PURCHASE AGREEMENT by and among an Oklahoma corporation, and LEONARD’S METAL, INC., a Missouri corporation, together as “Seller” and CIT CRE LLC, a Delaware limited liability company, as “Purchaser” Dated as of: December 28, 2006

EXHIBIT 10.2

 
EXECUTION COPY
 


by and among



LMI FINISHING, INC.,

an Oklahoma corporation,

and

▇▇▇▇▇▇▇’▇ METAL, INC.,

a Missouri corporation,

together as “Seller”


and


CIT CRE LLC,

a Delaware limited liability company,

as “Purchaser”






Dated as of: December 28, 2006

 

 

 




 
TABLE OF CONTENTS
 

SECTION                                                                                                                                                          PAGE
 
Article I Definitions                                                                                                                                               1
 
Article II Agreement to Sell, Convey and Lease                                                                                               3
 
Article III Representations and Warranties of Seller                                                                                     4
 
Article IV Representations and Warranties of Purchaser                                                                             7
 
Article V Conditions Precedent to Purchaser’s Obligations                                                                         8
 
Article VI Conditions Precedent to Seller’s Obligations                                                                              13
 
Article VII Covenants                                                                                                                                           14
 
Article VIII Risk of Loss                                                                                                                                     14
 
Article IX Transaction Costs                                                                                                                             15
 
Article X Defaults and Remedies                                                                                                                      15                                                                  
 
Article XI Indemnification                                                                                                                                  16
 
Article XII Miscellaneous                                                                                                                                   17
 

EXHIBITS:
 
Exhibit A - Initial Property

Exhibit B - Additional Properties

Exhibit C - Building Equipment

Exhibit D - Allocation of Purchase Price

Exhibit E - Form of Lease

Exhibit F - Form of Lease Guaranty

Exhibit G - Environmental Reports

SCHEDULES:
 
Schedule 3.1(o) - Contracts and Agreements

 

 

 


 

 
THIS PURCHASE AGREEMENT (the “Agreement”) is dated as of the 28th day of December, 2006 (the “Effective Date”) by and among LMI FINISHING, INC., an Oklahoma corporation (“LMI Finishing”), and ▇▇▇▇▇▇▇’▇ METAL, INC., a Missouri corporation (“▇▇▇▇▇▇▇’▇ Metal” and, collectively with LMI Finishing, the “Seller”), and CIT CRE LLC, a Delaware limited liability company (the “Purchaser”).
 
R E C I T A L S :
 
WHEREAS, Purchaser desires to purchase, and Seller is willing to sell, the Leased Property (defined hereinafter) upon the terms and conditions set out hereinafter;
 
NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth in this Agreement, Seller and Purchaser hereby covenant and agree as follows:
 
ARTICLE I
 Definitions

As used herein, the following terms shall have the following meaning:
 
“Acquisition Date” means the date, which shall occur no later than January 31, 2007, on which Purchaser has acquired all properties and assets and interests in property comprising the Initial Property and the Additional Properties.
 
“Additional Closing” has the meaning assigned to such term in Section 2.4.
 
“Additional Closing Date” has the meaning assigned to such term in Section 2.4.
 
“Additional Properties” means the Wichita Property, the Highway 94 Property and the Tulsa Property.
 
“Appurtenances” means, with respect to a Property, all tenements, hereditaments, easements, rights-of-way, rights, and privileges in and to the Land, including (a) easements over other lands granted by any easement agreement and (b) any streets, ways, alleys, vaults, gores or strips of land adjoining the Land.
 
“Building Equipment” has the meaning assigned to such term in Section 2.1(d).
 
“Closing Dates” means, collectively, the Initial Closing Date and the Additional Closing Date.
 
“Closings” means, collectively, the Initial Closing and the Additional Closing.
 
“Code” means the Internal Revenue Code of 1986, as amended.
 
“Environmental Laws” has the meaning assigned to such term in the Lease.
 
“Environmental Violations” has the meaning assigned to such term in the Lease.
 
“Existing Environmental Conditions” has the meaning assigned to such term in the Lease.
 
“Guarantor” means LMI Aerospace, Inc., a Missouri corporation.
 
“Hazardous Substances” has the meaning assigned to such term in the Lease.
 
“Highway 94 Property” means the parcel of land located at ▇▇▇▇ ▇▇. ▇▇▇. ▇▇, ▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, and more fully described on Exhibit B hereto, together with the Appurtenances thereto.
 
“Improvements” has the meaning assigned to such term in Section 2.1(c).
 
“Initial Closing” has the meaning assigned to such term in Section 2.4.
 
“Initial Closing Date” has the meaning assigned to such term in Section 2.4.
 
“Initial Property” means the ▇▇▇▇▇▇▇ Road Property.
 
“Land” means, with respect to a Property, the parcels of land comprising such Property more particularly identified in Exhibit A (in the case of an Initial Property) or Exhibit B (in the case of an Additional Property).
 
“Landlord” has the meaning assigned to such term in Section 6.1(d).
 
“Lease” means, with respect to any Property, the Lease Agreement between Purchaser, as landlord, and ▇▇▇▇▇▇▇’▇ Metal or LMI Finishing, as the case may be, demising such Property entered into pursuant to Section 2.3.
 
“Lease Guaranty” has the meaning assigned to such term in Section 2.4.
 
“Loss” has the meaning assigned to such term in Section 8.2.
 
“▇▇▇▇▇▇▇ Road Property” means the parcel of land located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, and more fully described on Exhibit A hereto, together with the Appurtenances thereto.
 
“Properties” has the meaning assigned to such term in Section 2.1.
 
“Purchase Price” has the meaning assigned to such term in Section 2.2.
 
“Taking” has the meaning assigned to such term in Section 8.3.
 
“Tenant” has the meaning assigned to such term in Section 5.3(b).
 
“Trade Fixtures” means all machinery, apparatus, furniture, fixtures and equipment now or hereafter installed by Seller and used in connection with the conduct of Seller’s business on the Properties, other than fixtures and items of personal property that are integral to the ownership, maintenance and operation of the Improvements and which cannot be removed from the Properties without adversely affecting the value, or the general utility or use of such Properties.
 
“Title Company” means Lawyers Title Insurance Corporation.
 
“Title Policy” has the meaning assigned to such term in Section 5.1.
 
“Tulsa Property” means the parcel of land located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, and more fully described on Exhibit B hereto, together with the Appurtenances thereto.
 
“USA Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
 
“Wichita Property” means the parcel of land located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, and more fully described on Exhibit A hereto, together with the Appurtenances thereto.
 
ARTICLE II  
Agreement to Sell, Convey and Lease

2.1 Agreement to Purchase and Sell. Seller hereby agrees to sell and convey to Purchaser, and Purchaser hereby agrees to purchase from Seller, subject to the terms and conditions hereinafter set forth, the following described property (each a “Property” and collectively, the “Properties”):
 
(a) on the Initial Closing Date, the Initial Property;
 
(b) on the Additional Closing Date, the Additional Properties;
 
(c) all buildings, structures and improvements now or hereafter constructed on the Land (collectively, the “Improvements”); and
 
(d) the fixtures, machinery, equipment and other property described in Exhibit C hereto (collectively, the “Building Equipment”).
 
2.2 Purchase Price. The purchase price for the Properties (the “Purchase Price”) shall be Ten Million Two Hundred Fifty Thousand and no/100 Dollars ($10,250,000.00), allocated among the Properties as set forth on Exhibit D hereto. On each Closing Date, the portion of the Purchase Price so allocated to the Properties to be conveyed on such date shall be due and payable to Seller by wire transfer of immediately available U.S. funds.
 
2.3 Leaseback. On the Initial Closing Date, Purchaser, as landlord, and ▇▇▇▇▇▇▇’▇ Metal, as tenant, shall enter into a Lease of the ▇▇▇▇▇▇▇ Road Property substantially in the form attached hereto as Exhibit E. Such Lease shall not become effective as to either the Wichita Property or the Highway 94 Property until Purchaser has acquired such Additional Property on the Additional Closing Date. On the Additional Closing Date, Purchaser, as landlord, and LMI Finishing shall enter into a Lease of the Tulsa Property substantially in the form attached hereto as Exhibit E (with appropriate adjustments to reflect that only one Property is being demised thereby).
 
2.4 Lease Guaranty. On the Initial Closing Date, Guarantor shall guarantee the obligations of LMI Finishing and ▇▇▇▇▇▇▇’▇ Metal under each Lease by executing a guaranty agreement substantially in the form attached hereto as Exhibit F (the “Lease Guaranty”).
 
2.5 Closing. Seller and Purchaser shall consummate the transactions contemplated by this Agreement with respect to the Initial Property (the “Initial Closing”) on December 29, 2006 (the “Initial Closing Date”), and shall consummate the transactions contemplated by this Agreement with respect to the Additional Properties (the “Additional Closing”) on January 31. 2007 or such earlier date as the parties may agree upon (the “Additional Closing Date”).
 
ARTICLE III  
Representations and Warranties of Seller

3.1 Representations and Warranties of Seller. Seller hereby represents and warrants to Purchaser that:
 
(a) Seller is duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its organization and is duly qualified to do business and is in good standing in each of the jurisdictions in which the Properties are located;
 
(b) Seller is authorized and empowered to enter into this Agreement and to perform all of its obligations hereunder;
 
(c) Upon the execution and delivery of this Agreement, this Agreement will be legally binding upon Seller and enforceable against Seller in accordance with its terms;
 
(d) The person signing this Agreement on behalf of Seller has been duly authorized to sign and deliver this Agreement on behalf of Seller;
 
(e) Seller has not committed any act or permitted any action to be taken which would adversely affect its ability to fulfill its material obligations under this Agreement;
 
(f) The execution and delivery of this Agreement, and the performance of Seller’s obligations under this Agreement, will not violate or breach, or conflict with, the terms, covenants or provisions of any agreement, contract, note, mortgage, indenture or other document of any kind whatsoever to which Seller is a party or to which any Property is subject;
 
(g) Seller is the sole owner of good and marketable fee simple title to each of the Properties;
 
(h) Except as identified on the environmental reports listed on Exhibit G attached hereto (the “Environmental Reports”), there are no Environmental Violations or Hazardous Substances on, in, under, about or from any of the Properties, or on or about any real property surrounding any of the Properties which might affect any Property;
 
(i) To Seller’s knowledge, (1) the existing use and condition of each of the Properties does not violate any zoning, environmental, building, health, fire or similar statute, ordinance, regulation or code, (2) each of the Properties is in compliance with all governmental permits and current zoning requirements, including, all parking requirements, and no Property is a non-conforming or special use property, and (3) each of the Properties includes all rights to any off-site facilities necessary to ensure compliance with zoning, building, health, fire, water use or similar statutes, laws, regulations and orders;
 
(j) Seller has received no notice (written or otherwise) from any governmental agency alleging a violation of any statute, ordinance, regulation or code with respect to any of the Properties, whether or not such violation has been cured;
 
(k) There are no pending nor, to Seller’s knowledge, threatened matters of litigation, administrative action or examination, government investigation, claim or demand relating to the Guarantor, any of the Properties, or Seller’s interest in any of the Properties;
 
(l) There is no pending nor, to Seller’s knowledge, contemplated or threatened eminent domain, condemnation or other governmental taking or proceeding relating to any Property;
 
(m) There are no public improvements in the nature of off-site improvements (or otherwise) which have been ordered to be made and/or which have not previously been assessed and there are no special or general assessments pending against or affecting any Property which are not disclosed on the public records;
 
(n) There are no unperformed obligations relative to any of the Properties outstanding to any governmental or quasi-governmental body or authority;
 
(o) Seller is not a party to, and no portion of any of the Properties is subject to, any contract or agreement of any kind whatsoever, written or oral, relating to any of the Properties other than this Agreement and the agreements listed on Schedule 3.1(o) hereto;
 
(p) All bills and invoices for labor and material of any kind relating to each Property have been paid in full and, to Seller’s knowledge, there are no liens or other claims outstanding or available to any party in connection with any of the Properties;
 
(q) Seller has not executed or entered into any other agreement to purchase, sell, option, lease or otherwise dispose of or alienate all or any portion of any of the Properties, other than this Agreement;
 
(r) All of the Improvements on the Land are in good working order, condition and repair and are not in need of any material repair or replacement;
 
(s) Seller’s board of directors has approved the execution and delivery of this Agreement;
 
(t) All copies of documents and other information furnished to Purchaser by Seller or on its behalf in connection with the transactions contemplated hereby are true, correct and complete copies of the originals. No such document or other information contains (as of the date of its delivery to Purchaser) any material misstatement of fact or omitted or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that to the extent any such written information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection (including pro forma financial statements), Seller represents only that it acted in good faith and upon assumptions believed to be reasonable at the time, it being understood that projections are subject to significant uncertainties and contingencies, many of which are beyond the control of Seller, and that no assurance can be given that such projections will be realized;
 
(u) Seller is not in default of the performance or observance of any of the material obligations, covenants or conditions contained in any contractual obligation of Seller beyond any applicable notice or cure period;
 
(v) None of the transactions contemplated by this Agreement will require Seller to comply with any statute or regulation that conditions, restricts, prohibits or requires any notification or disclosure for the transfer, lease, sale or closure of any Property on which there is any environmental condition;
 
(w) Except as identified in the Environmental Reports, to Seller’s knowledge, none of the following is or was formerly present on any of the Properties: (i) any landfill; waste pile; underground storage tank or surface impoundment; (ii) any asbestos-containing materials; or (iii) any PCBs;
 
(x) No officer of Seller has been convicted of a crime (excluding misdemeanors and traffic violations);
 
(y) All utility services, including storm and sanitary sewer, water, electric power and telephone service are available to each of the Properties in form, properly sized and with capacity sufficient for the useful enjoyment and operation of such Property for its intended use and all assessments, impact fees, development fees, tap-on fees or recapture costs then due and payable in connection therewith have been paid, except the usual and customary charges involved in the ordinary course of business and specifically identified and approved by Purchaser;
 
(z) No broker, finder, agent or other intermediary has or will have any right or claim against Purchaser for any commission, finder’s fee or similar amount arising in connection with this Agreement;
 
(aa) None of the Properties is currently subject to any tax abatement proceeding. Any tax rollback or additional tax due or which may become due as the result of any of the Properties having been assessed with an agricultural, timber, open use or other special use designation within the preceding five (5) years shall be paid by Seller or Seller’s predecessor in title;
 
(bb) Seller is not a “foreign person” as defined in Section 1445 of the Code and the regulations promulgated thereunder; and
 
(cc) Seller (i) is not a person or entity with whom Purchaser is restricted from doing business with under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including, but not limited to, those named on OFAC’s Specially Designated and Blocked Person s list) or under any statute, executive order, rule or regulation of or administered by OFAC or any other government entity (including, but not limited to the September 23, 2001 Executive Order Blocking Property and Prohibiting Transactions with Person Who Commit, Threaten to Commit, or Support Terrorism, the USA Patriot Act, and the Currency and Foreign Transactions Reporting Act (commonly known as the Bank Secrecy Act) as any of the foregoing has heretofore been amended), or other governmental action, comparable laws, rules, regulations ordinances, orders, treaties, statutes or codes promulgated pursuant to any of the foregoing; (ii) is not knowingly engaged in any dealings or transactions, or otherwise be associated, with any persons or entities described in (i) above; and (iii) is not in breach in any material respect of any provision of the International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001 or the regulations or orders thereunder, if any, applicable to Seller.
 
Seller acknowledges and agrees that the foregoing representations and warranties constitute a material inducement to Purchaser to enter into this Agreement. Seller further acknowledges and agrees that the representations and warranties set forth above shall survive each Closing for a period of one (1) year after the Acquisition Date. Seller agrees to indemnify, defend (with counsel reasonably acceptable to Purchaser) and hold Purchaser harmless from and against all damages, costs, expenses, claims and liabilities paid or incurred by Purchaser (including, but not limited to, reasonable attorneys’ fees and costs) as a result of any representation or warranty set forth above not being true and correct.
 
ARTICLE IV  
Representations and Warranties of Purchaser
 
4.1 Representations and Warranties of Purchaser. Purchaser hereby represents and warrants to Seller that:
 
(a) Purchaser is duly created, validly existing and in good standing pursuant to the laws of the jurisdiction of its organization and is duly qualified to do business and is in good standing in each of the jurisdictions in which the Properties are situated;
 
(b) Purchaser is authorized and empowered to enter into this Agreement and to perform all of its obligations hereunder;
 
(c) Upon the execution and delivery of this Agreement, this Agreement will be legally binding upon Purchaser and enforceable against Purchaser in accordance with its terms;
 
(d) The person signing this Agreement on behalf of Purchaser has been duly authorized to sign and deliver this Agreement on behalf of Purchaser;
 
(e) Purchaser has not committed any act or permitted any action to be taken which would adversely affect its ability to fulfill its material obligations under this Agreement;
 
(f) Purchaser is not a “foreign person” as defined in Section 1445 of the Code and the regulations promulgated thereunder; and
 
(g) Purchaser (i) is not a person or entity with whom Seller is restricted from doing business with under regulations of OFAC (including, but not limited to, those named on OFAC’s Specially Designated and Blocked Person s list) or under any statute, executive order, rule or regulation of or administered by OFAC or any other government entity (including, but not limited to the September 23, 2001 Executive Order Blocking Property and Prohibiting Transactions with Person Who Commit, Threaten to Commit, or Support Terrorism, the USA Patriot Act, and the Currency and Foreign Transactions Reporting Act (commonly known as the Bank Secrecy Act) as any of the foregoing has heretofore been amended), or other governmental action, comparable laws, rules, regulations ordinances, orders, treaties, statutes or codes promulgated pursuant to any of the foregoing; (ii) is not knowingly engaged in any dealings or transactions, or otherwise be associated, with any persons or entities described in (i) above; and (iii) is not in breach in any material respect of any provision of the International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001 or the regulations or orders thereunder, if any, applicable to Seller; and
 
ARTICLE V  
Conditions Precedent to Purchaser’s Obligations
 
        The obligations of Purchaser hereunder are subject to the satisfaction of each of the following conditions:
 
5.1 Conditions Precedent to Initial Closing. In addition to the conditions set forth in Section 5.3, each of the following conditions shall be satisfied on or prior to the Initial Closing:
 
(a) Seller shall have executed and delivered a special warranty deed (in a form mutually approved by Purchaser and Seller) with respect to the Initial Property conveying fee simple title to the Initial Property to Purchaser free and clear of all exceptions, liens, or encumbrances whatsoever, excepting any permitted exceptions approved by Purchaser listed as exceptions to title in the applicable Title Policy, together with a ▇▇▇▇ of sale for the Building Equipment at the Initial Property pursuant to which Seller shall convey to Purchaser the Building Equipment located at the Initial Property free and clear of all exceptions, liens or encumbrances whatsoever. In connection therewith, Seller shall obtain at its expense whatever releases from existing lenders are required (including releases and/or partial terminations of UCC-1 financing statements) in order to effect the foregoing;
 
(b) ▇▇▇▇▇▇▇’▇ Metal, Inc. shall have executed and delivered the Lease of the ▇▇▇▇▇▇▇ Road Property, the Wichita Property and the Highway 94 Property;
 
(c) Guarantor shall have executed and delivered the Lease Guaranty;
 
(d) The Title Company shall have issued to Purchaser:
 
(i) an ALTA owner’s policy of title insurance (a “Title Policy”) for the Initial Property, in the amount of the Purchase Price allocated to the Initial Property on Exhibit D, in such form as is customarily issued by the Title Company in the state in which the Initial Property is located and with such endorsements as Purchaser may reasonably require, including, but not limited to, a commitment to issue a “tie-in” endorsement with each of the other Title Policies to be issued on the Additional Closing Date such that the aggregate liability for any loss under all of such Title Policies, individually or in the aggregate, shall not exceed the Purchase Price;
 
(ii) a commitment to issue a Title Policy for each Additional Property upon the Additional Closing complying with the requirements of Section 5.2(b), together with, if requested by Purchaser, an acknowledgment of pre-payment of the premiums therefor;
 
(e) Purchaser shall have received for the Initial Property an as-built survey prepared and certified to Purchaser as of the date within forty-five (45) days prior to the Initial Closing Date by a professional land surveyor, and conforming to the Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys, and containing the certifications listed in items 2, 3, 4, 6, 7 (other than clauses (b)(2) and (b)(3)), 8, 9, 10, 11(a), 14, 16, 17 and 18 of Table A thereto;
 
(f) Purchaser shall have received a Phase I environmental assessment report for the Initial Property and, if necessary in Purchaser’s reasonable judgment, a Phase II environmental assessment report, issued by an environmental consultant selected by and acceptable to Purchaser, showing no release or threatened release of any hazardous substances on, in, under, from or about any of the Initial Property or on, in, under, from or about any real property surrounding any of the Initial Property which might adversely affect the Initial Property or expose Purchaser to liability after the Initial Closing Date for (A) response costs and for costs of removal and remedial actions incurred by the United States Government, any state or local governmental unit or any other person, or damages from injury to or destruction or loss of natural resources, including the reasonable costs of assessing such injury, destruction or loss, incurred pursuant to Environmental Laws, (B) costs and expenses of abatement, correction or clean-up, fines, damages, response costs or penalties which arise from the provisions of any other Environmental Laws, and (C) personal injury or property damage arising under any statutory or common law tort theory, including damages assessed for the maintenance of a public or private nuisance or for carrying on of a dangerous activity, and showing no other condition on, in, under, from, about or affecting any of the Initial Property that is unsatisfactory to Purchaser;
 
(g) Purchaser shall have received a property inspection report for the Initial Property, issued by an engineering firm selected by and acceptable to Purchaser, showing no structural defects or other conditions affecting the Initial Property unsatisfactory to Purchaser;
 
(h) Purchaser shall have received copies of all warranties, occupational licenses, licenses, permits, authorizations and approvals required by law and issued by all governmental authorities having jurisdiction over the Initial Property, together with an assignment of all such warranties, occupational licenses, licenses, permits, authorizations and approvals where permitted by law together with copies of all certificates issued by any local board of fire underwriters (or other body exercising similar functions) and the copies of each ▇▇▇▇ for current real estate and personal property taxes; and
 
(i) Seller shall have executed and delivered such other documents or instruments as may be required under this Agreement, by the Title Company or as otherwise required in Purchaser’s reasonable opinion, to effectuate the Initial Closing.
 
5.2 Conditions Precedent to Additional Closing. In addition to the conditions set forth in Section 5.3, each of the following conditions shall be satisfied on or prior to the Additional Closing:
 
(a) Seller shall have executed and delivered a special warranty deed (in a form mutually approved by Purchaser and Seller) with respect to each Additional Property conveying fee simple title to each Additional Property to Purchaser free and clear of all exceptions, liens, or encumbrances whatsoever, excepting any permitted exceptions approved by Purchaser listed as exceptions to title in the applicable Title Policy, together with a ▇▇▇▇ of sale for the Building Equipment located at such Additional Property pursuant to which Seller shall convey to Purchaser the Building Equipment located at such Additional Property free and clear of all exceptions, liens or encumbrances whatsoever. In connection therewith, Seller shall obtain at its expense whatever releases from existing lenders are required (including releases and/or partial terminations of UCC-1 financing statements) in order to effect the foregoing;
 
(b) LMI Finishing shall have executed and delivered the Lease of the Tulsa Property;
 
(c) The Title Company shall have issued to Purchaser a Title Policy for each Additional Property in the amount of the Purchase Price allocated to such Additional Property on Exhibit D, in such form as is customarily issued by the Title Company in the state in which each Additional Property is located and with such endorsements as Purchaser may reasonably require, including, but not limited to, a “tie-in” endorsement with each of the other Title Policies issued on the Initial Closing Date and to be issued the Additional Closing Date such that the aggregate liability for any loss under all of such Title Policies, individually or in the aggregate, shall not exceed the Purchase Price;
 
(d) Purchaser shall have received for each of the Additional Properties an as-built survey prepared and certified to Purchaser as of the date within forty-five (45) days prior to the Addtional Closing Date by a professional land surveyor, and conforming to the Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys, and containing the certifications listed in items 2, 3, 4, 6, 7 (other than clauses (b)(2) and (b)(3)), 8, 9, 10, 11(a), 14, 16, 17 and 18 of Table A thereto;
 
(e) Purchaser shall have received Phase I environmental assessment reports for each of the Additional Properties and, if necessary in Purchaser’s reasonable judgment, Phase II environmental assessment reports, issued by environmental consultants selected by and acceptable to Purchaser, showing no release or threatened release of any hazardous substances on, in, under, from or about any of the Additional Properties or on, in, under, from or about any real property surrounding any of the Additional Properties which might adversely affect any Property or expose Purchaser to liability after the Additional Closing Date for (A) response costs and for costs of removal and remedial actions incurred by the United States Government, any state or local governmental unit or any other person, or damages from injury to or destruction or loss of natural resources, including the reasonable costs of assessing such injury, destruction or loss, incurred pursuant to Environmental Laws, (B) costs and expenses of abatement, correction or clean-up, fines, damages, response costs or penalties which arise from the provisions of any other Environmental Laws, and (C) personal injury or property damage arising under any statutory or common law tort theory, including damages assessed for the maintenance of a public or private nuisance or for carrying on of a dangerous activity, and showing no other condition on, in, under, from, about or affecting any of the Additional Properties that is unsatisfactory to Purchaser;
 
(f) Purchaser shall have received property inspection reports for each Additional Property, issued by an engineering firm selected by and acceptable to Purchaser, showing no structural defects or other conditions affecting any of the Additional Properties unsatisfactory to Purchaser; and
 
(g) Purchaser shall have received copies of all warranties, occupational licenses, licenses, permits, authorizations and approvals required by law and issued by all governmental authorities having jurisdiction over each of the Additional Properties, together with an assignment of all such warranties, occupational licenses, licenses, permits, authorizations and approvals where permitted by law together with copies of all certificates issued by any local board of fire underwriters (or other body exercising similar functions) and the copies of each ▇▇▇▇ for current real estate and personal property taxes.
 
5.3 Conditions Precedent to Both Closings. Each of the following conditions shall be satisfied on or prior to each Closing:
 
(a) all representations and warranties of Seller in this Agreement shall be true and correct on and as of the date of Closing as fully as if made on such date, and Seller shall have complied with all of Seller’s obligations under this Agreement required to be performed prior to the date of Closing and shall not be in default hereunder as of such date;
 
(b) Purchaser shall have received a written opinion from counsel for the tenant under the Lease (the “Tenant”) stating that: (i) the Lease has been duly authorized, executed and delivered by the Tenant; (ii) the execution and performance of the Lease by the Tenant will not conflict with or result in a breach under any of the Tenant’s organizational documents or any agreements to which it is a party or by which it is bound; (iii) the Lease is the legal, valid and binding obligation of the Tenant, enforceable in accordance with its terms, subject to customary enforceability exceptions; and (iv) covering such other matters relating to this Agreement and the Lease as Purchaser may reasonably request;
 
(c) No order of court shall be in effect which restrains or prohibits the occupancy of the Improvements on any Property;
 
(d) None of the Properties shall be the subject of any eminent domain or condemnation proceedings, actual or threatened;
 
(e) No order of any court or administrative agency shall be in effect which restrains or prohibits the occupancy of the Improvements at any of the Properties. No suit, action or proceeding shall exist in which it will be, or it is, sought to restrain or prohibit the use or occupancy of the Improvements at any of the Properties;
 
(f) Purchaser shall have received copies of all temporary or permanent certificates of approval or occupancy for the Improvements at each of the Properties issued by the relevant governmental authorities and all other certifications, permits, and licenses issued by the relevant governmental authorities and all other approvals as are necessary to occupy and use such Properties for their intended use;
 
(g) Purchaser shall have received a schedule of all construction warranties relating to each of the Properties, along with copies of all such warranties;
 
(h) Purchaser shall be satisfied in its sole judgment with the results of its continuing investigations of Existing Environmental Conditions at the Properties, and shall have received evidence reasonably satisfactory to it that Seller has conducted and will conduct such remediation or response actions as may be necessary to comply with applicable Environmental Laws relating thereto or that Purchaser in its reasonable judgment may deem necessary to not subject Purchaser to any material claims, damages, penalties, fines, costs, liabilities or losses by reason of the presence of Release (as defined in the Lease) of any Hazardous Substances in, on, about or from any part of the Properties;
 
(i) Purchaser shall not have received any evidence that there have been violations of Environmental Laws which were not disclosed to Purchaser regardless of when such violations occurred;
 
(j) Purchaser shall have received true and correct copies of all current property tax bills and assessment notices pertaining to each of the Properties;
 
(k) Seller shall have obtained, at its sole cost and expense, any inspection report or local approval required to be obtained pursuant to local law as a condition to transfer of the Properties;
 
(l) Purchaser shall have received evidence of the insurance required to be maintained by Tenant under the applicable Lease, naming Purchaser as additional insured;
 
(m) Seller shall have executed and delivered a closing statement itemizing the Purchase Price and all adjustments thereto as provided herein; and
 
(n) Seller shall have executed and delivered such other documents or instruments as may be required under this Agreement, by the Title Company or as otherwise required in Purchaser’s reasonable opinion, to effectuate the Closing.
 
ARTICLE VI  
Conditions Precedent to Seller’s Obligations
 
The obligations of Seller hereunder are subject to the satisfaction of each of the following conditions:
 
6.1 Conditions Precedent to Initial Closing. Each of the following conditions shall be satisfied on or prior to the Initial Closing:
 
(a) Purchaser shall have executed and delivered a closing statement itemizing the Purchase Price and all adjustments thereto as provided herein;
 
(b) Purchaser shall have paid the portion of the Purchase Price allocated to the Initial Property in accordance with Exhibit D to the Title Company for disbursement pursuant to the fully executed closing statement;
 
(c) Landlord shall have executed and delivered the Lease;
 
(d) Seller shall have received a written opinion from counsel for the landlord under the Lease (the “Landlord”) stating that: (i) the Lease has been duly authorized, executed and delivered by the Landlord; (ii) the execution and performance of the Lease by the Landlord will not conflict with or result in a breach under any of the Landlord’s organizational documents or any agreements to which it is a party or by which it is bound; (iii) the Lease is the legal, valid and binding obligation of the Landlord, enforceable in accordance with its terms, subject to customary enforceability exceptions; and (iv) covering such other matters relating to this Agreement and the Lease as Seller may reasonably request; and
 
(e) Purchaser shall have executed and delivered such other documents or instruments as may be required under this Agreement, or by the Title Company to effectuate the Initial Closing.
 
6.2 Conditions Precedent to Additional Closing. Each of the following conditions shall be satisfied on or prior to the Additional Closing:
 
(a) Purchaser shall have paid the balance of the Purchase Price to the Title Company (i.e., the portion allocated to the Additional Properties) for disbursement pursuant to the fully executed closing statement; and
 
(b) Purchaser shall have executed and delivered such other documents or instruments as may be required under this Agreement, or by the Title Company to effectuate the Additional Closing.
 
ARTICLE VII
Covenants
 
7.1 Seller Covenants. From the Effective Date to the applicable Closing Date, Seller shall do the following:
 
(a) Seller shall continue to operate, manage and maintain each of the Properties in the manner in which they are currently operated, managed and maintained, reasonable wear and tear and, subject to Article IX, casualties and condemnation excepted. Seller shall maintain all existing insurance policies in connection with the Properties and shall keep in effect and renew without modification all licenses, permits and entitlements applicable to the Properties. Seller shall not make any material modifications or alterations to the Properties or modify or remove any Improvements or Building Equipment without the prior written approval of Purchaser, which approval may be given or withheld in Purchaser’s sole and absolute discretion.
 
(b) Seller shall not encumber, or execute and documents or take any action that would have the result of encumbering, any of the Properties. For the avoidance of doubt, Seller shall not enter into any lease of any Property or any portion thereof, other than the Lease, without the prior written approval of the Purchaser, which approval may be given or withheld in Purchaser’s sole and absolute discretion.
 
(c) Seller shall give prompt written notice to Purchaser of any notice of violation issued by any governmental authority relating to any Property received by Seller, or of the occurrence of any event known to Seller which could reasonably be expected to have a material adverse effect on the Properties or the ability of Seller to perform its obligations under this Agreement or the Lease.
 
ARTICLE VIII
Risk of Loss
 
8.1 Parties’ Obligations. If a casualty to any Property occurs, or if a Property or any part thereof is taken by eminent domain, prior to the Acquisition Date, the parties’ obligations under this Agreement shall nevertheless continue in accordance with this Agreement, unless this Agreement is terminated in accordance with this Article.
 
8.2 Casualty. If any fire, windstorm, flood or other casualty damages or destroys any Property or portion thereof on or after the Effective Date and prior to the Acquisition Date (a “Loss”) and the damage resulting from such Loss is material, then Purchaser may terminate this Agreement with respect to such Property by delivery of a termination notice to Seller at any time on or prior to the Acquisition Date. Damage arising from a Loss shall be deemed “material” if the cost to restore the affected Property to at least as good condition as existed immediately prior to the Loss exceeds $250,000; provided that if the applicable building codes or other laws or regulations require work exceeding the repair or replacement of the actual damage, the cost to restore shall be deemed to include all of the additional work so required. If this Agreement is not terminated with respect to a Property, then on the applicable Closing Date, Seller shall assign to Purchaser all proceeds of insurance and pay to Purchaser the amount of any applicable deductible or other self-insured amount with respect to such Loss.
 
8.3 Condemnation. If any Property or part thereof is appropriated for public use by reason of the exercise of the power of eminent domain on or after the Effective Date and prior to the Acquisition Date (a “Taking”), Purchaser may elect to (i) terminate this Agreement with respect to the affected Property, or (ii) take title to the Property (or Seller’s rights in respect of any award) subject to such proceeding, in which event on the applicable Closing Date Seller shall assign to Purchaser all of its right, title and interest in the proceeds of any award of damages in such proceeding.
 
ARTICLE IX
Transaction Costs
 
9.1 Closing Costs. At the Closings, Seller shall pay (or reimburse Purchaser, as applicable) (a) the cost of preparation of the deeds with respect to the Properties, (b) all real estate transfer taxes and fees, documentary stamp taxes, sales taxes, if any, and intangible taxes and any other special tax or assessment imposed on transactions such as the transaction contemplated by this Agreement in the states in which the Properties are located, and (c) the cost of paying for any transfer of any permit required by applicable law, or the cost of any required inspection required by applicable law, or the cost of purchaser having to obtain any building or occupancy permit as may be required by applicable law. Purchaser shall pay for (i) the cost of any Phase I environmental studies or reports, the cost of any Phase II environmental studies and reports, or engineering or property condition reports relating to the Properties, including any updates thereof required by Purchaser, (ii) the cost of any appraisals relating to the Properties, (iii) the cost of any surveys and all updates or changes thereto required by Purchaser, (iv) the cost of any zoning reports required by Purchaser, and (v) the cost of all other third party reports or investigations with respect to the Properties required by Purchaser. Seller and Purchaser shall each pay half of (i) all premiums and fees related to the purchaser's title commitment and Title Policy for each of the Properties (excluding the cost of any title policy to be issued to Purchaser’s lender, if any), including costs for all endorsements to Purchaser's owner's title insurance policies, and any escrow charges, and (ii) all fees and expenses of ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇.▇., special Missouri and Kansas counsel to Purchaser, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., special Oklahoma counsel to Purchaser.
 
9.2 Other Costs. Seller and Purchaser shall each pay their own attorneys’ fees and costs. All other costs and expenses shall be paid by the parties in accordance with local custom.
 
ARTICLE X
Defaults and Remedies
 
10.1 Default by Seller. In the event that Seller should fail to consummate the transactions contemplated by this Agreement for any reason, excepting Purchaser’s default or the failure of any of the Purchaser’s obligations or Seller’s conditions at Closing under Section 6 above to be satisfied or waived, Purchaser may (A) seek any one or more remedies available under law or in equity (including, but not limited to, the right to seek specific performance of this Agreement), (B) proceed to consummate this transaction, or (C) terminate this Agreement by giving prompt written notice thereof to Seller. In addition, if Purchaser terminates this Agreement under this Section 10.1, Seller shall immediately pay to Purchaser all costs and expenses incurred by Purchaser in connection with Purchaser’s investigation of the Properties, all costs to return and convey any Property from Purchaser to Seller, and all other costs incurred by Purchaser in connection with this Agreement. In the event that Purchaser elects to terminate this Agreement and seek a claim for damages, neither Seller nor Purchaser shall have any further obligations under this Agreement except for those expressly intended to survive the termination of this Agreement.
 
10.2 Default by Purchaser. In the event that Purchaser should fail to consummate the transaction contemplated herein for any reason, except default by Seller or the failure of any of Seller’s obligations or Purchaser’s conditions at Closing under Section 5 above to be satisfied or waived by Purchaser, Seller may (A) seek any one or more remedies available under law or in equity (including, but not limited to, the right to seek specific performance of this Agreement), (B) proceed to consummate this transaction, or (C) terminate this Agreement by giving prompt written notice thereof to Purchaser. In addition, if Seller terminates this Agreement under this Section 10.2, Purchaser shall immediately pay to Seller all costs and expenses incurred by Seller in connection with this Agreement, including all costs to return and convey any Property from Purchaser to Seller, and all other costs incurred by Seller in connection with this Agreement. In the event that Seller elects to terminate this Agreement, neither Seller nor Purchaser shall have any further obligations under this Agreement except for those expressly intended to survive the termination of this Agreement.
 
10.3 Limitation of Liability. Notwithstanding anything to the contrary herein, neither party shall be liable to the other party hereunder for consequential, incidental, punitive, exemplary or indirect damages.
 
ARTICLE XI
Indemnification
 
11.1 Indemnification by Seller. From and after the Effective Date, Seller agrees to defend, indemnify and hold harmless Purchaser, its successors, assigns, and its officers, directors, agents, shareholders, partners, employees, consultants, representatives and attorneys from all losses, claims and liabilities arising out of, relating to, resulting from or in connection with any misrepresentation or breach of any material warranty or representation made by Seller in this Agreement or any breach of any material covenant or agreement made by Seller in this Agreement.
 
11.2 Indemnification by Purchaser. From and after the Effective Date, Purchaser agrees to defend, indemnify and hold harmless Seller, its successors, assigns, and its officers, directors, agents, shareholders, partners, employees, consultants, representatives and attorneys from all losses, claims and liabilities arising out of, relating to, resulting from or in connection with any misrepresentation or breach of any material warranty or representation made by Purchaser in this Agreement or any breach of any material covenant or agreement made by Purchaser in this Agreement.
 
11.3 Limitation of Liability. Seller’s total liability to Purchaser, and Purchaser’s total liability to Seller on all claims of any kind, whether in contract, warranty, tort (including negligence), strict liability, indemnity, or otherwise, arising out of the performance or breach of the Agreement shall not exceed the Purchase Price.
 
11.4 Survival. The provisions of this Article XI shall survive the Acquisition Date for a period of one (1) year.
 
ARTICLE XII
Miscellaneous

12.1 Tax Proration. In connection with each Property to be conveyed on a Closing Date, Seller shall pay in full all general real estate taxes and special assessments applicable to such Property, to the extent payable on or before such Closing, (a) for the years prior to the current calendar year and (b) for the current calendar year only if then due and payable.  Seller shall not receive any credit for prepaid taxes or assessments.
 
12.2 Further Assurances. Seller and Purchaser agree to perform such other acts, and to execute, acknowledge, and/or deliver subsequent to the Closings such other instruments, documents and other materials as Seller or Purchaser may reasonably request in order to effectuate the consummation of the transactions contemplated herein and to vest title to each Property in Purchaser.
 
12.3 Attorneys’ Fees. Should either Seller or Purchaser employ an attorney or attorneys to enforce any of the provisions hereof or to protect its interest in any matter arising under this Agreement or to recover damages for the breach of this Agreement, the losing party agrees to pay the prevailing party all reasonable costs, charges, and expenses, including reasonable attorney’s fees, expended or incurred by it in connection therewith.
 
12.4 Brokerage Commissions. Each party represents to the other that no broker has been involved in this transaction. Seller and Purchaser agree that if any claim for brokerage commissions are ever made against Seller or Purchaser in connection with this transaction, all claims shall be handled and paid by the party whose actions or alleged commitments form the basis of such claim. Seller agrees to indemnify, defend (with counsel reasonably acceptable to Purchaser) and hold Purchaser harmless from any loss, liability, damage, cost, or expense (including, without limitation, reasonable attorney’s fees) paid or incurred by Purchaser by reason of any claim to any broker’s, finder’s, or other fee in connection with this transaction by any party claiming by, through, or under Seller. Except as provided in the foregoing sentence, Purchaser agrees to indemnify, defend (with counsel reasonably acceptable to Seller) and hold Seller harmless from any loss, liability, damage, cost or expense (including, without limitation, reasonable attorney’s fees) paid or incurred by Seller by reason of any claim to any broker’s, finder’s, or other fee in connection with this transaction by any party claiming by, through, or under Purchaser, which obligation of each party shall survive the Closings.
 
12.5 Assignability. Neither Purchaser nor Seller may assign its respective obligations hereunder without the written consent of the other; provided, however, that Purchaser may, without such consent, assign this Agreement to any of its affiliates or subsidiaries.
 
12.6 Notices. Any notice to be given or to be served upon either party hereto in connection with this Agreement must be in writing and shall be given by certified or registered mail (return receipt requested), by overnight express delivery or facsimile (followed by hard copy by either of the two preceding methods of delivery) and shall be deemed to have been given upon receipt. Such notice shall be given the parties hereto at the following addresses:
 
If to Seller:                                            LMI Finishing, Inc.
c/o LMI Aerospace, Inc.
▇.▇. ▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:  ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇

and    ▇▇▇▇▇▇▇’▇ Metal, Inc.
c/o LMI Aerospace, Inc.
▇.▇. ▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:  ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇

with a copy to:                     ▇▇▇▇ ▇▇▇▇▇, Esquire
Gallop, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇

If to Purchaser:                                    CIT CRE LLC
c/o CIT Capital USA Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:  ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President & Chief Counsel

with copies to                      CIT Lending Services Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:  ▇▇▇▇▇ ▇▇▇▇▇, Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇

and:                                        ▇▇▇▇ ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:  W. ▇▇▇▇▇▇▇▇ ▇▇▇▇, Esquire
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
 
Either party hereto may at any time, by giving five (5) days written notice to the other, designate any other address in substitution of any of the foregoing addresses to which such notice shall be given and other parties to whom copies of all notices hereunder shall be sent.
 
12.7 Equipment Financing. Notwithstanding anything contained herein to the contrary, Seller shall not be required to terminate or provide releases with respect to any financing of Seller’s personal property, Trade Fixtures, free-standing equipment and other machinery and equipment located on any Property which are not being conveyed to Purchaser hereunder and which are not deemed to constitute real property fixtures.
 
12.8 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
 
12.9 Entire Agreement. This Agreement represents the entire agreement between Seller and Purchaser with respect to the subject matter hereof, and all prior agreements between Seller and Purchaser with respect to such subject matter shall have no further force or effect, including, without limitation, the Letter of Intent dated December 1, 2006.
 
12.10 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Missouri.
 
12.11 Modification. This Agreement may only be modified or otherwise amended by a written instrument executed by duly authorized representatives of Seller and Purchaser.
 
12.12 Time of Essence. Time is of the essence of this Agreement.
 
12.13 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. Facsimile signature pages shall be deemed original signature pages.
 
12.14 Exclusivity. Seller shall not submit any of the Properties to any other party or entity for consideration as a purchase or equity investment unless this Agreement is terminated as provided herein.
 
12.15 Confidentiality. Purchaser and Seller at all times prior to the Acquisition Date shall keep the transactions contemplated hereby and all documents received from each other confidential, except to the extent necessary to (a) comply with applicable laws and regulations, (b) discuss the same with such party’s principals, consultants, attorneys, financial sources and advisors, and (c) carry out the obligations set forth herein. Any disclosure pursuant to clause (b) of the preceding sentence shall indicate that the information is confidential and should be so treated by the recipient.
 
12.16 Effectiveness of Agreement. This Agreement shall not be effective or binding on any party until fully executed by all parties hereto, but shall be interpreted as an offer under control of the offeror prior to such acceptance.
 
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
 

 





IN WITNESS WHEREOF, the parties hereto have executed this Purchase Agreement effective as of the Effective Date.
 

 
SELLER:
 
LMI FINISHING, INC., an Oklahoma corporation
 
By                               
Name:
Title:
 
 
▇▇▇▇▇▇▇’▇ METAL, INC., a Missouri corporation
 
By                               
Name:
Title:
 
 
PURCHASER:
 
CIT CRE LLC, a Delaware limited liability company
 
By                               
Name:
Title:

 

 

 

[Signature Page to Purchase Agreement]




EXHIBIT A
 
INITIAL PROPERTY
 

 

 
Property
Area
Seller
     
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
60,433 sq. ft.
▇▇▇▇▇▇▇’▇ Metal, Inc.

 
[insert legal descriptions]
 


EXHIBIT B
 
ADDITIONAL PROPERTIES
 
 
Property
Area
Seller
     
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
30,092 sq. ft.
▇▇▇▇▇▇▇’▇ Metal, Inc.
▇▇▇▇ ▇▇. ▇▇▇. ▇▇, ▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
89,438 sq. ft.
▇▇▇▇▇▇▇’▇ Metal, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
73,600 sq. ft.
LMI Finishing, Inc.

 
[insert legal descriptions]
 


EXHIBIT C
 
BUILDING EQUIPMENT
 
 
All fixtures, machinery, apparatus, equipment, fittings and appliances of every kind and nature whatsoever now or hereafter affixed or attached to or installed in any of the Leased Property (except as hereafter provided), including all electrical, anti-pollution, heating, lighting (including hanging fluorescent lighting), incinerating, power, air cooling, air conditioning, humidification, sprinkling, plumbing, lifting, cleaning, fire prevention, fire extinguishing and ventilating systems, devices and machinery and all engines, pipes, pumps, tanks (including exchange tanks and fuel storage tanks), motors, conduits, ducts, steam circulation coils, blowers, steam lines, compressors, oil burners, boilers, doors, windows, loading platforms, lavatory facilities, stairwells, fencing (including cyclone fencing), passenger elevators, together with all additions thereto, substitutions therefor and replacements thereof required or permitted by this Lease, but excluding the Trade Fixtures.
 

 

 




EXHIBIT D
 
ALLOCATION OF PURCHASE PRICE
 
 
1.
 
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
 
$ 4,330,000
 
2.
 
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
 
$ 1,370,000
 
3.
 
▇▇▇▇ ▇▇. ▇▇▇, ▇▇, ▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
 
$ 2,800,000
 
4.
 
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
 
$ 1,750,000
 
     
 
 Total
 
$10,250,000
 

 

 


EXHIBIT E
 
FORM OF LEASE
 

 
[See attached]
 

 
EXHIBIT E
 
LEASE AGREEMENT
 
by and between
 
 
CIT CRE LLC,
 
a Delaware limited liability company,
 
as Landlord
 
 
and
 
 
[_____________________],
 
a [_____________] corporation,
 
as Tenant
 
 

 

 
Dated as of: __________, 20__
 

 

 

 
 


TABLE OF CONTENTS
 
Section
 
Page
 
Parties
 
1
 
1.
 
CERTAIN DEFINITIONS
 
1
 
2.
 
DEMISE OF LEASED PREMISES
 
9
 
3.                              TITLE, CONDITION AND POSSESSION
 
9
 
4.
 
USE OF LEASED PREMISES; QUIET ENJOYMENT
 
10
 
5.
 
TERM
 
11
 
6.
 
MINIMUM RENT; INTERIM RENT
 
11
 
7.                             ADDITIONAL RENT
 
12
 
8.
 
NET LEASE; NON-TERMINABILITY.
 
13
 
9.
 
PAYMENT OF IMPOSITIONS.
 
14
 
10.
 
COMPLIANCE WITH LAWS AND AGREEMENTS; ENVIRONMENTAL MATTERS
 
14
 
11.
 
LIENS; RECORDING
 
18
 
12.
 
MAINTENANCE AND REPAIR
 
19
 
13.
 
ALTERATIONS, IMPROVEMENTS AND EXPANSIONS
 
20
 
14.
 
PERMITTED CONTESTS
 
21
 
15.
 
INDEMNIFICATION
 
22
 
16.
 
INSURANCE
 
23
 
17.
 
CASUALTY AND CONDEMNATION: CLAIMS
 
26
 
18.
 
CASUALTY AND CONDEMNATION: RESTORATION
 
28
 
19.
 
RESTORATION PROCEDURES
 
28
 
21.
 
ASSIGNMENT AND SUBLETTING; PROHIBITION AGAINST LEASEHOLD FINANCING
 
29
 
21.
 
SALES BY LANDLORD; RIGHT OF FIRST ▇▇▇▇▇▇▇
 
▇▇
 
▇▇.
 
EVENTS OF ▇▇▇▇▇▇▇
 
▇▇
 
▇▇.
 
REMEDIES AND DAMAGES UPON DEFAULT
 
33
 
24.
 
NOTICES
 
37
 
25.
 
ESTOPPEL CERTIFICATE
 
37
 
26.
 
SURRENDER
 
37
 
27.
 
NO MERGER OF TITLE
 
38
 
28.
 
BOOKS AND RECORDS
 
38
 
30.
 
NON-RECOURSE AS TO LANDLORD
 
39
 
31.
 
FINANCING
 
39
 
32.
 
▇▇▇▇▇▇▇▇▇▇▇▇▇
 
▇▇
 
▇▇.
 
TAX TREATMENT; REPORTING
 
40
 
35.
 
MISCELLANEOUST
 
40
 
 
EXHIBITS:
 
Exhibit A - Initial Premises
 
Exhibit B - Additional Premises
 
Exhibit C - Building Equipment
 
Exhibit D - Minimum Rent Allocation Schedule
 
Exhibit E - Certification Related to the USA Patriot Act
 
Exhibit F - Determination of Fair Market Rental Value of the Leased Premises
 
Exhibit G - Environmental Reports
 
Exhibit H - Form of Certification
 

 

 

 

 


LEASE AGREEMENT
 
LEASE AGREEMENT, made as of this ___ day of __________, 20__, between CIT CRE LLC, a Delaware limited liability company, or nominee, with an address c/o CIT Lending Services Corporation, ▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (“Landlord”), and [__________________________], a [__________] corporation, with an address at __________________________________________ (“Tenant”).
 
In consideration of the rents and provisions herein stipulated to be paid and performed, Landlord and Tenant hereby covenant and agree as follows:
 
1. Certain Definitions. As used herein, the following terms shall have the following meaning:
 
“Acquisition Date” means the date on which Landlord has acquired all properties and assets and interests in property comprising the Initial Premises and the Additional Premises.
 
“Additional Premises” has the meaning assigned to such term in Section 2.
 
“Additional Rent” has the meaning assigned to such term in Section 7.
 
“Adjustment Date” has the meaning assigned to such term in Section 6.
 
“Affiliate” of any Person means any Person (presently existing or hereafter created or acquired) controlling, controlled by or under common control with the specified Person, and “control” of a Person (including, with correlative meaning, the terms “controlled by” and “under common control with”) means the power to direct or cause the direction of the management, policies or affairs of the controlled Person, whether through ownership of securities or partnership or other ownership interests, directly or indirectly, by contract or otherwise.
 
“Alterations” means all changes, additions, improvements or repairs to, all alterations, reconstructions, renewals, replacements or removals of and all substitutions or replacements for any of the Improvements or Building Equipment, both interior and exterior, structural and non-structural, and ordinary and extraordinary.
 
“Appurtenances” means all tenements, hereditaments, easements, rights-of-way, rights, privileges in and to the Land, including (a) easements over other lands granted by any Easement Agreement and (b) any streets, ways, alleys, vaults, gores or strips of land adjoining the Land.
 
“Assignment” means any assignment of rents and leases from Landlord to a Lender which (a) encumbers any of the Leased Premises and (b) secures Landlord’s obligation to repay a Loan, as the same may be amended, supplemented or modified from time to time.
 
“Building Equipment” has the meaning assigned to such term in Section 2.
 
“Capital Growth Rate” means, at any given time, the yield to maturity of the “on the run” ten (10) year United States Treasury security plus four hundred (400) basis points.
 
“Casualty” means any injury to or death of any person or any loss of or damage to any property (including the Leased Premises) included within or related to the Leased Premises.
 
“Code” means the Internal Revenue Code of 1986, as amended.
 
“Commencement Date” means the date hereof.
 
“Condemnation” means a Taking or a Requisition.
 
“Condemnation Notice” means notice or knowledge of the institution of or intention to institute any proceeding for Condemnation.
 
“Corporate Control Criteria” means, if deemed satisfied by any Transferee, that such Transferee has a Credit Rating of both “BB-” or higher from S&P and “B2” or higher from ▇▇▇▇▇’▇, in each case for the twenty-four (24) consecutive calendar month period prior to a Permitted Transfer and as of the date of the Permitted Transfer.
 
“Corporate Control Event” means any of the following: (i) a merger or consolidation of Tenant or Guarantor with or into another Person; (ii) the sale of all or substantially all of the assets of Tenant or Guarantor to any Person; (iii) the acquisition by any one Person (including Affiliates of such Person) of fifty percent (50%) or more of the common stock, voting securities or economic benefits and burdens (including distributions) of Tenant or Guarantor within any twelve (12) month period; or (iv) a change in 50% or more of the Board of Directors of Tenant or Guarantor in any twelve (12) month period.
 
“Costs” of a Person or associated with a specified transaction means all costs and expenses incurred by such Person or associated with such transaction, including reasonable attorneys’ fees and expenses, expert fees and expenses, court costs, brokerage fees, escrow fees, title insurance premiums, mortgage commitment fees, mortgage points and recording fees and transfer taxes, as the circumstances require. For all purposes of this Lease, “attorneys’ fees and expenses” and similar statements include those incurred out of court, at trial, on appeal or in any bankruptcy proceeding.
 
“Default Rate” has the meaning assigned to such term in Section 7(a)(iii).
 
“Easement Agreement” or “Easement Agreements” means any conditions, covenants, restrictions, easements, declarations, licenses and other agreements listed as Permitted Encumbrances or as may hereafter affect or benefit the Leased Premises.
 
“Environmental Law” or “Environmental Laws” means (i) whenever enacted or promulgated, any applicable federal, state, foreign or local law, statute, ordinance, rule, regulation, license, permit, authorization, approval, consent, court order, judgment, decree, injunction, code, requirement or agreement with any governmental entity, (x) relating to pollution (or the cleanup thereof), or the protection of any Environmental Media, air, water vapor, surface water, groundwater, drinking water supply, land (including land surface or subsurface), plant, aquatic and animal life from injury caused by a Hazardous Substance or (y) concerning exposure to, or the use, containment, storage, recycling, reclamation, reuse, treatment, generation, discharge, transportation, processing, handling, labeling, production, disposal or remediation of Hazardous Substances, Hazardous Conditions, Hazardous Activities or Environmental Violations, in each case as amended and as now or hereafter in effect, and (ii) any common law or equitable doctrine (including injunctive relief and tort doctrines such as negligence, nuisance, trespass and strict liability) that may impose liability or obligations or injuries or damages due to or threatened as a result of the presence of, exposure to, or ingestion of, any Hazardous Substance. The term Environmental Law includes the federal Comprehensive Environmental Response Compensation and Liability Act of 1980 (“CERCLA”), the Superfund Amendments and Reauthorization Act, the federal Water Pollution Control Act, the federal Clean Air Act, the federal Clean Water Act, the federal Resources Conservation and Recovery Act of 1976 (including the Hazardous and Solid Waste Amendments to RCRA), the federal Solid Waste Disposal Act, the federal Toxic Substance Control Act, the federal Insecticide, Fungicide and Rodenticide Act, the federal Occupational Safety and Health Act of 1970, the federal National Environmental Policy Act and the federal Hazardous Materials Transportation Act, each as amended and as now or hereafter in effect and any similar state or local Law.
 
“Environmental Media” means soil, fill material, or other geologic materials at all depths, groundwater at all depths, surface water including storm water and sewerage, indoor and outdoor air, and all living organisms, including all animals and plants, whether located on or off the Leased Premises.
 
“Environmental Violation” means any one or more of the following, whether occurring prior to, on or after the date hereof: (a) any direct or indirect discharge, disposal, spillage, emission, escape, pumping, pouring, injection, leaching, Release, seepage, filtration or transporting of any Hazardous Substance at, upon, under, onto or within the Leased Premises or any Environmental Media, or from the Leased Premises to any Environmental Media, in violation of any Environmental Law or in excess of any reportable quantity established under any Environmental Law or which could result in any liability to Landlord, Tenant or Lender, any Federal, state or local government or any other Person for the costs of any removal or Remedial Actions or natural resources damage or for bodily injury or property damage, (b) any deposit, storage, dumping, placement or use of any Hazardous Substance at, upon, under or within the Leased Premises in violation of any Environmental Law or in excess of any reportable quantity established under any Environmental Law or which could result in any liability to any Federal, state or local government or to any other Person for the costs of any removal or Remedial Actions or natural resources damage or for bodily injury or property damage, (c) the abandonment or discarding at the Leased Premises of any barrels, containers or other receptacles containing any Hazardous Substances in violation of any Environmental Laws, (d) any activity, occurrence or condition in connection with the Leased Premises which could result in any liability, cost or expense to Landlord or Lender or any other owner or occupier of the Leased Premises, or which could result in a creation of a lien on the Leased Premises under any Environmental Law, or (e) any violation of or noncompliance with any Environmental Law in connection with the Leased Premises.
 
“Event of Default” has the meaning assigned to such term in Section 22.
 
“Existing Environmental Condition” has the meaning assigned to such term in Section 10(g).
 
“Expansion” has the meaning assigned to such term in Section 13.
 
“Expiration Date” means the Initial Expiration Date or, if this Lease has been extended for a Renewal Term in accordance with Section 5, the last day of such Renewal Term.
 
“Fair Market Rental Value of the Leased Premises” means the rent that would be paid by a willing tenant and accepted by a willing landlord in an arm length’s lease of the Leased Premises in which neither party is under any compulsion to lease, but without consideration of any concessions, allowances or other inducements then normally being offered to prospective tenants. Fair Market Rental Value of the Leased Premises shall be determined by the appraisal process set forth in Exhibit F.
 
“Full Rent Commencement Date” means the first day of the month following the month in which the Acquisition Date occurs.
 
“GAAP” means generally accepted accounting principles.
 
“Government Lists” has the meaning assigned to such term in Exhibit E.
 
“Guarantor” means LMI Aerospace, Inc., a Missouri corporation.
 
“Hazardous Activity” means any activity, process, procedure or undertaking which directly or indirectly (i) procures, generates or creates any Hazardous Substance; (ii) causes or results in (or threatens to cause or result in) the release, seepage, spill, leak, flow, discharge or emission of any Hazardous Substance into the environment (including the air, ground water, watercourses or water systems), (iii) involves the containment or storage of any Hazardous Substance; or (iv) would cause the Leased Premises or any portion thereof to become a hazardous waste treatment, recycling, reclamation, processing, storage or disposal facility within the meaning of any Environmental Law.
 
“Hazardous Condition” means any condition resulting from an act or omission occurring after the date hereof which would support any claim or liability under any Environmental Law.
 
“Hazardous Substance” or “Hazardous Substances” means (i) any substance, material, product, petroleum, petroleum product, derivative, compound or mixture, mineral (including asbestos), chemical, gas, medical waste, or other pollutant, in each case whether naturally occurring, man-made or the by-product of any process, that is toxic, harmful or hazardous or acutely hazardous to the environment or public health or safety, (ii) those materials included within the definitions of “hazardous substances,” “extremely hazardous substances,” “hazardous materials,” “toxic substances” “toxic pollutants,” “hazardous air pollutants” “toxic air contaminants,” “solid waste,” “hazardous waste,” “pollutants,” contaminants” or similar categories under any Environmental Laws, or (iii) any substance supporting a claim under any Environmental Law, whether or not defined as hazardous as such under any Environmental Law. Hazardous Substances include any toxic or hazardous waste, pollutant, contaminant, industrial waste, petroleum or petroleum-derived substances or waste, radon, radioactive materials, asbestos, asbestos containing materials, urea formaldehyde foam insulation, lead and polychlorinated biphenyls.
 
“Impositions” has the meaning assigned to such term in Section 9.
 
“Improvements” has the meaning assigned to such term in Section 2.
 
“Indemnitee” has the meaning assigned to such term in Section 15.
 
“Initial Appraiser” has the meaning assigned to such term in Exhibit F.
 
“Initial Expiration Date” has the meaning assigned to such term in Section 5.
 
“Initial Premises” has the meaning assigned to such term in Section 2.
 
“Initial Valuation” has the meaning assigned to such term in Exhibit F.
 
“Insurance Requirements” means the requirements of all insurance policies required to be maintained in accordance with this Lease.
 
“Interim Rent” has the meaning assigned to such term in Section 6.
 
“Land” has the meaning assigned to such term in Section 2.
 
“Law” means any constitution, statute, rule of law, code, ordinance, order, judgment, decree, injunction, rule, regulation, policy, requirement or administrative or judicial determination, even if unforeseen or extraordinary, of every duly constituted governmental authority, court or agency, now or hereafter enacted or in effect.
 
“Lease” means this Lease Agreement.
 
“Lease Guaranty” has the meaning the Guaranty and Suretyship Agreement dated December 28, 2006 made by Guarantor to Landlord.
 
“Lease Year” means (a) the period commencing on the Full Rent Commencement Date and ending at midnight on the last day of the twelfth (12th) consecutive calendar month thereafter, and (b) each succeeding twelve (12) month period occurring during the Term.
 
“Leased Premises” has the meaning assigned to such term in Section 2.
 
“Legal Requirements” means the requirements of all present and future Laws (including Environmental Laws and Laws relating to accessibility to, usability by, and discrimination against, disabled individuals) and all covenants, restrictions and conditions now or hereafter of record which may be applicable to Tenant or to any of the Leased Premises, or to the use, manner of use, occupancy, possession, operation, maintenance, alteration, repair or restoration of any of the Leased Premises, even if compliance therewith necessitates structural changes or improvements or results in interference with the use or enjoyment of any of the Leased Premises.
 
“Lender” means any person or entity (and their respective successors and assigns) which may, after or contemporaneously with the date hereof, make a Loan to Landlord or is the holder of any Note.
 
“Loan” means any loan made by one or more Lenders to Landlord, which loan is secured by a Mortgage and an Assignment and is evidenced by a Note.
 
“Minimum Rent” has the meaning assigned to such term in Section 6.
 
“Minimum Rent Payment Date” has the meaning assigned to such term in Section 6.
 
“Monetary Obligations” means Rent and all other sums payable by Tenant under this Lease to Landlord, to any third party on behalf of Landlord or to any Indemnitee.
 
“Mortgage” means any mortgage or deed of trust from Landlord to a Lender which (a) encumbers any of the Leased Premises and (b) secures Landlord’s obligation to repay a Loan, as the same may be amended, supplemented or modified.
 
“Net Award” means (a) the entire award payable to Landlord or Lender by reason of a Condemnation whether pursuant to a judgment or by agreement or otherwise, or (b) the entire proceeds of any insurance required under clauses (i), (ii) (to the extent payable to Landlord or Lender), (iv), (v) or (vi) of Section 16(a), as the case may be, less any expenses incurred by Landlord and Lender in collecting such award or proceeds.
 
“Note” means any promissory note evidencing Landlord’s obligation to repay a Loan, as the same may be amended, supplemented or modified.
 
“Owner” has the meaning assigned to such term in Exhibit E.
 
“Permitted Encumbrances” means those covenants, restrictions, reservations, liens, conditions and easements and other encumbrances of record as of the date hereof, other than any Mortgage or Assignment, and liens for unpaid real estate taxes and assessment not yet due and payable.
 
“Permitted Transfer” has the meaning assigned to such term in Section 22.
 
“Permitted Violations” has the meaning assigned to such term in Section 14.
 
“Person” means an individual, partnership, association, corporation, trust or other legal entity.
 
“Present Value” of any amount means such amount discounted by a rate per annum which is the lower of (a) the Prime Rate at the time such present value is determined or (b) eight percent (8%) per annum.
 
“Primary Term” has the meaning assigned to such term in Section 5.
 
“Prime Rate” means the annual interest rate as published, from time to time, in the Wall Street Journal as the “Prime Rate” in its column entitled “Money Rate”. The Prime Rate may not be the lowest rate of interest charged by any “large U.S. money center commercial banks” and Landlord makes no representations or warranties to that effect. In the event the Wall Street Journal ceases publication or ceases to publish the “Prime Rate” as described above, the Prime Rate shall be the average per annum discount rate (the “Discount Rate”) on ninety-one (91) day bills issued from time to time by the United States Treasury (“Treasury Bills”) at its most recent auction, plus three hundred (300) basis points. If no such 91-day Treasury Bills are then being issued, the Discount Rate shall be the discount rate on Treasury Bills then being issued for the period of time closest to ninety-one (91) days.
 
“Purchase Agreement” means the Purchase Agreement dated as of December 28, 2006 between Tenant, as seller, and Landlord, as purchaser, relating to the Leased Premises.
 
“Release” means any active or passive spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing of any Hazardous Substance into any Environmental Media. For the purposes of this Lease, “Release” also includes any threatened Release.
 
“Remedial Actions” means any investigation, work plan preparation removal, repair, cleanup, abatement, remediation, monitored natural attenuation, natural resource damage assessment and restoration, closure, post-closure, detoxification or remedial activity of any kind whatsoever necessary to address any Release, any Environmental Violation and/or any Hazardous Condition.
 
“Remediation Plan” has the meaning assigned to such term in Section 10.
 
“Renewal Date” has the meaning assigned to such term in Section 5.
 
“Renewal Term” has the meaning assigned to such term in Section 5.
 
“Rent” means, collectively, Interim Rent, Minimum Rent and Additional Rent.
 
“Requesting Party” has the meaning assigned to such term in Section 25.
 
“Requisition” means any temporary requisition or confiscation of the use or occupancy of any of the Leased Premises by any governmental authority, civil or military, whether pursuant to an agreement with such governmental authority in settlement of or under threat of any such requisition or confiscation, or otherwise.
 
“Responding Party” has the meaning assigned to such term in Section 25.
 
“Restoration Fund” has the meaning assigned to such term in Section 19.
 
“Set-Off” has the meaning assigned to such term in Section 8.
 
“Site Reviewers” has the meaning assigned to such term in Section 10(c).
 
“Site Assessment” has the meaning assigned to such term in Section 10.
 
“SNDA Provisions” has the meaning assigned to such term in Section 31.
 
“State” means, with respect to any parcel of Land comprising the Leased Premises, the jurisdiction in which such parcel is located.
 
“Subleases” has the meaning assigned to such term in Section 20.
 
“Surviving Obligations” means any obligations of Tenant under this Lease, actual or contingent, which arise on or prior to the expiration or prior termination of this Lease or rejection in bankruptcy, which survive such expiration, termination or rejection by their own terms.
 
“Taking” means (a) any taking of, or damage to, all or a portion of any of the Leased Premises (i) in or by condemnation or other eminent domain proceedings pursuant to any Law, general or special, or (ii) by reason of any agreement with any condemnor in settlement of or under threat of any such condemnation or other eminent domain proceeding, or (iii) by any other means, or (b) any de facto condemnation. The Taking shall be considered to have taken place as of the later of the date actual physical possession is taken by the condemnor, or the date on which the right to compensation and damages accrues under the law applicable to the Leased Premises.
 
“Term” means the Primary Term or any Renewal Term, whichever is then in effect.
 
“Third Appraiser” has the meaning assigned to such term in Exhibit F.
 
“Third Party Offer” has the meaning assigned to such term in Section 21.
 
“Third Party Purchaser” has the meaning assigned to such term in Section 21.
 
“Third Valuation” has the meaning assigned to such term in Exhibit F.
 
“Trade Fixtures” means all machinery, apparatus, furniture, fixtures and equipment now or hereafter installed by Tenant and used in connection with the conduct of Tenant’s business on the Leased Property, other than fixtures and items of personal property that are integral to the ownership, maintenance and operation of the Improvements and which cannot be removed from the Leased Property without adversely affecting the value, or the general utility or use of such Leased Property.
 
“Transferee” has the meaning assigned to such term in Section 22.
 
“Use” has the meaning assigned to such term in Section 10.
 
“Valuation Notice” has the meaning assigned to such term in Exhibit F.
 
“Valuation Period” has the meaning assigned to such term in Exhibit F.
 
“Work” has the meaning assigned to such term in Section 13.
 
2. Demise of Premises. Landlord hereby demises and lets to Tenant, and Tenant hereby takes and leases from Landlord, for the Term and upon the provisions hereinafter specified, the following described property (collectively, the “Leased Premises”):
 
(a) prior to the Acquisition Date, the premises described in Exhibit A hereto, together with the Appurtenances (the “Initial Premises”);
 
(b) from and after the Acquisition Date, the Initial Premises and the premises described in Exhibit B hereto, together with Appurtenances (the “Additional Premises” and, together with the Initial Premises, collectively, the “Land”);
 
(c) all buildings, structures and other improvements now or hereafter constructed on the Land (collectively, the “Improvements”); and
 
(d) the fixtures, machinery, equipment and other property described in Exhibit C hereto (collectively, the “Building Equipment”).
 
3. Title, Condition and Possession.
 
(a) The Leased Premises are demised and let subject to (i) the rights of any Persons in possession of the Leased Premises, (ii) the existing state of title of any of the Leased Premises, including any Permitted Encumbrances, (iii) any state of facts which an accurate survey or physical inspection of the Leased Premises might show, (iv) all Legal Requirements, including any existing violation of any thereof, and (v) the condition of the Leased Premises as of the Commencement Date, without representation or warranty by Landlord.
 
(b) LANDLORD LEASES AND WILL LEASE AND TENANT TAKES AND WILL TAKE THE LEASED PREMISES AS IS. TENANT ACKNOWLEDGES THAT LANDLORD (WHETHER ACTING AS LANDLORD HEREUNDER OR IN ANY OTHER CAPACITY) AND THE INDEMNITEES HAVE NOT MADE AND WILL NOT MAKE, NOR SHALL LANDLORD OR ANY OF THE INDEMNITEES BE DEEMED TO HAVE MADE, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE LEASED PREMISES, INCLUDING ANY WARRANTY OR REPRESENTATION AS TO (i) ITS FITNESS, DESIGN OR CONDITION FOR ANY PARTICULAR USE OR PURPOSE, (ii) THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, (iii) THE EXISTENCE OF ANY DEFECT, LATENT OR PATENT, (iv) LANDLORD’S TITLE THERETO, (v) VALUE, (vi) COMPLIANCE WITH SPECIFICATIONS, (vii) LOCATION, (viii) USE, (ix) CONDITION, (x) MERCHANTABILITY, (xi) QUALITY, (xii) DESCRIPTION, (xiii) DURABILITY, (xiv) OPERATION, INCOME, EXPENSES, ENTITLEMENTS OR ZONING, (xv) THE EXISTENCE OF ANY HAZARDOUS SUBSTANCE, ENVIRONMENTAL VIOLATION, RELEASE, HAZARDOUS CONDITION OR HAZARDOUS ACTIVITY OR (xvi) COMPLIANCE OF THE LEASED PREMISES WITH ANY LAW OR LEGAL REQUIREMENT; AND ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY TENANT. TENANT ACKNOWLEDGES THAT THE LEASED PREMISES ARE OF ITS SELECTION AND TO ITS SPECIFICATIONS AND HAVE BEEN INSPECTED BY TENANT AND ARE SATISFACTORY TO IT. IN THE EVENT OF ANY DEFECT OR DEFICIENCY IN ANY OF THE LEASED PREMISES OF ANY NATURE, WHETHER LATENT OR PATENT, NEITHER LANDLORD NOR ANY INDEMNITEES SHALL HAVE ANY RESPONSIBILITY OR LIABILITY WITH RESPECT THERETO OR FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING STRICT LIABILITY IN TORT). THE PROVISIONS OF THIS SECTION 3(b) HAVE BEEN NEGOTIATED, AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY WARRANTIES BY LANDLORD OR ANY INDEMNITEE, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE LEASED PREMISES, ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OR ANY OTHER LAW NOW OR HEREAFTER IN EFFECT OR ARISING OTHERWISE.
 
(c) Tenant represents to Landlord that Tenant has examined the title to the Leased Premises prior to the execution and delivery of this Lease and has found the same to be satisfactory for the purposes contemplated hereby. Tenant acknowledges that fee simple title (both legal and equitable) is in Landlord and that Tenant has only the leasehold right of possession and use of the Leased Premises as provided herein.
 
4. Use of Leased Premises; Quiet Enjoyment.
 
(a) Tenant may occupy and use the Leased Premises for the operation of any lawful business purpose related to the conduct of Tenant’s business. Tenant shall not use or occupy or permit any of the Leased Premises to be used or occupied, nor do or permit anything to be done in or on any of the Leased Premises, in a manner which would or might (i) violate any Law, Legal Requirement or Easement Agreement, (ii) make void or voidable or cause any insurer to cancel any insurance required by this Lease, or make it difficult or impossible to obtain any such insurance at commercially reasonable rates, (iii) cause structural injury to any of the Improvements, (iv) constitute a public or private nuisance or waste, or (v) violate or not be permitted pursuant to, a Permitted Encumbrance.
 
(b) Subject to the provisions hereof, so long as no Event of Default has occurred and is continuing, Tenant shall quietly hold, occupy and enjoy the Leased Premises throughout the Term, without any hindrance, ejection or molestation by Landlord with respect to matters that arise after the date hereof, provided that Landlord or its agents may enter upon and examine any of the Leased Premises at such reasonable times as Landlord may select and upon two (2) business days’ prior notice to Tenant (except in the case of an emergency, in which no notice shall be required) for the purpose of inspecting the Leased Premises, verifying compliance or non-compliance by Tenant with its obligations hereunder and the existence or non-existence of an Event of Default or event which with the passage of time and/or giving of notice would constitute an Event of Default, showing the Leased Premises to prospective Lenders and purchasers and taking such other action with respect to the Leased Premises as is permitted by any provision hereof.
 
(c) Tenant shall not abandon or vacate the Leased Premises and Tenant shall operate its business at the Leased Premises pursuant to the terms and provisions of this Lease. If Tenant ceases to do business at all or a material portion of the Leased Premises for a period longer than six (6) months, then Landlord may request that the Tenant use commercially reasonable efforts to attempt to sublet the Leased Premises.
 
5. Term.
 
(a) Subject to the provisions hereof, Tenant shall have and hold the Leased Premises for an initial term (such term, as the same may be extended in the manner set forth hereinafter, being referred to herein as the “Primary Term”) commencing on the Commencement Date and ending on January 31, 2027 (the “Initial Expiration Date”). If, on or prior to the Initial Expiration Date or the expiration of any Renewal Term this Lease shall not have been sooner terminated, then on the Initial Expiration Date and on the fifth, tenth, and fifteenth anniversaries of the Initial Expiration Date (the Initial Expiration Date and each such anniversary being referred to herein as a “Renewal Date”), Tenant shall have the right to extend the Term for an additional period of five years (each such extension period, a “Renewal Term”). In order to extend the then Term for a Renewal Term, Tenant shall notify Landlord at least twelve (12) months prior to, but no earlier than fifteen (15) months prior to, each Renewal Date that Tenant desires to extend the then Term for a Renewal Term. It is a condition to the extension of the Term of the Lease at each Renewal Date that (a) no Event of Default shall have occurred or be continuing as of the date Tenant gives notice to Landlord of Tenant’s intention to so extend the Term for an additional five-year period, and (b) no Event of Default shall have occurred and be continuing as of such Renewal Date. Any such extension of the Term shall be subject to all of the provisions of this Lease, as the same may be amended, supplemented or modified (except that Tenant shall have no right to any additional renewal terms).
 
(b) The Primary Term and/or any Renewal Term may also be extended upon the occurrence of certain events as set forth in Section 13(a).
 
(c) During the last year of the Term (as the same may be renewed pursuant to Section 5(a)), Landlord shall have the right to advertise the availability of the Leased Premises for sale or reletting, to erect signs upon the Leased Premises indicating such availability and to show the Leased Premises to prospective tenants at such reasonable times as Landlord may select. Landlord shall also have the right at any time to show the Leased Premises to prospective purchasers or Lenders at such reasonable times as Landlord may select.
 
6. Minimum Rent; Interim Rent. Commencing on the Full Rent Commencement Date and continuing throughout the Primary Term, Tenant shall pay to Landlord, as annual minimum rent for the Leased Premises during the first Lease Year, the amount of [$883,858; as adjusted before Closing in accordance with the terms of the Letter of Intent between Landlord and Tenant dated December 1, 2006]. The annual minimum rent for the second Lease Year and every Lease Year thereafter, beginning with the first day of the second Lease Year and continuing on the first day of third Lease Year and every Lease Year thereafter throughout the Primary Term (the first day of each such Lease Year being referred to herein as an “Adjustment Date”), shall be increased by an amount equal to two and three-tenths percent (2.3%) of the Minimum Rent payable immediately prior to the Adjustment Date. During any Renewal Term, such annual minimum rent shall be equal to ninety five percent (95%) of the Fair Market Rental Value of the Leased Premises. Such annual minimum rent, as so adjusted for any Lease Year during the Primary Term or any Renewal Term, is referred to herein as the “Minimum Rent”. Minimum Rent shall be allocated among the properties comprising the Initial Premises and Additional Premises as set forth in Exhibit D, and shall be subject to increases pursuant to Section 13(a). Minimum Rent shall be paid monthly in advance on the first day of each month during the Primary Term or any Renewal Term (each such day being a “Minimum Rent Payment Date”) in the amount of the annual Minimum Rent then in effect divided by twelve (12). Monthly Minimum Rent for the first Lease Year shall be [$__________] per month. Each such rental payment shall be made, at Landlord’s sole discretion, to Landlord at its address set forth above or to such one or more other Persons, at such addresses and in such proportions as Landlord may direct by ten (10) days’ prior written notice to Tenant (in which event Tenant shall give Landlord notice of each such payment concurrent with the making thereof). Pro rata minimum rent for the Initial Premises (based on the annual Minimum Rent for the first Lease Year and the allocations set forth in Exhibit D) for the period commencing on the Commencement Date and ending on the day preceding the Full Rent Commencement Date (the “Interim Rent”) shall be payable, in advance, on the Commencement Date.
 
If required by Landlord, Tenant shall pay the Interim Rent and Minimum Rent to Landlord (or to a Lender designated by Landlord) monthly by ACH and in immediately available funds.
 
7. Additional Rent.
 
(a) Tenant shall pay and discharge, as additional rent (collectively, “Additional Rent”) the following amounts:
 
(i) except as otherwise specifically provided herein, all Costs of Tenant, Landlord, Lender and any other Persons specifically referenced herein which are incurred in connection or associated with (A) the use, non-use, occupancy, possession, operation, condition, design, construction, maintenance, alteration, repair or restoration of any of the Leased Premises, (B) the performance of any of Tenant’s obligations under this Lease, (C) any Condemnation proceedings, (D) the adjustment, settlement or compromise of any insurance claims involving or arising from any of the Leased Premises, (E) the prosecution, defense or settlement of any litigation involving or arising from any of the Leased Premises or this Lease, (F) the exercise or enforcement by Landlord, its successors and assigns, of any of its rights or remedies under this Lease, (G) any amendment to or modification or termination of this Lease made at the request of Tenant, and/or (H) any act undertaken by Landlord (or its counsel) at the request of Tenant, or incurred in connection with any act of Landlord performed on behalf of Tenant;
 
(ii) after the date which is five (5) business days after the date on which all or any portion of any installment of Interim Rent or Minimum Rent is due and not paid, an amount equal to five percent (5%) of the amount of such unpaid installment or portion thereof. The foregoing late fees are not a penalty, and Tenant’s obligation to pay Landlord late fees as set forth above shall be in addition to all of Landlord’s other rights and remedies hereunder or at law and shall not be construed as liquidated damages or as limiting Landlord’s remedies in any manner;
 
(iii) interest at the rate (the “Default Rate”) of three percent (3%) per annum in excess of the Prime Rate on the following sums until paid in full: (A) all overdue installments of Interim Rent or Minimum Rent from the respective due dates thereof, (B) all overdue amounts of Additional Rent relating to obligations which Landlord shall have paid on behalf of Tenant, from the date of Landlord’s notice of the payment made by Landlord, and (C) all other overdue amounts of Additional Rent, from the date when any such amount becomes overdue;
 
(iv) concurrently with each payment of Interim Rent or Minimum Rent, any rent tax, sales tax, excise tax, privilege tax or other tax then payable with respect to real property rents, and any penalties in connection therewith; and
 
(v) any other items specifically required to be paid by Tenant under this Lease, including items in Section 12 that reference this Section 7.
 
(b) Tenant shall pay and discharge (i) any Additional Rent referred to in Section 7(a)(i) when the same shall become due, provided that amounts which are billed to Landlord or any third party, but not to Tenant, shall be paid within five (5) days after Landlord’s demand for payment thereof, and (ii) any other Additional Rent, within five (5) days after Landlord’s demand for payment thereof.
 
(c) In no event shall amounts payable under Section 7(a)(ii), (iii) and (iv) exceed the maximum amount permitted by applicable Law.
 
8. Net Lease; Non-Terminability.
 
(a) This is a net lease and all Monetary Obligations shall be paid by Tenant without notice or demand and without set-off, counterclaim, recoupment, abatement, suspension, deferment, diminution, deduction, reduction or defense (collectively, a “Set-Off”).
 
(b) Except as otherwise expressly provided herein, this Lease and the rights of Landlord and the obligations of Tenant hereunder shall not be affected by any event or for any reason, including the following: (i) any damage to or theft, loss or destruction of any of the Leased Premises, (ii) any Casualty or Condemnation, (iii) Tenant’s acquisition of ownership of any of the Leased Premises other than pursuant to an express provision of this Lease, (iv) any default on the part of Landlord hereunder or under any Note, Mortgage, Assignment or any other agreement, (v) any latent or other defect in any of the Leased Premises, (vi) the breach of any warranty of any seller or manufacturer of any of the Building Equipment, (vii) any violation of any provision of this Lease by Landlord, (viii) the bankruptcy, insolvency, reorganization, composition, readjustment, liquidation, dissolution or winding-up of, or other proceeding affecting Landlord, (ix) the exercise of any remedy, including foreclosure, under any Mortgage or Assignment, (x) any action with respect to this Lease (including the disaffirmance hereof) which may be taken by Landlord, any trustee, receiver or liquidator of Landlord or any court under the Federal Bankruptcy Code or otherwise, (xi) any interference with Tenant’s use of the Leased Premises by parties other than Landlord, (xii) market or economic changes, or (xiii) any other cause, whether similar or dissimilar to the foregoing, any present or future Law to the contrary notwithstanding.
 
(c) The obligations of Tenant hereunder shall be separate and independent covenants and agreements, all Monetary Obligations shall continue to be payable in all events (or, in lieu thereof, Tenant shall pay amounts equal thereto), and the obligations of Tenant hereunder shall continue unaffected unless the requirement to pay or perform the same shall have been terminated pursuant to an express provision of this Lease. All Rent payable by Tenant hereunder shall constitute “rent” for all purposes (including Section 502(b)(6) of the Bankruptcy Code).
 
(d) Except as otherwise expressly provided herein, Tenant shall have no right and hereby waives all rights which it may have under any Law (i) to quit, terminate or surrender this Lease or any of the Leased Premises, or (ii) to any Set-Off of any Monetary Obligations.
 
9. Payment of Impositions. Tenant shall, before interest or penalties are due thereon, pay and discharge all taxes (including real and personal property, franchise, sales and rent taxes, and any penalties in connection therewith), all charges for any easement or agreement maintained for the benefit of any of the Leased Premises (including any Easement Agreement), all assessments and levies, all permit, inspection and license fees, all rents and charges for water, sewer, utility and communication services relating to the any of Leased Premises, all ground rents and all other public charges whether of a like or different nature, even if unforeseen or extraordinary, imposed upon or assessed against (i) Tenant, (ii) Tenant’s leasehold interest in the Leased Premises, (iii) any of the Leased Premises, (iv) Landlord as a result of or arising in respect of the acquisition, ownership, occupancy, leasing, use, possession or sale of any of the Leased Premises, any activity conducted on any of the Leased Premises, or the Rent, in each case whether accruing before or after the Commencement Date (collectively, the “Impositions”); provided, however, that nothing herein shall obligate Tenant to pay (A) income, excess profits or other taxes of Landlord which are determined on the basis of Landlord’s net income or net worth (unless such taxes are in lieu of or a substitute for any other tax, assessment or other charge upon or with respect to the Leased Premises which, if it were in effect, would be payable by Tenant under the provisions hereof or by the terms of such tax, assessment or other charge), (B) any estate, inheritance, succession, gift or similar tax imposed on Landlord, or (C) any capital gains tax imposed on Landlord in connection with the sale of the Leased Premises to any Person. If any Imposition may be paid in installments without interest or penalty, Tenant shall have the option to pay such Imposition in installments so long as each installment is timely paid and Landlord receives evidence of each such payment. Tenant shall prepare and file all tax reports required by governmental authorities which relate to the Impositions. Tenant shall deliver to Landlord (1) copies of all settlements and notices pertaining to the Impositions which may be issued by any governmental authority within ten (10) days after Tenant’s receipt thereof, (2) receipts for payment of all taxes required to be paid by Tenant hereunder within ten (10) days after the due date thereof, and (3) receipts for payment of all other Impositions within ten (10) days after Landlord’s request therefor.
 
10. Compliance with Laws and Agreements; Environmental Matters.
 
(a) Tenant shall, at its expense, comply with and conform to, and cause the Leased Premises and any other Person occupying any part of the Leased Premises to comply with and conform to, all Insurance Requirements and Legal Requirements (including all applicable Environmental Laws). Tenant shall not at any time (i) cause, permit or suffer to occur any Environmental Violation or (ii) permit any sublessee, assignee or other Person occupying the Leased Premises under or through Tenant to cause, permit or suffer to occur any Environmental Violation. Without limiting the foregoing, Tenant shall not use, store, transport, dispense, sell, Release or discharge any Hazardous Substances, except in strict compliance with all Environmental Laws.
 
(b) Tenant, at its sole cost and expense, will at all times promptly and faithfully abide by, discharge and perform all of the covenants, conditions and agreements contained in any Easement Agreement or in any other contract or agreement relating to the Leased Premises on the part of Landlord or the occupier to be kept and performed thereunder. Tenant will not alter, modify, amend or terminate any Easement Agreement, give any consent, approval or waiver thereunder, or enter into any new Easement Agreement without, in each case, the prior written consent of Landlord.
 
(c) Upon at least two (2) business days’ prior written notice from Landlord, Tenant shall (after the Commencement Date) permit such persons as Landlord may designate (“Site Reviewers”) to visit the Leased Premises and perform environmental site investigations and assessments (“Site Assessments”) on the Leased Premises for the purpose of determining whether there exists on the Leased Premises any Environmental Violation or any condition which could result in any Environmental Violation. Such Site Assessments may include both above and below the ground testing for Environmental Violations and such other tests as may be necessary, in the opinion of the Site Reviewers, to conduct the Site Assessments. If Site Reviewers determine that the testing of soil and/or groundwater at the Leased Premises is necessary, Site Reviewers shall provide Tenant with a detailed written explanation setting forth a reasonable basis for the performance of such testing at the Leased Premises. Tenant shall supply to the Site Reviewers such historical and operational information regarding the Leased Premises as may be reasonably requested by the Site Reviewers to facilitate the Site Assessments, and shall make available for meetings with the Site Reviewers appropriate personnel having knowledge of such matters. So long as (i) Tenant is not in default hereunder and (ii) Landlord does not have reasonable cause to suspect that an Environmental Violation has occurred on the Leased Premises (in either situation Tenant shall be responsible for the cost of the site assessment), Landlord shall pay for the cost of such site assessment conducted by Landlord no more frequently than once every other Lease Year; provided, however, that if the results of such assessment indicate that a Hazardous Condition or an Environmental Violation exists, then Tenant shall pay for the cost of such site assessment. If such Environmental Violation is determined to be related to Existing Environmental Conditions at the Leased Premises, then Tenant shall have all rights and obligations with regard to the Existing Environmental Conditions as are set forth in Section 10(e) and 10(g) of this Lease.
 
(d) If an Environmental Violation, Hazardous Condition, or Existing Environmental Condition is found to exist and, in Tenant’s reasonable judgment, the cost of remediation of the same is likely to exceed $25,000, Tenant shall provide Landlord with written notice within ten (10) days of such discovery. If, in Landlord’s reasonable judgment, the cost of such remediation is likely to exceed $100,000, then, within ten (10) days after Landlord’s request therefor, Tenant shall provide Landlord with adequate financial assurances that Tenant will take Remedial Actions to effect such remediation in accordance with applicable Environmental Laws. Such financial assurances shall be a bond or letter of credit reasonably satisfactory to Landlord in form and substance and in an amount equal to or greater than Landlord’s reasonable estimate, based upon a Site Assessment performed pursuant to Section 10(c), of the anticipated cost of such Remedial Actions.
 
(e) If any Environmental Violation, Hazardous Condition, or Existing Environmental Condition occurs or is found to exist (for example, but without limitation, a detection of a leak in an underground tank or a petroleum spillage by a tanker), Tenant, at its sole expense, shall take any and all Remedial Actions and other actions as necessary to cure such Environmental Violation, Hazardous Condition, or Existing Environmental Condition in strict compliance with Environmental Laws and take any other action with regard to the Existing Environmental Conditions specifically set forth in Exhibit G. Tenant shall be responsible for all reporting, investigation and/or remediation requirements under any Environmental Law with respect to any Environmental Violation, Hazardous Condition, or Existing Environmental Condition, all at Tenant’s sole cost and expense. If Tenant fails to correct any Environmental Violation, Hazardous Condition, or Existing Environmental Condition which occurs or is found to exist or fails to take such steps as may be required by the applicable governmental authorities in accordance with applicable Environmental Laws, Landlord shall have the right (but no obligation) to take any and all actions as Landlord shall deem necessary or advisable in order to cure such Environmental Violation, Hazardous Condition or Existing Environmental Condition, all at Tenant’s sole cost and expense, and as Additional Rent.
 
(f) From and after the Commencement Date, the Use of any Hazardous Substances at the Leased Premises shall not be permitted, unless such Use is in full compliance with all Environmental Laws and any other applicable local, state and federal statutes, orders, ordinances, rules and regulations. As used in this Lease, the “Use” of Hazardous Substances means the receipt, handling, generation, storage, use, dispensing, treatment, recycling, sale, transfer, transportation, introduction, or incorporation of Hazardous Substances into, on, about, under or from the Leased Premises, whether by Tenant or by any contractor, subcontractor, subtenant, licensee, concessionaire, or invitee of Tenant.
 
(g) Tenant shall notify Landlord immediately after (1) becoming aware of any actual, alleged or threatened Environmental Violation or Hazardous Condition; (2) any and all enforcement actions, initiation of Remedial Actions or other governmental or regulatory actions (excluding routine actions such as permit renewals) instituted, completed or threatened pursuant to any Environmental Laws affecting the Leased Premises; (3) all claims made or threatened by any third person against Tenant or the Leased Premises relating in any way whatsoever to Hazardous Substances, Environmental Violations or Hazardous Conditions; (4) Tenant’s knowledge of any Release of Hazardous Substances at, on, in, under or from the Leased Premises or on, in or under any adjoining property; or (5) Tenant’s noncompliance with any of the covenants contained in this Section 10, and Tenant shall forward to Landlord immediately upon receipt thereof copies of all orders, reports, notices, permits, applications or other communications relating to any such violation or noncompliance. Tenant shall provide Landlord with information reasonably requested by Landlord concerning Hazardous Substances in connection with the Leased Premises, regardless of whether there is an Environmental Violation. Landlord and Tenant acknowledge that each has received notice of the Environmental Violations, if any, or Hazardous Conditions, if any, identified in the environmental reports and/or any separate Environmental Violations or Hazardous Conditions listed on Exhibit G (collectively, the “Existing Environmental Conditions”). So long as Tenant is not in default under its obligations hereunder, Landlord consents to any corrective action and remediation performed by Tenant pursuant to a remediation plan submitted by Tenant to, and approved by, the applicable governmental authorities (the “Remediation Plan”) in compliance with Environmental Laws with regard to any such Existing Environmental Conditions to the extent additional remedial measures are not specifically set forth in Exhibit G with regard to Existing Environmental Conditions. So long as (i) Tenant is not in default hereunder, and (ii) Landlord has approved such Remediation Plan, such approval not to be unreasonably withheld, Tenant shall have the exclusive right to take any action deemed necessary to implement such Remediation Plan, including (1) communications with regulatory authorities, third parties and environmental contractors, (2) preparation of corrective action plans, (3) performance of environmental testing of soil and/or groundwater, and (4) performance of corrective action, including installation of temporary and permanent monitoring ▇▇▇▇▇, removal or impacted soil and groundwater, and preparation of any reports relating to such corrective action. Landlord shall cooperate with Tenant with regard to any action that is necessary in order for Tenant to satisfy Tenant’s obligations relating to Existing Environmental Conditions.
 
(h) All future leases, subleases or concession agreements relating to the Leased Premises entered into by Tenant shall contain covenants of the other party to not at any time (i) cause any Environmental Violation to occur or (ii) permit any Person occupying the Leased Premises through said subtenant or concessionaire to cause any Environmental Violation to occur.
 
(i) Tenant shall indemnify, defend (with counsel acceptable to Landlord), release and hold Landlord and all Indemnitees (as set forth in Section 15) harmless from any and all claims, demands, judgments, damages, penalties, fines, Costs, liabilities or losses (including claims for diminution in value of the Leased Premises, stigma related damages, damages for the loss of or restriction on use of rentable or usable space or of any amenity of the Leased Premises, damages arising from any adverse impact on marketing the Leased Premises, and all sums paid in settlement of claims, and all reasonable attorneys’ fees and Costs, reasonable consultant fees and costs and reasonable expert fees and costs) whether direct or indirect, known or unknown, foreseen or unforeseen, that may arise on account of or in any way be connected with any alleged, threatened or actual (1) the presence of, Tenant’s Use of, or any Release of, Hazardous Substance in, on, under, about or from any part of the Leased Premises, whether or not such Hazardous Substances existed on the Leased Premises prior to the Commencement Date; (2) violation of any Environmental Law applicable to the Leased Premises; (3) Environmental Violation or Hazardous Condition with respect to the Leased Premises; including, but not limited to, (a) damages from injury to or destruction or loss of natural resources, including the reasonable costs of assessing such injury, destruction or loss, incurred pursuant to Section 107 of CERCLA, or any successor section or act or provision of any similar state or local Law, or (b) liability for costs and expenses of abatement, correction or clean-up, fines, damages, response costs or penalties which arise from the provisions of any other Environmental Laws; (4) breach or default by Tenant of any of Tenant’s covenants set forth in this Section 10; (5) the costs associated with response costs and for costs of removal and Remedial Actions, including all necessary plans and reports, incurred by the U.S. Environmental Protection Agency, or any other federal, state or local governmental agency or entity or by any other Person, incurred pursuant to the CERCLA, RCRA, or any other applicable Environmental Laws; (6) oversight charges, fines, damages or penalties arising from the presence or Release of Hazardous Substances, and any related Remedial Actions, incurred pursuant to the provisions of CERCLA, RCRA, or any other applicable Environmental Laws; (7) liability to third parties arising out of the presence or Release of Hazardous Substances for personal injury, bodily injury, or property damage arising under any statutory or common law theory, including damages assessed for the maintenance of a public or private nuisance or any trespass, the costs of Remedial Actions, or for the carrying on of an abnormally dangerous activity; (8) direct or indirect compensatory, consequential, or punitive damages arising out of any claim based on the presence or Release of Hazardous Substances or damage or threatened damage to Environmental Conditions; (9) Costs, fees and expenses of attorneys, consultants and experts incurred or sustained in making any investigation on account of any claim, in prosecuting or defending any action brought in connection therewith, in obtaining or seeking to obtain a release therefrom, or in enforcing any of the agreements herein contained; and (10) Rent during any period in which Remedial Actions are being taken. The foregoing indemnity, defense, release and hold harmless obligations of Tenant shall apply to Tenant’s Use of Hazardous Substances irrespective of whether any activities related to such Use were or will be undertaken in accordance with Environmental Laws or other applicable laws, regulations, codes and ordinances. Tenant specifically agrees that it shall not ▇▇▇ or seek contribution from any Indemnitee or any successors or assigns thereof in any matter relating Environmental Violation and/or Hazardous Substance liability. All reasonable Costs and expenses related to this Section incurred by Landlord shall be repaid by Tenant to Landlord as Additional Rent. This Section 10(i) shall survive the expiration, termination or rejection in bankruptcy of the Lease.
 
(j) Tenant shall, within five (5) days after request by Landlord at any time during the Term, execute the Certification Related to the USA Patriot Act in the form attached hereto as Exhibit E.
 
11. Liens; Recording.
 
(a) Tenant shall not, directly or indirectly, create or permit to be created or to remain and shall promptly discharge or remove any lien, levy or encumbrance on any of the Leased Premises or on any Rent or any other sums payable by Tenant under this Lease, other than any Mortgage or Assignment, the Permitted Encumbrances and any mortgage, lien, encumbrance or other charge created by or resulting solely from any act or omission of Landlord. NOTICE IS HEREBY GIVEN THAT LANDLORD SHALL NOT BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO TENANT OR TO ANYONE HOLDING OR OCCUPYING ANY OF THE LEASED PREMISES THROUGH OR UNDER TENANT, AND THAT NO MECHANICS’ OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF LANDLORD IN AND TO ANY OF THE LEASED PREMISES. LANDLORD MAY AT ANY TIME, AND AT LANDLORD’S REQUEST TENANT SHALL PROMPTLY, POST ANY NOTICES ON THE LEASED PREMISES REGARDING SUCH NON-LIABILITY OF LANDLORD.
 
(b) Tenant shall (subject to Landlord’s prior review and execution) execute, deliver and record, file or register all such instruments as may be required or permitted by any present or future Law in order to evidence the respective interests of Landlord and Tenant in the Leased Premises, and shall cause a memorandum of this Lease (or, if such a memorandum cannot be recorded, filed or registered, this Lease), and any supplement hereto or thereto, to be recorded, filed or registered in such manner and in such places as may be required or permitted by any present or future Law in order to protect the validity and priority of this Lease.
 
12. Maintenance and Repair.
 
(a) Tenant shall, at its own cost and expense, keep the Leased Premises, including all portions thereof, in good order and condition at all times on and after the Commencement Date to and including the date of the termination of the Term, by lapse of time or otherwise. Tenant shall timely and properly maintain, repair and replace all of the Leased Premises and all of its component parts, including parking lot surfaces and stripes, all landscaping, mechanical systems, electrical and lighting systems, plumbing and sewage systems, fixtures and appurtenances, interior walls, columns and floors, and ceilings, so as to preserve and protect the useful life, utility and value of such components, and in all events so as to preserve the effectiveness of any warranty relating thereto, such repairs and replacements to be at least in quality and class to the original work. If any segment of the Leased Premises shall become obsolete, non-functional, or uneconomic to repair, Tenant shall remove such item from the Leased Premises and promptly replace it with an item of comparable initial value and function. Promptly upon installation of any equipment, other than any Trade Fixtures, Tenant shall deliver to Landlord the original warranty (which shall specify Landlord as the owner of the equipment and Tenant’s having a non-exclusive license and authority of Landlord solely to enforce such warranty during the Term of the Lease) relating to such equipment. Within thirty (30) days following Landlord’s written request therefor, Tenant shall deliver to Landlord a written statement showing all removals and replacements of such systems or components since the last such report, including manufacturers, model numbers, and serial numbers. Landlord may, upon two (2) business days’ prior notice (except that no notice shall be required if an Event of Default exists), cause independent private inspectors to make inspections of the Leased Premises or any segments thereof to determine Tenant’s compliance under this Section 12. If such inspection by Landlord reveals that the Leased Premises, or any portion thereof, including any equipment thereon, is not in the condition required by this Lease in any material respect, then Tenant shall pay for such additional inspections performed by Landlord through the inspection approving the condition of such Leased Premises as being in conformity with the Lease. In addition, Tenant shall pay the cost of any such inspection at the Leased Premises by or on behalf of Landlord while an Event of Default exists.
 
(b) If any Improvement, now or hereafter constructed, shall (i) encroach upon any setback or any property, street or right-of-way adjoining the Leased Premises, (ii) violate the provisions of any restrictive covenant affecting the Leased Premises, (iii) hinder or obstruct any easement or right-of-way to which any of the Leased Premises is subject or (iv) impair the rights of others in, to or under any of the foregoing, Tenant shall, promptly after receiving notice or otherwise acquiring knowledge thereof, either (A) obtain from all necessary parties waivers or settlements of all claims, liabilities and damages resulting from each such encroachment, violation, hindrance, obstruction or impairment, whether the same shall affect Landlord, Tenant or both, or (B) take such action as shall be necessary to remove all such encroachments, hindrances or obstructions and to end all such violations or impairments, including, if necessary, making Alterations.
 
(c) Landlord may, but is not required to, after three (3) business days’ notice to Tenant (except in the case of an emergency, in which case no notice to Tenant shall be necessary), enter the Leased Premises and make such repairs, alterations, improvements, additions, replacements or maintenance as Landlord deems necessary to cure any default of Tenant hereunder, and Tenant shall pay Landlord as Additional Rent forthwith (and in any event within thirty (30) days) after being billed for same by Landlord the cost thereof plus an administrative fee of three percent (3%) of such cost, which ▇▇▇▇ shall be accompanied by reasonably supporting documentation. Such amounts shall bear interest at the Default Rate from the date of expenditure by Landlord to the date of repayment by Tenant.
 
(d) Except as expressly provided elsewhere in this Lease, it is intended by Tenant and Landlord that Landlord shall have no obligation, in any manner whatsoever, to build any improvements on the Leased Premises, to maintain or make any repairs, replacements, alterations or renewals of any nature or description to the Leased Premises (or any equipment therein), whether structural or nonstructural, all of which obligations are intended, as between Landlord and Tenant, to be those of Tenant. Tenant expressly waives the benefit of any statute now or in the future in effect which would otherwise afford Tenant the right to make repairs at Landlord’s expense or to terminate this Lease because of Landlord’s failure to keep the Leased Premises in good order, condition and repair.
 
(e) Tenant shall maintain at the Leased Premises, and turn over to Landlord upon expiration or termination of this Lease, then current operating manuals and original warranties (to the extent applicable) for the equipment then located on the Leased Premises.
 
13. Alterations, Improvements and Expansions.
 
(a) Tenant shall have the right, without having obtained the prior written consent of Landlord, to make (i) Alterations or a series of related Alterations that, as to any such Alterations or series of related Alterations, do not cost in excess of $100,000, (ii) to make Improvements or a series of related Improvements that, as to any such Improvements or series of related Improvements, do not cost in excess of $100,000, and (iii) to install equipment in the Improvements or accessions to the Building Equipment that, as to such accessions, do not cost in excess of $100,000, so long as at the time of construction or installation of any such Alterations, Improvements or installation of such accessions no Event of Default exists and the value and utility of the Leased Premises is not diminished thereby. If the cost of any Alterations, series of related Alterations, Improvements, series of related Improvements, equipment or accessions thereto is in excess of $100,000 (each, an “Expansion”) the prior written approval of Landlord shall be required. In the event that Landlord grants such prior written approval to Tenant for the undertaking of an Expansion, Landlord will pay for the approved costs of such Expansion and the Minimum Rent shall be increased over the remaining Term so as to allow Landlord to recover the cost of such Expansion plus a return on capital equal to the prevailing Capital Growth Rate. Also, if such approval is granted and such Expansion is undertaken within the last five (5) years of any Term, then the current Term shall be increased by five (5) years from the date of the conclusion of such Expansion and the Minimum Rent allocated to the affected Leased Premises (as allocated in accordance with Exhibit D before giving effect to such Expansion) shall be adjusted to a blended rate based on the (1) the current Minimum Rent allocated to such Leased Premises at such time, including annual escalations thereof, and (2) the lease rate on the Expansion as agreed upon by Landlord and Tenant.
 
(b) If Tenant makes any Alterations pursuant to this Section 13 or as required by Section 12 or 17 (such Alterations and actions being hereinafter collectively referred to as “Work”), whether or not Landlord’s consent is required, then (i) the market value of the Leased Premises shall not be lessened by any such Work or its usefulness impaired, (ii) all such Work shall be performed by Tenant in a good and workmanlike manner, using only licensed contractors and new materials, (iii) all such Work shall be expeditiously completed in compliance with all Legal Requirements, (iv) all such Work shall comply with the Insurance Requirements, (v) if any such Work involves the replacement of Building Equipment or parts thereof, all replacement Building Equipment or parts shall have a value and useful life equal to the greater of (A) the value and useful life on the date hereof of the Building Equipment being replaced or (B) the value and useful life of the Building Equipment being replaced immediately prior to the occurrence of the event which required its replacement, (vi) Tenant shall promptly discharge or remove all liens filed against any of the Leased Premises arising out of such Work, (vii) Tenant shall procure and pay for all permits and licenses required in connection with any such Work, (viii) all such Work, shall be the property of Landlord and shall be subject to this Lease, and Tenant shall execute and deliver to Landlord any document requested by Landlord evidencing the assignment to Landlord of all estate, right, title and interest (other than the leasehold estate created hereby) of Tenant or any other Person thereto or therein, and (ix) Tenant shall comply, to the extent requested by Landlord or required by this Lease, with the provisions of Section 19(a), whether or not such Work involves restoration of the Leased Premises.
 
14. Permitted Contests. Notwithstanding any other provision of this Lease, Tenant shall not be required to (a) pay any Imposition, (b) discharge or remove any lien referred to in Section 11 or 13 or (c) take any action with respect to any encroachment, violation, hindrance, obstruction or impairment referred to in Section 12(b) (such non-compliance with the terms hereof being hereinafter referred to collectively as “Permitted Violations”), so long as at the time of such contest no Event of Default exists and so long as Tenant shall contest, in good faith, the existence, amount or validity thereof, the amount of the damages caused thereby, or the extent of its or Landlord’s liability therefor by appropriate proceedings which shall operate during the pendency thereof to prevent or stay (i) the collection of, or other realization upon, the Permitted Violation so contested, (ii) the sale, forfeiture or loss of any of the Leased Premises or any Rent to satisfy or to pay any damages caused by any Permitted Violation, (iii) any interference with the use or occupancy of any of the Leased Premises, (iv) any interference with the payment of any Rent, or (v) the cancellation or increase in the rate of any insurance policy or a statement by the carrier that coverage will be denied. Tenant shall provide Landlord security which is satisfactory, in Landlord’s reasonable judgment, to assure that such Permitted Violation is corrected, including all Costs, interest and penalties that may be incurred or become due in connection therewith. While any proceedings which comply with the requirements of this Section 14 are pending and the required security is held by Landlord, Landlord shall not have the right to correct any Permitted Violation thereby being contested unless Landlord is required by law to correct such Permitted Violation and Tenant’s contest does not prevent or stay such requirement as to Landlord. Each such contest shall be promptly and diligently prosecuted by Tenant to a final conclusion, except that Tenant, so long as the conditions of this Section 14 are at all times complied with, has the right to attempt to settle or compromise such contest through negotiations. Tenant shall pay any and all losses, judgments, decrees and Costs in connection with any such contest and shall, promptly after the final determination of such contest, fully pay and discharge the amounts which shall be levied, assessed, charged or imposed or be determined to be payable therein or in connection therewith, together with all penalties, fines, interest and Costs thereof or in connection therewith, and perform all acts the performance of which shall be ordered or decreed as a result thereof. No such contest shall subject Landlord to the risk of any civil or criminal liability.
 
15. Indemnification.
 
(a) In addition to the indemnification obligations set forth in Section 10, commencing as of the Commencement Date, Tenant shall pay, protect, indemnify, defend, save and hold harmless Landlord, Lender and all other Persons described in Section 29 (each an “Indemnitee”) from and against any and all liabilities, losses, damages (including punitive damages), penalties, Costs (including attorneys’ fees and costs), causes of action, suits, claims, demands or judgments of any nature whatsoever, howsoever caused, without regard to the form of action and whether based on strict liability, negligence or any other theory of recovery at law or in equity, arising from (i) any matter pertaining to the acquisition (or the negotiations leading thereto), ownership, use, non-use, occupancy, operation, condition, design, construction, maintenance, repair or restoration of the Leased Premises, (ii) any casualty in any manner arising from the Leased Premises, whether or not Indemnitee has or should have knowledge or notice of any defect or condition causing or contributing to said casualty, or (iii) any violation by Tenant of any provision of this Lease, any contract or agreement to which Tenant is a party, any Legal Requirement or any Permitted Encumbrance or any encumbrance Tenant consented to or any Mortgage or Assignment.
 
(b) In case any action or proceeding is brought against any Indemnitee by reason of any such claim, (i) Tenant may, except in the event of a conflict of interest or a dispute between Tenant and any such Indemnitee or during the continuance of an Event of Default, retain its own counsel and defend such action (it being understood that Landlord may employ counsel of its choice to monitor the defense of any such action, all at Tenant’s cost and expense), and (ii) such Indemnitee shall notify Tenant to resist or defend such action or proceeding by retaining counsel reasonably satisfactory to such Indemnitee, and such Indemnitee will cooperate and assist in the defense of such action or proceeding if reasonably requested so to do by Tenant. In the event of a conflict of interest or dispute or during the continuance of an Event of Default, Landlord shall have the right to select counsel, and the cost of such counsel shall be paid by Tenant.
 
(c) Tenant acknowledges and agrees that Landlord (except in the event of, and then only to the extent directly attributable to, Landlord’s gross negligence or willful misconduct), any Lender and all Indemnitees shall not be liable, under any circumstances, for any loss, injury, death or damage to person or property (including the business or any loss of income or profit therefrom) of Tenant, Tenant’s members, officers, directors, shareholders, agents, employees, contractors, customers, invitees or any other person in or about the Leased Premises, whether the same are caused by (1) fire, explosion, falling plaster, steam, dampness, mold, electricity, gas, water, rain or other act of God, (2) breakage, leakage or other defects of sprinklers, wires, appliances, plumbing fixtures, water or gas pipes, roof, air conditioning, lighting fixtures, street improvements, or subsurface improvements, (3) theft, acts of God, acts of the public enemy, riot, strike, insurrection, war, terrorism, power failures, blackouts, energy or power shortages, court order, requisition or order of governmental body or authority, (4) any act or omission of any other occupant of the Leased Premises or any other party, (5) operations in construction of any private, public or quasi-public work, or (6) any other cause, including damage or injury which arises from the condition of the Leased Premises, from occupants of adjacent property, from the public, or from any other sources or places, and regardless of whether the cause of such damage or injury or the means of repairing the same are inaccessible to Tenant, or which may arise through repair, alteration or maintenance of any part of the Leased Premises or failure to make any such repair, from any condition or defect in, on or about the Leased Premises including any Environmental Violation, Hazardous Condition and/or Hazardous Activity, or the presence of any mold or any Hazardous Substance, or from any other condition or cause whatsoever.
 
(d) All obligations of Tenant under this Section 15 shall survive any termination, expiration or rejection in bankruptcy of this Lease.
 
16. Insurance.
 
(a) Commencing as of the Commencement Date and continuing thereafter throughout the Term, Tenant shall maintain the following insurance on or in connection with the Leased Premises:
 
(i) “All-risk” real and personal property insurance against physical loss or damage to the Improvements and Building Equipment as provided under a “special form” property insurance policy including flood (if the Leased Premises is in a flood zone), windstorm and earthquake coverage in amounts not less than the full replacement cost of the Improvements and Building Equipment. Such policies shall contain a replacement cost endorsement, an agreed amount endorsement (deleting any co-insurance provisions), a law and ordinance endorsement, and shall contain deductibles not more than $25,000 per occurrence;
 
(ii) Commercial general liability insurance including products liability and business automobile liability insurance (including owned, non-owned and hired automobile liability) and excess liability or umbrella coverage against claims for personal and bodily injury, death or property damage occurring on, in or as a result of the use of the Leased Premises, in an amount not less than $5,000,000 per occurrence/annual aggregate, but not less than $10,000,000 for aviation products liability or such higher amount as may be maintained from time to time, and all other coverage extensions that are usual and customary for properties of this size and type; there shall be severability of interest as though separate policies were issued to each additional insured except with respect to limits of liability;
 
(iii) Worker’s compensation insurance to the extent required by law covering all persons employed by Tenant in connection with any work done on or about any of the Leased Premises for which claims for death, disease or bodily injury may be asserted against Landlord, Tenant or any of the Leased Premises;
 
(iv) Comprehensive boiler, machinery and equipment breakdown insurance on any of the Building Equipment or any other machinery or equipment on or in the Leased Premises for full replacement cost;
 
(v) Business income/interruption insurance to include loss of rents at limits sufficient to cover one hundred percent (100%) of the annual Rent payable to Landlord with a period of indemnity not less than one (1) year from time of loss. Such insurance shall name Landlord as loss payee with respect to Rent payable to or for the benefit of Landlord under this Lease;
 
(vi) During any period in which substantial Alterations or Improvements at the Leased Premises are being undertaken, builder’s risk insurance covering the total completed value including any “soft costs” with respect to the Improvements being altered or repaired (on a completed value, non-reporting basis), replacement cost of work performed and equipment, supplies and materials furnished in connection with such construction or repair of Improvements or Building Equipment, together with such “soft cost” endorsements and such other endorsements as Landlord may reasonably require and general liability, worker’s compensation and automobile liability insurance with respect to the Improvements being constructed, altered or repaired;
 
(vii) Breach of warranty coverage as found in a lender’s loss payable endorsement and/or mortgagee’s clause to apply to Landlord so that any violations of the terms, conditions or warranties of any insurance policy by the named insured or others will not invalidate the coverage insofar as the interests of Landlord are concerned; and
 
(viii) Such other insurance (or other terms with respect to any insurance required pursuant to this Section 16, including amounts of coverage, deductibles, and form of mortgagee clause) as Landlord or Lender may reasonably require, which at the time is usual and commonly obtained in connection with properties similar in type of building size, use and location to the Leased Premises, including, if deemed appropriate by Landlord, terrorism insurance.
 
(b) The insurance required by Section 16(a) shall be written by companies which have a rating by A. M. Best Company of not less than A-/VII or otherwise reasonably acceptable to Landlord, and are approved to write insurance policies by the State Insurance Department for the State. The insurance policies (i) shall be for such terms and deductibles as Landlord may reasonably approve and (ii) shall be in amounts sufficient at all times to satisfy any coinsurance requirements thereof. The insurance referred to in Sections 16(a)(i), 16(a)(iv), 16(a)(v), 16(a)(vi), 16(a)(vii), 16(a)(viii), 16(a)(ix), and 16(a)(x) shall name Landlord as owner (and as an additional insured/landlord) and as sole loss payee as its interest may appear (at Landlord’s request, Lender will be named as loss payee and as a mortgagee insured pursuant to a standard non-contributory mortgagee endorsement in favor of, and acceptable to, Landlord and Lender). The insurance referred to in Section 16(a)(ii), 16(a)(vii), 16(a)(viii), 16(a)(ix), and 16(a)(x) shall name Landlord and Lender as additional insureds. If said insurance or any part thereof shall expire, be withdrawn, become void, voidable, unreliable or unsafe for any reason, including a breach of any condition thereof by Tenant or the failure or impairment of the capital of any insurer, or if for any other reason whatsoever said insurance shall become reasonably unsatisfactory to Landlord, Tenant shall immediately obtain new or additional insurance reasonably satisfactory to Landlord. All insurance required to be maintained by Tenant under Section 16(a) shall be primary to, and non-contributing with, any insurance maintained by Landlord.
 
(c) Each policy required by any provision of Section 16(a), except clause (iii) thereof, shall provide that it may not be cancelled or modified except after thirty (30) days’ prior notice to Landlord and Lender. Each such policy shall also provide that any loss otherwise payable thereunder shall be payable notwithstanding (i) any act or omission of Landlord or Tenant which might, absent such provision, result in a forfeiture of all or a part of such insurance payment, (ii) the occupation or use of any of the Leased Premises for purposes more hazardous than those permitted by the provisions of such policy, (iii) any foreclosure or other action or proceeding taken by Lender pursuant to any provision of the Mortgage, Note, Assignment or other document evidencing or securing the Loan upon the happening of an event of default therein or (iv) any change in title to or ownership of any of the Leased Premises.
 
(d) Tenant shall pay as they become due all premiums (and deductibles) for the insurance required by Section 16(a), shall renew or replace each policy and deliver to Landlord evidence of the payment of the full premium therefor or installments due prior to the due dates thereof, and in no event later than ten (10) days prior to the expiration date or cancellation (for nonpayment) of such policy. Landlord shall have the option, but never the responsibility, to make premium payments. Landlord shall not be responsible for warranties or representations to underwriters. Prior to the Commencement Date, Tenant shall deliver to Landlord a certificate of insurance evidencing all insurance coverages required to be maintained by Tenant hereunder, together with an endorsement(s) adding Landlord and Lender as additional insureds thereunder. Tenant shall promptly forward to Landlord copies of all original policies and endorsements upon Tenant’s receipt thereof.
 
(e) Any insurance which Tenant is required to obtain pursuant to Section 16(a) may be carried under a “blanket” or umbrella policy or policies covering other properties or liabilities of Tenant, provided that such “blanket” or umbrella policy or policies otherwise comply with the provisions of this Section 16 and provided, further, that Tenant shall provide to Landlord a statement of values which shall be reviewed annually and amended as necessary based on replacement cost valuations. The original or a certified copy of each such “blanket” or umbrella policy shall promptly be delivered to Landlord upon request.
 
(f) Tenant shall promptly comply with and conform to (i) all provisions of each insurance policy required by this Section 16 and (ii) all requirements of the insurers thereunder applicable to Landlord, Tenant or any of the Leased Premises or to the use, manner of use, occupancy, possession, operation, maintenance, alteration or repair of any of the Leased Premises, even if such compliance necessitates Alterations or results in interference with the use or enjoyment of any of the Leased Premises.
 
(g) Tenant shall not carry separate insurance concurrent in form or contributing in the event of a Casualty with that required in this Section 16 unless (i) Landlord and Lender are included therein as additional insureds, with loss payable as provided herein, and (ii) such separate insurance complies with the other provisions of this Section 16. Tenant shall immediately notify Landlord of such separate insurance and shall deliver to Landlord certificates of such insurance and, if requested, the original policies thereof.
 
(h) All policies shall contain full waivers of subrogation against Landlord. Additionally, the policy limits for all policies required to be maintained by Tenant hereunder shall not in any way affect or limit Tenant’s indemnification, defense, release and hold harmless obligations set forth in this Lease.
 
(i) The per occurrence and annual aggregate limits for all insurance required to be maintained by Tenant hereunder may be increased by Landlord from time to time to reflect current market conditions (not more frequently than once every five years) or to meet Lender requirements.
 
(j) Tenant shall provide Landlord with acceptable forms of evidence of the insurance required by Section 16(a) containing the original signature of the insurance underwriter or a duly authorized agent or broker prior to the closing/funding and prior to the termination, cessation or replacement of coverage thereafter throughout the term of the agreement.
 
(k) Tenant agrees that the insurance maintained by Tenant does not release Tenant from liability as contained within the terms of this Lease, and that Landlord is under no obligation or duty to ascertain the existence or adequacy of insurance. Tenant shall do nothing to interrupt or disallow any insurance required under the terms of this Lease. All insurance maintained by Tenant shall be underwritten with insurers or reinsurers, if applicable, acceptable to Landlord.
 
17. Casualty and Condemnation: Claims.
 
(a) If any Casualty to the Leased Premises occurs, Tenant shall give Landlord and Lender immediate notice thereof. So long as no Event of Default exists Tenant is hereby authorized to negotiate all claims under any of the insurance policies required by Section 16(a) (except public liability insurance claims payable to a Person other than Tenant, Landlord or Lender) and to execute and deliver all necessary proofs of loss, receipts, vouchers and releases required by the insurers, and Landlord shall have the right to join with Tenant therein, so long as Tenant provides Landlord with copies of all correspondence to and from the insurance carrier or its representative. Any final adjustment, settlement or compromise of any such claim shall, however, be subject to the prior written approval of Landlord, which shall not be unreasonably withheld or delayed, and Landlord shall have the right to prosecute or contest, or to require Tenant to prosecute or contest, any such claim, adjustment, settlement or compromise. If an Event of Default exists, Tenant shall not be entitled to adjust, collect or compromise any such claim or to participate with Landlord in any adjustment, collection and compromise of the Net Award payable in connection with a Casualty. Tenant agrees to sign, upon the request of Landlord, all such proofs of loss, receipts, vouchers and releases. Each insurer is hereby authorized and directed to make payment under said policies directly to Landlord or, if required by the Mortgage, to Lender instead of to Landlord and Tenant jointly, and Tenant hereby appoints each of Landlord and Lender as Tenant’s attorneys-in-fact to endorse any draft therefor. The rights of Landlord under this Section 17(a) shall be extended to Lender if and to the extent that any Mortgage so provides.
 
(b) Tenant, immediately upon receiving a Condemnation Notice, shall notify Landlord and Lender thereof. So long as no Event of Default exists, Tenant is authorized to negotiate the amount of any Net Award and Landlord shall have the right to join with Tenant herein (so long as Tenant provides Landlord with copies of all correspondence to and from the condemning authority or its representative). Any final adjustment, settlement or compromise of any such Net Award shall, however, be subject to the prior written approval of Landlord, which shall not be unreasonably withheld or delayed, and Landlord shall have the right to prosecute or contest, or to require Tenant to prosecute or contest, any such claim, adjustment, settlement or compromise relating to a Net Award. If an Event of Default exists, Landlord shall be authorized to collect, settle and compromise the amount of any Net Award and Tenant shall not be entitled to participate with Landlord in any Condemnation proceeding or negotiations under threat thereof or to contest the Condemnation or the amount of the Net Award therefor. No agreement with any condemnor in settlement or under threat of any Condemnation shall be made by Tenant without the written consent of Landlord which shall not be unreasonably withheld, conditioned or delayed. Subject to the provisions of this Section 17(b), Tenant hereby irrevocably assigns to Landlord any award or payment to which Tenant is or may be entitled by reason of any Condemnation, whether the same shall be paid or payable for Tenant’s leasehold interest hereunder (including bonus value) or otherwise; but nothing in this Lease shall impair Tenant’s right to any award or payment on account of Tenant’s Trade Fixtures, equipment or other tangible property which is not part of the Building Equipment, moving expenses or loss of business, if available, to the extent that and so long as (i) Tenant shall have the right to make, and does make, a separate claim therefor against the condemnor and (ii) such claim does not in any way reduce either the amount of the award otherwise payable to Landlord for the Condemnation of Landlord’s fee interest in the Leased Premises or the amount of the award (if any) otherwise payable for the Condemnation of Tenant’s leasehold interest hereunder. The rights of Landlord under this Section 17(b) shall also be extended to Lender if and to the extent that any Mortgage so provides.
 
       18. Casualty and Condemnation: Restoration. If any Casualty (whether or not insured against) or Condemnation shall occur, this Lease shall continue, notwithstanding such event, and there shall be no abatement or reduction of any Monetary Obligations. Promptly after such Casualty or Condemnation, Tenant, as required in Sections 12(a) and 13(b), shall commence and diligently continue to restore the Leased Premises as nearly as possible to their value, condition and character immediately prior to such event (assuming the Leased Premises to have been in the condition required by this Lease). So long as no Event of Default exists, any Net Award up to and including $50,000 shall be paid by Landlord to Tenant and Tenant shall restore the Leased Premises in accordance with the requirements of Sections 12(a) and 13(b) of this Lease. Any Net Award in excess of $50,000 shall be made available by Landlord (or Lender, if required by the terms of any Mortgage) to Tenant for the restoration of any of the Leased Premises pursuant to and in accordance with the provisions of Section 19 hereof.
 
        19. Restoration Procedures.
 
(a) Landlord (or Lender if required by any Mortgage) shall hold Net Award in excess of $50,000 in a fund (the “Restoration Fund”) and disburse amounts from the Restoration Fund only in accordance with the following conditions:
 
(i) prior to commencement of restoration, (A) the architects, contracts, contractors, plans and specifications for the restoration shall have been approved by Landlord, (B) Landlord and Lender shall be provided with mechanics’ lien insurance (if available) and acceptable performance and payment bonds which insure satisfactory completion of and payment for the restoration, are in an amount and form and have a surety acceptable to Landlord, and name Landlord and Lender as additional dual obligees, and (C) appropriate waivers of mechanics’ and materialmen’s liens shall have been filed;
 
(ii) at the time of any disbursement, no Event of Default shall exist and no mechanics’ or materialmen’s liens shall have been filed against any of the Leased Premises and remain undischarged;
 
(iii) disbursements shall be made from time to time in an amount not exceeding the cost of the work completed since the last disbursement, upon receipt of (A) satisfactory evidence, including architects’ certificates, of the stage of completion, the estimated total cost of completion and performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (B) waivers of liens, (C) contractors’ and subcontractors’ sworn statements as to completed work and the cost thereof for which payment is requested, (D) a satisfactory bringdown of title insurance and (E) other evidence of cost and payment so that Landlord can verify that the amounts disbursed from time to time are represented by work that is completed, in place and free and clear of mechanics’ and materialmen’s lien claims;
 
(iv) each request for disbursement shall be accompanied by a certificate of Tenant, signed by the president or a vice president of Tenant, describing the work for which payment is requested, stating the cost incurred in connection therewith, stating that Tenant has not previously received payment for such work and, upon completion of the work, also stating that the work has been fully completed and complies with the applicable requirements of this Lease;
 
(v) Landlord may retain ten percent (10%) of the restoration fund until the restoration is fully completed, including all “punch list” items;
 
(vi) if the Restoration Fund is held by Landlord, the Restoration Fund shall not be commingled with Landlord’s other funds and shall bear interest at a rate agreed to by Landlord and Tenant; and
 
(vii) such other reasonable conditions as Landlord or Lender may impose.
 
(b) Prior to commencement of restoration and at any time during restoration, if the estimated cost of completing the restoration work free and clear of all liens, as determined by Landlord, exceeds the amount of the Net Award available for such restoration, the amount of such excess shall, upon demand by Landlord, be paid by Tenant to Landlord to be added to the Restoration Fund. Any sum so added by Tenant which remains in the Restoration Fund upon completion of restoration shall be refunded to Tenant. For purposes of determining the source of funds with respect to the disposition of funds remaining after the completion of restoration, the Net Award shall be deemed to be disbursed prior to any amount added by Tenant.
 
(c) If any sum remains in the Restoration Fund after completion of the restoration and any refund to Tenant pursuant to Section 19(b), such sum shall be retained by Landlord.
 
      20. Assignment and Subletting; Prohibition against Leasehold Financing.
 
(a) Without the prior written consent of Landlord, unless guaranteed in writing by Tenant by a written instrument in form and substance satisfactory to Landlord, Tenant may not:
 
(i) assign, mortgage or pledge this Lease, voluntarily or involuntarily, whether by operation of law or otherwise, except to Tenant’s Affiliates; or
 
(ii) sublet any of the Leased Premises at any time to any other Person.
 
Any such purported assignment or sublease in violation of this Section 20(a) shall be null and void. Whether or not Landlord consents to any proposed assignment, mortgage, sublease or other transfer, Tenant shall, within ten (10) days after request in writing by Landlord, reimburse Landlord for all Costs and expenses incurred by Landlord in connection with its review thereof.
 
(b) If Tenant assigns all its rights and interest under this Lease with Landlord’s consent, the assignee under such assignment shall expressly assume all the obligations of Tenant hereunder, actual or contingent, including obligations of Tenant which may have arisen on or prior to the date of such assignment, by a written instrument delivered to Landlord at the time of such assignment. Each sublease of any of the Leased Premises shall be subject and subordinate to the provisions of this Lease. No assignment or sublease shall affect or reduce any of the obligations of Tenant hereunder, and all such obligations shall continue in full force and effect as obligations of a principal and not as obligations of a guarantor, as if no assignment or sublease had been made. No assignment or sublease shall impose any additional obligations on Landlord under this Lease.
 
(c) Tenant shall, within ten (10) days after the execution and delivery of any assignment or sublease consented to by Landlord, deliver a duplicate original copy thereof to Landlord which, in the event of an assignment, shall be in recordable form.
 
(d) As security for performance of its obligations under this Lease, Tenant hereby grants, conveys and assigns to Landlord all right, title and interest of Tenant in and to all subleases (the “Subleases”) now in existence or hereinafter entered into for any or all of the Leased Premises, any and all extensions, modifications and renewals thereof and all rents, issues and profits therefrom. Landlord hereby grants to Tenant a license to collect and enjoy all rents and other sums of money payable under any Sublease of any of the Leased Premises, provided, however, that Landlord shall have the absolute right at any time during the continuance of an Event of Default upon notice to Tenant and any subtenants to revoke said license and to collect such rents and sums of money and to apply the same to installments of Interim Rent or Minimum Rent next due and owing. Tenant shall not accept any rents under any Sublease more than thirty (30) days in advance of the accrual thereof nor do nor permit anything to be done, the doing of which, nor omit or refrain from doing anything, the omission of which, will or could be a breach of or default in the terms of any of the Subleases.
 
              21. Sales by Landlord; Right of First Refusal.
 
(a) Landlord may sell or transfer any of the Initial Premises or the Additional Premises at any time to any third party (each, a “Third Party Purchaser”); provided, however, that prior to any such sale or transfer, Landlord shall give notice to Tenant of the terms offered by the Third Party Purchaser (the “Third Party Offer”) and offer to sell or transfer such property or properties to Tenant on the same terms and conditions as are set forth in the Third Party Offer. Tenant shall then have ten (10) days after receipt of Landlord’s offer to either accept or reject such offer in writing. If Tenant does not accept or reject such offer within such period of ten (10) days, then Tenant will be deemed to have rejected Landlord’s offer, and Landlord shall be free to sell such property or properties to such Third Party Purchaser or to any other Person on terms no less favorable to Landlord than those set forth in the Third Party Offer at any time within one hundred eighty (180) days after Tenant’s rejection of Landlord’s offer. It is a condition to Tenant’s right of first refusal that (a) no Event of Default shall have occurred or be continuing as of the date on which Landlord receives the Third Party Offer which shall trigger such right of first refusal, and (b) no Event of Default shall have occurred or be continuing as of the date on which Tenant seeks to exercise a right of first refusal by accepting Landlord’s offer to sell or transfer such property or properties to Tenant.
 
(b) In the event of any such transfer to a Third Party Purchaser, Tenant shall attorn to such Third Party Purchaser as Landlord, provided such Third Party Purchaser or Landlord has notified Tenant in writing of such transfer. At the request of Landlord, Tenant will execute such documents confirming the agreement referred to above and such other agreements as Landlord or the Third Party Purchaser may reasonably request, provided that such agreements do not increase the liabilities and obligations of Tenant hereunder. Whenever Landlord transfers its interest in the Leased Premises (whether to a Third Party Purchaser or an Affiliate or subsidiary of Landlord), Landlord shall be automatically released from further performance under this Lease and from all further liabilities and expenses hereunder, provided the transferee of Landlord’s interest assumes all liabilities and obligations of Landlord hereunder from the date of such transfer.
 
22. Events of Default. The occurrence of any one or more of the following (after expiration of any applicable cure period as provided in Section 22) shall, at the sole option of Landlord, constitute an “Event of Default” under this Lease:
 
(a) Tenant shall fail to pay any Interim Rent or Minimum Rent as and when the same becomes due, and such failure continues for five (5) days after Landlord gives written notice thereof to Tenant, provided that if Tenant is more than five (5) days late in the payment of Interim Rent or Minimum Rent in any twelve (12) consecutive months period, only one notice need be given by Landlord during such twelve (12) consecutive months and any subsequent failure to pay Interim Rent or Minimum Rent on or before its due date within such twelve (12) consecutive months shall constitute an Even of Default after five (5) days without notice;
 
(b) Tenant shall fail to pay any Additional Rent or any other Monetary Obligation as and when the same becomes due and payable and such failure continues for more than five (5) days after Landlord gives written notice thereof to Tenant;
 
(c) a default occurs under Section 20;
 
(d) Tenant shall fail to perform and observe, or there shall occur a violation or breach of, any other provision hereof, not otherwise specifically mentioned in this Section 22 as and when such performance or observance is due and such failure, violation or breach continues for more than thirty (30) days after Landlord gives written notice thereof to Tenant; provided, however, that if such failure, violation or breach is not reasonably susceptible to cure within such period of thirty (30) days, an Event of Default shall not exist as long as Tenant commences with due diligence and dispatch the curing of such failure, violation or breach within such period of thirty (30 days and thereafter prosecutes with diligence and dispatch and completes the curing of such failure, violation or breach within a reasonable time not to exceed one hundred eighty (180) days;
 
(e) any representation or warranty made by Tenant herein or in any certificate, demand or request made pursuant hereto proves to be incorrect, now or hereafter, in any material respect;
 
(f) a default beyond any applicable cure period or at maturity by Tenant in any payment of principal or interest on any obligations for borrowed money having an original principal balance of $10,000,000 or more in the aggregate, or in the performance of any other provision contained in any instrument under which any such obligation is created or secured (including the breach of any covenant thereunder), (x) if such payment is a payment at maturity or a final payment, or (y) if an effect of such default is to cause, or permit any Person to cause, such obligation to become due prior to its stated maturity;
 
(g) a default by Tenant beyond any applicable cure period in the payment of rent under, or in the performance of any other material provision of, any other lease or leases that have, in the aggregate, rental obligations over the terms thereof of $500,000 or more if the landlord under any such lease or leases commences to exercise its remedies thereunder;
 
(h) a final, non-appealable judgment or judgments for the payment of money in excess of $10,000,000 in the aggregate shall be rendered against Tenant and the same shall remain undischarged for a period of sixty (60) consecutive days;
 
(i) Tenant shall (A) file, or consent by answer or otherwise to the filing against Tenant of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy, insolvency or other debtors’ relief law of any jurisdiction, (B) make a general assignment for the benefit of creditors, (C) consent to the appointment of a custodian, receiver, trustee or other officer with similar powers for itself or for any substantial part of the Leased Premises, (D) be unable to pay its debts as they mature or shall admit in writing its inability to pay its debts when due, or (E) take action for the purpose of any of the foregoing;
 
(j) a court or governmental authority shall enter an order, judgment or decree (A) appointing, without the consent of Tenant, a custodian, receiver, trustee or other officer with similar powers with respect to Tenant or any substantial part of the Leased Premises, (B) constituting an order for relief or approving a petition for relief or reorganization or arrangement or any other petition in bankruptcy, insolvency or other debtors’ relief law of any jurisdiction, or (C) ordering the dissolution, winding-up or liquidation of Tenant; and such order, judgment or decree shall remain undischarged or unstayed sixty (60) days after it is entered;
 
(k) Tenant shall be liquidated or dissolved or shall begin proceedings towards its liquidation or dissolution;
 
(l) the estate or interest of Tenant in any of the Leased Premises shall be levied upon or attached in any proceeding and such estate or interest is about to be sold or transferred or such process shall not be vacated or discharged within sixty (60) days after it is made;
 
(m) Tenant shall fail to convey the Additional Properties to Landlord on or before January 31, 2007in accordance with the terms of the Purchase Agreement;
 
(n) Tenant shall fail to perform or observe, or there shall occur a violation or breach of, or a misrepresentation by Tenant under, any provision of any agreement or any other document between Tenant and Lender, if such failure, violation, breach or misrepresentation gives rise to a default beyond any applicable cure period with respect to any Loan;
 
(o) Guarantor shall engage, enter into, or publicly announce a Corporate Control Event, unless each of the following conditions precedent is satisfied (a “Permitted Transfer”):
 
(i) the successor to or transferee of Tenant of Guarantor (the “Transferee”) has a tangible net worth computed in accordance with GAAP consistently applied at least equal to the tangible net worth of Guarantor immediately prior to such Corporate Control Event, and satisfies the Corporate Control Criteria;
 
(ii) proof reasonably satisfactory to Landlord of such required net worth and satisfaction of the Corporate Control Criteria shall have been delivered to Landlord at least twenty (20) days prior to the effective date of any such Corporate Control Event;
 
(iii) the Transferee agrees directly with Landlord, by written instrument in form and substance reasonably satisfactory to Landlord, to be bound by all of the obligations and liabilities of Tenant under this lease or Guarantor under the Lease Guaranty, as the case may be;
 
(iv) in no event shall the originally named Tenant or Guarantor (or the entity into which Tenant or Guarantor is merged or consolidated) be released from its obligations under the Lease or the Lease Guaranty, as the case may be;
 
(v) any such transfer or transaction is for a legitimate, regular business purpose of Tenant or Guarantor and the Transferee, other than the direct or indirect transfer of Tenant’s interest in this Lease;
 
(vi) no Event of Default then exists or will exist immediately after giving effect to such Corporate Control Event; or
 
(p) a default, event of default or breach of any term or provision by Tenant (or an Affiliate of Tenant) under any agreement or document between Tenant (or an Affiliate of Tenant) and Landlord (or an Affiliate of Landlord); and
 
(q) an “Event of Default” as such term is defined in the Lease Guaranty.
 
23. Remedies and Damages Upon Default
 
(a) If an Event of Default shall have occurred and is continuing, Landlord shall have the right, at its sole option, then or at any time thereafter, to exercise its remedies and to collect damages from Tenant in accordance with this Section 23, subject in all events to applicable Law, without demand upon or notice to Tenant except as otherwise provided in Section 22 and this Section 23.
 
(i) Landlord may give Tenant notice of Landlord’s intention to terminate this Lease on a date specified in such notice and upon such date, this Lease, the estate hereby granted and all rights of Tenant hereunder shall expire and terminate. Upon such termination, Tenant shall immediately surrender and deliver possession of the Leased Premises to Landlord in accordance with Section 26. If Tenant does not so surrender and deliver possession of all of the Leased Premises, Landlord may re-enter and repossess any of the Leased Premises not surrendered, with legal process, by summary proceedings, ejectment or any other lawful means or procedure. Upon or at any time after taking possession of any of the Leased Premises, Landlord may, by peaceable means or legal process, remove any Persons or property therefrom. Landlord shall be under no liability for or by reason of any such entry, repossession or removal. Notwithstanding such entry or repossession, Landlord may collect the damages set forth in Section 23(b).
 
(ii) After repossession of any of the Leased Premises, Landlord shall have the right to relet any of the Leased Premises to such tenant or tenants, for such term or terms, for such rent, on such conditions and for such uses as Landlord in its sole discretion may determine, and collect and receive any rents payable by reason of such reletting. Landlord may make such Alterations in connection with such reletting as it may deem advisable in its sole discretion. Notwithstanding any such reletting, Landlord may collect the damages set forth in Section 23(b).
 
(iii) Landlord may declare by notice to Tenant the entire Interim Rent or Minimum Rent (in the amount of Interim Rent or Minimum Rent then in effect) for the remainder of the then current Term to be immediately due and payable. Tenant shall immediately pay to Landlord all such Interim Rent or Minimum Rent discounted to its Present Value, all accrued Rent then due and unpaid, all other Monetary Obligations which are then due and unpaid and all Monetary Obligations which arise or become due by reason of such Event of Default (including any Costs of Landlord). Upon receipt by Landlord of all such accelerated Interim Rent or Minimum Rent and Monetary Obligations, this Lease shall remain in full force and effect and Tenant shall have the right to possession of the Leased Premises from the date of such receipt by Landlord to the end of the Term, and subject to all the provisions of this Lease, including the obligation to pay all increases in Interim Rent or Minimum Rent and all Monetary Obligations that subsequently become due, except that (A) no Interim Rent or Minimum Rent which has been prepaid hereunder shall be due thereafter during the said Term, (B) Tenant shall have no option to extend or renew the Term.
 
(b) The following constitute damages to which Landlord shall be entitled if Landlord exercises its remedies under Section 23(a)(i) or 23(a)(ii):
 
(i) If Landlord exercises its remedy under Section 23(a)(i) but not its remedy under Section 23(a)(ii) (or attempts to exercise such remedy under Section 23(a)(ii) and is unsuccessful in reletting the Leased Premises) then, upon written demand from Landlord, Tenant shall pay to Landlord, as liquidated and agreed final damages for Tenant’s default and in lieu of all current damages beyond the date of such demand (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), and not as a penalty, an amount equal to the Present Value of all Interim Rent or Minimum Rent from the date of such demand to the date on which the Term is scheduled to expire hereunder in the absence of any earlier termination, re-entry or repossession. Tenant shall also pay to Landlord all of Landlord’s Costs in connection with the repossession of the Leased Premises and any attempted reletting thereof, including all brokerage commissions, legal expenses, reasonable attorneys’ fees, employees’ expenses, costs of Alterations and expenses and preparation for reletting.
 
(ii) If Landlord exercises its remedy under Section 23(a)(ii), then Tenant shall, until the end of what would have been the Term in the absence of the termination of the Lease, and whether or not any of the Leased Premises shall have been relet, be liable to Landlord for, and shall pay to Landlord, on the date on which the same are due and payable under the terms of this Lease all Monetary Obligations which would be payable under this Lease by Tenant in the absence of such termination less the net proceeds, if any, of any reletting pursuant to Section 23(a)(ii), after deducting from such proceeds all of Landlord’s Costs (including the items listed in the last sentence of Section 23(b)(i) hereof) incurred in connection with such repossessing and reletting; provided that if Landlord has not relet the Leased Premises, such Costs of Landlord shall be considered to be Monetary Obligations payable by Tenant. Landlord shall also be entitled to recover from Tenant as damages for loss of the bargain, and not as a penalty, an amount equal to the sum of (1) the Present Value of the excess, if any, of (a) all Interim Rent and Minimum Rent payable under this Lease from the date of termination, reentry or repossession, as the case may be, over (b) the greater of (x) amount of the base rent obtained by Landlord after reletting the Leased Premises, or (y) the Fair Rental Value of the Leased Premises, plus (2) all of Landlord’s Costs (including the items listed in the last sentence of Section 23(b)(i) hereof). As used herein the “Fair Rental Value” of the Leased Premises means an amount equal to the fair market rental value of the Leased Premises considered as unencumbered by this Lease and available for the highest and best use that may be made thereof. Tenant shall be and remain liable for all sums aforesaid, and Landlord may recover such damages from Tenant and institute and maintain successive actions or legal proceedings against Tenant for the recovery of such damages. Nothing herein contained shall be deemed to require Landlord to wait to begin such action or other legal proceedings until the date when the Term would have expired by its own terms had there been no such Event of Default.
 
(c) Notwithstanding anything to the contrary herein contained, in lieu of or in addition to any of the foregoing remedies and damages, Landlord may exercise any remedies and collect any damages available to it at law or in equity. If Landlord is unable to obtain full satisfaction pursuant to the exercise of any remedy, it may pursue any other remedy which it has hereunder or at law or in equity, it being understood that the remedies set forth herein are not exclusive and are cumulative in addition to any remedies allowed now or after the date hereof by applicable law.
 
(d) Landlord shall not be required to mitigate any of its damages hereunder. If any Law shall validly limit the amount of any damages provided for herein to an amount which is less than the amount agreed to herein, Landlord shall be entitled to the maximum amount available under such Law.
 
(e) No termination of this Lease, repossession or reletting of the Leased Premises, exercise of any remedy or collection of any damages pursuant to this Section 23 shall relieve Tenant of any Surviving Obligations.
 
(f) THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EACH OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS LEASE, AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR THE COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY (INCLUDING ANY ACTION TO RESCIND OR CANCEL THIS LEASE AND ANY CLAIMS OR DEFENSES ASSERTING THAT THIS LEASE WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE UNDERSIGNED TO EXECUTE THIS LEASE.
 
(g) Upon the occurrence of any Event of Default, Landlord shall have the right (but no obligation) to perform any act required of Tenant hereunder and, if performance of such act requires that Landlord enter the Leased Premises, Landlord may enter the Leased Premises for such purpose. Any such payment or performance by Landlord of Tenant’s obligations under this Lease shall be on Tenant’s account and at Tenant’s sole cost and expense, and as Additional Rent hereunder.
 
(h) No failure of Landlord (i) to insist at any time upon the strict performance of any provision of this Lease or (ii) to exercise any option, right, power or remedy contained in this Lease shall be construed as a waiver, modification or relinquishment thereof. A receipt by Landlord of any sum in satisfaction of any Monetary Obligation with knowledge of the breach of any provision hereof shall not be deemed a waiver of such breach, and no waiver by Landlord of any provision hereof shall be deemed to have been made unless expressed in a writing signed by Landlord.
 
(i) Tenant hereby waives and surrenders, for itself and all those claiming under it, including creditors of all kinds, (i) any right and privilege which it or any of them may have under any present or future Law to redeem any of the Leased Premises or to have a continuance of this Lease after termination of this Lease or of Tenant’s right of occupancy or possession pursuant to any court order or any provision hereof, and (ii) the benefits of any present or future Law which exempts property from liability for debt or for distress for rent. Tenant hereby expressly waives the service of notice of intention to re-enter provided for in any statute now or hereafter in force, or to institute legal proceedings to that end, and also waives any and all right of redemption provided for in any statute now or hereafter in force in case Tenant shall be dispossessed by a judgment or by warrant of any court or judge. The terms “enter”, “re-enter”, “entry” or “re-entry”, as used in this Lease, are not restricted to their technical legal meanings.
 
(j) Except as otherwise provided herein, all remedies are cumulative and concurrent and no remedy is exclusive of any other remedy. Each remedy may be exercised at any time an Event of Default has occurred and is continuing and may be exercised from time to time. No remedy shall be exhausted by any exercise thereof.
 
(k) Tenant shall pay all of Landlord’s legal costs, expenses and reasonable attorneys’ fees, expert fees and consultant fees in exercising any of Landlord’s rights and remedies against Tenant, whether set forth herein or at law or equity.
 
(l) If Landlord elects to terminate this Lease on account of any Event of Default on the part of Tenant, then Landlord may: (i) terminate any sublease, license, concession, or other consensual arrangement for possession entered into by Tenant and affecting any of the Leased Premises; or (ii) choose to succeed to Tenant’s interest in such arrangement. No payment by a subtenant with respect to a sublease shall entitle such subtenant to possession of the Leased Premises after termination of this Lease and Landlord’s election to terminate the sublease by the subtenant. If Landlord elects to succeed to Tenant’s interest in such arrangement, then Tenant shall, as of the date of notice given by Landlord to Tenant of such election, have no further right to, or interest in, any rent or other consideration receivable under that arrangement.
 
24. Notices. All notices, demands, requests, consents, approvals, offers, statements and other instruments or communications required or permitted to be given pursuant to the provisions of this Lease shall be in writing and shall be deemed to have been given and received for all purposes when delivered in person or by Federal Express or other reliable 24-hour delivery service or five (5) business days after being deposited in the United States mail, by registered or certified mail, return receipt requested, postage prepaid, addressed to the other party at its address stated above or when delivery is refused. A copy of any notice given by Tenant to the originally named Landlord shall simultaneously be given by Tenant to ▇▇▇▇ ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Chairman Real Estate Department, and to CIT Capital USA Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: General Counsel. For the purposes of this Section, any party may substitute another address stated above (or substituted by a previous notice) for its address by giving fifteen (15) days’ notice of the new address to the other party, in the manner provided above.
 
25. Estoppel Certificate. At any time upon not less than ten (10) days’ prior written request by either Landlord or Tenant (the “Requesting Party”) to the other party (the “Responding Party”), the Responding Party shall deliver to the Requesting Party a statement in writing, executed by an authorized officer of the Responding Party, certifying (a) that, except as otherwise specified, this Lease is unmodified and in full force and effect, (b) the dates to which Interim Rent, Minimum Rent, Additional Rent and all other Monetary Obligations have been paid, (c) that, to the knowledge of the signer of such certificate and except as otherwise specified, no default by either Landlord or Tenant exists hereunder, (d) such other matters as the Requesting Party may reasonably request, and (e) if Tenant is the Responding Party that, except as otherwise specified, there are no proceedings pending or, to the knowledge of the signer, threatened, against Tenant before or by any court or administrative agency which, if adversely decided, would materially and adversely affect the financial condition and operations of Tenant. Any such statements by the Responding Party may be relied upon by the Requesting Party, any Person whom the Requesting Party notifies the Responding Party in its request for the Certificate is an intended recipient or beneficiary of the Certificate, any Lender or their assignees and by any prospective purchase or mortgagee of any of the Leased Premises. Any certificate required under this Section 25 and delivered by Tenant shall state that, in the opinion of each person signing the same, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to the subject matter of such certificate, and shall briefly state the nature of such examination or investigation. In addition to the rights of Landlord and Tenant to obtain estoppel certificates, Tenant shall, upon Lender’s request at any time, and from time to time during the existence of the Loan, and upon any foreclosure of the Loan or transfer in lieu thereof, deliver to Lender an estoppel certificate executed by Tenant, which Tenant shall provide in the same manner and with the same content and effect as estoppel certificates to be delivered by Tenant to Landlord, except that the estoppel certificate to Lender shall include such additional information as Lender may reasonably request.
 
26. Surrender. Upon the expiration or earlier termination of this Lease, Tenant shall peaceably leave and surrender the Leased Premises to Landlord in the same condition in which the Leased Premises was at the commencement of this Lease, except as repaired, rebuilt, restored, altered, replaced or added to as permitted or required by any provision of this Lease, and except for ordinary wear and tear. Upon such surrender, Tenant shall (a) remove from the Leased Premises all personal property, Trade Fixtures and equipment (other than the Building Equipment) which is owned by Tenant or third parties other than Landlord and (b) repair any damage caused by such removal. The personal property, Trade Fixtures and equipment not so removed shall become the property of Landlord. Landlord may thereafter cause such property to be removed from the Leased Premises. The cost of removing and disposing of such property and repairing any damage to any of the Leased Premises caused by such removal shall be paid by Tenant to Landlord upon demand. Landlord shall not in any manner or to any extent be obligated to reimburse Tenant for any such property which becomes the property of Landlord pursuant to this Section 26. If Tenant holds over in possession after the expiration of the Term, then such holding over shall not be deemed to extend the Term or renew this Lease, but rather the tenancy thereafter shall continue as a tenancy at sufferance pursuant to the terms and conditions herein contained, at one hundred fifty percent (150%) of the Interim Rent or Minimum Rent in effect on the date of such expiration (plus the requirement that Tenant pay to Landlord all Additional Rent); and Tenant shall indemnify, defend, protect (with counsel selected by Landlord) and hold Landlord and all Indemnitees wholly free and harmless of, from and against any and all damages, losses, costs, expenses and claims arising therefrom, including reasonable attorneys’ fees and costs. This Section 26 shall survive expiration, termination or rejection in bankruptcy of the Lease.
 
27. No Merger of Title. There shall be no merger of the leasehold estate created by this Lease with the fee estate in any of the Leased Premises by reason of the fact that the same Person may acquire or hold or own, directly or indirectly, (a) the leasehold estate created hereby or any part thereof or interest therein and (b) the fee estate in any of the Leased Premises or any part thereof or interest therein, unless and until all Persons having any interest in the interests described in (a) and (b) above which are sought to be merged shall join in a written instrument effecting such merger and shall duly record the same.
 
28. Books and Records.
 
(a) Tenant shall keep adequate records and books of account with respect to the finances and business of Tenant generally and with respect to the Leased Premises, in accordance with GAAP consistently applied, and shall permit Landlord and Lender by their respective agents, accountants and attorneys, upon three (3) business days’ prior written notice to Tenant, to visit and inspect the Leased Premises and examine (and make copies of) the records and books of account and to discuss the finances and business with the officers of Tenant, at such reasonable times as may be requested by Landlord; provided, however, that Landlord shall not make such request more than once during any consecutive twelve-month period. Upon the request of Lender or Landlord (either telephonically or in writing), Tenant shall provide the requesting party with copies of any information to which such party would be entitled in the course of a personal visit.
 
(b) Tenant shall deliver to Landlord and to Lender within ninety (90) days of the close of each fiscal year, annual audited financial statements of Tenant prepared by a nationally recognized firm of independent certified public accountants. Tenant shall also furnish to Landlord within forty-five (45) days after the end of each of the three first calendar quarters in each calendar year unaudited financial statements and all other quarterly reports of Tenant, certified by, respectively, Tenant’s chief financial officer. All financial statements of Tenant shall be prepared in accordance with GAAP consistently applied. All annual financial statements shall be accompanied by an opinion of said accountants stating that (A) there are no qualifications as to the scope of the audit and (B) the audit was performed in accordance with GAAP.
 
(c) All financial statements required under this Section 28 shall be accompanied by the certification of the president or a vice president of Tenant in the form attached hereto as Exhibit H, dated within five (5) days of the delivery of such statement, stating that (A) the affiant knows of no Event of Default, or event which, upon notice or the passage of time or both, would become an Event of Default which has occurred and is continuing hereunder or, if any such event has occurred and is continuing, specifying the nature and period of existence thereof and what action Tenant has taken or proposes to take with respect thereto and (B) except as otherwise specified in such affidavit, that Tenant has fulfilled all of its obligations under this Lease which are required to be fulfilled on or prior to the date of such affidavit.
 
29. Non-Recourse as to Landlord. Anything contained herein to the contrary notwithstanding, any claim based on or in respect of any liability of Landlord under this Lease shall be enforced only against the Leased Premises and not against any other assets, properties or funds of (i) Landlord, (ii) Landlord’s members, and any entity controlling, controlled by, or in common control of Landlord or Landlord’s members, any director, officer, general partner, shareholder, limited partner, beneficiary, employee, consultant, contractor or agent of Landlord or any general partner of Landlord or any of its general partners (or any legal representative, heir, estate, successor or assign of any thereof), (iii) any predecessor or successor limited liability company, partnership or corporation (or other entity) of Landlord or any of its members, managers, general partners, shareholders, officers, directors, employees or agents, either directly or through Landlord or its general partners, shareholders, officers, directors, employees or agents or any predecessor or successor partnership or corporation (or other entity), (iv) any Lender, and any lender to a Person holding an interest in Landlord, (v) any Person affiliated with any of the foregoing, or any director, officer, employee or agent of any thereof; or (vi) the heirs, successors, personal representatives and assigns of any of the foregoing.
 
30. Financing. If Landlord desires to obtain a Loan, Tenant shall, upon request of Landlord, supply any such Lender with such notices and information as Tenant is required to give to Landlord hereunder and to extend the rights of Landlord hereunder to any such Lender and to consent to such financing if such consent is requested by such Lender. Tenant shall execute a non-disturbance and attornment agreement, which may require Tenant to confirm that (a) Lender and its assigns will not be liable for any misrepresentation, act or omission of Landlord, (b) Lender and its assigns will not be subject to any counterclaim, demand or offset which Tenant may have against Landlord, (c) Lender and its assigns will not be bound by any amendment to this Lease not consented to in writing by Landlord, and (d) Landlord has assigned its interest in the Lease to Lender and no consent or approval of Landlord pursuant to this Lease shall be effective without Lender’s consent.
 
31. Subordination. This Lease, any memorandum of this Lease and Tenant’s interest hereunder shall be subordinate to any Mortgage or other security instrument presently recorded or hereafter placed upon the Leased Premises by Landlord, and to any and all advances made or to be made thereunder, to the interest thereon, and all renewals, replacements and extensions thereof; provided, however, that such Mortgage or other security instrument (or a separate contemporaneous or subsequent instrument in recordable form duly executed by Lender and delivered to Tenant) shall include commercially reasonable subordination, non-disturbance and attornment provisions (“SNDA Provisions”), which Tenant will execute and deliver, without cost to Landlord or Lender. Such SNDA Provisions may provide, among other matters, that if any foreclosure proceedings are initiated by Lender or a deed in lieu is granted (or if any ground lease is terminated), Tenant agrees, upon written request of any such holder or any purchaser at foreclosure sale, to attorn and pay Rent to such party and to execute and deliver any instruments necessary or appropriate to evidence or effectuate such attornment, provided such Lender or purchaser at a foreclosure sale shall agree to accept this Lease and not disturb Tenant’s occupancy, so long as Tenant does not default and fail to cure within the time permitted hereunder. The SNDA Provisions shall also include such other provisions as may be commercially reasonably requested by Lender. However, in the event of attornment, Lender shall not be: (i) liable for any act or omission of Landlord, or subject to any offsets or defenses which Tenant might have against Landlord (prior to such Lender becoming Landlord under such attornment), or(ii) liable for any security deposit or bound by any prepaid Rent not actually received by Lender. The SNDA provisions may also include provisions set forth in the last sentence of Section 30 of this Lease.
 
32. Tax Treatment; Reporting. Landlord and Tenant each acknowledge that each shall treat this transaction as a true lease for state law purposes and shall report this transaction as a Lease for Federal income tax purposes. For Federal income tax purposes each shall report this Lease as a true lease with Landlord as the owner of the Leased Premises and Building Equipment and Tenant as the lessee of such Leased Premises and Building Equipment including: (1) treating Landlord as the owner of the property eligible to claim depreciation deductions under Section 167 or 168 of the Code with respect to the Leased Premises and Building Equipment, (2) Tenant reporting its Rent payments as rent expense under Section 162 of the Code, and (3) Landlord reporting the Rent payments as rental income.
 
33. Miscellaneous.
 
(a) The Section headings in this Lease are used only for convenience in finding the subject matters and are not part of this Lease or to be used in determining the intent of the parties or otherwise interpreting this Lease.
 
(b) As used in this Lease, the singular shall include the plural and any gender shall include all genders as the context requires and the following words and phrases shall have the following meanings: (i) “including” shall mean “including without limitation”; (ii) “provisions” shall mean “provisions, terms, agreements, covenants and/or conditions”; (iii) “lien” shall mean “lien, charge, encumbrance, title retention agreement, pledge, security interest, mortgage and/or deed of trust”; (iv) “obligation” shall mean “obligation, duty, agreement, liability, covenant and/or condition”; (v) “any of the Leased Premises” shall mean “the Leased Premises or any part thereof or interest therein”; (vi) “any of the Land” shall mean “the Land or any part thereof or interest therein”; (vii) “any of the Improvements” shall mean “the Improvements or any part thereof or interest therein”; and (viii) “any of the Building Equipment” shall mean “the Building Equipment or any part thereof or interest therein”.
 
(c) Any act which Landlord is permitted to perform under this Lease may be performed at any time and from time to time by Landlord or any person or entity designated by Landlord. Each appointment of Landlord as attorney-in-fact for Tenant hereunder is irrevocable and coupled with an interest. Except as otherwise specifically provided herein, Landlord shall not unreasonably withhold or delay its consent whenever such consent is required under this Lease, except that with respect to any assignment of this Lease or subletting of the Leased Premises not expressly permitted by the terms of this Lease. Time is of the essence with respect to the performance by Tenant of all of its obligations under this Lease.
 
(d) Landlord shall in no event be construed for any purpose to be a partner, joint venturer or associate of Tenant or of any subtenant, operator, concessionaire or licensee of Tenant with respect to any of the Leased Premises or otherwise in the conduct of their respective businesses.
 
(e) This Lease and any documents which may be executed by Tenant on or about the effective date hereof at Landlord’s request constitute the entire agreement between the parties and supersede all prior understandings and agreements, whether written or oral, between the parties hereto relating to the Leased Premises and the transactions provided for herein. Landlord and Tenant are business entities having substantial experience with the subject matter of this Lease and have each fully participated in the negotiation and drafting of this Lease. Accordingly, this Lease shall be construed without regard to the rule that ambiguities in a document are to be construed against the drafter.
 
(f) This Lease may be modified, amended, discharged or waived only by an agreement in writing signed by the party against whom enforcement of any such modification, amendment, discharge or waiver is sought.
 
(g) Subject to the terms and provisions of Section 20 hereof, the covenants of this Lease shall run with the land and bind Tenant, its successors and assigns and all present and subsequent encumbrancers and subtenants of any of the Leased Premises, and shall inure to the benefit of Landlord, its successors and assigns. If there is more than one Tenant, the obligations of each shall be joint and several.
 
(h) If any one or more of the provisions contained in this Lease shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Lease, but this Lease shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
 
(i) This Lease shall be governed by and construed and enforced in accordance with the Laws of the State.
 
(j) Except as otherwise expressly stated in this Lease, any consent or approval required to be obtained from Landlord may be granted by Landlord in its sole discretion. In any instance in which Landlord agrees not to act unreasonably, Tenant hereby waives any claim for damages against or liability of Landlord which is based upon a claim that Landlord has unreasonably withheld or unreasonably delayed any consent or approval requested by Tenant, and Tenant agrees that its sole remedy shall be an action for declaratory judgment. If with respect to any required consent or approval Landlord is required by the express provisions of this Lease not to unreasonably withhold or delay its consent or approval, and if it is determined in any such proceeding referred to in the preceding sentence that Landlord acted unreasonably, the requested consent or approval shall be deemed to have been granted; however, Landlord shall have no liability whatsoever to Tenant for its refusal or failure to give such consent or approval. Tenant’s sole remedy for Landlord’s unreasonably withholding or delaying, consent or approval shall be as provided in this Section.
 
(k) Landlord and Tenant each represents to the other that no broker has been involved in this Lease. Landlord and Tenant agree that if any claim for brokerage commissions are ever made against Landlord or Tenant in connection with this Lease, all claims shall be handled and paid by the party whose actions or alleged commitments form the basis of such claim.
 
(l) This Lease may be executed in one or more counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument.
 
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IN WITNESS WHEREOF, this Lease Agreement is executed as of the day and year first above written.
 

 
LANDLORD:
   
 
CIT CRE LLC, a Delaware limited liability company
   
   
 
By:
  
   
 
Title:
  


 
TENANT:
   
 
▇▇▇▇▇▇▇’▇ METAL, INC., a Missouri corporation
   
   
 
By:
  
   
 
Title:
  


 

 

 

[Signature Page to Lease Agreement]
 

 


EXHIBIT A
 

 
INITIAL PREMISES
 

 
Address
 
City
 
State
 
     
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[attach legal description]
 

 

 




EXHIBIT B
 

 
ADDITIONAL PREMISES
 

 
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Kansas
 
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[attach legal descriptions]
 

 

 




EXHIBIT C
 

 
BUILDING EQUIPMENT
 
All fixtures, machinery, apparatus, equipment, fittings and appliances of every kind and nature whatsoever now or hereafter affixed or attached to or installed in any of the Leased Premises (except as hereafter provided), including all electrical, anti-pollution, heating, lighting (including hanging fluorescent lighting), incinerating, power, air cooling, air conditioning, humidification, sprinkling, plumbing, lifting, cleaning, fire prevention, fire extinguishing and ventilating systems, devices and machinery and all engines, pipes, pumps, tanks (including exchange tanks and fuel storage tanks), motors, conduits, ducts, steam circulation coils, blowers, steam lines, compressors, oil burners, boilers, doors, windows, loading platforms, lavatory facilities, stairwells, fencing (including cyclone fencing), passenger elevators, together with all additions thereto, substitutions therefor and replacements thereof required or permitted by this Lease, but excluding the Trade Fixtures.
 

 

 




EXHIBIT D
 

 
MINIMUM RENT ALLOCATION SCHEDULE
 

 
[Attach Minimum Rent Schedule]
 

 

 




EXHIBIT E
 

 
CERTIFICATION RELATED TO THE USA PATRIOT ACT
 

 
The undersigned (“Tenant”) hereby certifies to CIT CRE LLC (“Landlord”) the following:
 
1.      Tenant maintains a place of business that is located at a fixed address (other than an electronic address or post office box) known as __________________________.
 
2.      Tenant has no knowledge that it is not in full compliance with laws relating to bribery, corruption, fraud, money laundering and the Foreign Corrupt Practices Act.
 
3. The names and addresses of Tenant’s Owners (defined hereinafter), officers and directors are accurately reflected on Annex A to this certification. “Owner” means any individual who owns, controls, or has the power to vote more than 5% of any class of Tenant’s stock, or otherwise controls or has the power to control Tenant.
 
4.      None of said owners, officers or directors appears on any of the following lists maintained by the United States government (“Government Lists”):
 
(a) The two lists maintained by the United States Department of Commerce (Denied Persons and Entities; the Denied Persons list can be found at ▇▇▇.▇▇▇.▇▇▇.▇▇▇/▇▇▇/▇▇▇▇▇▇▇.▇▇▇▇; the Entity List can be found at ▇▇▇.▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇.▇▇▇;
 
(b) The list maintained by the United States Department of Treasury (Specially Designated Nationals and Blocked Persons, which can be found at ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇/▇▇▇▇▇▇.▇▇▇);
 
(c) Two lists maintained by the United States Department of State (Terrorist Organizations and Debarred Parties; the State Department List of Terrorists can be found at ▇▇▇.▇▇▇▇▇.▇▇▇/▇/▇▇/▇▇▇/▇▇/▇▇▇▇/▇▇▇▇.▇▇▇; the List of Debarred Parties can be found at ▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇); and
 
(d) Any other list of terrorists, terrorist organizations or narcotics traffickers maintained pursuant to any of the rules and regulations of Office of Foreign Assets Control, U.S. Department of the Treasury, or by any other government.
 
5.     Tenant does not transact business on behalf of, or for the direct or indirect benefit of, any individual or entity named on any Government List.
 


I, _____________________, certify that I have read and understand this Certification and that the statements made in this certification and the attached Annexes are true and correct.
 

 
TENANT:
   
 
[________________________________]
   
   
 
By:
  
 
 
Title:
    
   
   
 
Executed on this _____ day of ___________, 20__.





 



EXHIBIT F
 

 
DETERMINATION OF FAIR MARKET RENTAL VALUE OF THE LEASED PREMISES
 

 
Determination of Fair Market Rental Value of the Leased Premises under Section 6 of this Lease shall be made in accordance with the following procedures:
 
(a) Fair Market Rental Value of the Leased Premises shall be determined by the agreement of two (2) qualified appraisers (each, an “Initial Appraiser”), one of which shall be selected by Landlord and the other of which shall be selected by Tenant as set forth in this Exhibit F. Tenant shall identify in writing, as part of Tenant’s written notice exercising a Renewal Term option, its determination of the Fair Market Rental Value of the Leased Premises and the Initial Appraiser who will be selected and retained by Tenant and, in such notice, specifically identify such Initial Appraiser’s name, address, phone number and professional qualifications. Within thirty (30) days after receipt of notice of Tenant’s determination and Initial Appraiser, Landlord shall either accept Tenant’s evaluation or provide notice of Landlord’s determination of the Fair Market Rental Value of the Leased Premises and the Initial Appraiser selected and retained by Landlord, and, in such notice, identify such Initial Appraiser’s name, address, phone number and professional qualifications. For thirty (30) days after Tenant’s receipt of such notice from Landlord, the parties shall endeavor to reach agreement on the Fair Market Rental Value of the Leased Premises for the applicable Renewal Term. If the parties fail to reach agreement, then each of Landlord and Tenant shall direct, in writing with a copy to the other party, its Initial Appraiser to work with the other party’s Initial Appraiser to endeavor to determine and reach agreement upon the Fair Market Rental Value of the Leased Premises, and thereafter to deliver in writing to Landlord and Tenant within thirty (30) days (such 30-day period, the “Valuation Period”) the agreed-upon Fair Market Rental Value of the Leased Premises (such notice, the “Valuation Notice”). The costs and expenses of each Initial Appraiser shall be paid by the party selecting such Initial Appraiser. If Tenant fails to identify in writing an Initial Appraiser as required by this Exhibit F, Landlord shall identify and select an Initial Appraiser on behalf of Tenant; provided, however, that Tenant shall be liable for the costs and expenses of such Initial Appraiser identified and selected on Tenant’s behalf by Landlord as if Tenant had identified and selected such Initial Appraiser.
 
(b) If the Initial Appraisers are not able to reach agreement upon the Fair Market Rental Value of the Leased Premises within the Valuation Period, within ten (10) days after the end of the Valuation Period, then (i) each Initial Appraiser shall deliver a written notice to Landlord, Tenant and the other Initial Appraiser setting forth such Initial Appraiser’s valuation of the Fair Market Rental Value of the Leased Premises (each, an “Initial Valuation”), and (ii) the Initial Appraisers shall jointly select a third qualified appraiser (the “Third Appraiser”). The Initial Appraisers shall, in writing with a copy to Landlord and Tenant, direct the Third Appraiser to determine a valuation of the Fair Market Rental Value of the Leased Premises, and to deliver in writing to Landlord, Tenant and the Initial Appraisers such valuation (the “Third Valuation”) within twenty (20) days of the date of the written direction retaining such Third Appraiser. After Landlord, Tenant and the Initial Appraisers have each received copies of the Initial Valuations and the Third Valuation, the Fair Market Rental Value of the Leased Premises shall be the determined as the arithmetic mean of the two valuations that are closest in value to each other. If the Initial Appraisers are unable to agree upon the designation of a Third Appraiser within the requisite time period or if the Third Appraiser selected does not make a valuation of the Fair Market Rental Value of the Leased Premises within twenty (20) days after being directed to do so by the Initial Appraisers, then such Third Appraiser or a substitute Third Appraiser, as applicable, shall, at the request of Landlord or Tenant, be appointed by the President or Chairman of the American Arbitration Association in New York, New York. The costs and expenses of the Third Appraiser (and substitute Third Appraiser and the American Arbitration Association, if applicable) shall be divided evenly between, and paid for by, Landlord and Tenant.
 
(c) All appraisers selected or appointed pursuant to this Exhibit F shall be independent qualified appraisers having not less than ten (10) years’ experience in the appraisal of properties similar to the Leased Premises. Such appraisers shall not have any right, power or authority to alter or modify any of the provisions of this Lease.
 
(d) Notwithstanding the foregoing, if Landlord and Tenant are able to agree upon a Fair Market Rental Value of the Leased Premises prior to the date on which the Initial Appraisers deliver their Initial Valuations, Landlord and Tenant shall execute an agreement setting forth such agreed-upon Fair Market Rental Value of the Leased Premises, and waiving each party’s right to have the Fair Market Rental Value of the Leased Premises determined in accordance with the procedures set forth in subsections (a) and (b) of this Exhibit F.
 

 

 



 


EXHIBIT G
 

 
ENVIRONMENTAL REPORTS
 

 
1. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇:
 
Phase I Environmental Site Assessment Report (LAC Project No. 06-44054.3) prepared by LandAmerica Assessment Corporation dated December 26, 2006.
 
Environmental Violations and Hazardous Conditions Disclosed:
 
[none]
 
Remediation Actions to be Undertaken:
 
Develop and implement an asbestos O&M program for the property
 
2. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇:
 
[Environmental Site Assessment Report by LandAmerica Assessment Corporation]
 
Environmental Violations and Hazardous Conditions Disclosed:
 
[to be identified prior to the Additional Closing Date (as defined in the Purchase Agreement)]
 
Remediation Actions to be Undertaken:
 
[describe actions, if any, to be taken with respect to any Environmental Violations and Hazardous Conditions identified prior to the Additional Closing Date]
 
3. ▇▇▇▇ ▇▇. ▇▇▇. ▇▇, ▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇:
 
[Environmental Site Assessment Report by LandAmerica Assessment Corporation]
 
Environmental Violations and Hazardous Conditions Disclosed:
 
[to be identified prior to the Additional Closing Date]
 
Remediation Actions to be Undertaken:
 
[describe actions, if any, to be taken with respect to any Environmental Violations and Hazardous Conditions identified prior to the Additional Closing Date]
 
4. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇▇, ▇▇▇▇▇▇▇▇:
 
[Environmental Site Assessment Report by LandAmerica Assessment Corporation]
 
Environmental Violations and Hazardous Conditions Disclosed:
 
[to be identified prior to the Additional Closing Date]
 
Remediation Actions to be Undertaken:
 
[describe actions, if any, to be taken with respect to any Environmental Violations and Hazardous Conditions identified prior to the Additional Closing Date]
 

 

 



 


EXHIBIT H
 
 
FORM OF CERTIFICATION
 
 
TO: CIT CRE LLC
 
This Compliance Certificate is furnished pursuant to that certain Lease Agreement dated as of December ____, 2006 (as the same may be amended, restated or otherwise modified from time to time, the “Lease Agreement”), between CIT CRE LLC, as landlord, and ________________________________, as tenant. Unless otherwise defined herein, capitalized terms used in this Compliance Certificate have the meanings defined in the Lease Agreement.
 
 
THE UNDERSIGNED HEREBY CERTIFIES THAT:
 
 
1.  
I am the duly elected ______________________ of Tenant.
 
2.  
I have reviewed the terms of the Lease Agreement and I have made, or have caused to be made under my supervision, a review of the transactions and conditions of Tenant during the accounting period covered by the attached financial statements.
 
3.  
The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the existence of any condition or event which constitutes an Event of Default as of the date of this Compliance Certificate and except as otherwise specified in this Certification, Tenant has fulfilled all of its obligations under this Lease which are required to be fulfilled on or prior to the date of this Certification.
 
4.  
The attached Financial Statements have been prepared in accordance with GAAP applied consistently throughout the period and with prior periods (except as disclosed therein).
 
This Compliance Certificate, together with the schedules hereto, is executed and delivered this ______ day of _________________, 200__.
 

   
 
Print Name:
  
 
Title:
  


 
 





EXHIBIT F
 
FORM OF LEASE GUARANTY
 
 
[See attached]
 

 

 
EXHIBIT F

GUARANTY AND SURETYSHIP AGREEMENT
 
THIS GUARANTY AND SURETYSHIP AGREEMENT (this “Guaranty”), dated as of the 29th day of December, 2006, made by LMI AEROSPACE, INC., a Missouri corporation (“Guarantor”), to CIT CRE LLC, a Delaware limited liability company (“Landlord”).
 
W I T N E S S E T H :
 
WHEREAS, Landlord, as lessor, (i) has entered into a Lease Agreement of even date herewith (a “Lease”), in which Landlord leased to ▇▇▇▇▇▇▇’▇ Metals, Inc., a Missouri corporation (a “Tenant”), certain premises situated in Missouri and Kansas (the “LMI Metals Premises”), and (ii) will enter into another Lease on or before January 31, 2006 (also a “Lease” and, together with the Lease referenced in (i), the “Leases”), in which Landlord will lease to LMI Finishing, Inc., an Oklahoma corporation (also a “Tenant” and, together with the Tenant referenced in (i), the “Tenants”), certain premises situated in Oklahoma (collectively with the LMI Metals Premises, the “Leased Premises”);
 
WHEREAS, all of the issued and outstanding stock of Tenants is owned by Guarantor; and
 
WHEREAS, the execution and delivery by Guarantor of this Guaranty is a condition of, and material inducement to, Landlord to execute the Leases, and Guarantor expects to derive financial benefit from the Leases;
 
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt of which is hereby acknowledged by Guarantor, and intending to be legally bound, Guarantor hereby covenants and agrees as follows:
 
ARTICLE I
GUARANTEE
 
Section 1.01  Guaranteed Obligations. Guarantor hereby absolutely, unconditionally and irrevocably guarantees to, and becomes surety for, Landlord and its successors and assigns for the due, punctual, and full payment, performance, and observance of, and covenants with Landlord to duly, punctually, and fully pay and perform, the following (collectively, the “Guaranteed Obligations”):
 
(a)  the full and timely payment of all Rent (as defined in each Lease) and all other amounts due or to become due to Landlord from the applicable Tenant under each Lease or any other agreement or instrument executed in connection therewith, whether now existing or hereafter arising, contracted, or incurred (collectively, the “Monetary Obligations”); and
 
(b)  all covenants, agreements, terms, obligations and conditions, undertakings, and duties contained in each Lease to be observed, performed by, or imposed upon by the applicable Tenant under such Lease, whether now existing or hereafter arising, contracted, or incurred (collectively, the “Performance Obligations”),
 
as and when such payment, performance, or observance shall become due (whether by acceleration or otherwise) in accordance with the terms of the each Lease, which terms are incorporated herein by reference. The Guaranteed Obligations shall not be affected by either Tenant’s voluntary or involuntary bankruptcy, assignment for the benefit of creditors, reorganization, or similar proceeding affecting either Tenant. If for any reason any Monetary Obligation shall not be paid promptly when due, Guarantor shall, immediately upon demand, pay the same to Landlord when due under the terms of the applicable Lease. If for any reason either Tenant shall fail to perform or observe any Performance Obligation, Guarantor shall, immediately upon demand, perform and observe the same or cause the same to be performed or observed. If, by reason of any bankruptcy, insolvency or similar laws affecting the rights of creditors, Landlord shall be prohibited from exercising any of Landlord’s rights and remedies, including, but not limited to, enforcement of the terms of either Lease against the applicable Tenant, then as to Guarantor such prohibition shall be of no force and effect, and Landlord shall have the right to make demand upon, and receive payment and/or performance from, Guarantor of all Guaranteed obligations and Guarantor’s obligation in this respect shall be primary and not secondary. Guarantor acknowledges and agrees that the Monetary Obligations include, without limitation, Rent and other sums accruing and/or becoming due under the either Lease following the commencement by or against either Tenant of any action under the United States Bankruptcy Code or other similar statute. Guarantor shall pay all Monetary Obligations to Landlord at the address and in the manner set forth in each Lease or at such other address as Landlord shall notify Guarantor of in writing.
 
Section 1.02  Guarantee Unconditional. The obligations of Guarantor hereunder are continuing, absolute and unconditional, irrespective of any circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a guarantor or surety. Without limiting the generality of the foregoing, the obligations of Guarantor hereunder shall remain in full force and effect without regard to, and shall not be released, discharged, abated, impaired, or in any way affected by:
 
(a)  any amendment, modification, extension, renewal, or supplement to either Lease or any termination of either Lease or any interest therein;
 
(b)  any assumption by any party of either Tenant’s or any other party’s obligations under, or either Tenant’s or any other party’s assignment of any of its interest in, the applicable Lease;
 
(c)  any exercise or nonexercise of or delay in exercising any right, remedy, power or privilege under or in respect of this Guaranty or the Leases or pursuant to applicable law (even if any such right, remedy, power or privilege shall be lost thereby), including, without limitation, any so-called self-help remedies, or any waiver, consent, compromise, settlement, indulgence, or other action or inaction in respect thereof;
 
(d)  any change in the financial condition of either Tenant, the voluntary or involuntary liquidation, dissolution, sale of all or substantially all of the assets, marshalling of assets and liabilities, receivership, conservatorship, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting Landlord, either Tenant, or Guarantor or any of their assets or any impairment, modification, release or limitation of liability of Landlord, either Tenant, or Guarantor or their respective estates in bankruptcy or of any remedy for the enforcement of such liability resulting from the operation of any present or future provision of the United States Bankruptcy Code or other similar statute or from the decision of any court;
 
(e)  any extension of time for payment or performance of the Guaranteed Obligations or any part thereof;
 
(f)  the genuineness, invalidity or unenforceability of all or any portion or provision of either Lease;
 
(g)  any defense that may arise by reason of the failure of Landlord to file or enforce a claim against the estate of either Tenant in any bankruptcy or other proceeding;
 
(h)  the release or discharge of either Tenant or any other person or entity from, or an accord and satisfaction which discharges, performance or observance of any of the agreements, covenants, terms or conditions contained in each Lease by operation of law or otherwise;
 
(i)  the failure of Landlord to keep Guarantor advised of either Tenant’s financial condition, regardless of the existence of any duty to do so;
 
(j)  any assignment by Landlord of all of Landlord’s right, title and interest in, to and under either Lease and/or this Guaranty as collateral security for any loan;
 
(k)  any present or future law or order of any government (de jure or de facto) or of any agency thereof purporting to reduce, amend or otherwise affect the Guaranteed Obligations or any or all of the obligations, covenants or agreements of either Tenant under a Lease (except by payment in full of all Guaranteed Obligations) or Guarantor under this Guaranty (except by payment in full of all Guaranteed Obligations);
 
(l)  the default or failure of Guarantor fully to perform any of its obligations set forth in this Guaranty;
 
(m)  any actual, purported or attempted sale, assignment or other transfer by Landlord of either Lease or the Leased Premises or any part thereof or of any of its rights, interests or obligations thereunder;
 
(n)  any merger or consolidation of either Tenant into or with any other entity, or any sale, lease, transfer or other disposition of any or all of such Tenant’s assets or any sale, transfer or other disposition of any or all of the shares of capital stock or other securities of such Tenant or any affiliate of such Tenant to any other person or entity;
 
(o)  Failure by either Tenant to obtain, protect, preserve or enforce any rights in or under the applicable Lease or the Leased Premises or any interest therein against any party or the invalidity or unenforceability of any such rights; or
 
(p)  any other event, action, omission or circumstances which might in any manner or to any extent impose any risk to Guarantor or which might otherwise constitute a legal or equitable release or discharge of a guarantor or surety.
 
all of which may be given or done without notice to, or consent of, Guarantor.
 
No setoff, claim, reduction or diminution of any obligation, or any defense of any kind or nature which either Tenant or Guarantor now has or hereafter may have against Landlord shall be available hereunder to Guarantor against Landlord.
 
Section 1.03  Disaffirmance of Lease. Guarantor agrees that, in the event of rejection or disaffirmance of a Lease by either Tenant or such Tenant’s trustee in bankruptcy pursuant to the United States Bankruptcy Code or any other law, Guarantor will, if Landlord so requests, assume all obligations and liabilities under the express terms of such Lease, to the same extent as if Guarantor had been originally named instead of such Tenant as a party to such Lease and there had been no rejection or disaffirmance; and Guarantor will confirm such assumption in writing at the request of Landlord on or after such rejection or disaffirmance. Guarantor, upon such assumption, shall have all rights of such Tenant under such Lease (to the extent permitted by law).
 
Section 1.04  No Notice or Duty to Exhaust Remedies. Guarantor hereby waives notice of any default in the payment or non-performance of any of the Guaranteed Obligations (except as expressly required hereunder), diligence, presentment, demand, protest and all notices of any kind. Guarantor agrees that liability under this Guaranty shall be primary and hereby waives any requirement that Landlord exhaust any right or remedy, or proceed first or at any time, against either Tenant or any other guarantor of, or any security for, any of the Guaranteed Obligations. Guarantor hereby waives notice of any acceptance of this Guaranty and all matters and rights which may be raised in avoidance of, or in defense against, any action to enforce the obligations of Guarantor hereunder. Guarantor hereby waives any and all suretyship defenses or defenses in the nature thereof without in any manner limiting any other provision of this Guaranty. This Guaranty constitutes an agreement of suretyship as well as of guaranty, and Landlord may pursue its rights and remedies under this Guaranty and under either Lease in whatever order, or collectively, and shall be entitled to payment and performance hereunder notwithstanding any action taken by Landlord or inaction by Landlord to enforce any of its rights or remedies against any other guarantor, person, entity or property whatsoever. This Guaranty is a guaranty of payment and performance and not merely of collection.
 
Landlord may pursue its rights and remedies under this Guaranty notwithstanding any other guarantor of or security for the Guaranteed Obligations or any part thereof. Guarantor authorizes Landlord, at its sole option, without notice or demand and without affecting the liability of Guarantor under this Guaranty, to terminate either Lease, either in whole or in part, in accordance with its terms.
 
Each default on any of the Guaranteed Obligations shall give rise to a separate cause of action and separate suits may be brought hereunder as each cause of action arises or, at the option of Landlord any and all causes of action which arise prior to or after any suit is commenced hereunder may be included in such suit.
 
Section 1.05  Subrogation. Notwithstanding any payments made or obligations performed by Guarantor by reason of this Guaranty (including but not limited to application of funds on account of such payments or obligations), Guarantor hereby irrevocably waives and releases any and all rights it may have, at any time, whether arising directly or indirectly, by operation of law, contract or otherwise, to assert any claim against either Tenant or any other person or entity or against any direct or indirect security on account of payments made or obligations performed under or pursuant to this Guaranty, including without limitation any and all rights of subrogation, reimbursement, exoneration, contribution or indemnity, and any and all rights that would result in Guarantor being deemed a “creditor” under the United States Bankruptcy Code of either Tenant or any other person or entity. If any payment shall be paid to Guarantor on account of any subrogation rights, each and every amount so paid shall immediately be paid to Landlord to be credited and applied upon any of the Guaranteed Obligations, whether or not then due and payable. Every claim or demand which Guarantor may have against either Tenant shall be fully subordinate to all Guaranteed Obligations.
 
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
 
Section 2.01  Representations and Warranties. Guarantor hereby represents and warrants to Landlord as follows:
 
(a) Guarantor is duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its organization and is duly qualified to do business and is in good standing in each other jurisdiction in which the nature of its assets or the conduct of its business requires such qualification;
 
(b) Guarantor is authorized and empowered to enter into this Guaranty and to perform all of its obligations hereunder;
 
(c) This Guaranty constitutes the legally binding obligation of Guarantor and is enforceable against Guarantor in accordance with its terms;
 
(d) The person signing this Guaranty on behalf of Guarantor has been duly authorized to sign and deliver this Guaranty on behalf of Guarantor;
 
(e) Guarantor has not committed any act or permitted any action to be taken which would adversely affect its ability to fulfill its material obligations under this Guaranty;
 
(f) The execution and delivery of this Guaranty, and the performance of Guarantor’s obligations under this Guaranty, will not violate or breach, or conflict with, the terms, covenants or provisions of any agreement, contract, note, mortgage, indenture or other document of any kind whatsoever to which Guarantor is a party or by which it or any of its material assets is bound;
 
(g) There are no pending nor, to Guarantor’s knowledge, threatened matters of litigation, administrative action or examination, government investigation, claim or demand relating to the Guarantor;
 
(h) Guarantor’s board of directors has approved the execution and delivery of this Guaranty;
 
(i) Guarantor is not in default of the performance or observance of any of the material obligations, covenants or conditions contained in any contractual obligation of Guarantor beyond any applicable notice or cure period;
 
(j) No officer of Guarantor has been convicted of a crime (excluding misdemeanors and traffic violations); and
 
(k) Guarantor is not a “foreign person” as defined in Section 1445 of the Code and the regulations promulgated thereunder.
 
Section 2.02  Financial Statements; Books and Records.
 
(a)  Guarantor shall keep adequate records and books of account with respect to the finances and business of Guarantor generally and with respect to the Leased Premises, in accordance with generally accepted accounting principles (“GAAP”) consistently applied, and shall permit Landlord by its agents, accountants and attorneys, upon reasonable notice to Guarantor, to examine (and make copies of) the records and books of account and to discuss the finances and business with the officers of Guarantor, at such reasonable times as may be requested by Landlord. Upon the request of r Landlord (either telephonically or in writing), Guarantor shall provide the requesting party with copies of any information to which such party would be entitled in the course of a personal visit.
 
(b)  Guarantor shall deliver to Landlord within ninety (90) days of the close of each fiscal year, annual audited financial statements of Guarantor prepared by nationally recognized independent certified public accountants. Guarantor shall also furnish to Landlord within sixty (60) days after the end of each of the three remaining fiscal quarters unaudited financial statements and all other quarterly reports of Guarantor, certified by Guarantor’s chief financial officer[, and, if applicable, all filings, if any, of Form 10-K, Form 10-Q and other required filings with the Securities and Exchange Commission pursuant to the provisions of the Securities Exchange Act of 1934, as amended, or any other Law]. All financial statements of Guarantor shall be prepared in accordance with GAAP consistently applied. All annual financial statements shall be accompanied (i) by an opinion of said accountants stating that (A) there are no qualifications as to the scope of the audit and (B) the audit was performed in accordance with GAAP and (ii) by the affidavit of the president or a vice president of Guarantor, dated within five (5) days of the delivery of such statement, stating that (C) the affiant knows of no Event of Default, or event which, upon notice or the passage of time or both, would become an Event of Default which has occurred and is continuing hereunder or, if any such event has occurred and is continuing, specifying the nature and period of existence thereof and what action Guarantor has taken or proposes to take with respect thereto and (D) except as otherwise specified in such affidavit, that Guarantor has fulfilled all of its obligations under this Guaranty which are required to be fulfilled on or prior to the date of such affidavit.
 
(c)  Landlord and its agents, accountants and attorneys, shall consider and treat on a strictly confidential basis (i) any information contained in the books and records of Guarantor, (ii) any copies of any books and records of Guarantor, and any financial statements of Guarantor pursuant to Section 2.02(b) which are delivered to or received by them. Landlord and its agents, accountants and attorneys, shall conspicuously ▇▇▇▇ all copies of such documents as “Confidential”. Neither Landlord nor any of its agents, accountants and attorneys, shall disclose any information contained in Guarantor’s books and records nor distribute copies of any of such books and records nor Guarantor’s financial statements to any other Persons without the prior written consent of the chief operating officer of Guarantor.
 
(d)  The restrictions contained in this Section 2.02(b) shall not prevent disclosure by Landlord of any information in any of the following circumstances:
 
(i)  Upon the order of any court or administrative agency to the extent required by such order and not effectively stayed or by appeal or otherwise;
 
(ii)  Upon the request, demand or requirement of any regulatory agency or authority having jurisdiction over such party, including the Securities and Exchange Commission (whether or not such request or demand has the force of law);
 
(iii)  That has been publicly disclosed other than by breach of this Section 2.02(b) by Landlord or by any other Person who has agreed with Landlord to abide by the provisions of this Section 2.02(b);
 
(iv)  To counsel or accountants for Landlord or counsel or accountants for such other person or entity who has agreed to abide by the provisions of this Section 2.02(b);
 
(v)  While an Event of Default exists, in connection with the exercise of any right or remedy under this Guaranty, either Lease or any other related document;
 
(vi)  Independently developed by Landlord to the extent that confidential information provided by Guarantor is not used to develop such information;
 
(vii)  In any reporting to the beneficiaries;
 
(viii)  In connection with the securitization and/or sale of a loan or interest therein by a Lender (as defined in the Lease); or
 
(ix)  As otherwise required by Law.
 
Section 2.03  Notice of Certain Events. Promptly upon becoming aware thereof, Guarantor shall give Landlord notice of (i) the commencement, existence or threat of any proceeding by or before any duly constituted governmental authority or agency against or affecting Guarantor which, if adversely decided, would have a material adverse effect on the business, operations or condition, financial or otherwise, of Guarantor or on its ability to perform its obligations hereunder or (ii) any material adverse change in the business, operations or condition, financial or otherwise, of Guarantor.
 
Section 2.04  Estoppel Certificates. Guarantor shall, at any time upon not less than ten (10) days’ prior written request by Landlord, deliver to the party requesting the same a statement in writing, executed by the president or a vice president of Guarantor, certifying (i) that, except as otherwise specified, this Guaranty is unmodified and in full force in effect, (ii) that Guarantor is not in default hereunder and that no event has occurred or condition exists which with the giving of notice or the passage of time or both would constitute a default hereunder, (iii) that Guarantor has no defense, setoff or counterclaim against Landlord arising out of or in any way related to this Guaranty, (iv) that, except as otherwise specified, there are not proceedings pending or, to the knowledge of Guarantor, threatened against Guarantor before any court, arbiter or administrative agency which, if adversely decided, could have a material adverse effect on the business, operations or conditions, financial or otherwise, of Guarantor or on its ability to perform its obligations hereunder and (v) such other matters as Landlord may reasonably request.
 
Section 2.05  Financial Covenants. Guarantor hereby covenants and agrees to comply and to the extent applicable, to cause each Tenant to comply with all of the covenants and agreements described in Exhibit A attached hereto and made a part hereof.
 
ARTICLE III
EVENTS OF DEFAULT
 
Section 3.01  Events of Default. The occurrence of any one or more of the following shall constitute an “Event of Default” under this Guaranty:
 
(a)  a failure by Guarantor to make any payment of any Monetary Obligation, regardless of the reason for such failure;
 
(b)  a failure by Guarantor duly to perform and observe, or a violation or breach of, any other provision hereof not otherwise specifically mentioned in this Section 3.01;
 
(c)  any representation or warranty made by Guarantor herein or in any certificate, demand or request made pursuant hereto proves to be untrue or incorrect, now or hereafter, in any material respect;
 
(d)  a default beyond any applicable cure period by Guarantor in any payment of principal or interest on any obligations for borrowed money having an original principal balance of $10,000,000 or more in the aggregate, or in the performance of any other provision contained in any instrument under which any such obligation is created or secured (including the breach of any covenant thereunder), (i) if such payment is a payment at maturity or a final payment, or (ii) if an effect of such default is to cause, or permit any person to cause, such obligation to become due prior to its stated maturity;
 
(e)  a default by Guarantor beyond any applicable cure period in the payment of rent under, or in the performance of any other material provision of, any leases (excluding either Lease) with rental obligations over the terms thereof of $500,000 or more in the aggregate;
 
(f)  a final, non-appealable judgment or judgments for the payment of money in excess of $10,000,000 in the aggregate shall be rendered against Guarantor and the same shall remain undischarged for a period of sixty (60) consecutive days;
 
(g)  Guarantor shall (A) voluntarily be adjudicated a bankrupt or insolvent, (B) seek or consent to the appointment of a receiver for itself or its assets, (C) file a petition seeking relief under the bankruptcy or other similar laws of the United States, any state or any jurisdiction, (D) make a general assignment for the benefit of creditors, or (E) be unable to pay its debts as they mature;
 
(h)  a court shall enter an order, judgment or decree appointing, without the consent of Guarantor, a receiver or trustee for it or approving a petition filed against Guarantor which seeks relief under the bankruptcy or other similar laws of the United States, any state or any jurisdiction, and such order, judgment or decree shall remain undischarged or unstayed sixty (60) days after it is entered;
 
(i)  Guarantor shall be liquidated or dissolved or shall begin proceedings towards its liquidation or dissolution; or
 
(j)  Guarantor shall sell or transfer or enter into an agreement to sell or transfer all or substantially all of its assets.
 
ARTICLE IV
MCELLANEOUS
 
Section 4.01  Effect of Bankruptcy Proceedings. This Guaranty shall continue to be effective, or be automatically reinstated, as the case may be, if at any time payment, in whole or in part, of any of the Guaranteed Obligations is rescinded or must otherwise be restored or returned by Landlord as a preference, fraudulent conveyance or otherwise under any bankruptcy, insolvency or similar law, all as though such payment had not been made. Guarantor hereby agrees to indemnify Landlord against, and to save and hold Landlord harmless from any required return by Landlord, or recovery from Landlord, of any such payment because of its being deemed preferential under applicable bankruptcy, receivership or insolvency laws, or for any other reason. If an Event of Default at any time shall have occurred and be continuing or exist and declaration of default or acceleration under or with respect to either Lease shall at such time be prevented by reason of the pendency against either Tenant of a case or proceeding under any bankruptcy or insolvency law, Guarantor agrees that, for purposes of this Guaranty and its obligations hereunder, the applicable Lease shall be deemed to have been declared in default or accelerated with the same effect as if such Lease had been declared in default and accelerated in accordance with the terms thereof, and Guarantor shall forthwith pay and perform the Guaranteed Obligations in full without further notice or demand.
 
Section 4.02  Further Assurances. From time to time upon the request of Landlord, Guarantor shall promptly and duly execute, acknowledge and deliver any and all such further instruments and documents as Landlord may deem necessary or desirable to confirm this Guaranty, to carry out the purpose and intent hereof or to enable Landlord to enforce any of its rights hereunder.
 
Section 4.03  Amendments, Waivers, Etc. This Guaranty cannot be amended, modified, waived, changed, discharged or terminated except by an instrument in writing signed by the party against whom enforcement of such amendment, modification, waiver, change, discharge or termination is sought.
 
Section 4.04  No Implied Waiver; Cumulative Remedies. No course of dealing and no delay or failure of Landlord in exercising any right, power or privilege under this Guaranty or either Lease shall affect any other or future exercise thereof or exercise of any other right, power or privilege; nor shall any single or partial exercise of any such right, power or privilege or any abandonment or discontinuance of steps to enforce such a right, power or privilege preclude any further exercise thereof or of any other right, power or privilege. The rights and remedies of Landlord under this Guaranty are cumulative and not exclusive of any rights or remedies which Landlord would otherwise have under a Lease, at law or in equity.
 
Section 4.05  Notices. All notices, requests, demands, directions and other communications (collectively “notices”) under the provisions of this Guaranty shall be in writing (including telexed communication) unless otherwise expressly permitted hereunder and shall be sent by first-class or first-class express mail, or by telex with confirmation in writing mailed first-class, in all cases with charges prepaid, and any such properly given notice shall be effective when received. All notices shall be sent to the applicable party addressed:
 
if to Landlord, at the address set forth in each Lease; and
 
if to Guarantor, at:
 
LMI Aerospace, Inc.
[____________________________]
[____________________________]

or in accordance with the last unrevoked written direction from such party to the other party.
 
Section 4.06  Expenses. Guarantor agrees to pay or cause to be paid and to save Landlord harmless against liability for the payment of all reasonable out-of-pocket expenses, including fees and expenses of counsel for Landlord, incurred by Landlord from time to time arising in connection with Landlord’s enforcement or preservation of rights under this Guaranty or the Lease, including but not limited to such expenses as may be incurred by Landlord in connection with any default by Guarantor of any of its obligations hereunder or by either Tenant of any of its obligations under the Lease.
 
Section 4.07  Survival. All obligations of Guarantor to make payments to or indemnify Landlord shall survive the payment and performance in full of the Guaranteed Obligations.
 
Section 4.08  Severability. If any term or provision of this Guaranty or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Guaranty, or the application of such term or provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and provision of this Guaranty shall be valid and enforceable to the fullest extent permitted by law.
 
Section 4.09  Counterparts. This Guaranty may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which, when so executed, shall be deemed an original, but all such counterparts shall constitute but one and the same instrument.
 
Section 4.10  Governing Law.
 
(a) This Guaranty was negotiated in New York, New York, and accepted by Landlord in the State of New York, which State the parties agree has a substantial relationship to the parties and to the underlying transaction embodied hereby, and in all respects, including, without limiting the generality of the foregoing, matters of construction, validity and performance, this Guaranty and the obligations arising hereunder shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contract made and performed in such State and any applicable law of the United States of America. To the fullest extent permitted by law, Guarantor hereby unconditionally and irrevocably waives any claim to assert that the law of any other jurisdiction governs this Guaranty, and the Guaranty shall be governed by and construed in accordance with the laws of the State of New York pursuant to § 5-1401 of the New York General Obligations Law.
 
(b) Any legal suit, action or proceeding against Guarantor or Landlord arising out of or relating to this Guaranty shall be instituted in any federal or state court in New York, New York, pursuant to § 5-1402 of the New York General Obligations Law, and Guarantor waives any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding and hereby irrevocably submits to the jurisdiction of any such court in any suit, action or proceeding. Guarantor does hereby designate and appoint [_____________], as its authorized agent to accept and acknowledge on its behalf service of any and all process which may be served in any such suit, action or proceeding in any federal or state court in New York, New York, and agrees that service of process upon said agent at said address (or at such other office in New York, New York as may be designated by Guarantor from time to time in accordance with the terms hereof), and written notice of said service of Guarantor mailed or delivered to Guarantor in the manner provided herein shall be deemed in every respect effective service of process upon Guarantor, in any such suit, action or proceeding in the State of New York. Guarantor (i) shall give prompt notice to the Landlord of any change of address of its authorized agent hereunder, (ii) may at any time and from time to time designate a substitute authorized agent with an office in New York, New York (which office shall be designated as the address for service of process), and (iii) shall promptly designate such a substitute if its authorized agent ceases to have an office in New York, New York or is dissolved without leaving a successor.
 
Section 4.11  Jury Trial. GUARANTOR HEREBY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS GUARANTY. THIS WAIVER IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY GUARANTOR, AND GUARANTOR ACKNOWLEDGES THAT THE LANDLORD HAS NOT MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. GUARANTOR FURTHER ACKNOWLEDGES THAT GUARANTOR HAS BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF ALL WAIVERS CONTAINED HEREIN BY INDEPENDENT LEGAL COUNSEL, SELECTED BY GUARANTOR, AND GUARANTOR HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
 
Section 4.12  Successors and Assigns; Joint and Several. This Guaranty shall bind Guarantor and its successors and assigns, and shall inure to the benefit of Landlord and its successors and assigns. The obligations and liabilities of each Guarantor under this Guaranty shall be joint and several. As used in this Guaranty, the singular shall include the plural and vice-versa.
 
Section 4.13  Incorporation of Recitals; Definitions. The recitals set forth on page 1 of this Guaranty are hereby specifically incorporated into the operative terms of this Guaranty as if fully set forth. Terms not otherwise specifically defined herein shall have the meanings set forth in each Lease.
 
Section 4.14  Rights of Lender. Guarantor acknowledges that the rights of Landlord under this Guaranty may be assigned to a Lender and upon such assignment such Lender shall have all of the rights and benefits of Landlord hereunder.
 
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
 

 

 
IN WITNESS WHEREOF, Guarantor has duly executed and delivered this Guaranty as of the date first above written.

 
LMI AEROSPACE, INC.
   
 
By:
  
 
 
Name:
  
 
 
Title:
  
     
   
   
Agreed and Acknowledged:
  
 
CIT CRE LLC
  
 
By:
    
 
Name:
    
 
Title:
    


 

 

 




EXHIBIT G
 
ENVIRONMENTAL REPORTS
 

 
[see Environmental Reports listed in Exhibit G to the Lease]
 

 

 





SCHEDULE 3.1(O)
 
CONTRACTS AND AGREEMENTS
 
 
    1.  Agreement with the Missouri Department of Natural Resources under its Voluntary Cleanup Program Agreement.


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Filed: January 3rd, 2007