Exhibit 10.12
INDUSTRIAL BUILDING LEASE
TABLE OF CONTENTS
Page
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ARTICLE 1 - Grant of Leased Premises 1
ARTICLE 2 - Term; Possession 1
ARTICLE 3 - Base Rent 1
ARTICLE 4 - Additional Rent 2
ARTICLE 5 - Premises 4
ARTICLE 6 - Utilities and Services 5
ARTICLE 7 - Condition and Care of Premises 5
ARTICLE 8 - Return of Premises 7
ARTICLE 9 - Holding Over 8
ARTICLE 10 - Rules and Regulations 8
ARTICLE 11 - Rights Reserved to Landlord 8
ARTICLE 12 - Alterations 9
ARTICLE 13 - Assignment and Subletting 10
ARTICLE 14 - Waiver of Certain Claims; Indemnity 14
ARTICLE 15 - Damage or Destruction by Casualty 14
ARTICLE 16 - Eminent Domain 16
ARTICLE 17 - Default 16
ARTICLE 18 - Subordination 23
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ARTICLE 19 - Mortgagee Protection 25
ARTICLE 20 - Estoppel Certificate 25
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TABLE OF CONTENTS
(continued)
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ARTICLE 21 - Subrogation and Insurance 26
ARTICLE 22 - Nonwaiver 28
ARTICLE 23 - Due Authority 28
ARTICLE 24 - Notices 28
ARTICLE 25 - Hazardous Substances 29
ARTICLE 26 - Tenant Signage 32
ARTICLE 27 - Title and Covenant Against Liens 33
ARTICLE 28 - Miscellaneous 33
ARTICLE 29 - Exculpatory Provisions 36
Exhibit
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Leased Premises A
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INDUSTRIAL BUILDING LEASE
THIS INDUSTRIAL BUILDING LEASE (this "Lease"), is made this 4th day of
January, 1999, by and between LAUREL LIMITED PARTNERSHIP, an Illinois Limited
Partnership, whose office is located at c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ("Landlord"), and PHOENIX COLOR CORP., a Delaware
corporation, whose office is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,("Tenant"), who hereby mutually covenant and agree as
follows:
ARTICLE 1
Grant of Leased Premises
1.1 Grant. Landlord, for and in consideration of the rents herein set
forth and of the covenants and agreements herein contained on the part of Tenant
to be performed, hereby leases to Tenant, and Tenant hereby leases from
Landlord, the real estate, commonly known as ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and legally described on an exhibit which is attached hereto,
identified as Exhibit A, together with all improvements now located thereon, or
to be located thereon during the term of this Lease, together with all
appurtenances belonging to or in any way pertaining to the said premises (such
real estate, improvements and appurtenances hereinafter sometimes jointly or
severally, as the context requires, referred to as "Leased Premises").
ARTICLE 2
Term; Possession
2.1 Term. The term of this Lease, (the "Lease Term"), shall commence on
January 4, 1999, (the "Commencement Date"), and shall end on December 31, 1999,
(the "Expiration Date").
2.2 Possession. Landlord shall deliver possession of the Leased Premises
to Tenant on the Commencement Date.
ARTICLE 3
Base Rent
3.1 Base Rent. Beginning with the Commencement Date, Tenant shall pay to
Landlord as monthly base rent ("Base Rent"), Twenty-Eight Thousand Four Hundred
Twelve Dollars and Eighty Cents ($28,412.80) per month for the Lease Term of
January 4, 1999 to December 31, 1999.
The Base Rent shall be payable in advance and received by Landlord without
any prior demand therefor, on the first day of each and every calendar month,
except that the Base Rent for January, 1999 shall be payable no later than
January 10, 1999, and shall be calculated as if the Tenant had been in occupancy
since January 1, 1999. The "Additional Rent" shall consist of all other sums of
money payable by ▇▇▇▇▇▇, whether payable on a regular, periodic, intermediate or
other basis and regardless of whether paid directly to Landlord or to another
party or entity in fulfillment of Tenant's obligation under this Lease. It is
acknowledged and agreed that all Rent, as defined in Section 3.2, payable under
this Section 3.1 relate to the value of the Leased Premises leased by Tenant
hereunder.
3.2 Manner of Payment. Base Rent and the Additional Rent and all other
amounts becoming due from Tenant to Landlord hereunder (collectively, "Rent")
shall be paid in lawful money of the United States of America to Landlord,
Laurel Limited Partnership, c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or as otherwise designated from time to time by written notice
from Landlord to Tenant. The payment of Rent hereunder is independent of each
and every other covenant and agreement contained in this Lease, and Rent shall
be paid without any set off, abatement, counterclaim or deduction whatsoever
except as may be expressly provided herein.
3.3 Late Charge. In the event that any payment of Base Rent, or the
Additional Rent, shall be received by Landlord after the fifth business day of
each calendar month during the Lease Term and any holdover period, other than
January, 1999 as provided in Section 3.1, then Tenant shall pay Landlord a late
charge equal to the greater of (i) Four Percent (4%) of the full amount then due
Landlord without regard to source, or (ii) the late charge amount or other fee
charged to Landlord by the applicable vendor(s) or authority(s) in order to
reimburse Landlord for Landlord's costs, damages, and all other expenses for
such late payment. The imposition of such late charge shall be in addition to,
and shall not limit, any other remedy available to Landlord under this Lease.
ARTICLE 4
Additional Rent
4.1 Payment by ▇▇▇▇▇▇. Tenant shall pay, as Additional Rent for the Leased
Premises, all taxes and assessments, general and special, water rates, the cost
of certain Landlord's insurance as set forth under Section 21.4, and all other
impositions, ordinary and extraordinary, of every kind and nature whatsoever,
which may be levied, assessed, charged or imposed during the Lease Term upon the
Leased Premises, or any part thereof, or upon any improvements at any time
situated thereon, including without limitation, any assessment by any
association of owners of property in the complex of which the Leased Premises
are a part as "Additional Rent"; provided, however, that Additional Rent levied
against the Leased Premises shall be prorated between Landlord and Tenant as of
the Commencement Date for the first year of the Lease Term and as of the
expiration of the Lease Term for the last year of the Lease Term (and shall be
paid by Tenant upon such expiration based on Landlord's reasonable estimate
thereof). Additional Rent shall also include fees and costs incurred by Landlord
during or prior to the Lease Term for the purpose of contesting or protesting
tax assessments or rates, to the extent such fees and costs relate to savings
realized during the Lease Term provided that Tenant's pro-rata share of any
refunds or reductions of such taxes or assessments are paid or credited to
Tenant. Tenant may take the benefit of the provisions of any statute or
ordinance permitting any assessment to be paid over a period of years, and
Tenant shall be obligated to pay only those installments falling due during the
Lease Term.
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4.2 Alternative Taxes. If at any time during the Lease Term the method of
taxation prevailing at the commencement of the term hereof shall be altered so
that any new tax, assessment, levy, imposition or charge, or any part thereof,
shall be measured by or be based in whole or in part upon the Lease or the
Leased Premises or the Base Rent, Additional Rent or other income therefrom and
shall be imposed upon the Landlord, then all such taxes, assessments, levies,
impositions, or charges, or the part thereof to the extent that they are so
measured or based, shall be deemed to be included within the term Additional
Rent for the purposes hereof to the extent that such Additional Rent would be
payable if the Leased Premises were the only property of Landlord subject to
such Additional Rent and Tenant shall pay and discharge the same as herein
provided in respect of the payment of Additional Rent. There shall be excluded
from Additional Rent all federal income taxes, state and local net income taxes,
federal excess profit taxes, franchise, capital stock and federal or state
estate or inheritance taxes of Landlord.
4.3 (intentionally omitted)
4.4 Evidence of Payment. Tenant shall deliver to Landlord duplicate
receipts and canceled checks, or photocopies thereof showing the payment of all
expenses, taxes or premiums paid directly by Tenant, within Ten (10) days after
respective payments evidenced thereby.
4.5 Right to Contest. Tenant shall not be required to pay any expenses,
taxes or premiums or charge upon or against the Leased Premises, or any part
thereof, or the improvements at any time situated thereon, so long as the Tenant
shall, in good faith and with due diligence, contest the same or the validity
thereof by appropriate legal proceedings which shall have the effect of
preventing the collection of the expenses, taxes, premiums or charges so
contested; provided that pending any such legal proceedings Tenant shall give
Landlord such security as may be deemed satisfactory to Landlord to insure
payment of the amount of the expenses, taxes, premiums or charges, and all
interest and penalties thereon. If, at any time during the continuance of such
contest, the Leased Premises or any part thereof is, in the judgment of the
Landlord, in imminent danger of being forfeited or lost, Landlord may use such
security for the payment of such expenses, taxes, premiums or charge.
ARTICLE 5
Premises
5.1 Permitted Uses. Tenant shall use and occupy the Leased Premises as a
printing plant and distribution facility and general office purposes incidental
thereto, and for other warehousing and light manufacturing uses reasonably
approved by Landlord in writing ("Permitted Uses").
5.2 Prohibited Uses. Tenant shall not use or permit the Leased Premises to
be used in any manner other than the Permitted Uses. Notwithstanding anything
contained herein to the contrary, Tenant shall not use or permit the Leased
Premises to be used in any manner which would (a) be contrary to any statute,
rule, order, ordinance, requirement or regulation applicable or Tenant's use
thereof including, but in no way limited to the Environmental Laws, as such term
is hereafter defined; (b) cause injury to the Leased Premises; (c) constitute a
public or private
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nuisance or waste or constitute or create any noise, vibration or other sound
that is not within industry standards for the machinery or equipment causing
such noise, vibration or sound; (d) render the insurance on the Leased Premises
void or the insurance risk more hazardous or create any defense to payment; (e)
require any additional retrofitting or improvements to Leased Premises to fully
comply with any applicable laws, rules or regulations of any governmental
authority or body, including, but in no way limited to, any requirements of the
Occupational Safety and Health Act and the Americans with Disabilities Act; and
(f) be inconsistent with the general tone and tenor of the operations of the
neighboring buildings, facilities or neighborhood uses in the general area of
the Leased Premises ("Prohibited Use"). ▇▇▇▇▇▇ agrees that it will promptly,
upon discovery of any such Prohibited Use, take all necessary steps to compel
the discontinuance of such use. Landlord shall be entitled to and shall have the
right and authority, as part of the rules and regulations that may be imposed
from time to time, to fully or partially restrict, regulate and/or dictate areas
of the Leased Premises in which smoking may or may not take place or be
permitted including, without limitations, imposing regulations that would
prohibit smoking in any confined area.
5.3 Adverse Possession. Tenant shall not use, suffer or permit the Leased
Premises or any portion thereof to be used by Tenant, any third party or the
public, in a manner as might reasonably tend to impair Landlord's title to the
Leased Premises or any portion thereof, or in such manner as might reasonably
make possible a claim or claims of adverse usage or adverse possession by the
public, as such, or third persons, or of implied dedication of the Leased
Premises or any portion thereof or which might create the basis for a claim for
prescriptive easement or right of way on or through the Leased Premises by the
public, as such, or any third party. Nothing contained herein and no action or
inaction by Landlord shall be deemed or construed to mean that Landlord has
granted to Tenant any right, power or permission to do any act or make any
agreement that may create, give rise to or be the foundation for any such right,
title, interest, lien, charge or other encumbrance upon the estate of Landlord
in the Leased Premises.
ARTICLE 6
Utilities and Services
6.1 Utilities and Services. During the Lease Term, Tenant shall purchase
all utility services and shall pay, when due, all charges, including hook-up
charges and security deposits, for separately-metered utilities furnished to the
Leased Premises or chargeable against the Leased Premises, including, but not
limited to, all charges for water, sewage, heat, gas, light, electricity,
telephone, steam or other public or private utility services.
6.2 Failure to Furnish Utilities or Services. Tenant agrees that Landlord
and its agents shall not be liable in damages, by abatement of Rent or
otherwise, for failure, delay or interruption of any utility services. No such
failure, delay or interruption shall ever be deemed to constitute an eviction or
disturbance of Tenant's use and possession of the Leased Premises or relieve
Tenant from paying Rent or performing any of its obligations under this Lease.
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6.3 Regulations Regarding Utilities and Services. ▇▇▇▇▇▇ agrees to
cooperate fully, at all times, with Landlord in abiding by all reasonable
regulations and requirements which Landlord may prescribe for the proper
functioning and protection of all utilities and services reasonably necessary
for the operation of the Leased Premises.
ARTICLE 7
Condition and Care of Premises
7.1 Condition of the Leased Premises. No promises of Landlord to alter,
remodel, improve, repair, decorate or clean the Leased Premises or any part
thereof have been made, and no representation respecting the condition of the
Leased Premises or the Land has been made to Tenant by or on behalf of Landlord,
except as expressly set forth herein.
7.2 Tenant Obligations. At its sole cost and expense throughout the Lease
Term, Tenant shall, (a) keep the Leased Premises (including improvements, if
any,) in good order and condition of repair and (b) make and perform all
maintenance thereof and all interior repairs thereto, ordinary and
extraordinary, foreseen and unforeseen, of every nature, kind and description.
All repairs made by Tenant shall be at least equal in quality to the work
performed in constructing the Leased Premises and shall be made by Tenant in
accordance with all laws, ordinances and regulations, whether heretofore or
hereafter enacted. The necessity for or adequacy of maintenance and repairs
shall be measured by the standards which are appropriate for improvements of
similar construction and class.
7.3 Landlord Obligations. Landlord shall not be required to furnish any
services or facilities or to make any repairs or alterations in, about, or to
the Leased Premises. If the Tenant does not perform any of the repairs required
of it under Section 7.2, the Landlord will proceed with such repairs. The costs
and expenses attributable to Landlord hereunder shall be included as Additional
Rent as described in Article 4 above.
7.4 Compliance With Laws, Rules and Regulations. Tenant shall, at its sole
cost and expense, comply with (a) all federal, state, county, municipal and
other governmental and quasi-governmental statutes, laws, rules, orders,
regulations and ordinances affecting the Leased Premises or any part thereof, or
the use thereof, including those which require the making of any unforeseen or
extraordinary changes (the "Legal Requirements"), including but in no way
limited to, the Environmental Laws, as such term is defined in Article 25.1(b)
hereof, and the Americans with Disabilities Act of 1990, whether or not any such
statutes, laws, rules, orders, regulations or ordinances which may be hereafter
enacted involve a change of policy on the part of the governmental body enacting
the same, and (b) all rules, orders and regulations of the National Board of
Fire Underwriters or other bodies exercising similar functions in connection
with the prevention of fire or the correction of hazardous conditions (the "Fire
Underwriters Requirements"), which apply to the Leased Premises. Tenant shall
comply with the requirement of all policies of public liability, fire and other
insurance which at any time may be in force with respect to the Leased Premises.
In the event that ▇▇▇▇▇▇'s, or any subtenant or assignee of Tenant's, use of the
Leased Premises results in the Leased Premises constituting a "place of public
accommodation" for purposes of the Americans with Disabilities Act of 1990, the
Tenant shall
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give notice thereof to Landlord and, to the extent that there are any signage
requirements or additions or deletions of, or improvements, or modifications to,
any barriers to accessibility, or other accommodations necessary for compliance
with such law, then Tenant shall be responsible for the cost of all such
modifications, additions, deletions, improvements or accommodations. Tenant
acknowledges that any such requirements may require permanent replacements and
capital improvements to the Leased Premises which (i) have expected useful lives
extending beyond the Lease Term and (ii) would otherwise be the responsibility
of Landlord. Any alterations performed by Tenant hereunder shall be subject to
the terms of Article 12 regarding Tenants right to construct improvements on the
Leased Premises. ▇▇▇▇▇▇ agrees to indemnify, hold harmless and defend Landlord
from any claim, demand, damage, costs, assessment, fee, penalty or any other
charge or expense, including attorneys' fees, arising out of or related to any
failure or alleged failure by Tenant to fully comply with any provision of this
section. ▇▇▇▇▇▇ further acknowledges and agrees that a failure by ▇▇▇▇▇▇ to
comply with the terms hereof, with the giving of the applicable notice,
constitutes a Default under Section 17.1 hereof.
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ARTICLE 8
Return of Premises
8.1 Surrender of Possession. At the termination of this Lease, whether by
lapse of time or otherwise, or upon termination of ▇▇▇▇▇▇'s right of possession
without termination of this Lease, Tenant shall surrender possession of the
Leased Premises to Landlord and deliver all keys to the Leased Premises to
Landlord and make known to Landlord the combination of all locks of vaults then
remaining in the Leased Premises. Tenant agrees and acknowledges that ▇▇▇▇▇▇
shall return and surrender the Leased Premises and all equipment, improvements,
personal property and fixtures of Landlord therein to Landlord as aforesaid in
as good condition as when the Lease commenced, ordinary wear and tear and loss
or damage by fire or other insured casualty, condemnation and damage resulting
from the acts of Landlord or its employees and agents excepted, failing which,
Landlord may restore the Leased Premises and such equipment and fixtures to such
condition, and Tenant shall pay the cost thereof to Landlord promptly upon
demand. Except as specifically set forth in this Section or any other Article of
this Lease, Tenant shall have no right or ability to cancel, surrender or
abandon this Lease or the Leased Premises.
8.2 Installations and Additions. All installations, additions, partitions,
hardware, light fixtures, non-trade fixtures and improvements, temporary or
permanent, except printing, finishing, and other movable equipment, machinery,
and furniture, furnishings, and trade fixtures belonging to Tenant, in or upon
the Leased Premises, whether placed thereon by Tenant or Landlord, shall be and
are hereby transferred by Tenant to Landlord to remain Landlord's property and
shall remain on the Leased Premises, all without compensation, allowance or
credit to Tenant; provided however, if prior to the termination of this Lease,
or within Ten (10) days thereafter, Landlord directs Tenant by written notice to
remove any installations or additions installed in the Leased Premises by
Tenant, Tenant, at Tenant's sole cost and expense, shall promptly remove such of
the installations, additions, partitions, hardware, light fixtures, non-trade
fixtures and improvements placed in the Leased Premises by Tenant as are
designated in such notice and repair any damage to the Leased Premises, and
Tenant shall pay the cost thereof to Landlord on demand. At the sole option of
Landlord, Tenant shall leave in place any floor covering without compensation to
Tenant, or Tenant shall remove any floor covering and shall remove all
fastenings, paper, glue, bases or other vestiges and restore the floor surface
to its previous condition or shall pay to Landlord upon demand the cost of
restoring the floor surface to such condition.
8.3 Trade Fixtures and Personal Property. Tenant shall also remove
▇▇▇▇▇▇'s furniture, machinery, safes, trade fixtures, and other items of movable
personal property and equipment of every kind and description from the Leased
Premises and restore any damage to the Leased Premises caused thereby, such
removal and restoration to be performed prior to the end of the Leased Term or
Ten (10) days following termination of this Lease or Tenant's right of
possession, whichever might be earlier. If Tenant fails to remove such items,
Landlord may do so and thereupon the provisions of Section 17.6 shall apply, and
Tenant shall pay to Landlord upon demand the cost of removal and of restoring
the Leased Premises.
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8.4 Survival. All obligations of Tenant under this Article 8 shall survive
the expiration of the Lease Term or sooner termination of this Lease.
ARTICLE 9
Holding Over
9.1 Holding Over. Tenant shall pay Landlord for each day Tenant retains
possession of the Leased Premises or any part thereof after termination of this
Lease, by lapse of time or otherwise, or of Tenant's right to possession of the
Leased Premises, an amount which is equal to the Base Rent, plus twice the
increase in the consumer price index, CPI-U, over the most recent available
twelve month period ending before the beginning of the holdover period, or if
the Landlord has a new lease outstanding with a tenant for the lease premises,
then the Base Rent should be equal to the rent which the Landlord would be
receiving from the new tenant but for the holdover, plus any damages, penalty,
and reasonable attorney fees, the Landlord may incur as a result of the
holdover. Nothing contained in this Section shall be construed or operate as a
waiver of Landlord's right of reentry or any other right or remedy of Landlord.
ARTICLE 10
Rules and Regulations
10.1 Rules and Regulations. ▇▇▇▇▇▇ agrees to observe and not to interfere
with the rights reserved to Landlord contained in Article 11 hereof and agrees,
for itself, its employees, agents, contractors, invitees and licensees, to
comply with such reasonable rules and regulations as may be adopted by Landlord
pursuant to Section 11.1 hereof. Any violation by Tenant of any of such
reasonable rules and regulations as may hereafter be adopted by Landlord
pursuant to Section 11.1 of this Lease, may be restrained; but, whether or not
so restrained, Tenant acknowledges and agrees that it shall be and remain liable
for all damages, loss, costs and expenses resulting from any violation by Tenant
of any of said rules and regulations.
ARTICLE 11
Rights Reserved to Landlord
11.1 Rights Reserved to Landlord. Without limiting any other rights
reserved or available to Landlord under this Lease, at law or in equity,
Landlord reserves the following rights to be exercised at Landlord's election
without notice to Tenant (except as otherwise provided herein) and without
liability:
(a) To change the Street address of the Leased Premises;
(b) To retain at all times and to use in emergency situations, pass keys
to the Leased Premises and for the purposes of this Article, Tenant shall
provide Landlord with any keys, security codes, access codes and related
security or entry information necessary for the Landlord to obtain entry
to the Leased Premises and all rooms, offices and facilities in the Leased
Premises;
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(c) To inspect the Leased Premises upon at least Forty-Eight (48) hours
advance notice to Tenant and to make repairs, additions or alterations to
the Leased Premises (in making such repairs, additions or alterations,
Landlord shall use reasonable effort not to interfere with Tenant's
business operations), if Tenant fails to make such repairs, additions, or
alterations and to take all steps necessary for the safety, protection or
preservation of the Leased Premises;
(d) To show the Leased Premises to prospective purchasers, mortgagees, or
other persons having a legitimate interest in viewing the same, at any
time prior to the expiration of the Lease Term;
(e) During the Lease Term, to place and maintain a "For Rent" sign in or
on the Leased Premises;
(f) From time to time, to make and adopt such reasonable rules and
regulations, in addition to, or other than, or by way of amendment or
modification of the rules or regulations contained in other Sections of
this Lease;
(g) If Tenant shall theretofore have vacated or abandoned the Leased
Premises, to decorate, remodel, repair, alter or otherwise prepare the
Leased Premises for new occupancy; and,
(h) To place and maintain "For Sale" signs on the Leased Premises and on
the exterior of the building on the Leased Premises.
ARTICLE 12
Alterations
12.1 Alterations. Tenant shall not, without the prior written consent of
Landlord, which consent may be granted or withheld in Landlord's sole and
unfettered discretion, make any alterations, additions or improvements to the
Leased Premises. If the estimated cost of any such requested alterations,
additions or improvements exceeds Twenty Five Thousand Dollars ($25,000.00) in
any single instance, and Landlord consents thereto, before commencement of the
work or delivery of any materials onto the Leased Premises, Tenant shall furnish
to Landlord for approval plans and specifications, names and addresses of
contractors, copies of contracts, necessary permits and licenses, and
instruments of indemnification against any and all claims, costs, expenses,
damages and liabilities which may arise in connection with such work, all in
such form, substance and amount as may be satisfactory to Landlord. In addition,
prior to commencement of any such work or delivery of any materials onto the
Leased Premises, Tenant shall provide Landlord with appropriate evidence of
Tenant's ability to pay for such work and materials in full and provide Landlord
with adequate assurance of payment for such work and materials. All alterations,
additions and improvements shall be installed in a good, worklike manner, and
only new (or like new) materials shall be used. All such work shall be done only
by licensed contractors reasonably approved by Landlord and shall be subject to
Landlord's scheduling requirements and regulations. ▇▇▇▇▇▇ further agrees to
indemnify, defend and hold
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Landlord harmless from any and all liabilities of every kind and description
which may arise out of or be connected in any way with said alterations,
additions or improvements and shall, at its sole and exclusive expense, promptly
pay all bills for such work and/or delivery of goods, removing any materialman
and mechanic notices and/or liens associated therewith. Before commencing any
work in connection with such alterations, additions or improvements, Tenant
shall furnish Landlord with certificates of insurance from all contractors
performing labor or furnishing materials insuring Landlord against any and all
liabilities which may arise out of or be connected in any way with said
alterations, additions or improvements. If Tenant does not use a licensed
qualified contractor for such alterations, additions or improvements, Tenant
shall permit Landlord to supervise construction operations in connection with
the foregoing work if Landlord reasonably requests to do so, provided that in
any event Tenant will provide Landlord with access to such individuals and
documents as Landlord may reasonably request. Tenant shall pay the cost of all
such alterations, additions and improvements and also the cost of restoring the
Leased Premises occasioned by such alterations, additions and improvements;
including the cost of labor and materials, contractor's profit, overhead and
general conditions and a reasonable fee to Landlord. Upon completing any
alterations, additions or improvements, Tenant shall furnish Landlord with
contractor's affidavits, in form required by law, and full and final waivers of
lien and receipts and bills covering all labor and materials expended and used.
All alterations, additions and improvements shall comply with all insurance
requirements and with all city and county ordinances and regulations, with the
requirements of all state and federal statutes and regulations and with the
requirements of Section 7.4 above.
ARTICLE 13
Assignment and Subletting
13.1 Assignment and Subletting. Tenant shall not, without the prior
written consent of Landlord in each instance, (a) assign, transfer, license,
mortgage, pledge, hypothecate or in any way encumber, or subject to or permit to
exist upon or be subjected to any lien or charge, this Lease or any interest
under it; (b) allow to exist or occur any transfer of or lien upon this Lease or
Tenant's interest herein by operation of law; (c) sublet the Leased Premises or
any part thereof; or (d) permit the use or occupancy of the Leased Premises or
any part thereof for any purpose not provided for under Section 5.1 of the Lease
or by anyone other than Tenant and Tenant's employees. Except in connection with
a "Transfer of Business Assignment" (as such term is hereinafter defined),
Landlord shall have exclusive, arbitrary and unfettered discretion to grant or
withhold its consent, without the need or necessity of giving Tenant any reason
therefor. In no event shall this Lease be assigned or assignable by or as part
of voluntary or involuntary bankruptcy proceedings or otherwise, and in no event
shall this Lease or any rights or privileges hereunder be an asset of Tenant
under any bankruptcy, insolvency or reorganization proceedings. In the event
Tenant requests an assignment of this Lease in connection with the sale of the
majority of the shares of stock of Tenant in one transaction to a single entity
or in connection with the sale of the majority of the assets of Tenant in a
single transaction to a single entity ("Transfer of Business Assignment"),
Landlord shall not unreasonably withhold its consent to ▇▇▇▇▇▇'s request. Among
other reasonable criteria, Landlord shall consider whether the assignee will use
the Leased Premises in the same manner as Tenant, whether the assignee has net
assets equal to or in excess of those of Tenant at the time of the requested
assignment and whether the assignee
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is of a good business reputation and capable of fulfilling the obligations of
Tenant pursuant to this Lease.
13.2 Rentals Based on Net Income. Without thereby limiting the generality
of the foregoing provisions of this Article 13, Tenant expressly covenants and
agrees not to enter into any lease, sublease or license, concession or other
agreement for use, occupancy or utilization of the Leased Premises which
provides for rental or other payment for such use, occupancy or utilization
based in whole or in part on the net income or profits derived by any person
from the property leased, used, occupied or utilized (other than an amount based
on a fixed percentage or percentages of receipts or sales), and that any such
purported lease, sublease or license, concession or other agreement shall be
absolutely void and ineffective as a conveyance of any right to or interest in
the possession, use, occupancy or utilization of any part of the Leased
Premises.
13.3 Tenant to Remain Obligated. Consent by Landlord to any assignment,
subletting, use, occupancy or transfer shall not operate to relieve Tenant from
any covenant or obligation hereunder, except to the extent, if any, expressly
provided for in such prior written consent, or be deemed to be a consent to or
relieve Tenant from obtaining Landlord's consent to any subsequent assignment,
transfer, lien, charge, subletting, use or occupancy. Tenant shall pay all of
Landlord's costs, charges and expenses, including attorneys' fees, incurred in
connection with any assignment, transfer, lien, charge, subletting, use or
occupancy made or requested by ▇▇▇▇▇▇, including, without limitation, costs and
expenses of attorneys employed in such assignment, subletting or other transfer
process. ▇▇▇▇▇▇ agrees that any and all advertising by ▇▇▇▇▇▇ or on ▇▇▇▇▇▇'s
behalf with respect to the assignment of this Lease or the subletting of the
Leased Premises must be submitted to, and approved in writing by, Landlord prior
to any publication.
13.4 Tenant's Notice: ▇▇▇▇▇▇▇▇'s Right to Terminate. Tenant shall, by
notice in writing, advise Landlord of its intention from, on and after a stated
date (which shall not be less than Sixty (60) days after the date of Tenant's
notice) to assign this Lease or sublet any part or all of the Leased Premises
for the balance of any part of the Lease Term to any person or party other than
Tenant (whether a related or affiliated entity or person, or not) in each and
every instance, and in such event, except with respect to a proposed Transfer of
Business Assignment, Landlord shall have the right, to be exercised by giving
written notice to Tenant within Thirty (30) days after receipt of Tenant's
notice, to recapture the space described in Tenant's notice, and such recapture
notice shall, if given, terminate this Lease with respect to the space therein
described as of the date stated in ▇▇▇▇▇▇'s notice (Tenant shall have the right
to negate Landlord's recapture of space by withdrawing such assignment or
subletting request within Five (5) business days after the date of Landlord's
notice of recapture whereupon this Lease and ▇▇▇▇▇▇'s occupancy hereunder shall
continue unchanged and in full force and effect for the then remaining Lease
Term). Tenant's notice of proposed assignment or subletting shall (i) state the
name and address of the proposed subtenant and assignee, (ii) include a true and
complete copy of the proposed sublease or assignment, (iii) contain sufficient
information to permit Landlord, in its sole discretion, to determine the
financial responsibility and character of the proposed subtenant or assignee,
(iv) state who is responsible for the costs of physically separating the Leased
Premises and the component systems serving same, and (v) shall state whether the
proposed assignment is
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a Transfer of Business Assignment. If ▇▇▇▇▇▇'s notice shall cover all of the
space hereby demised and if Landlord shall give the aforesaid recapture notice
with respect thereto (and Tenant shall not have withdrawn same on a timely
basis) then, the Lease Term shall expire on the date stated in Tenant's notice
as fully and completely as if that date had been the Expiration Date. If,
however, this Lease shall be assigned pursuant to the foregoing with respect to
less than the entire Leased Premises, the Base Rent and Additional Rent shall be
adjusted on the basis of the number of rentable square feet retained by Tenant,
and this Lease, as so amended, shall continue thereafter in full force and
effect.
13.5 Landlord's Consent. As described above, except in connection with a
Transfer of Business Assignment (which Landlord shall reasonably consider),
Landlord may grant or withhold its consent to any requested assignment or
sublease requested by Tenant in its exclusive, arbitrary and unfettered
discretion, without the need or necessity of giving Tenant any reason therefor.
If Landlord, upon receiving ▇▇▇▇▇▇'s notice of proposed assignment or subletting
with respect to any such space, shall not exercise its right to terminate as
aforesaid, Landlord will not unreasonably withhold its consent to ▇▇▇▇▇▇'s
assignment of this Lease or subletting the space covered by its notice. Landlord
shall not be deemed to have unreasonably withheld its consent to a sublease of
all or part of the Leased Premises or an assignment of this Lease if its consent
is withheld because: (a) Tenant is then subject to a notice of Default from
Landlord hereunder; (b) any notice of termination of this Lease or termination
of Tenant's possession shall have been given under Article 17 hereof; (c) the
portion of the Leased Premises which Tenant proposes to sublease, including the
means of ingress to and egress from and the proposed use thereof, and the
remaining portion of the Leased Premises will violate or in any way conflict
with any city, state or federal law, ordinance or regulation, including, without
limitation, any applicable building code or zoning ordinances, or may require
any retrofitting or substantial alteration or modification of the Leased
Premises for purposes of compliance with any law, statute or regulation,
including, but not limited to, the Occupational Safety and Health Act, the
Americans with Disabilities Act or Environmental Laws requirements; (d) the
proposed use of the Leased Premises by the subtenant or assignee does not
conform with the Permitted Use or in any way amounts to a Prohibited Use; (e) in
the reasonable judgment of Landlord, the proposed subtenant or assignee is of a
character or is engaged in a business which would be deleterious to the
reputation of the Leased Premises; or (f) the subtenant or assignee is not, in
the reasonable judgment of Landlord, sufficiently financially responsible to
perform its obligations under the proposed sublease or assignment, such
financial responsibility shall, at a minimum, require the subtenant or assignee
to have a financial status and capability at least equal to the financial status
and financial capability of the Tenant as of the Commencement Date, or the
effective date of the proposed sublease or assignment, whichever standard shall
be greater and of more benefit to Landlord; provided, however, that the
foregoing are merely examples of reasons for which Landlord will withhold its
consent and shall not be deemed exclusive of any permitted reasons for
withholding consent, whether similar to or dissimilar from the foregoing
examples.
13.6 Profits. If Tenant, having first obtained ▇▇▇▇▇▇▇▇'s consent to any
sublease or assignment, or if Tenant or a trustee-in-bankruptcy for Tenant
pursuant to the Bankruptcy Code, shall assign this Lease or sublet the Leased
Premises, or any part thereof, at a rental or for other consideration in excess
of the Rent payable by Tenant under this Lease, then, to the extent
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permitted by law, except with respect to a Transfer of Business Assignment,
Tenant shall pay to Landlord as Additional Rent (a) in the case of an
assignment, One Hundred Percent (100%) of any such excess rent or other monetary
consideration immediately upon receipt thereof, or (b) in the case of a
sublease, (i) on the first day of each month during the term of any sublease,
One Hundred Percent (100%) of the excess of all rent or other consideration due
from the subtenant for such month over the Rent then payable to Landlord
pursuant to the provisions of this Lease for said month (or if only a portion of
the Leased Premises is being sublet, One Hundred Percent (100%) of any excess of
all rent and other consideration due from the subtenant for such month over the
portion of the Rent then payable to Landlord pursuant to the provisions of this
Lease for said month which is allocable on a square footage basis to the space
sublet), and (ii) immediately upon receipt thereof One Hundred Percent (100%)
all other consideration realized by Tenant from such assignment or subletting;
it being agreed, however, that Landlord shall not be responsible for any
deficiency if Tenant shall assign this Lease or sublet the Leased Premises or
any part thereof at a rental less than that provided for herein. Further, in the
case of any assignment or sublease to an Affiliate (as hereinafter defined) or
an assignment or sublease by a trustee in bankruptcy for Tenant pursuant to the
Bankruptcy Code, One Hundred Percent (100%) of any such excess rent or other
consideration shall be paid to Landlord as Additional Rent hereunder. In the
instance of any approved Transfer of Business Assignment, Tenant may retain all
consideration paid in connection with such assignment.
13.7 Assignee to Assume Obligations. If Tenant shall assign this Lease as
permitted herein, the assignee shall expressly assume all of the obligations of
Tenant hereunder in a written instrument satisfactory to Landlord and furnished
to Landlord not later than Fifteen (15) days prior to the effective date of the
assignment. If Tenant shall sublease the Leased Premises as permitted herein,
Tenant shall (i) obtain and furnish to Landlord, not later than Fifteen (15)
days prior to the effective date of such sublease and in form satisfactory to
Landlord, the written agreement of such subtenant stating that the subtenant
will attorn to Landlord, at ▇▇▇▇▇▇▇▇'s option and written request, in the event
this Lease terminates before the expiration of the sublease and (ii) be
obligated to collect and pay any and all applicable taxes, assessments or other
imposed costs or collection obligations associated with Base Rent and Additional
Rent, and Tenant shall and does hereby release, and agree to indemnify, defend
and hold Landlord harmless from any such amounts (including penalties and
interest thereon). Any failure to comply with the requirements of this Section
13.7 shall, without further act of any party to this Lease or related assignment
or sublease, terminate any such agreement, but in any event, Tenant's
obligations under this Lease shall remain in full force and effect.
13.8 Change of Control. Notwithstanding anything to the contrary in this
Article 13, if Tenant is a corporation (other than a corporation the stock or
debt obligations of which is publicly traded), and if during the Lease Term, the
ownership of the shares of stock which constitute control of Tenant changes
other than by reason of placement in a trust for the benefit of first level
immediate family members, gift to first level immediate family members or death,
Tenant shall notify Landlord of such change within Five (5) days thereof, and,
except in connection with a change in control pursuant to an approved Transfer
of Business Assignment, Landlord, at its option, may at any time thereafter
terminate this Lease by giving Tenant written notice of said termination at
least Sixty (60) days prior to the date of termination stated in the
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notice. The term "control" as used herein means the power to directly or
indirectly, direct or cause the direction of the management or policies of
Tenant. If Tenant is a partnership (general or limited) or any other type of
entity and if, during the Lease Term, the ownership of the partnership or other
type of interest which constitute control of Tenant changes other than by reason
of gift to immediate family members or death, then the provisions hereinabove
set forth relating to a Tenant which is a corporation which is not publicly
traded shall apply and references to ownership of stock shall be deemed to refer
to ownership of partnership interest or any other type of entity in said
partnership or entity.
13.9 Assignment to Affiliate. Notwithstanding anything to the contrary in
this Article 13, Tenant may assign or sublet the Leased Premises, or any portion
thereof, with written notice to Landlord but without requiring Landlord's
consent, to any corporation, limited liability company, partnership or other
form of business enterprise which controls, is controlled by or is under common
control with Tenant as long as such entity remains in control of, controlled by
or under common control with Tenant (an "Affiliate"). Tenant shall be required
to obtain the prior written consent of Landlord for an assignment by operation
of law to any corporation, limited liability company, partnership or other form
of business enterprise resulting from the merger or consolidation with Tenant,
or a sublet or assignment to any person or entity which acquires all of the
assets of Tenant as a going concern of the business that is being conducted on
the Leased Premises; provided that, in any such case, said assignee shall
assume, in full, the obligations of the Tenant under this Lease. Landlord shall
have the right to withhold its consent in either case only if: (a) the financial
strength of the proposed assignee/subtenant is not equal to or greater than that
of Tenant; or (b) the use of the Leased Premises by the proposed
assignee/subtenant is not permitted by this Lease, or violates any laws, rules,
codes or regulations, or violates any other agreements affecting the Leased
Premises. Any such consented to assignment shall not in any way affect or limit
the liability of Tenant under the terms of this Lease even if after such
assignment or subletting the terms of this lease are materially changed or
altered without the consent of Tenant, the consent of whom shall not be
necessary.
ARTICLE 14
Waiver of Certain Claims: Indemnity
14.1 Waiver of Certain Claims; Indemnity by ▇▇▇▇▇▇. To the extent not
expressly prohibited by law, Tenant releases Landlord, and its members, agents,
servants and employees, from and waives all claims as against such persons for
damages to person or property sustained by Tenant or by any occupant of the
Leased Premises, resulting directly or indirectly from fire or other casualty,
cause or any existing or future condition, defect, matter or thing in or about
the Leased Premises, or from any equipment or appurtenance therein, or from any
accident in or about the Leased Premises, or from any act or neglect of any
other person, including ▇▇▇▇▇▇▇▇'s agents and servants. This Section 14 shall
apply especially, but not exclusively, to damage caused by water, snow, frost,
steam, excessive heat or cold, sewerage, gas, odors or noise, or the bursting or
leaking of pipes or plumbing fixtures, broken glass, sprinkling or air
conditioning devices or equipment, or flooding of basements, and shall apply
whether the damage was due to any of the acts specifically enumerated above or
from any other thing or circumstance, whether of a like nature or of a wholly
different nature.
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14.2 Damage Caused by ▇▇▇▇▇▇'s Neglect. If any damage to the Leased
Premises or any equipment or appurtenance therein, belonging to Landlord,
results from any act or neglect of Tenant, its employees, agents, contractors,
licensees or invitees, Tenant shall be liable therefor and Landlord may, at its
option repair such damage and Tenant shall, upon demand by Landlord, reimburse
Landlord for all costs of repairing such damage in excess of amounts, if any,
paid to Landlord under insurance covering such damage.
ARTICLE 15
Damage or Destruction by Casualty
15.1 Tenant's Obligation to Rebuild. In the event of damage to, or
destruction of, any improvements on the Leased Premises, or of the fixtures and
equipment therein, by fire or other casualty, Tenant shall promptly, at its
expense, repair, restore or rebuild the same to the condition existing prior to
the happening of such fire or other casualty; provided, however, that if the
damage or destruction is material and substantial, Landlord shall have the
right, subject to the consent of any First Mortgagee whose consent thereto is
required, to terminate this Lease, effective on the date of such damage or
destruction, by giving written notice thereof to Tenant within Sixty (60) days
after the event causing the damage or destruction. Rent shall not be reduced or
abated during the period of such repair, restoration or rebuilding even if the
improvements are not tenantable.
15.2 Preconditions to Rebuilding. Before Tenant commences such repairing,
restoration or rebuilding involving an estimated cost of more than Twenty-Five
Thousand Dollars ($25,000.00), plans and specifications therefor, prepared by a
licensed architect satisfactory to Landlord shall be submitted to Landlord for
approval and Tenant shall furnish to Landlord (a) an estimate of the cost of
proposed work, certified to by said architect; (b) satisfactory evidence of
sufficient contractor's commercial general liability insurance covering
Landlord, builder's risk insurance, and worker's compensation insurance, (c) a
performance and payment bond satisfactory in form and substance to Landlord;
and, (d) such other security as Landlord may require to insure payment for the
completion of work free and clear of liens.
15.3 Payment for Rebuilding. Provided that the insurer does not deny
liability as to the insureds, and provided ▇▇▇▇▇▇ is not then in Default
hereunder, all sums arising by reason of loss under the insurance shall be
deposited with Landlord to be available to Tenant for the work. Tenant shall
deposit with the Landlord any excess cost of the work over the amount held by
the Landlord as proceeds of the insurance within Thirty (30) days after the date
of the determination of the cost of the work by the architect or, if the insurer
has denied liability as to the insureds, or if ▇▇▇▇▇▇ is then in Default
hereunder, then Tenant shall deposit the full amount of the cost of the work
with the Landlord. Tenant shall diligently pursue the repair or rebuilding of
the improvements in a good and workmanlike manner using only high quality union
workers and materials. The Landlord shall pay out construction funds from time
to time on the written direction of the architect provided that the Landlord
shall first be furnished with waivers of lien, contractors' and subcontractors'
sworn statements, and other evidence of cost and payments so that the Landlord
can verify that the amounts disbursed from time to time are represented by
completed and in-place work, and that said work is free and clear of possible
mechanics liens.
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No payment made prior to the final completion of the work shall exceed Ninety
Percent (90%) of the value of the work completed and in place from time to time.
At all times the undisbursed balance remaining in the hands of Landlord shall be
at least sufficient to pay for the cost of completion of the work free and clear
of liens. Any deficiency shall be paid Landlord by Tenant. At Tenant's request,
Landlord shall place the funds with a national title company who will handle the
Landlord's duties under this section.
15.4 Excess Receipts by Landlord. Any excess of money received from
insurance remaining with the Landlord after the repair or rebuilding of
improvements, if there be no Default by Tenant in the performance of the
Tenant's covenants and agreements hereunder, shall be paid to Tenant.
15.5 Failure to Rebuild. If Tenant shall not begin the repair or
rebuilding of the improvements within a period of Sixty (60) days after damage
or destruction by fire or otherwise, and prosecute the same thereafter with such
dispatch as may be necessary to complete the same within a reasonable period
after said damage or destruction occurs, not to exceed One Hundred Eighty (180)
days after the date of commencement of such repair or rebuilding, then, in
addition to whatever other remedies Landlord may have either under this Lease,
at law or in equity, the money received by and then remaining in the hands of
the Landlord shall be paid to and retained by Landlord as security for the
continued performance and observance by Tenant of the Tenant's covenants and
agreements hereunder, or Landlord may terminate this Lease and retain the amount
so held as liquidated damages resulting from the failure on the part of Tenant
to comply with the provisions of this Article.
ARTICLE 16
Eminent Domain
16.1 Eminent Domain. If the entire Leased Premises, or a substantial part
thereof, or any part thereof which includes all or a substantial part of the
Leased Premises, shall be taken or condemned by any competent authority for any
public or quasi-public use or purpose, the Lease Term shall end upon and not
before the earlier of (a) the date when the possession of the part so taken
shall be required for such use or purpose or (b) the effective date of the
taking, and without apportionment of the award to or for the benefit of Tenant.
If any condemnation proceeding shall be instituted in which it is sought to take
or damage any part of the Leased Premises, the taking of which would, in
Landlord's opinion, prevent the economical operation of the Leased Premises, and
such taking or damage makes it necessary or desirable to remodel the Leased
Premises to conform to the taking or damage, Landlord shall have the right to
terminate this Lease upon not less than Ninety (90) days' notice prior to the
date of termination designated in the notice. In such event, the Rent at the
then current rate shall be apportioned as of the date of the termination. No
money or other consideration shall be payable by Landlord to Tenant for the
right of termination. Landlord shall be entitled to all of the condemnation
award for the Leased Premises and surrounding land, provided that if such a
claim will not reduce the condemnation award to Landlord in any way, Tenant
shall be entitled to make a claim for loss or damage to ▇▇▇▇▇▇'s trade fixtures,
equipment, machinery and removable personal property and for actual,
out-of-pocket costs incurred in relocating, but not for the value of the
leasehold estate.
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ARTICLE 17
Default
17.1 Events of Default. The occurrence of any one or more of the following
matters constitutes a default ("Default") by Tenant under this Lease:
(a) failure by Tenant to pay any Base Rent within Five (5) days after the
due date thereof;
(b) failure by Tenant to pay, within Ten (10) days after written notice of
failure to pay on the due date from Landlord to Tenant, any other moneys
required to be paid by Tenant under this Lease including, but not limited
to Additional Rent;
(c) failure by ▇▇▇▇▇▇ to observe or perform any of the covenants with
respect to assignment and subletting set forth in Article 13.
(d) failure by ▇▇▇▇▇▇ to immediately commence to cure upon receipt of
notice from Landlord, and to continuously prosecute said cure to
completion, any hazardous condition which ▇▇▇▇▇▇ has created in violation
of law or of this Lease;
(e) failure by ▇▇▇▇▇▇ to observe or perform any other covenant, agreement,
condition or provision of this Lease, if such failure shall continue for
Thirty (30) days after written notice thereof from Landlord to Tenant (or
such longer period as is necessary so long as Tenant commences to cure
such Default within said Thirty (30) day period and diligently and
continuously prosecutes said cure to completion);
(f) the levy upon under writ of execution or the attachment by legal
process of the leasehold interest of Tenant, or the filing or creation of
a lien with respect to such leasehold interest, which writ, attachment or
lien shall not be bonded-over, released or discharged within Fifteen (15)
days from the date of such filing;
(g) Tenant vacates or abandons the Leased Premises (the transfer of a
substantial part of the operation, business and personnel of Tenant to
some other location being deemed, without limiting the meaning of the
phrase "vacates or abandons", to be a vacation or abandonment within the
meaning of this clause) whether or not Tenant thereafter continues to pay
the Base Rent, Additional Rent or any other amounts due under this Lease;
(h) ▇▇▇▇▇▇ becomes insolvent or bankrupt, or admits in writing its
inability to pay its debts as they mature, or makes an assignment for the
benefit of creditors, or applies for or consents to the appointment of a
trustee or receiver for Tenant or for the major part of its property;
(i) a trustee or receiver is appointed for Tenant or for the major part of
its property and is not discharged within Sixty (60) days after such
appointment; or
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(j) bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings seeking relief under any bankruptcy law
or similar law for the relief of debtors, are instituted (i) by Tenant or
(ii) against Tenant and are allowed against it or are consented to by it
or are not dismissed within Sixty (60) days after such institution.
17.2 Rights and Remedies of Landlord. If a Default occurs, Landlord shall
have the rights and remedies hereinafter set forth, which shall be distinct,
separate and cumulative and shall not operate to exclude or deprive Landlord of
any other right or remedy allowed it by law or in equity and the decision by
▇▇▇▇▇▇▇▇ to pursue any one or more of such remedies shall not be treated as an
election to only pursue any such remedies to the exclusion of any others:
(a) Landlord may terminate this Lease by giving to Tenant notice of
▇▇▇▇▇▇▇▇'s election to do so, in which event the Lease Term shall end and
all right, title and interest of Tenant hereunder shall expire on the date
stated in such notice;
(b) Landlord may terminate the right of Tenant to possession of the Leased
Premises without terminating this Lease by giving notice to Tenant that
▇▇▇▇▇▇'s right of possession shall end on the date stated in such notice,
whereupon the right of the Tenant to possession of the Leased Premises or
any part thereof shall cease on the date stated in such notice; and
(c) Landlord may enforce the provisions of this Lease and may enforce and
protect the rights of the Landlord hereunder by a suit or suits in equity
or at law for the specific performance of any covenant or agreement
contained herein, or for the enforcement of any other appropriate legal or
equitable remedy, including recovery of all moneys due or to become due
from Tenant under any of the provisions of this Lease.
17.3 Right to Re-Enter. If Landlord exercises either of the remedies
provided for in subparagraphs (a) and (b) of the foregoing Section 17.2, Tenant
shall surrender possession and vacate the Leased Premises and immediately
deliver possession thereof to Landlord, and Landlord may re-enter and take
complete and peaceful possession of the Leased Premises, with or without process
of law, full and complete license so to do being hereby granted to Landlord, and
Landlord may remove all occupants and property therefrom, using such force as
may be necessary, without being deemed in any manner guilty of trespass,
eviction or forcible entry and detainer and without relinquishing Landlord's
right to Rent or any other right given to Landlord hereunder or by operation of
law. In conjunction with any such re-entry Landlord shall, in the event that
there are any subtenants occupying or having rights in and to the Leased
Premises, be entitled to either terminate any such subtenancies or assume the
Tenant's rights thereunder, provided, however, that no such assumption shall,
unless otherwise expressly agreed to by Landlord, obligate Landlord to perform
or fulfill Tenant's obligations thereunder.
17.4 Periodic Damages. If Landlord terminates the right of Tenant to
possession of the Leased Premises without terminating this Lease, Landlord may,
at its election, proceed under this Section or under Section 17.5. Under this
Section, Landlord shall have the right to immediate recovery of all amounts then
due hereunder. Such termination of possession shall not release
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Tenant, in whole or in part, from ▇▇▇▇▇▇'s obligation to pay any amounts due
Landlord hereunder for the full Lease Term, and Landlord shall have the right,
from time to time, to recover from Tenant, and Tenant shall remain liable for,
all Base Rent, Additional Rent, and any other sums accruing as they become due
under this Lease during the period from the date of such notice of termination
of possession to the stated end of the Lease Term. In any such case, Landlord
may relet the Leased Premises or any part thereof for the account of Tenant for
such rent, for such time (which may be for a term extending beyond the Lease
Term) and upon such terms as Landlord shall determine and collect the rents from
such reletting. Landlord shall not be required to accept any tenant offered by
Tenant or to observe any instructions given by Tenant relative to such
reletting. Also, in any such case, Landlord may make repairs, alterations and
additions in or to the Leased Premises and redecorate the same to the extent
deemed by Landlord necessary or desirable and, in connection therewith, change
the locks to the Leased Premises, and Tenant shall upon demand pay the cost of
all the foregoing together with Landlord's expenses of reletting. The rents from
any such reletting shall be applied first to the payment of the expenses of
reconditioning the Leased Premises to a condition suitable for leasing such
Leased Premises, re-entry, redecoration, repair and alterations and the expenses
of reletting (including any brokerage fees or commissions and the customary
management fee of Landlord), and second to the payment of Additional Rent then
due from Tenant, and third to the payment of Base Rent herein provided to be
paid by Tenant. Any excess or residue shall operate only as an offsetting credit
against the amount of Base Rent and Additional Rent, due and owing or which
thereafter may become due and owing as the same thereafter becomes due and
payable hereunder, and the use of such offsetting credit to reduce the amount of
Base Rent and Additional Rent, due Landlord, if any, shall not be deemed to give
Tenant any right, title or interest in or to such excess or residue, and any
such excess or residue shall belong to Landlord solely, and in no event shall
Tenant be entitled to a credit on its indebtedness to Landlord in excess of the
aggregate sum (including Base Rent and Additional Rent) which would have been
paid by ▇▇▇▇▇▇ to the stated end of the Term, had no Default occurred. No such
re-entry or possession, repairs, alterations and additions or reletting shall be
construed as an eviction or ouster of Tenant or as an election on Landlord's
part to terminate this Lease, unless a written notice of such intention shall be
given to Tenant, nor shall it operate to release Tenant in whole or in part from
any of the Tenant's obligations hereunder, and Landlord may, at any time and
from time to time, sue and recover judgment for any deficiencies from time to
time remaining after the application from time to time of the proceeds of any
such reletting.
17.5 Liquidated and Associated Damages. If this Lease is terminated by
Landlord as provided for by subparagraph (a) of Section 17.2, or if Landlord
does not terminate the Lease, but elects to proceed under this Section instead
of Section 17.4, Landlord shall be entitled to recover from Tenant all Base Rent
and Additional Rent, accrued and unpaid for the period up to and including such
termination date or election date, as applicable (such applicable termination or
election date hereafter "Calculation Date"), as well as all other additional
sums payable by Tenant or for which Tenant is liable or in respect of which
▇▇▇▇▇▇ has agreed to indemnify Landlord under any of the provisions of this
Lease, which may be then owing and unpaid, and all costs, assessments, fines,
fees and expenses, including court costs and reasonable attorneys' fees,
incurred by Landlord in the enforcement of its rights and remedies hereunder,
and, in addition, Landlord shall be entitled to recover as damages for loss of
the bargain and not as a
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penalty; (a) the aggregate sum which at the time of such termination or election
represents the excess, if any, of the present value of the aggregate rents which
would have been otherwise payable under this Lease after the Calculation Date
(including, without limitation, Base Rent at the annual rate or respective
annual rates for the remainder of the Lease Term and the amount reasonably
projected by Landlord to represent Additional Rent for the remainder of the
Lease Term) over the then-present value of the then-aggregate fair rental value
of the Leased Premises for the balance of the Lease Term, such present worth to
be computed in each case on the basis of an Eight Percent (8%) per annum
discount from the respective dates upon which such rentals or other amounts
would have been otherwise payable under this Lease; and (b) any damages in
addition thereto, including reasonable attorneys' fees and court costs, which
Landlord shall have sustained by reason of the breach of any of the covenants of
this Lease other than for the payment of Rent. For purposes of calculating
damages for the loss of bargain under this section, such calculation will, for
purposes of calculating the fair rental value offset, take into account the
estimated average period of time necessary for Landlord to locate an acceptable
tenant and negotiate and complete a lease with such replacement tenant. The
parties hereto agree that such period of time shall be conclusively deemed to be
a calendar month from the Calculation Date, and, therefore, there shall be no
amount attributable to fair rental value of the Leased Premises to be offset
against amounts otherwise due under the Lease for the initial period after the
Calculation Date.
17.6 Storage Removal and Sale of Personal Property. Pursuant to any
statutory lien benefiting Landlord, all property of Tenant which is stored by
Landlord or removed from the Leased Premises by Landlord pursuant to any
provisions of this Lease or law may be handled, removed or stored by Landlord at
the cost and expense of Tenant and Landlord shall in no event be responsible for
the value, preservation or safekeeping thereof. Tenant shall pay Landlord for
all expenses incurred by Landlord in such removal and storage and all reasonable
charges requested by Landlord for any storage of such property, so long as the
same shall be in Landlord's possession or under ▇▇▇▇▇▇▇▇'s control. All such
property not removed from the Leased Premises or retaken from storage by Tenant
within Sixty (60) days after the end of the Lease Term, however terminated,
shall, at Landlord's option, either (1) be conclusively deemed to have been
conveyed by Tenant to Landlord as by bill of sale without further payment or
credit by Landlord to Tenant, or (2) sold by Landlord in accordance with
Illinois statutory law whereby all costs and expenses incurred by Landlord in
such sale will be added to any amounts owed Landlord.
17.7 Attorneys' Fees. Tenant shall pay all of Landlord's reasonable costs,
charges and expenses, including court costs and reasonable attorneys' fees,
incurred by Landlord in collecting any amounts owed, or enforcing any rights or
terms under this Lease or to declare or confirm rights whether or not any action
of judicial proceeding is involved, including, but not limited to those costs,
charges and expenses incurred by Landlord in any action brought by Landlord or
against Landlord in which Landlord is the Prevailing Party, or incurred by
Landlord in any litigation, negotiation or transaction in which Tenant causes
Landlord, without its fault, to become involved or concerned. Nothing in this
Section 17.7 shall interfere with Landlord's rights and remedies against Tenant
and/or Guarantors of this Lease to receive the benefit of Tenant's agreements to
defend and/or indemnify Landlord as is variously set forth herein. Attorneys'
fees available to Landlord hereunder may include, without limitation, all fees
and costs incurred by
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Landlord associated with filing a claim or otherwise requesting relief or
appearing in or with respect to Bankruptcy or insolvency proceedings involving
the Tenant, any Guarantor of this Lease or any successor or assign thereto. In
this Section 17.7, the term "Prevailing Party" shall include, without
limitation, a party who substantially obtains or defeats the relief sought, as
the case may be, whether by compromise, settlement, judgment or the abandonment
by the other party of its claim or defense and shall also include a party filing
a claim or otherwise requesting relief in bankruptcy or insolvency proceedings
involving the other party to this Lease. The attorneys' fees and costs awarded
shall not be computed in accordance with any court fee schedule, but shall be
such as to fully reimburse all attorneys' fees and costs reasonably incurred.
17.8 Remedies in Event of Bankruptcy or Other Proceeding.
(a) Anything contained herein to the contrary notwithstanding, if
termination of this Lease shall be stayed by order of any court having
jurisdiction over any proceeding described in Section 17.1, or by federal
or state statute, then, following the expiration of any such stay, or if
Tenant or Tenant as debtor-in-possession or the trustee appointed in any
such proceeding (being collectively referred to as "Tenant" only for the
purposes of this Section) shall fail to assume Tenant's obligations under
this Lease within the period prescribed therefor by law or within Fifteen
(15) days after entry of the order for relief or as may be allowed by the
court, or if Tenant shall fail to provide adequate protection of
Landlord's right, title and interest in and to the Leased Premises or
adequate assurance of the complete and continuous future performance of
Tenant's obligations under this Lease, Landlord, to the extent permitted
by law or by leave of the court having jurisdiction over such proceeding,
shall have the right, at its election, to terminate this Lease on Fifteen
(15) days' written notice to Tenant and upon the expiration of said
▇▇▇▇▇▇▇ (15) day period, this Lease shall cease and expire as aforesaid
and Tenant shall immediately quit and surrender the Leased Premises as
aforesaid. Upon the termination of this Lease as provided above, Landlord,
without notice, may re-enter and repossess the Leased Premises using such
force for that purpose as may be necessary without being liable to
indictment, prosecution or damages therefor and may dispossess Tenant by
summary proceedings or otherwise.
(b) For the purposes of the preceding paragraph (a), adequate protection
of ▇▇▇▇▇▇▇▇'s right, title and interest in and to the Leased Premises, and
adequate assurance of the complete and continuous future performance of
Tenant's obligations under this Lease, shall include, without limitation,
the following requirements:
(i) that Tenant comply with all of its obligations under this Lease;
(ii) that Tenant pay to Landlord, on the first day of each month
occurring subsequent to the entry of such order, or the effective
date of such stay, the aggregate Base Rent and Additional Rent
payable for such monthly period;
(iii) that Tenant continue to use the Leased Premises only for a
Permitted Use in the manner originally required by this Lease;
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(iv) that Landlord be permitted to periodically inspect the Leased
Premises;
(v) that Tenant pay to Landlord within Fifteen (15) days after entry
of such order or the effective date of such stay, as partial
adequate protection against future diminution in value of the Leased
Premises and adequate assurance of the complete and continuous
future performance of Tenant's obligations under this Lease, a
security deposit in an amount equal to the sum of two (2)
installments of monthly Base Rent and Additional Rent (including
Rent Adjustment) to Landlord;
(vi) that if Tenant assumes this Lease and proposes to assign the
same (pursuant to Title 11 U.S.C. 365, or as the same may be
amended) to any person who shall have made a bona fide offer to
accept an assignment of this Lease on terms acceptable to such court
having competent jurisdiction over ▇▇▇▇▇▇'s estate, then notice of
such proposed assignment, setting forth (x) the name and address of
such person, (y) all of the terms and conditions of such offer, and
(z) the adequate assurance to be provided Landlord to assure such
person's future performance under this Lease, including, without
limitation, the assurances referred to in Title 11 U.S.C.
ss.365(b)(3), as it may be amended, shall be given to Landlord by
Tenant no later than Fifteen (15) days after receipt by Tenant of
such offer, but in any event no later than Thirty (30) days prior to
the date that Tenant shall make application to such court for
authority and approval to enter into such assignment and assumption,
and Landlord shall thereupon have the prior right and exclusive
option, to be exercised by notice to Tenant given at any time prior
to the effective date of such proposed assignment, to accept, or to
cause ▇▇▇▇▇▇▇▇'s designee to accept, an assignment of this Lease
upon the same terms and conditions for the same consideration, if
any, as the bona fide offer made by such person, less any brokerage
commissions which may be payable out of the consideration to be paid
by such person for the assignment of this Lease; and
(vii) that if ▇▇▇▇▇▇ assumes this Lease and proposes to assign the
same, and Landlord does not exercise its option pursuant to
paragraph (vi) of this Section 17.8, Tenant hereby agrees that:
(A) the assignee shall have a net worth not less than the
aggregate net worth of Tenant and each guarantor of its obligation
hereunder during the period initiating with the Commencement Date
and ending with the date at which Landlord is entitled to exercise
its option under Section 17.8(b)(vi) ("Landlord Option Date"), or
such Tenant's obligations under this Lease shall be unconditionally
guaranteed by a person having a net worth equal to the greatest of
the Tenant and each guarantor as aforesaid;
(B) such assignee shall assume in writing and be bound by all
of the terms, covenants and conditions of this Lease including,
without limitation, all of such terms, covenants and conditions
respecting the Permitted Use and repayment of Base Rent and
Additional Rent, and said assignee shall fully cure all then
existing
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Defaults which Tenant or any party to this Lease shall have been
notified of up to and including the Landlord Option Date;
(C) such assignee shall indemnify Landlord against, and pay to
Landlord the amount of, any payments which Landlord may be obligated
to make to any Mortgagee by virtue of such assignment; and
(D) if such assignee makes any payment to Tenant, or for
Tenant's account, for the right to assume this Lease (including,
without limitation, any lump sum payment, installment payment or
payment in the nature of rent over and above the Rent payable under
this Lease), Tenant shall pay over to Landlord one-half of any such
payment.
(c) In the event that Tenant (i) shall be required to either (y) provide
adequate protection of Landlord's rights, title and interest in and to the
Leased Premises or (z) provide adequate assurances of performance of its
obligations hereunder in each case pursuant to Section 17.8(b) hereof,
then in addition to the requirement of Tenant and other persons
participating in each such action to comply with Section 17.8(b) hereof,
Tenant and/or an assignee proposed by Tenant shall pay Landlord, without
limitation, all fees and costs of Landlord to employ or consult with an
attorney concerning, or to enforce or defend any of Landlord's rights or
remedies arising under the Lease and in relation to any Bankruptcy
proceeding involving Tenant, including but not limited to, all fees and
costs incurred by Landlord, its successors or assigns, associated with the
filing of a claim or otherwise requesting relief with respect to
Bankruptcy or insolvency proceedings involving the Tenant, any guarantor
of this Lease, or any party to this Lease.
17.9 Tenant's Right to Cure Defaults. If, for any reason, it is determined
in an action or proceeding interpreting the terms of this Lease that Tenant is
to be granted a right to cure an incurable or non-monetary Default, it is
expressly agreed that such cure will not be deemed to be effected unless and
until Landlord receives full monetary compensation as reasonably calculated by
Landlord for the breach or Default that occurred.
17.10 Landlord Default. Except as specifically set forth in this Lease,
Tenant shall have no, and hereby expressly disclaims and waives any, right to
cancel or terminate this Lease in the event of any non-performance or default of
Landlord in performing any of its obligations under this Lease, ▇▇▇▇▇▇'s rights
being hereby expressly limited to an action for damages, specific performance or
other equitable remedies.
ARTICLE 18
Subordination
18.1 Subordination. ▇▇▇▇▇▇▇▇ has heretofore and may hereafter from time to
time execute and deliver one or more first mortgages or trust deeds in the
nature of a mortgage (collectively or singularly, a "First Mortgage") against
the Leased Premises or any interest therein. In any such case, ▇▇▇▇▇▇'s interest
in this Lease shall be automatically and without any
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notice from Landlord or act on the part of the Tenant or any other person
subordinate to the First Mortgage and to any and all advances made thereunder,
to the interest thereon and to all renewals, replacements, supplements,
amendments, modifications and extensions thereof. In the event that the holder
of a First Mortgage does not require or desire ▇▇▇▇▇▇'s interest in this Lease
to be subordinate to the First Mortgage, Landlord will deliver written notice to
Tenant stating as such and, in such case, the lease shall not be subject to that
particular First Mortgage. Notwithstanding the fact that ▇▇▇▇▇▇'s interest in
the Lease will be automatically subordinate to such First Mortgage, Tenant will
promptly, but in no event later than Ten (10) days after receipt thereof,
execute and deliver such agreement or agreements as may be reasonably required
by such mortgagee or trustee under any First Mortgage, provided such agreements
also contain a provision recognizing Tenant's tenancy and agreeing that Tenant's
quiet possession shall not be disturbed if Tenant is not in Default. Tenant
covenants it will not subordinate this Lease to any mortgage or trust deed other
than a First Mortgage without the prior written consent of the holder of the
First Mortgage. Notwithstanding such subordination, ▇▇▇▇▇▇'s right to quiet
possession of the Leased Premises shall be recognized by the First Mortgage and
shall not be disturbed if Tenant is not in Default under this Lease.
18.2 Liability of Holder of First Mortgage: Attornment. It is further
agreed that (a) if any First Mortgage shall be foreclosed, (i) the holder of the
First Mortgage, ground lessor (or their respective grantees) or purchaser at any
foreclosure sale (or grantee in a deed in lieu of foreclosure), as the case may
be, shall be (x) liable for any act or omission of any prior landlord (including
Landlord), (y) subject to any offsets or counterclaims which Tenant may have
against a prior landlord (including Landlord), and (z) bound by any prepayment
of Base Rent or Additional Rent which Tenant may have in excess of the amounts
then due, or estimated by Landlord to be due, for the next succeeding month;
(ii) the liability of the mortgagee or trustee hereunder or the purchaser at
such foreclosure sale or the liability of a subsequent owner designated as
Landlord under this Lease shall exist only so long as such trustee, mortgagee,
purchaser or owner is the owner of the Leased Premises, and such liability shall
not continue or survive after further transfer of ownership; and (iii) upon
request of the ground lessor, mortgagee or trustee, if the First Mortgage shall
be foreclosed, Tenant will attorn as Tenant under this Lease, to the purchaser
at any foreclosure sale under any First Mortgage, and Tenant will promptly, but
in no event later than Ten (10) days after receipt thereof, execute such
instruments as may be necessary or appropriate to evidence such attornment,
provided such instruments also contain a provision recognizing Tenant's tenancy
and agreeing that ▇▇▇▇▇▇'s quiet possession shall not be disturbed if Tenant is
not in Default; and (b) this Lease may not be modified or amended so as to
reduce the Base Rent or Additional Rent or shorten the Lease Term or so as to
adversely affect in any other respect to any material extent the rights of
Landlord, nor shall this Lease be canceled or surrendered, without the prior
written consent of the Landlord.
18.3 Modification Required by First Mortgagee. Should any prospective
first mortgagee require a modification or modifications of this Lease, which
modification or modifications will not cause an increased cost or expense to
Tenant or in any other way materially change the rights and obligations of
Tenant hereunder, ▇▇▇▇▇▇ agrees that this Lease may be so modified and agrees to
promptly, but in no event later than Ten (10) days after receipt thereof,
execute and deliver to Landlord whatever documents are reasonably required
therefor.
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18.4 Short Form Lease. Should any prospective mortgagee require execution
of a memorandum of lease for recording (containing the names of the parties, a
description of the Leased Premises and the Lease Term) or a certification from
Tenant concerning this Lease in such form as may be required by a prospective
mortgagee, ▇▇▇▇▇▇ agrees to promptly execute such memorandum of lease or
certificate and deliver the same to Landlord within Ten (10) days following the
request therefor.
18.5 Power of Attorney. In the event that ▇▇▇▇▇▇ has not executed and
delivered to Landlord any of the documentation required by this Article within
the applicable Ten (10) day period referenced above, Tenant hereby irrevocably
appoints Landlord as its attorney-in-fact, coupled with an interest, to execute
and deliver, without any liability therefor, any and all such documents.
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ARTICLE 19
Mortgagee Protection
19.1 Mortgagee Protection. Tenant agrees to give any ground lessor or any
holder of any First Mortgage (as defined in Article 18 hereof) against the
Leased Premises, or any interest therein, by registered or certified mail, a
copy of any notice or claim of default served upon Landlord by ▇▇▇▇▇▇, provided
that prior to such notice Tenant has been notified in writing (by way of service
on Tenant of a copy of an assignment of Landlord's interest in leases, or
otherwise) of the name and address of such ground lessor or First Mortgage
holder. Tenant further agrees that if Landlord shall have failed to cure such
default within Thirty (30) days after such notice to Landlord (or if such
default cannot be cured or corrected within that time, then such additional time
as may be necessary if Landlord has commenced within such Thirty (30) days and
is diligently pursuing the remedies or steps necessary to cure or correct such
default), then the ground lessor or holder of the First Mortgage shall have an
additional Thirty (30) days within which to cure or correct such default (or if
such default cannot be cured or corrected within that time, then such additional
time as may be necessary if such ground lessor or holder of the First Mortgage
has commenced within such Thirty (30) days and is diligently pursuing the
remedies or steps necessary to cure or correct such default, including the time
necessary to obtain possession if possession is necessary to cure or correct
such default).
ARTICLE 20
Estoppel Certificate
20.1 Estoppel Certificate. Each party agrees that, from time to time upon
not less than Ten (10) days prior written request by the other party or the
holder of any First Mortgage or any ground lessor, the party receiving the
written request (or any permitted assignee, subtenant, licensee, concessionaire
or other occupant of the Leased Premises claiming by, through or under Tenant)
will deliver to the party making the written request, a statement in writing
signed by the party receiving the written request certifying certain terms,
conditions and status of the relationship between Landlord and Tenant arising
out of this Lease including, but in no way limited to: (a) that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that this Lease as modified is in full force and effect and identifying the
modifications); (b) the date upon which Tenant began paying Rent and the dates
to which the Rent and other charges have been paid; (c) that no party to this
Lease, the First Mortgage or any associated agreements are in default under any
provision thereof, or, if in default, the nature thereof in detail; (d) that the
Tenant is in occupancy and paying all Base Rent and Additional Rent, on a
current basis with no rental offsets or claims; (e) that there has been no
prepayment of Base Rent other than that provided for in this Lease; (f) that
there are no actions, whether voluntary or otherwise, pending against any party
to this Lease, the First Mortgage or any associated agreements under the
bankruptcy laws of the United States or any state thereof; (g) that except as
specifically set forth in this Lease, there are no options or rights regarding
renewal of this Lease, acquisition of the Leased Premises or any portion
thereof, expansion or diminution of the Lease Premises or other rights or
options similar to the foregoing; and (h) such other matters as may be
reasonably required by the party making the written request, the holder of the
First Mortgage or any ground lessor. Tenant hereby appoints Landlord as its
irrevocable attorney-in-
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fact, coupled with an interest, to execute and deliver on ▇▇▇▇▇▇'s behalf,
without liability, any Estoppel Certificates submitted to Tenant which are not
signed or returned by Tenant within the Ten (10) day period set forth above.
ARTICLE 21
Subrogation and Insurance
21.1 Waiver of Subrogation. ▇▇▇▇▇▇▇▇ and Tenant agree to have all fire and
extended coverage and other property damage insurance which may be carried by
either of them endorsed with a clause providing that any release from liability
of, or waiver of claim for, recovery from, the other party entered into in
writing by the insured thereunder prior to any loss or damage shall not affect
the validity of said policy or the right of the insured to recover thereunder,
and providing further that the insurer waives all rights of subrogation which
such insurer might have against the other party. Without limiting any release or
waiver of liability or recovery set forth elsewhere in this Lease, and
notwithstanding anything in this Lease which may appear to be to the contrary,
each of the parties hereto waives all claims for recovery from the other party
for any loss or damage to any of its property insured under valid and
collectible insurance policies to the extent of any recovery actually collected
under such insurance policies. Notwithstanding the foregoing or anything
contained in this Lease to the contrary, any release or any waiver of claims
shall not be operative, nor shall the foregoing endorsements be required, in any
case where the effect of such release or waiver is to invalidate insurance
coverage or invalidate the right of the insured to recover thereunder or to
increase the cost thereof (provided that in the case of increased cost the other
party shall have the right, within Ten (10) days following written notice, to
pay such increased cost of keeping such release or waiver in full force and
effect).
21.2 Tenant's Insurance. Tenant shall procure and maintain policies of
insurance, at its sole cost and expense, during the Term with terms, coverages
and companies satisfactory to Landlord and with such reasonable increases in
limits as Landlord may from time to time request, but initially Tenant shall
maintain the following coverages insuring:
(a) Tenant and Landlord from all claims, demands or actions made by, or on
behalf of, any person or persons, firm or corporation and arising from,
related to or connected with the Leased Premises, for injury to or death
of any person and for damage to property in an amount of not less than One
Million Dollars ($1,000,000.00) per claim and not less than Five Million
Dollars ($5,000,000.00) in the aggregate. Tenant's insurance will include
contractual liability coverage recognizing this Lease and products and
completed operations liability.
(b) Insurance against loss or damage from external explosion or breakdown
of boilers, air conditioning equipment and miscellaneous electrical
apparatus, if any, in the Leased Premises, in an amount not less than One
Million Dollars ($1,000,000.00), with loss or damage payable to Landlord
and Tenant as their interests may appear.
(c) Full coverage for breakage of all plate glass, including but not
limited to, doors, windows, transoms and all lettering applied thereon.
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(d) Insurance against all worker's compensation claims.
(e) All leasehold improvements, contents and Tenant's trade fixtures,
machinery, equipment, furniture and furnishings, in the Leased Premises to
the extent of at least One Hundred Percent (100%) of their replacement
cost against loss or damage by fire, lightning, wind storm, aircraft,
vehicles, smoke, explosion, riot or civil commotion as provided by the
standard fire and extended coverage insurance, including, without
limitation, vandalism and malicious mischief, special extended coverage
and sprinkler leakage endorsements.
21.3 Evidence of Insurance. Prior to the commencement of the Lease Term,
Tenant shall furnish to Landlord certificates evidencing such coverage, which
policies shall state that such insurance coverage may not be reduced, canceled
or not renewed without at least Thirty (30) days' prior written notice to
Landlord and Tenant (unless such cancellation is due to nonpayment of premium,
and, in that case, only Ten (10) days' prior written notice shall be
sufficient).
21.4 Landlord's Insurance. Tenant shall, at its sole expense, maintain at
all times during the Lease Term and any holdover period, the following types of
insurance coverage, subject to the reasonable review by Landlord's insurance
advisor, under which the Landlord shall be a designated loss payee:
(a) All-risk physical damage insurance covering the Leased Premises in an
amount not less than One Hundred Percent (100%) of the full replacement
cost which is ordinarily to be $2,500.000 (exclusive of the cost of
excavations, foundations and footings) providing protection against perils
that are covered under standard insurance industry practices within the
classification of all-risk insurance, including, but not limited to, loss
or damage from fire, lightning, windstorm, hail, explosion, riot, civil
commotion, aircraft, vehicles, smoke, domestic water damage, collapse,
sprinkler damage, vandalism, malicious mischief and such other risks as
Landlord may, from time to time, reasonably determine, with deductibles
equal to those included in similar insurance policies maintained by Tenant
for other manufacturing properties owned by it. Tenant's property located
at the Leased Premises, including, without limitation, equipment,
machinery, furnishings and furniture, may be insured under separate
policies for the benefit of the Tenant.
(b) Tenant shall furnish Landlord with certificates that the foregoing
insurance is in full force and effect, within thirty (30) days after the
Commencement Date of this Lease and at each anniversary thereafter during
any period for which this Lease remains in effect.
21.5 Compliance with Requirements. Tenant shall comply with all applicable
laws and ordinances, all orders and decrees of court and all requirements of
other governmental authorities, and shall not, directly or indirectly, make any
use of the Leased Premises which may thereby be prohibited or be dangerous to
person or property, or which may jeopardize any insurance coverage or increase
the cost of such insurance or require additional insurance coverage.
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ARTICLE 22
Nonwaiver
22.1 Nonwaiver. No waiver of any condition expressed in this Lease shall
be implied by any neglect of Landlord to enforce any remedy on account of the
violation of such condition, whether or not such violation be continued or
repeated subsequently, and no express waiver shall affect any condition other
than the one specified in such waiver and that one only for the time and in the
manner specifically stated. Without limiting Landlord's rights under Article 9,
no receipt of moneys by Landlord from Tenant after the termination in any way of
the Lease Term or of Tenant's right of possession hereunder or after the giving
of any notice shall reinstate, continue or extend the Lease Term or affect any
notice given to Tenant prior to the receipt of such moneys. After the service of
notice or the commencement of a suit or after final judgment for possession of
the Leased Premises, Landlord may receive and collect any moneys due, and the
payment of said moneys shall not waive or affect said notice, suit or judgment.
ARTICLE 23
Due Authority
23.1 Due Authority. Tenant (a) represents and warrants that this Lease has
been duly authorized, executed and delivered by and on behalf of Tenant and
constitutes the valid and binding agreement of Tenant in accordance with the
terms hereof, and (b) if requested by Landlord, shall deliver to Landlord,
concurrently with the delivery of this Lease executed by ▇▇▇▇▇▇, and at ▇▇▇▇▇▇'s
sole expense, certified resolutions of the board of directors (and shareholders,
if required) authorizing Tenant's execution and delivery of this Lease and the
performance of ▇▇▇▇▇▇'s obligations hereunder, a Certificate of Good Standing
for the State of Delaware and any and all similar documentation evidencing
Tenant's authority and existence as may be reasonably requested by Landlord.
ARTICLE 24
Notices
24.1 Notices. All notices and demands required or desired to be given by
either party to the other with respect to this Lease or the Leased Premises
shall be in writing and shall be delivered personally, sent by overnight courier
service, prepaid, or sent by United States registered or certified mail, return
receipt requested, postage prepaid, and addressed as herein provided. Notices to
or demands upon Tenant shall be addressed to Tenant after the Commencement Date,
at Phoenix Color Corp., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, attention ▇▇▇▇▇ ▇▇▇▇▇▇▇, President, with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
Notices to or demands upon Landlord shall be addressed to Landlord, Laurel
Limited Partnership, c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Huntington, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇. Notices and demands shall be deemed given
and served (a) upon receipt or refusal, if delivered personally, (b) One (1)
business day after deposit with an overnight courier service, (c) Three (3)
business days after deposit in the United States mails, if mailed. Either party
may change its address for
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receipt of notices by giving notice of such change to the other party in
accordance herewith. Notices and demands from Landlord to Tenant may be signed
by Landlord.
ARTICLE 25
Hazardous Substances
25.1 Defined Terms.
(a) "Claim" shall mean and include any demand, cause of action, proceeding
or suit (i) for damages (whether designated as, or otherwise encompassing,
actual, punitive, foreseeable, unforeseeable, consequential, incidental or
direct damages), losses, liabilities, judgments, injuries to person or
property, damages to natural resources, fines, penalties, interest,
contribution or settlement, (ii) for the costs of site investigations,
feasibility studies, information requests, health or risk assessments or
Response actions, and (iii) for enforcing insurance, contribution or
indemnification agreements, and shall include any actual or claimed
liability arising out of the same, including all costs, expenses, experts'
and consultants' fees and attorneys' fees, expended in the investigation,
defense or resolution thereof.
(b) "Environmental Laws" shall mean and include all federal, state and
local statutes, ordinances, regulations and rules relating to
environmental quality, occupational safety, health, safety contamination
and clean-up, including, without limitation, the Clean Air Act, 42 U.S.C.
Section 7401 et seq. ("CAA"); the Clean Water Act, 33 U.S.C. Section 1251
et seq. and the Water Quality Act of 1987; the Federal Insecticide,
Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. Section 136 et seq.;
the Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. Section
1401 et seq.; the National Environmental Policy Act, 41 U.S.C. Section
4321 et seq; the Noise Control Act, 42 U.S.C. Section 4901 et seq.; the
Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq.; the
Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section 6901 et
seq., as amended by the Hazardous and Solid Waste Amendments Act of 1984;
the Safe Drinking Water Act, 42 U.S.C. Section 300f et seq.; the Solid
Waste Disposal Act, 42 U.S.C. Section 1801 et seq., the Federal Water
Pollution Control Act, as amended, 33 U.S.C. Section 1251, et seq.
("FWPCA"); the Hazardous Materials Transportation Act, 49 U.S.C. Section
1801, et seq. ("HMTA"); the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et seq.,
as amended by the Superfund Amendments and Reauthorization Act, the
Emergency Planning and Community Right-to-Know Act, and the Radon Gas and
Indoor Air Quality Research Act; the Toxic Substances Control Act
("TSCA"), 15 U.S.C. Section 2601 et seq.; the Atomic Energy Act, 42 U.S.C.
Section 2011 et seq., and the Nuclear Waste Policy Act of 1982, 42 U.S.C.
Section 10101 et seq.; and any similar laws of the State of Illinois; and
any successor statutes and regulations to the foregoing and state
superlien and environmental clean-up statutes, with implementing
regulations and guidelines. Environmental Laws shall also include all
state, regional, county, municipal and other local laws, regulations and
ordinances insofar as they are equivalent or similar to the federal laws
recited above or purport to regulate Hazardous Materials.
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(c) "Hazardous Materials" shall mean any waste, substance or material the
exposure to which is classified, limited, regulated or prohibited by any
governmental authority (federal, state or local) or which may or could
pose a hazard to the health or safety of the occupants of the Leased
Premises or adjacent or surrounding property or which could pose a threat
to the environment including, but in no way limited to the following,
including mixtures thereof: any hazardous substance, pollutant,
contaminant, waste, by-product or constituent regulated under CERCLA; oil
and petroleum products and natural gas, natural gas liquids, liquefied
natural gas usable for fuel; pesticide regulated under the FIFRA; asbestos
and asbestos materials, PCBs and other substances regulated under the
TSCA; source material, special nuclear material, by-product material and
any other radioactive materials or radioactive wastes, however produced,
regulated under the Atomic Energy Act or the Nuclear Waste Policy Act;
chemicals subject to the OSHA Hazard Communication Standard, 29 C.F.R.
ss.1910.1200 et seq.; and industrial process and pollution control wastes,
whether or not hazardous within the meaning of RCRA; "hazardous materials"
under the HMTA; "hazardous air pollutants" under the CAA; a "hazardous
substance" or "toxic pollutant" under the FWPCA and any and all toxic or
hazardous materials addressed by regulations promulgated now or hereafter
under the above referenced laws, related or similar laws, whether the same
be presently in existence or hereafter promulgated.
(d) "Manage" means to generate, manufacture, process, treat, store, use,
misuse, refine, recycle, reclaim, blend or burn for energy recovery,
incinerate, accumulate speculatively, transport, transfer, dispose of or
abandon Hazardous Materials.
(e) "Release" or "Released" shall mean any actual or threatened spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping or disposing of Hazardous Materials into the
environment, as "environment" is defined in CERCLA.
(f) "Response" or "Responded" shall mean action taken in compliance with
Environmental Laws to correct, remove, remediate, clean-up, prevent,
mitigate, monitor, evaluate, investigate, assess or ▇▇▇▇▇ the Release of a
Hazardous Material.
25.2 Tenant's Obligations with Respect to Environmental Matters. During
the Lease Term (a) Tenant shall at its own cost comply with all Environmental
Laws and, to the extent required thereby, obtain all appropriate permits; (b)
except for the proper and legal use of Hazardous Materials in quantities that do
not require reporting pursuant to the Community Right to Know Act, incident to
operating a printing plant, Tenant shall not conduct, allow, permit or authorize
the Management of any Hazardous Materials on the Leased Premises, including
installation of any underground storage tanks, without prior written disclosure
to and approval by Landlord, such approval to be given or withheld in Landlord's
sole and unfettered discretion; (c) except for the proper and legal use of
Hazardous Materials in quantities that do not require reporting pursuant to the
Community Right to Know Act, incident to operating a printing plant, Tenant
shall not take any action that would subject the Leased Premises to permit
requirements under RCRA or any other Environmental Laws for storage, treatment
or disposal of Hazardous
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Materials; (d) Tenant shall not dispose of Hazardous Materials in dumpsters; (e)
Tenant shall not discharge Hazardous Materials on or about the Leased Premises,
including, but not limited to, into drains or sewers; (f) Tenant shall not
cause, permit or allow the Release of any Hazardous Materials on, to or from the
Leased Premises; and (g) Tenant shall at its own cost arrange for the lawful
transportation and offsite disposal of all Hazardous Materials that it generates
or which, for any reason, are present on the Leased Premises during the Lease
Term. Notwithstanding the foregoing, Tenant may use on the Leased Premises, in
de minimis amounts, those Hazardous Materials normally used in connection with
general distribution and delivery operations or office usage so long as Tenant's
use, storage and transportation thereof complies in all respects with all
applicable Environmental Laws. However, notwithstanding anything to the contrary
contained in this section or elsewhere in this Lease, Tenant shall not be
required to obtain, and does not furnish any assurance that it will obtain, any
permit applied for prior to the Lease Term in connection with the operation of
the Leased Premises, but not issued as of the Commencement Date; the Tenant will
use good faith efforts to complete the application for such permit and obtain
its issuance, but does not guarantee it will be successful in doing so.
25.3 Copies of Notices. During the Lease Term, Tenant shall promptly
provide Landlord with copies of all summons, citations, directives, information
inquiries or requests, notices of potential responsibility, notices of violation
or deficiency, orders or decrees, Claims, complaints, investigations, judgments,
letters, notices of environmental liens or Response actions in progress and
other communications, written or oral, actual or threatened, from the United
States Environmental Protection Agency, Occupational Safety and Health
Administration or other federal, state or local agency or authority, or any
other entity or individual, concerning (a) any Release of a Hazardous Material
on, to or from the Leased Premises; (b) the imposition of any lien on the Leased
Premises; or (c) any alleged violation of or responsibility under Environmental
Laws. Landlord and Landlord's employees shall have the right to enter the Leased
Premises and conduct appropriate inspections or tests in order to determine
Tenant's compliance with Environmental Laws.
25.4 Tests and Reports. Upon written request by ▇▇▇▇▇▇▇▇, Tenant shall
provide Landlord with the results of appropriate reports and tests, with
transportation and disposal contracts for Hazardous Materials, with any permits
issued under Environmental Laws, and with any other applicable documents to
demonstrate that Tenant complies with all Environmental Laws relating to the
Leased Premises.
25.5 Access and Inspection. In addition to any other rights of entry or
access to the Leased Premises pursuant to this Lease and applicable laws,
Landlord and its agents and representatives shall have access to the Leased
Premises and to the books and records of Tenant (and any occupant of the Leased
Premises claiming by, through or under Tenant) relating to Hazardous Materials
for the purpose of ascertaining the nature of the activities being conducted
thereon and to determine the type, kind and quantity of all products, materials
and substances brought onto the Leased Premises or made or produced thereon.
Landlord and its agents and representatives shall have the right to take samples
in quantity sufficient for scientific analysis of all products, materials and
substances present on the Leased Premises, including, but not limited to,
samples of products, materials or substances brought onto or made or produced on
the Leased
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Premises by Tenant or an occupant claiming by, through or under Tenant or
otherwise present on the Leased Premises. And, further, notwithstanding any
provision of this Lease or applicable statutes or judicial decisions to the
contrary, with respect to any assignment, subletting, grant of license or
concession or any other permission to the Leased Premises by any person other
than Tenant, Landlord shall have the right to withhold Landlord's consent
thereto if, in Landlord's sole and unfettered judgment, the assignee, subtenant,
licensee, concessionaire or such other person is not capable, either financially
or operationally, of performing or is not sufficiently qualified to perform in
accordance with the requirements of this Article 25. Any assignment, sublease,
license or other permission to use the Leased Premises from which Landlord
withholds its consent as provided in this Section 25.5 shall be voidable at the
Landlord's sole option.
25.6 Obligation to Respond. If during Tenant's Management of Hazardous
Materials at the Leased Premises, any Release occurs thereon or on any adjacent
or contiguous property, or in the event that the existence or presence of any
Hazardous Substance, (i) gives rise to liability or to a Claim under any
Environmental Law, (ii) causes a significant public health effect, or (iii)
creates a nuisance, Tenant shall promptly, but in no event later than Fifteen
(15) days thereafter, notify Landlord and take all applicable action in
Response. In the event that Landlord does not want the Response to be undertaken
by ▇▇▇▇▇▇, Landlord shall have the right and option (but in no event shall this
right and option imply or create any obligation on the part of Landlord) upon
the giving of reasonable notice to Tenant, to undertake the Response, and any
costs or expenses incurred by Landlord in pursuing such Response shall be paid
by Tenant.
25.7 Indemnification. Tenant shall indemnify, defend (with counsel
satisfactory to Landlord) and hold harmless Landlord, its lenders, any managing
agents and leasing agents of the Leased Premises, and their respective agents,
partners, officers, contractors, directors, members and employees, from all
Claims arising from or attributable to: (a) the Release of any Hazardous
Materials on the Leased Premises during or after the Lease Term (including any
holdover periods) of, or otherwise arising out of, ▇▇▇▇▇▇'s, and its agent's,
employees' and invitees' use of the Leased Premises pursuant to, this Lease or
the presence, whether or not due to Tenant's Management, of Hazardous Materials
in or on the Leased Premises or the subsurface thereof or the violation of any
Environmental Laws by Tenant, its agents, employees or invitees, whether or not
due to Tenant's Management (including, without limiting the generality thereof,
any cost, claim, liability or defense expended in remediation required by a
governmental authority); (b) any federal, state or local governmental
investigation or inquiry relating to the Tenant's use or occupancy of the Leased
Premises, or occurring during the Lease Term, whether the same be justified or
caused by the Tenant or its actions; or (c) any breach by Tenant of any of its
warranties, representations or covenants in this Section or, to the extent the
same relate to or impact any Environmental Laws, any other Section of this
Lease. Tenant's obligations hereunder shall survive the termination or
expiration of this Lease and shall further survive any transfer of all or any
portion of the Leased Premises, whether by Landlord or Tenant. The foregoing
notwithstanding, Tenant shall have no liability pursuant to the foregoing
indemnity for any environmental condition or related inquiry that arises out of
actual physical events (including any Management or Release) occurring entirely
after the termination of this Lease and to which Tenant, its agents, employees
and contractors have not contributed.
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ARTICLE 26
Tenant Signage
26.1 Tenant Signage. Tenant may, at its sole cost and expense, erect one
(1) ground mounted monument sign on the landscaped area adjacent to the building
in a location designated by Landlord, provided that (a) such sign does not
violate applicable governmental laws, ordinances, rules or regulations; (b) such
sign does not violate any covenants, conditions or restrictions affecting the
Leased Premises; (c) such monument sign is compatible with the architecture of
the Leased Premises, the landscaped area adjacent thereto and the surrounding
properties (including other monument signs); and (d) the design of the monument
sign has been approved by Landlord which approval shall not be unreasonably
withheld or delayed. Tenant shall be solely responsible for the construction,
installation, maintenance and expense of the sign. Except as expressly provided
herein, Tenant shall not erect or attach any sign to the exterior of the Leased
Premises. Upon the expiration or earlier termination of the Lease Term, Tenant
shall, at its sole cost and expense, remove the sign and repair any damage or
injury to the Leased Premises or landscaped areas adjacent thereto caused
thereby.
ARTICLE 27
Title and Covenant Against Liens
27.1 Title and Covenant Against Liens. ▇▇▇▇▇▇▇▇'s title is and always
shall be paramount to the title of Tenant, and nothing in this Lease contained
shall empower Tenant to do any act which can, shall or may encumber the title of
Landlord. Tenant covenants and agrees not to suffer or permit any lien of
mechanics or materialmen to be placed upon or against the Leased Premises, the
Land or Tenant's leasehold interest in the Leased Premises and, in case of any
such lien attaching, to immediately bond over or pay and remove same. Tenant has
no authority or power to cause or permit any lien or encumbrance of any kind
whatsoever, whether created by act of Tenant, operation of law or otherwise, to
attach to or be placed upon the Leased Premises, or the Land, and any and all
liens and encumbrances created by Tenant shall attach only to Tenant's interest
in the Leased Premises. If any such liens so attach and ▇▇▇▇▇▇ fails to bond
over or pay and remove same within Ten (10) days, then Landlord, at its
election, may pay and satisfy the same, and in such event the sums so paid by
Landlord shall accrue with interest from the date of payment at the rate set
forth in Section 28.8 hereof for amounts owed Landlord by Tenant. Such sums
shall be deemed to be Additional Rent.
ARTICLE 28
Miscellaneous
28.1 Successors and Assigns. Subject to the provisions of Article 13, each
provision of this Lease shall extend to and shall bind and inure to the benefit
not only of Landlord and Tenant, but also their respective heirs, legal
representatives, successors and assigns, but this provision shall not operate to
permit any transfer, assignment, mortgage, encumbrance, lien, charge or
subletting contrary to the provisions of this Lease.
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28.2 Modifications in Writing. No modification, waiver or amendment of
this Lease or of any of its conditions or provisions shall be binding upon
Landlord unless in writing signed by Landlord.
28.3 No Option; Irrevocable Offer. Submission of this instrument for
examination shall not constitute a reservation of or option for the Leased
Premises or in any manner bind Landlord or Tenant, and no lease or obligation of
Landlord or Tenant shall arise until this instrument is signed and delivered by
Landlord and Tenant.
28.4 Definition of Tenant. The word "Tenant" whenever used herein shall be
construed to mean Tenants or any one or more of them in all cases where there is
more than one Tenant; and the necessary grammatical changes required to make the
provisions hereof apply either to corporations or other organizations,
partnerships or other entities, or individuals, shall in all cases be assumed as
though in each case fully expressed herein. In all cases where there is more
than one Tenant, the liability of each shall be joint and several.
28.5 Definition of Landlord. The term "Landlord" as used in this Lease
means only the owner or owners at the time being of the Leased Premises so that
in the event of any assignment, conveyance or sale, once or successively, of
said Leased Premises, or any assignment of this Lease by Landlord, said Landlord
making such sale, conveyance or assignment shall be and hereby is entirely freed
and relieved of all covenants and obligations of Landlord hereunder accruing
after such sale, conveyance or assignment, and ▇▇▇▇▇▇ agrees to look solely to
such purchaser, grantee or assignee with respect thereto. This Lease shall not
be affected by any such assignment, conveyance or sale, and ▇▇▇▇▇▇ agrees to
attorn to the purchaser, grantee or assignee.
28.6 Headings. The headings of Articles and Sections are for convenience
only and do not limit, expand or construe the contents of the Sections.
28.7 Time of Essence. Time is of the essence of this Lease and of all
provisions hereof.
28.8 Default Rate of Interest. All amounts (including, without limitation,
Base Rent, and Additional Rent, and any damages, costs, expenses, penalties,
fines, indemnity claims and related or similar accounts due under this Lease,
including, but not limited to those amounts under Article 17 hereof, whether the
same be stipulated or otherwise) owed by Tenant to Landlord pursuant to any
provision of this Lease shall bear interest from the date due until paid at the
annual rate of Four Percent (4%) in excess of the rate of interest announced
from time to time by The First National Bank of Chicago at Chicago, Illinois, or
its successor bank, as its prime, reference or corporate base rate, changing as
and when said prime rate changes, unless a lesser rate shall then be the maximum
rate permissible by law with respect thereto in which event said lesser rate
shall be charged. Any such interest shall be in addition to any late charges
incurred by Tenant under Section 3.3 hereof.
28.9 Severability. The invalidity of any provision of this Lease shall not
impair or affect in any manner the validity, enforceability or effect of the
rest of this Lease.
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28.10 Entire Agreement. All understandings and agreements, oral or
written, heretofore made between the parties hereto are merged in this Lease,
which alone fully and completely expresses the agreement between Landlord (and
its agents) and Tenant.
28.11 Force Majeure. If Landlord fails to perform any of its obligations
hereunder, and such failure is due in whole or in part to any strike, lockout,
labor trouble, civil disorder, inability to procure materials, failure of power,
restrictive governmental laws and regulations, riots, insurrections, war, fuel
shortages, accidents, casualties, acts of God, acts caused directly or
indirectly by Tenant (or its agents, employees, contractors, licensees or
invitees) or any other cause beyond the reasonable control of Landlord, then
Landlord shall not be deemed in default under this Lease as a result of such
failure and the time for performance by Landlord provided for herein shall be
extended by the period of delay resulting from such cause. If Tenant fails to
perform any of its obligations hereunder, except for the payment of Base Rent
and Additional Rent, and such failure is due in whole or in part to any strike,
lockout, labor trouble, civil disorder, restrictive governmental laws and
regulations, riots, insurrections, war, acts of God or any other cause beyond
the reasonable control of Tenant, then Tenant shall not be deemed in Default
under this Lease as a result of such failure and the time for performance by
Tenant provided for herein shall be extended by the period of delay resulting
from such cause.
28.12 Payments by Landlord. Landlord shall, in the event Tenant fails to
pay the same, have the right, but not the obligation, to make payment of any
sums or amounts due to any third party by Tenant which arise out of, are
associated with, or relate to, ▇▇▇▇▇▇'s obligations under this Lease. Any such
payments made by Landlord on ▇▇▇▇▇▇'s behalf shall be deemed Additional Rent and
be due and payable to Landlord promptly upon submission of a notice regarding
the same. Such amounts shall expressly include any payments made by or on behalf
of Landlord to third parties, including payment of attorneys' fees, related to
or arising out of claims for which Tenant is obligated, pursuant to the terms of
this Lease or otherwise, to defend, indemnify and hold Landlord harmless.
Tenant's failure to pay such amounts upon demand by Landlord after payment by
Landlord shall constitute, with the required notice, a Default under Section
17.1(b), which Default shall be in addition to any Default resulting from
▇▇▇▇▇▇'s failure to abide by its obligations hereunder to indemnify, hold
harmless and defend Landlord in the first place.
28.13 Survival. All obligations, monetary or otherwise, accruing prior to
expiration of the Lease Term shall survive the expiration or earlier termination
of this Lease.
28.14 Relationship of Parties. This Lease does not create the relationship
of principal and agent, or of partnership, joint venture or of any association
or relationship between Landlord and ▇▇▇▇▇▇, the sole relationship between
Landlord and ▇▇▇▇▇▇ being that of landlord and tenant.
28.15 Surrender. No surrender to Landlord of this Lease or of the Leased
Premises, or any portion thereof, or any interest therein, prior to the
expiration of the Lease Term shall be valid or effective unless agreed to and
accepted in writing by ▇▇▇▇▇▇▇▇ and consented to in writing by all ground
lessors and the holders of all mortgages and deeds of trust, and no act or
omission by Landlord or any representative or agent of Landlord, other than such
a written acceptance by
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Landlord consented to by all such ground lessors and/or mortgagees, as
aforesaid, shall constitute an acceptance of any such surrender.
28.16 No Merger. There shall be no merger of this Lease or the leasehold
estate created by this Lease with any other estate or interest in the Leased
Premises by reason of the fact that the same person, firm, corporation or other
entity may acquire, hold or own directly or indirectly, (a) this Lease or the
leasehold interest created by this Lease or any interest therein, and (b) any
such other estate or interest in the Leased Premises or any portion thereof. No
such merger shall occur unless and until all persons, firms, corporations or
other entities having an interest (including a security interest) in (1) this
Lease or the leasehold estate created hereby, and (2) any such other estate or
interest in the Leased Premises or any portion thereof, shall join in a written
instrument expressly effecting such merger and shall duly record the same.
28.17 Governing Law. This Lease shall be governed in all respects by the
laws of the State of Illinois. Should either party institute legal suit or
action for enforcement of any obligation contained herein, it is agreed that the
venue of such suit or action shall be, at Landlord's option, in Lake County,
Illinois. Tenant expressly consents to ▇▇▇▇▇▇▇▇'s designation of the venue of
any such suit or action and each party waives the right to a jury in any action,
proceeding or counterclaim brought by either of them against the other on any
matters whatsoever arising under or out of this Lease. Although the provisions
of this Lease were initially drawn by the Landlord, this Lease shall not be
construed either for or against Landlord or Tenant, but this Lease shall be
interpreted in accordance with the general terms of the language in an effort to
reach an equitable result.
28.18 Quiet Possession. Upon Tenant paying the Rent for the premises and
observing and performing all of the covenants, conditions and provisions on
Tenant's part to be observed and performed hereunder, Tenant shall have quiet
possession of the Leased Premises for the entire term hereof subject to all of
the provisions of this Lease.
28.19 Tenant's Statement. Tenant shall furnish to Landlord, within Ten
(10) business days after written request therefor from Landlord, a copy of the
then most recent audited and certified financial statements of Tenant, if any.
It is mutually agreed that Landlord may deliver a copy of such statements to any
mortgagee or prospective mortgagee of Landlord, or any prospective purchaser of
the Leased Premises, but otherwise Landlord shall treat such statements and
information contained therein as confidential.
28.20 Intent - Triple Net Lease. Anything to the contrary notwithstanding
contained herein or otherwise, this Lease shall be construed as a triple net
lease and any and all expenses and obligations in connection with the Leased
Premises and the operation thereof, except where the same are expressly the
obligation of Landlord, also will be the obligation of the Tenant.
28.21 Usury. Notwithstanding any provision contained herein to the
contrary, if any interest rate specified in this Lease is higher than the rate
permitted by law, such interest rate specified herein shall automatically be
adjusted from time to time to the maximum rate permitted by law.
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ARTICLE 29
Exculpatory Provisions
29.1 Exculpatory Provisions. It is expressly understood and agreed by and
between the parties hereto, anything to the contrary notwithstanding, that each
and all of the representations, warranties, covenants, undertakings and
agreements herein made on the part of Landlord which in form purporting to be
the representations, warranties, covenants, undertakings and agreements of
Landlord are nevertheless each and every one of them made and intended, not as
personal representations, warranties, covenants, undertakings and agreements by
Landlord or for the purpose or with the intention of binding Landlord
personally, but are made and intended for the purpose only of subjecting
Landlord's interest in the Leased Premises to the terms of this Lease and for no
other purpose whatsoever, and in the case of default hereunder by Landlord,
Tenant shall look solely to the interests of Landlord in the Leased Premises;
that Landlord shall not have any personal liability to pay any indebtedness
accruing hereunder or to perform any covenant, either express or implied, herein
contained, and no liability or duty shall rest upon Landlord to sequester the
rents, issues and profits arising therefrom, or the proceeds arising from any
sale or other disposition thereof; and that no personal liability or personal
responsibility of any sort is assumed by, nor shall at any time be asserted or
enforceable against said Landlord, individually or personally, on account of
this Lease or on account of any representation, warranty, covenant, undertaking
or agreement of Landlord in this Lease contained, either express or implied, all
such personal liability, if any, being expressly waived and released by Tenant
and by all persons claiming by, through or under Tenant. In furtherance of the
foregoing, ▇▇▇▇▇▇ agrees that (a) the sole and exclusive remedy in the event of
any Landlord default shall be against Landlord's estate in the Leased Premises;
(b) no partner, member, or shareholder of Landlord shall be sued or named as a
party in any suit or action (except as may be necessary to secure jurisdiction);
(c) no service of process shall be made against any partner, member, or
shareholder of Landlord (except as may be necessary to secure jurisdiction); (d)
no partner, member, or shareholder of Landlord shall be required to answer or
otherwise plead to any service of process; (e) no judgment will be taken against
any partner, member, or shareholder of Landlord; (f) any judgment taken against
any partner, member, or shareholder of Landlord may be vacated and set aside at
any time nunc pro tunc; (g) no writ of execution will ever be levied against the
assets of any partner, member or shareholder of Landlord; and (h) these
covenants and agreements are enforceable both by Landlord and also by any
partner, member or shareholder of Landlord.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed as of the date first written above.
LANDLORD: LAUREL LIMITED PARTNERSHIP,
an Illinois Limited Partnership
By: Viking II, L.L.C., its General
Partner
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Member
-38-
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Member
and
TENANT: PHOENIX COLOR CORP.
a Delaware Corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
Authorized Officer
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EXHIBIT A
Leased Premises
LOTS 15, 16, AND 17 IN ▇▇▇▇▇▇▇ ROAD INDUSTRIAL PARK UNIT 1, BEING A
SUBDIVISION OF PART OF THE SOUTHWEST QUARTER OF SECTION 24, TOWNSHIP 44 NORTH,
RANGE 11 EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF
RECORDED MAY 24, 1979 AS DOCUMENT 1996467, IN BOOK 70 OF PLATS, PAGES 31 TO 33
AND CORRECTED BY LETTER OF CORRECTION RECORDED JUNE 14, 1979 AS DOCUMENT
2000534, IN LAKE COUNTY, ILLINOIS.
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Street Address: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇