly paying all costs (whether hard or
soft) incurred in connection with the design and construction of the
Improvements. For purposes of this Lease, the Improvements shall be treated as
"Alterations". Tenant shall furnish to Landlord such information and evidence
as Landlord may reasonably request from time to time to enable Landlord to
monitor construction of the Improvements and determine Tenant's compliance with
the provisions of this Rider. Within 20 days after Landlord's receipt of (i)
full and unconditional final lien waivers, (ii) a final contractor's sworn
statement, (iii) a certificate of completion for the Improvements signed by
Tenant's architect, and (iv) a certificate of occupancy for the Improvements,
Landlord shall pay the $250,000 Construction Allowance to Tenant.
