INDUSTRIAL BUILDING LEASE
(BUILD-TO-SUIT)
SECTION 1: BASIC TERMS
This Section 1 contains the Basic Terms of this Lease between Landlord and
Tenant, named below. Other Sections of the Lease referred to in this Section 1
explain and define the Basic Terms and are to be read in conjunction with the
Basic Terms.
1.1 Date of Lease: June 23, 1997 (the "Commencement Date")
1.2 Landlord: First Industrial Development Services Group, L.P., a
Delaware limited partnership, its successors or assigns
1.3 Tenant: Golden Books Family Entertainment, Inc., a Delaware
corporation
1.4 Premises: See Exhibit "A"
1.5 Lease Term: 15 years 0 months ("Initial Term"), commencing on, with
respect to each Building, the date of Substantial Completion of the
Improvements as defined in Lease Exhibit C hereto and ending fifteen (15)
years after the date of Substantial Completion of the later of such two
Buildings or on the expiration date of one or two Renewal Terms (as
defined in Section 2.2 below) if properly exercised by Tenant ("Expiration
Date"). The Initial Term as it may be extended by the applicable Renewal
Term(s) is the "Term".
1.6 Rent Commencement: Tenant's obligation to pay Rent (as defined in
Section 2.3 below), under this Lease shall commence on the date on which,
pursuant to Exhibit "C", the Printing Facility is deemed Substantially
Completed which amount of Rent shall be increased to include the square
footage of the Office Facility due to the Substantial Completion of the
Office Building which increase shall be effective on the date on which,
pursuant to Exhibit "C" the Office Building is deemed Substantially
Complete. The calculation and determination of Rent is set forth in
Exhibit B and elsewhere in the Lease.
1.7 Permitted Uses: (See Section 4) light manufacturing, assembly,
warehousing, printing and distribution and general office use, all as
consistent with applicable laws, rules, codes and regulations.
1.8 Tenant's Guarantor: (if none, so state) None
1.9 Brokers: (See Section 22; if none, so state)
(A) Tenant's Broker: The Georgetown Group ("Georgetown").
(B) Landlord's Broker: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Group.
1.10 Security Deposit: (See Section 4) None
1.11 Rent Payable by Tenant: See Exhibit "B" and Section 2.3 hereof
1.12 Riders to Lease: The following riders are attached to and made a part
of this Lease. (If none, so state) Exhibits A, A-1, A-2, B, C, C-1, C-2,
C-3, C-4, C-5, D, E, F, G, H and I.
SECTION 2: LEASE OF PREMISES; RENT
2.1 Lease of Premises for Lease Term. Landlord hereby leases the Premises
to Tenant, and Tenant hereby rents the Premises from Landlord, for the Term and
subject to the conditions of this Lease.
2.2 Renewal Term. Provided that this Lease is in full force and effect and
Tenant is not in default (beyond any applicable notice and cure periods) under
the terms of this Lease, and the Premises are occupied by the original Tenant
named herein (or Landlord has approved the entity to whom this Lease has been
assigned or sublet or any other entity for which Landlord's approval is not
required ), Landlord hereby grants to Tenant the option to extend the Term of
this Lease on the same terms, conditions and provisions as contained in this
Lease, except as otherwise provided herein, for two (2) periods of five (5)
years (each, a "Renewal Term"). In order to exercise said option Tenant must
give Landlord written notice (an "Extension Notice") of such renewal not less
than 270 days prior to the Expiration Date of the Initial Term, or first
Renewal Term, as the case may be. The annual Net Base Rent (as hereinafter
defined) of the Premises during the Renewal Term(s) shall be equal to the
greater of (a) ninety-five percent (95%) of the Market Rental Rate (as
hereinafter defined) and (b) ninety-five percent (95%) of the annual Net Base
Rent in effect for the 12 month period immediately preceding the commencement
of applicable Renewal Term. "Market Rental Rate" shall mean the annual rate of
Net Base Rent then prevailing in the market as reasonably determined by
Landlord, for premises comparable in square footage, location and type to the
Premises being leased for a duration comparable to the applicable period for
which the Premises is then to be leased. The Market Rental Rate shall be
determined by taking into consideration comparable relevant fact situations
involving arm's length negotiations in new and renewal leases during the twelve
(12) month period, or more recent relevant period prior to the applicable
Renewal Term. Within sixty (60) days following ▇▇▇▇▇▇'s notice to Landlord of
the exercise of its option to extend the Term for the applicable Renewal Term,
Landlord shall notify Tenant of Landlord's determination of the Market Rental
Rate for the Premises for the applicable Renewal Term. Tenant shall have
fifteen (15) days following receipt of Landlord's determination in which to
accept or reject such determination. If Tenant does not notify Landlord of its
acceptance of the determination within
such fifteen (15) day period, Tenant shall be deemed conclusively to have
accepted the Market Rental Rate set forth therein. If Tenant timely notifies
Landlord that g Tenant rejects Landlord's determination which notice from
Tenant shall set forth Tenant's determination of Market Rental Rate and if
Landlord and Tenant in good faith cannot agree upon the Market Rental Rate
within ten (10) days following ▇▇▇▇▇▇'s rejection of Landlord's determination,
then such dispute shall be determined by arbitration as hereinafter provided.
Landlord and Tenant will each select an arbitrator who shall be disinterested
and shall be a person that has been actively engaged in the development or
leasing of industrial and manufacturing buildings for a period not less than
seven (7) years immediately preceding his or her appointment. Landlord and
Tenant shall each simultaneously submit to the arbitrators a determination of
Market Rental Rate (if no submittal is made, the parties shall be deemed to
have submitted their original determinations). The arbitrators shall be
directed as promptly as possible to select from the two determinations
submitted by Landlord and Tenant the one that is closer to the Market Rental
Rate as determined by the arbitrators, and said selection shall thereafter be
deemed the Market Rental Rate. In determining the appropriate Market Rental
Rate, the arbitrators shall be entitled to rely on such factors as they deem
appropriate in determining the relevant geographic market, if any, and what
constitutes comparable premises or circumstances. If the two arbitrators so
appointed fail to agree as to which of the determinations submitted by Landlord
and Tenant is closest to the actual Market Rental Rate, the two arbitrators
shall appoint a third arbitrator, using the criteria described above, to decide
upon which of the two determinations submitted is closest to the actual Market
Rental Rate. The cost of the foregoing arbitration process shall be borne by
the losing party. If no determination is made prior to the date for
commencement of payment of rent for which Market Rental Rate must be
determined, then Landlord's determination shall be used until the arbitration
is completed. If ▇▇▇▇▇▇'s determination is later selected, Landlord shall
promptly refund any overpayments to Tenant together with interest thereon at 6%
per annum.
2.3 Types of Rental Payments. Commencing on the Rent Commencement Date,
Tenant shall pay rents of (a) net base rent ("Net Base Rent") payable (1) in
monthly installments of the rent determined pursuant to the terms set forth in
Exhibit "B" attached hereto with respect to the Initial Term, and (2) in
monthly installments of the Net Base Rent as determined pursuant to Paragraph
2.2 hereof with respect to the applicable Renewal Term, if appropriate, in
advance, on the first day of each and every calendar month during the Term; (b)
except as otherwise specifically provided herein, all costs, expenses and
charges of every nature relating to, or incurred in connection with the
ownership and operation of the Premises and that are attributable to the Term
("Additional Rent"); and (c) in the event that any two monthly installment[S]
of Net Base Rent per 12 month period during the Term are not paid within five
(5) days of the date when due, a late charge in an amount equal to four percent
(4%) of each subsequent delinquent installment of Net Base Rent that occurs in
a two (2) year period after the later of such two delinquencies (the "Late
Charge") and (d) an administrative fee (the "Administrative Fee") payable with
each installment of Net Base Rent, equal to one percent (1%) of the Net Base
Rent due and payable for such month. The Net Base Rent, the Additional Rent,
the Late Charge, the Administrative Fee, and any other amounts due and owing by
Tenant under this Lease shall collectively be referred to herein as "Rent").
All Rent shall be paid to Landlord c/o First Industrial, L.P., P.O. Box 75631,
Chicago, Illinois 60675-5631, or if sent by overnight courier, The Northern
Trust Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, 4th Floor, Receipt and Dispatch, Chicago,
Illinois 60607 Attention: First Industrial, L.P., Lockbox #75631 (or to such
other entity designated in writing as Landlord's management agent, if any, and
if Landlord so appoints such a management agent, the "Agent"), or pursuant to
such other written directions as Landlord shall designate in this Lease or
otherwise. Notwithstanding anything contained herein to the contrary, Tenant
shall not be obligated to pay as Additional Rent those costs expenses and
charges that are specifically designated herein as payable by Landlord, which
costs, expenses and charges are specifically defined as the Total Project
Costs, the items set forth in Section 13.3 to the extent Landlord is solely
responsible therefor, the cost of Landlord's warranty obligations pursuant to
Section 7 of Exhibit C hereto and costs to Landlord for Landlord's income taxes
or payments due on mortgage and other non-operating related debts of Landlord
and income and franchise taxes of Landlord.
2.4 Covenants Concerning Rental Payments. Tenant shall pay the Rent
promptly when due, without notice or demand, and without any abatement,
deduction or setoff. No payment by Tenant, or receipt or acceptance by Agent or
Landlord, of a lesser amount than the correct Rent shall be deemed to be other
than a payment on account, nor shall any endorsement or statement on any check
or letter accompanying any payment be deemed an accord or satisfaction, and
Agent or Landlord may accept such payment without prejudice to its right to
recover the balance due or to pursue any other remedy available to Landlord. If
the Rent Commencement Date occurs on a day other than the first day of a
calendar month, the Rent due for the partial calendar months occurring at the
commencement and the expiration of the Term shall be prorated on a per diem
basis. It is intended that the Net Base Rent provided in this Lease shall be an
absolute net return to Landlord throughout the Term, unless otherwise expressly
set forth in this Lease, free of any and all expenses or charges with respect
to the Premises. All costs, expenses and charges of every nature relating to or
incurred in connection with, the ownership and operation of the Premises that
may be attributable to the Term to Landlord or third parties, as the case may
be, will be paid, on a timely basis, by the Tenant, subject only to Landlord's
obligations as set forth in Sections 13.3, 17, 18 and Section 7 of Exhibit C
(as indicated) hereunder. Tenant hereby indemnifies and holds Landlord and all
Landlord Affiliates (defined below) harmless from and against the consequences
(excluding consequential and speculative damages) resulting from ▇▇▇▇▇▇'s
failure, at any time or from time to time, to comply with the preceding
obligation.
2.5 Expansion Option. Landlord and Tenant acknowledge that under the
Purchase Contract between Landlord and the current owner of the Property (the
"Purchase Contract"), Landlord has an option to purchase the Expansion Parcel
(hereinafter defined) subject to certain terms and conditions. Provided that
this Lease is in full force and effect and Tenant is not in default under the
terms of this Lease beyond applicable notice and cure periods, at (a) the date
on which Tenant delivers an Expansion Notice (defined below) and (b) at all
times prior to, and during, Landlord's construction of improvements on the
Expansion Parcel (defined below), and the Premises are occupied by the original
Tenant named herein (or a Landlord approved entity to whom this Lease has been
assigned or sublet or an entity for which ▇▇▇▇▇▇▇▇'s approval is not required),
Landlord hereby grants to Tenant an option (the "Expansion Option") to expand
the Premises onto the parcel adjacent to the Premises described on Exhibit
"A-2" attached hereto (the "Expansion Parcel") by directing Landlord to
exercise the Expansion Option under the Purchase Contract. The
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Expansion Option must be exercised by Tenant by written notice to Landlord not
less than 270 days prior to November 1, 2000 (the "Expansion Notice"). The
terms of the Expansion Option, the respective rights and obligations of Tenant
and Landlord with respect thereto and the additional conditions precedent to
the development on the Expansion Parcel are set forth on Exhibit "E" hereto.
SECTION 3: TAXES AND ASSESSMENTS; ASSOCIATION DUES
3.1 Taxes. Tenant agrees to pay for the Premises (i) all governmental
taxes, assessments, fees, penalties and charges of every kind or nature (other
than Landlord's income taxes, franchise taxes, mortgage recording taxes and
property transfer taxes ), whether general, special, ordinary or extraordinary,
due at any time, or from time to time, for any period during the Term and any
extensions thereof, in connection with the ownership, leasing or operation of
the Premises or of the personal property and equipment located therein or in
connection therewith, (ii) all general and special assessments arising under
the Declaration (hereinafter defined) or any other document or instrument of
record for any period during the Term or any extensions thereof, and (iii) any
expenses incurred by Landlord in contesting such taxes or assessments and/or
the assessed value of the Premises (the "Taxes"). All such Taxes shall be paid
by Tenant directly to the taxing authority, and, to the extent Landlord has
supplied Tenant with copies of the tax bills not less than twenty (20) days
prior to any delinquency date, before they become delinquent. The Taxes for the
first and last year of the Term, will be appropriately prorated. If any general
or special assessments, whether ordinary or extraordinary, levied against the
Premises are payable in installments, Tenant shall be responsible only for
those installments that are attributable to the Term (and any period during
which Tenant has possession of the Premises prior to the Term pursuant to
Section 4 of Exhibit C). For purposes hereof, Taxes for any year shall be Taxes
that are due for payment or paid in that year, rather than taxes that are
assessed or become a lien or accrue during such year. If at any time during the
Term, the methods of taxation prevailing on the date hereof shall be altered,
such additional or substitute tax, assessment, levy, charge or imposition shall
be deemed to be included within the term "Taxes" for the purposes hereof. In
the event that Tenant shall desire in good faith to contest or otherwise review
by appropriate legal or administrative proceeding any Taxes that are not yet
due and payable, Tenant shall, at least sixty (60) days prior to the due date
of such Taxes, give Landlord written notice of its intention to do so. Tenant
may withhold payment of the Tax being contested if, but only if, both (i)
nonpayment is permitted during the pendency of such proceedings without the
foreclosure of any tax lien or the imposition of any fine or penalty and
without prejudice to any rights of Landlord, and (ii) Tenant shall obtain and
furnish Landlord with a bond or other security sufficient to protect Landlord's
interest in the Premises. Tenant may contest any Taxes that it has previously
paid provided that it gives Landlord not less than thirty (30) day prior
written notice of such contest. Any such contest shall be prosecuted at
Tenant's sole expense. Tenant shall protect, hold harmless and indemnify
Landlord against any and all liabilities, cost, penalties, fines, fees, expense
or damage (except for consequential and speculative damages) resulting from
such contest or other proceeding. At the request of ▇▇▇▇▇▇, Landlord shall join
in any tax contest or other tax proceedings which Tenant may desire to bring
pursuant to this Section. Tenant shall pay all of Landlord's actual
out-of-pocket expenses arising out of such joinder. Within ten (10) days after
the final determination of the amount due from Tenant with respect to the Taxes
contested, Tenant shall (if not paid previously) pay the amount so determined
to be due, together with all costs, expenses and interest, whether or not this
Lease shall have then expired or terminated. If such Taxes that were contested
were paid by Tenant and any refund is applicable thereto, such refund shall be
paid to the Tenant and if the taxing authority issues the refund check to
Landlord, Landlord shall promptly pay over such refund to Tenant, after
deducting therefrom any costs owed to Landlord hereunder which were not
otherwise reimbursed from Tenant.
SECTION 4: USE OF PREMISES
4.1 Use of Premises. The Premises shall be used for the purpose(s) set
forth in Section 1.7 above and for no other purpose. Tenant shall not, at any
time, use or occupy, or suffer or permit anyone to use or occupy, the Premises,
or do or permit anything to be done in the Premises, in any manner that may (a)
violate any Certificate of Occupancy for the Premises; (b) cause, or be liable
to cause, injury to the Premises or any equipment, facilities or systems
therein; (c) constitute a violation of the laws and requirements of any public
authority, the requirements of insurance bodies or the rules and regulations of
the Premises or the requirements set forth in any document or instrument of
record, including, without limitation that certain Declaration of Protective
Covenants for The Renaissance, as amended (the "Declaration"); (d) impair or
tend to impair the character, reputation or appearance of the Premises as a
first-class property (it being acknowledged that the publishing, reproduction,
distribution, storage or assembly and construction of pornographic materials
shall be deemed to impair the character and reputation of the Premises); and
(e) impair or tend to impair the proper and economic maintenance, operation,
and repair of the Premises and its equipment, facilities or systems. Tenant
shall not, at any time, use or occupy, or suffer or permit anyone to use or
occupy all or any portion of the Premises as a tannery, brewery, bottling
facility, waste disposal plant, food processing, packaging or storage facility
or hard manufacturing facility.
4.2 Signage. Landlord and Tenant shall agree to ▇▇▇▇▇▇'s signage for the
Premises subject to any approvals required by laws, rules, regulations or the
Declaration. Tenant shall not modify such signage or affix any additional sign
of any size or character to any portion of the Premises without the prior
written approval of Landlord, which approval shall not be unreasonably withheld
subject to any approvals required by laws, rules, regulations or the
Declaration. Except to the extent that such logo fails to comply with any laws,
ordinances, regulations or restrictions applicable thereto, Landlord hereby
pre-approves the use of Tenant's corporate logo in any signage otherwise
approved for use on the Premises or the Property. Tenant's signage shall comply
with all applicable laws, ordinances, rules, regulations or restrictions
applicable thereto. Tenant shall remove all signs of Tenant upon the expiration
or earlier termination of this Lease and immediately repair any damage to the
Premises caused by, or resulting from, such removal.
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SECTION 5: CONDITION AND DELIVERY OF PREMISES
5.1 Condition of Premises. Landlord shall deliver the applicable portion
of the Premises to Tenant in a Substantially Completed condition, substantially
consistent with the Final Plans and Specifications (excluding any Tenant's Work
described therein) as revised by change orders or Tenant's Extra Work, subject
to ▇▇▇▇▇▇'s "punch list" (all as defined and further described in Exhibit C
attached hereto). Except as otherwise expressly provided herein, neither
Landlord nor Agent shall be obligated to make any repairs, replacements or
improvements (whether structural or otherwise) of any kind or nature to the
Premises in connection with, or in consideration of, this Lease.
5.2 Delay in Commencement. Except as otherwise provided in Exhibit C,
Landlord shall not be liable to Tenant if Landlord does not deliver possession
of the Printing Facility or the Office Building to Tenant on or before the
Printing Facility Delivery Date and the Office Building Delivery Date,
respectively (as such terms are defined in Lease Exhibit C) therefor. The
obligations of Tenant under the Lease shall not thereby be affected, except
that the Rent Commencement Date shall be delayed until Landlord satisfies the
requirements for the Rent Commencement Date pursuant to the terms of Exhibit C
hereof.
SECTION 6: SUBORDINATION; NOTICES TO SUPERIOR LESSORS AND MORTGAGEES;
ATTORNMENT
6.1 Subordination of Lease. This Lease, and all rights of Tenant
hereunder, are subject and subordinate to all ground leases of the Premises now
or hereafter existing and to all mortgages or trust deeds or deeds of trust
(all of which are hereafter referred to collectively as "Mortgages"), that may
now or hereafter affect or encumber all or any portion of Landlord's interest
in the Premises; provided, however, that no such subordination shall apply to
Tenant unless and until a reasonable nondisturbance agreement, has been
executed by the holder(s) of any such Mortgages in recordable form and
delivered to Tenant in form acceptable for recordation, together with any
reasonable documentation required to place third parties on notice thereof
(including, without limitation, a memorandum of lease, if necessary). Landlord
represents and warrants that, at the time of the commencement of the Term, no
Mortgages which are superior to this Lease will encumber the Premises unless
such a nondisturbance agreement has been so executed and delivered to Tenant in
form acceptable for recordation, together with any reasonable documentation
required to place third parties on notice thereof (including, without
limitation, a memorandum of lease, if necessary). This subordination shall
apply to each and every advance made, or to be made, under such Mortgages; to
all renewals, modifications, replacements and extensions of such Mortgages; and
to "spreaders" and consolidations of such Mortgages. Without limitation on
Landlord's obligation to provide a nondisturbance agreement in form reasonably
acceptable to Tenant as a pre-condition of the effectiveness of any
subordination of this Lease, this Section 6.1 shall be self-operative and no
further instrument of subordination shall be required; however, in confirmation
of such subordination, Tenant shall from time to time, and in any event within
twenty (20) days after Landlord's request therefor, execute, acknowledge and
deliver any instrument that Landlord may from time to time reasonably require
in order to evidence or confirm such subordination; provided, that such
instrument shall include a provision, reasonably satisfactory to Tenant, that
▇▇▇▇▇▇'s possession under this Lease shall not be disturbed in the event of a
foreclosure of the Mortgage as long as Tenant is not in default under the Lease
beyond applicable notice and cure periods. Tenant acknowledges that this Lease
may be assigned by Landlord to a superior mortgagee as additional collateral
security for the loans secured by the Superior Mortgage (defined below) held by
such Superior Mortgagee. Any ground lease to which this Lease is subject and
subordinate is hereinafter referred to as a "Superior Lease," the lessor under
a Superior Lease is hereinafter referred to as a "Superior Lessor," and the
lessee thereunder, a "Superior Lessee"; and any Mortgage to which this Lease is
subject and subordinate is hereinafter referred to as a "Superior Mortgage,"
and the holder of a Superior Mortgage is hereinafter referred to as a "Superior
Mortgagee." Notwithstanding the foregoing, this Lease may be made senior to the
lien of any Superior Mortgage, if and only if the Superior Mortgagee thereunder
so requests.
6.2 Notice in the Event of Default. In the event that Landlord breaches or
otherwise fails to timely perform any of its obligations under this Lease,
Tenant shall give written notice of such alleged breach or default to Landlord
and to each Superior Mortgagee and Superior Lessor whose name and address shall
previously have been furnished, in writing, to Tenant, whereupon any or all of
Landlord, a Superior Mortgagee or Superior Landlord may remedy or cure such
breach or default within thirty (30) days following the giving of such notice;
provided, however, that said thirty (30)-day cure period shall be automatically
extended in the event that the breach or default cannot, by its nature, be
cured within thirty (30) days and one or more of Landlord, the Superior
Mortgagee or the Superior Lessor is diligently proceeding to cure said default.
6.3 Successor Landlord. If any Superior Lessor or Superior Mortgagee shall
succeed to the rights of Landlord hereunder, then, at the request of such party
(hereinafter referred to as "Successor Landlord"), Tenant shall attorn to and
recognize each Successor Landlord as ▇▇▇▇▇▇'s landlord under this Lease and
shall promptly execute and deliver any instrument such Successor Landlord may
reasonably request to further evidence such attornment, provided that any such
Successor Landlord provides Tenant with a nondisturbance agreement as described
in Section 6.1 hereto. Tenant hereby acknowledges that in the event of such
succession, then from and after the date on which the Successor Landlord
acquires Landlord's rights and interest under this Lease (the "Succession
Date"), the rights and remedies available to Tenant under this Lease with
respect to any obligations of any Successor Landlord shall be limited to the
equity interest of the Successor Landlord in the Premises; and the Successor
Landlord shall not (a) be liable for any act, omission or default of Landlord
or other prior lessor under this Lease if and to the extent that such act,
omission or default occurs prior to the Succession Date; (b) except as
otherwise expressly required hereunder, be required to make or complete any
tenant improvements or capital improvements, or to repair, restore, rebuild or
replace the Premises or any part thereof in the event of damage, casualty or
condemnation, provided that Successor Landlord shall be liable for obligations
of Landlord arising prior to the Substantial Completion of the Printing
Facility and the Office Building, as such terms are defined on Exhibit C
hereto; or (c) be required to pay any amounts to Tenant that are due and
payable, under the express terms of this Lease, prior to the Succession Date.
Additionally, from and after the Succession Date,
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Tenant's obligation to pay Rent (as provided in Sections 2 and 3 hereof) shall
not be subject to any abatement, deduction, set-off or counterclaim against the
Successor Landlord that arises as a result of, or due to, a default of Landlord
or any other lessor that occurs prior to the Succession Date. Moreover, no
Successor Landlord shall be bound by any advance payments of Rent made prior to
the calendar month in which the Succession Date occurs, nor by any Security
that is not actually delivered to, and received by, the Successor Landlord.
SECTION 7: QUIET ENJOYMENT
Subject to the provisions of this Lease, so long as Tenant is not in
default hereunder beyond applicable notice and cure periods, Tenant shall not
be disturbed in its possession of the Premises by Landlord, Agent or any other
person lawfully claiming through or under Landlord. This covenant shall be
construed as a covenant running with the land of the Premises and is not a
personal covenant of Landlord.
SECTION 8: ASSIGNMENT, SUBLETTING AND MORTGAGING
8.1 Prohibition. Tenant acknowledges that this Lease and the Rent due
under this Lease have been agreed to by Landlord in reliance upon ▇▇▇▇▇▇'s
reputation and creditworthiness and upon the continued operation of the
Premises by Tenant for the particular use set forth in Section 4 above;
therefore, Tenant shall not, whether voluntarily, or by operation of law, or
otherwise: (a) assign or otherwise transfer this Lease (except to an entity
having a net worth at least equal to ▇▇▇▇▇▇'s net worth, as of the date hereof,
a certification as to which was provided by Tenant in favor of Landlord as of
the date hereof, ("Tenant's Net Worth") and which entity proposes to engage in
a use allowed pursuant to Section 1.7, in which case Tenant shall provide
Landlord with not less than thirty (30) days prior written notice of such
assignment including, a certification as to such assignee's net worth and
proposed use executed by ▇▇▇▇▇▇ and assignee, but need not obtain Landlord's
consent); (b) sublet the Premises or any part thereof, or allow the same to be
used or occupied by anyone other than Tenant; provided, however, that Tenant
may, without the necessity of Landlord's consent and upon not less than thirty
(30) days prior written notice to Landlord identifying the sublessee and terms
of the sublease, sublet (i) up to twenty-five percent (25%) of the Premises to
not more than two (2) sublessees who propose(s) to engage in a use allowed
pursuant to Sections 1.7 and 4.1; or (ii) to a single entity with a net worth
at least equal to Tenant's Net Worth provided that Tenant provides a written
certification executed by Tenant and the sublessee together with its notice of
its intention to sublet certifying as to such sublessee's net worth; or (c)
mortgage, pledge, encumber, or otherwise hypothecate this Lease or the
Premises, or any part thereof, in any manner whatsoever, without in each
instance obtaining the prior written consent of Landlord, which consent may be
withheld for any or no reason to the extent that an assignee or sublessee's
proposed use of the Premises is not a permitted use pursuant to Section 1.7 or
prohibited by Section 4.1, but shall not otherwise be unreasonably withheld.
Any purported assignment, mortgage, transfer, pledge or sublease made without
the prior written consent of Landlord shall be absolutely null and void and of
no legal force or effect. No assignment of this Lease shall be effective and
valid unless and until the assignee executes and delivers to Landlord any and
all documentation reasonably required by ▇▇▇▇▇▇▇▇ in order to evidence
assignee's assumption of all obligations of Tenant hereunder. Any consent by
Landlord to a particular assignment, sublease or mortgage shall not constitute
consent or approval of any subsequent assignment, sublease or mortgage, and
▇▇▇▇▇▇▇▇'s written approval shall be required in all such instances. Any
consent by Landlord to any assignment or sublease shall not be deemed to
release Tenant from its obligation hereunder and Tenant shall remain fully
liable for performance of all obligations under this Lease. Landlord shall not
be deemed to have unreasonably withheld its consent to a proposed assignment of
this Lease or to a proposed sublease of part or all of the Premises if its
consent is withheld because: (i) Tenant is then in default hereunder beyond
applicable notice and cure periods; (ii) either the portion of the Premises
which Tenant proposes to sublease, or the remaining portion of the Premises, or
means of ingress or egress to either the portion of the Premises which Tenant
proposes to sublease or the remaining portion of the Premises, or the proposed
use of the Premises or any portion thereof by the proposed assignee or
subtenant, (A) will violate any laws or (B) will impose any obligation upon
Landlord or increase Landlord's obligations under any laws to the extent that
the cost of such increased obligation is not passed through to Tenant or such
subtenant or assignee; (iii) the proposed assignee or subtenant is not
sufficiently financially responsible to perform its obligations under the
proposed assignment or sublease; or (iv) the proposed assignee or subtenant is
a government (or subdivision or agency thereof); provided, however, that the
foregoing are merely examples of reasons for which Landlord may withhold its
consent and shall not be deemed exclusive of any permitted reasons for
reasonably withholding consent, whether similar or dissimilar to the foregoing
examples.
8.2 Rights of Landlord. If this Lease is assigned, or if the Premises (or
any part thereof) are sublet or used or occupied by anyone other than Tenant,
if Tenant is in violation of this Lease, Landlord or Agent may (without
prejudice to, or waiver of its rights), collect rent from the assignee,
subtenant or occupant. If Landlord or Agent collects such rent, Landlord or
Agent may apply the net amount collected to the Rent herein reserved, but no
such assignment, subletting, occupancy or collection shall be deemed a waiver
of any of the provisions of this Section 8. With respect to the allocable
portion of the Premises sublet, in the event that the total rent and any other
considerations (whether cash or non-cash) received under any sublease by Tenant
is greater than the total Rent required to be paid, from time to time, under
this Lease, Tenant shall pay to Agent 50% of such excess as received from any
subtenant and such amount shall be deemed a component of the Additional Rent
due under this Lease. In determining the amount of such excess, there shall be
deducted, any and all reasonable costs of Tenant directly incurred in
connection with that sublease, including, but not limited to, leasing
commissions, advertising costs, attorney's fees and build-out and improvement
costs.
8.3 Permitted Transfers. The provisions of Section 8.1(a) shall apply to a
transfer of a majority of the voting stock of Tenant or to any other change in
voting control of Tenant (if Tenant is a corporation), or to a transfer of a
majority of the general partnership interests in Tenant or managerial control
of Tenant (if Tenant is a partnership), or to any comparable transaction
involving any other form of business entity, whether effectuated in one (1) or
more transactions, as if such transfer were an assignment of this Lease; but
said provisions shall not apply to a transfer to a corporation into or with
which Tenant is merged or consolidated, or to which substantially all of
Tenant's assets are
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transferred, or to any corporation that controls or is controlled by Tenant,
or is under common control with Tenant, provided in any of such events (a) the
successor to Tenant has a net worth (computed in accordance with generally
accepted accounting principles), at least equal to the greater of (i) the net
worth of Tenant immediately prior to such merger, consolidation or transfer or
(ii) Tenant's Net Worth and (b) proof satisfactory to Landlord of such net
worth shall have been delivered to Landlord at least ten (10) days prior to
the effective date of any such transaction to the extent reasonably
practicable, but in no event less than ten (10) days after the effective date
of such transaction. Tenant may assign this Lease or sublet all or some
portion of the premises to a subsidiary or affiliate of Tenant or an entity
controlled by or under common control with Tenant (a "Tenant's Affiliate")
without the necessity of obtaining Landlord consent so long as it provides
Landlord with not less than thirty (30) days prior written notice; provided,
however, that Tenant shall remain liable hereunder and the provisions of
Section 8.1(a) shall continue to apply to a transfer of a majority of the
voting stock of Tenant or to any other change in voting control of Tenant,
whether effectuated in one (1) or more comparable transactions, as if such
transfer were an assignment of this Lease; but the provisions of Section 8.1(a)
shall not apply to a corporation into or with which Tenant is merged or
consolidated, or to which substantially all of Tenant's assets are
transferred, or to any corporation that controls or is controlled by Tenant, or
is under common control with Tenant, provided that the conditions set forth in
items (a) and (b) of the preceding sentence are satisfied. The provisions of
this Section 8.3 shall not restrict a transfer of the voting stock of Tenant
when Tenant is a corporation, the outstanding stock of which is listed on a
recognized security exchange. Any such permitted transferee shall execute and
deliver to Landlord any and all documentation reasonably required by Landlord
in order to evidence assignee's assumption of all obligations of Tenant
hereunder.
SECTION 9: COMPLIANCE WITH LAWS
If any license or permit is required for the conduct of Tenant's business
in the Premises, Tenant, at its expense, shall procure such license or permit,
and shall maintain in good standing and renew such license or permit,
including, without limitation, those relating to compliance with environmental
regulations or laws. Tenant shall give prompt notice to Landlord of any notice
it receives of the violation of any law or requirement of any governmental or
administrative authority with respect to the Premises or the use or occupation
thereof. Tenant shall, at Tenant's expense, comply with all laws and
requirements of any governmental or administrative authorities and any
requirements imposed by any document or instrument of record, including the
Declaration, that impose any duty on Landlord, Agent or Tenant arising from
Tenant's actions regarding its business operations or use of the Premises, and
Tenant shall pay all expenses, fines and damages that are imposed upon any or
all of Landlord, Agent, any Superior Lessee, Superior Lessor or Superior
Mortgagee, by reason or arising out of Tenant's failure to fully and promptly
comply with and observe the provisions of this Section. In the course of
construction of the Landlord's Improvements (exclusive of Tenant's
Improvements), Landlord shall perform its obligations pursuant to Section 13.3
hereof and Section 7 of Exhibit C in accordance with all applicable statutes,
ordinances and building codes, governmental rules, regulations and orders;
provided, however, that Landlord shall have no liability, responsibility or
obligation with respect to compliance with statutes, ordinances and building
codes, restrictions, governmental rules, regulations and orders applicable to
Tenant's Improvements or Tenant's Work Items. In no event shall Landlord be
required to obtain on behalf of Tenant any license or permit required for the
conduct of Tenant's business and operations in the Premises, including, but not
limited to, any air, waste water discharge or any other permits and approvals
required to be obtained by Tenant by any governmental authority as a result of
the proposed use by Tenant of the Premises or the Tenant's operations at the
Premises. In the event that any law or requirement of governmental authority of
general applicability requires (i) a change in the structural or mechanical
systems of the buildings other than as a result of Tenant's business operations
or use of the Premises or (ii) any repairs, additions or improvements in or to
the Premises other than as a result of Tenant's business operations or use of
the Premises, Landlord shall, at its sole expense, comply with such law or
requirement; provided, however, that, upon completion of such changes, Tenant
shall reimburse Landlord in equal monthly installments of Additional Rent over
the remaining portion of the Term (inclusive of any renewals) for that portion
of any and all such costs incurred by Landlord in connection with such changes
that are incurred during the Term based upon a reasonable amortization of such
costs over their useful life at an interest rate of twelve percent (12%). It is
acknowledged and agreed by the parties that to the extent that any changes,
repairs, alterations, additions or improvements in or to the Premises,
including, but not limited to, the structural and mechanical systems thereof,
are required under any law or requirement or any governmental or administrative
authority as a result of Tenant's use and occupation of the Premises, such
changes, repairs, alterations, additions or improvements shall be made at
Tenant's sole cost and expense and in strict accordance with the terms and
conditions of this Lease and all such laws and requirements.
SECTION 10: INSURANCE
10.1 Tenant Activities. Tenant shall not violate, or permit the violation
of, any condition imposed by any insurance policy issued in respect of the
Premises and shall not do, or permit anything to be done, or keep or permit
anything to be kept in the Premises, that would: (a) unreasonably subject any
or all of Landlord, Agent, any Superior Lessor, any Superior Lessee or any
Superior Mortgagee to any liability or responsibility for personal injury or
death or property damage; (b) result in insurance companies of good standing
refusing to insure (or imposing special conditions on insuring for which ▇▇▇▇▇▇
does not pay) any or all of the Premises or the property therein, in amounts
reasonably satisfactory to Landlord; or (c) result in the cancellation of (or
the assertion of any defense by the insurer, in whole or in part, to claims
under) any policy of insurance with respect to any or all of the Premises or
the property therein.
10.2 Insurance to be Maintained by ▇▇▇▇▇▇. Tenant shall, at its sole
cost and expense, at all times during the Term (and any extensions thereof)
obtain and pay for and maintain in full force and effect the insurance policy
or policies described in Exhibit D attached hereto. Certificates of insurance
for all insurance policies required pursuant to this Lease shall be delivered
to Landlord not less than ten (10) days after the Commencement Date. If Tenant
fails to submit such certificates to Landlord within the specified time, or
otherwise fails to obtain and maintain insurance coverages in accordance with
this Section 10.2, then Landlord, at Landlord's sole option, may, but shall
not be obligated
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to, procure such insurance on behalf of, and at the expense of, Tenant. Tenant
shall reimburse Landlord for such amounts upon demand which amounts shall
constitute Additional Rent.
SECTION 11: ALTERATIONS
11.1 Procedural Requirements. Tenant may, from time to time, at its
expense, make alterations or improvements in and to the Premises (hereinafter
collectively referred to as "Alterations"), provided that Tenant first obtains
the written consent of Landlord in each instance. Landlord's consent to
Alterations shall not be unreasonably withheld, provided that: (a) the
structural integrity of the Premises shall not be adversely affected; (b) the
Alterations are to the interior of the Premises; (c) the proper functioning of
the mechanical, electrical, heating, ventilating, air-conditioning ("HVAC"),
sanitary and other service systems of the Premises shall not be adversely
affected; (d) Tenant shall have appropriate insurance coverage reasonably
satisfactory to Landlord regarding the performance and installation of the
Alterations; (e) the Alterations shall conform with all other requirements of
this Lease; (f) Tenant shall have provided Landlord with detailed plans (the
"Plans") for such Alterations in advance of requesting Landlord's consent, and
(g) Tenant complies with the terms of the Declaration with respect to the
Alterations and timely obtains any consents required thereunder. Landlord's
consent shall not be required for Alterations satisfying clauses (a) through
(g) above and costing $75,000 or less in any one instance (up to a maximum
aggregate of $75,000 over any consecutive twelve (12) month period); provided,
however, that the maximum aggregate amount of Alterations not requiring
Landlord's consent during the Initial Term shall not exceed $750,000 and
$250,000 during any Renewal Term. Landlord shall not be deemed to have acted
unreasonably if it withholds its consent to Alterations because, in Landlord's
reasonable opinion, such Alterations could adversely affect the safety of the
Premises or its occupants; would materially increase Landlord's cost of
satisfying its obligations hereunder or Landlord's ability to furnish services
to other future tenants; involves toxic or hazardous materials; would
materially and adversely impact Landlord's ability to sell the Premises or
lease the Premises to other tenants; or is prohibited by any mortgage on the
Building(s). The foregoing reasons, however, shall not be exclusive of the
reasons for which Landlord may withhold consent to proposed Alterations,
whether or not such other reasons are similar or dissimilar to the foregoing.
Landlord hereby consents to the Alteration described in Exhibit G hereto
relating to the erection of certain interior walls so long as Tenant (x)
performs such Alteration not later than the third anniversary of the
Commencement Date; (y) complies with terms, conditions and limitations with
respect to the performance of Alterations contained in this Article 11 other
than the requirement of Landlord's consent, and (z) the actual work performed
in connection with such Alteration is substantially consistent with the
narrative description of such Alteration contained in Exhibit G. Additionally,
after obtaining Landlord's preliminary consent to the Plans, but before
proceeding with any Alterations, Tenant shall, at its expense, obtain all
necessary governmental permits and certificates for the commencement and
prosecution of Alterations and shall submit to Landlord, for Landlord's written
approval, working drawings, plans and specifications, and all permits for the
work to be done and Tenant shall not proceed with such Alterations until it has
received said approval. After obtaining Landlord's approval to the Alterations
(to the extent required hereunder), Tenant shall give Landlord at least twenty
(20) days prior written notice of the commencement of any Alterations at the
Premises, and Landlord may elect to record and post notices of
non-responsibility at the Premises. If and to the extent that any Alterations
(whether permitted or deemed approved hereunder) impact on any structural
element of the Premises or the HVAC, utilities, sanitary or other systems
serving the Premises, Tenant shall (w) cause all such Alterations to be
performed in strict accordance with the terms, conditions and limitations of
any and all guaranties and warranties provided for the benefit of Landlord in
connection with its construction of the Improvements or otherwise, including,
but not limited, any requirement that any work thereon be performed by the
contractor that originally provided the guaranty and warranty to Landlord; (x)
be deemed to have waived any warranty provided by Landlord to Tenant hereunder
with respect to such structural elements or systems, including, but not limited
to, any warranty contained in Section 7 of Exhibit C, to the extent that any
such Alterations cause damage to such structural elements or systems,
invalidate any warranty provided to Landlord with respect thereto or can
reasonably be expected to or do materially increase the costs to Landlord of
satisfying such warranty with respect to such structural elements or systems;
and (y) shall be obligated to provide any replacements to such structural
elements of systems notwithstanding the requirements of Section 13.3 hereof to
the extent of any damage thereto caused by such Alterations or to the extent
that such Alterations can reasonably be expected to or do materially increase
the cost of such a replacement.
11.2 Performance of Alterations. Tenant shall cause the Alterations to be
performed in compliance with all applicable permits, laws and requirements of
public authorities. Tenant shall cause the Alterations to be diligently
performed in a good and workmanlike manner, using new materials and equipment
at least equal in quality and class to the standards for the Premises
established by Landlord or Agent. Alterations shall be performed by contractors
first approved by Landlord (except to the extent performed by Tenant's
employees, who shall be appropriately trained to perform the same and licensed
to the extent required by law), and ▇▇▇▇▇▇'s agents, contractors, workmen,
mechanics, suppliers and invitees shall work in harmony, and not interfere
with, Landlord and its agents and contractors (if any). Tenant shall obtain all
necessary permits and certificates for final governmental approval of the
Alterations and shall provide Landlord with "as built" plans, copies of all
construction contracts, governmental permits and certificates and proof of
payment for all labor and materials, including, without limitation, copies of
paid invoices and final lien waivers. To the extent any of the Alterations
affect any portion of the roof, Tenant shall use the contractor who provided
the warranty for the roof in connection with the performance of such
Alteration, so as not to invalidate or limit any roof-related warranty obtained
pursuant to the construction of the Improvements.
11.3 Lien Prohibition. Tenant shall pay when due all claims for labor and
material furnished to the Premises in connection with the Alterations. Tenant
shall not permit any mechanics or materialmen's liens to attach to the Premises
or Tenant's leasehold estate. Tenant, at its expense, shall procure the
satisfaction or discharge of record of all such liens and encumbrances within
sixty (60) days after the filing thereof. In the event Tenant has not so
performed, Landlord may, at its option, pay and discharge such liens, but only
to the extent that ▇▇▇▇▇▇ has failed to do so after Landlord gives Tenant
written notice of its intention to do so (which notice may be delivered on or
prior to the expiration of such sixty (60) day period), and Tenant shall be
responsible to reimburse Landlord, on demand, for all
7
costs and expenses incurred in connection therewith, together with interest
thereon at the rate set forth in Section 21.3 below, which expenses shall
include reasonable fees of attorneys of Landlord's choosing, and any costs in
posting bond to effect discharge or release of the lien as an encumbrance
against the Premises. Any sums due from Tenant pursuant to the preceding
sentence shall constitute Additional Rent under this Lease.
SECTION 12: LANDLORD'S AND TENANT'S PROPERTY
12.1 Landlord's Property. Subject to Section 12.2 below, all fixtures,
machinery, equipment, improvements and appurtenances attached to, or built
into, the Premises at the commencement of this Lease, including, but not
limited to, the Tenant Funded Improvements and certain of the Tenant's Work
Items, or during the Term, whether or not placed there by or at the expense of
Tenant, shall become and remain a part of the Premises; shall be deemed the
property of Landlord (the "Landlord's Property"), without compensation or
credit to Tenant; and shall not be removed by Tenant unless Landlord permits
their removal. Further, any personal property in the Premises on the Rent
Commencement Date, movable or otherwise, unless installed and paid for by
Tenant, shall be and shall remain the property of Landlord and shall not be
removed by Tenant. In no event shall Tenant remove any of the following
materials or equipment without Landlord's prior written consent: any power
wiring or power panels, lighting or lighting fixtures, the primary power
source, wall or window coverings, attached carpets or other floor coverings,
air conditioners or any other heating or air conditioning equipment (but
excluding any special heating, ventilation or air conditioning systems not part
of the HVAC systems serving the Premises generally that are used in Tenant's
archive, library, and paper seasoning areas, or the electronic pre-press
control, or otherwise in its printing operations to the extent that Tenant paid
for all of the cost thereof), permanent fencing or security gates, or other
similar building operating equipment and decorations. Notwithstanding anything
contained herein to the contrary, upon the expiration or earlier termination of
this Lease, Tenant shall not be required to remove any of the items noted on
Exhibit I hereto as "Tenant will not remove."
12.2 Tenant's Property. All movable non-structural partitions, business
and trade fixtures, machinery and equipment, communications equipment and
office equipment, whether or not attached to, or built into, the Premises,
which are installed in the Premises by, or for the account of, Tenant without
expense to Landlord and that can be removed without structural damage to the
Premises (except to the extent that Tenant restores such damage), and all
furniture, furnishings and other articles of movable personal property owned by
Tenant and located in the Premises (collectively, the "Tenant's Property")
shall be and shall remain the property of Tenant and may be removed by Tenant
at any time during the Term, provided Tenant repairs or pays the cost of
repairing any damage to the Premises resulting from the installation and/or
removal thereof.
12.3 Removal of Tenant's Property. At or before the Expiration Date, or
the date of any earlier termination, Tenant, at its expense, shall remove from
the Premises all of Tenant's Property and any other property or fixtures which
Landlord may require in writing that Tenant remove (except such items thereof
as Landlord shall have expressly permitted, in writing, to remain, which
property shall become the property of Landlord), and Tenant shall repair any
damage to the Premises resulting from any installation and/or removal of
Tenant's Property. Any other items of ▇▇▇▇▇▇'s Property that shall remain in
the Premises after the Expiration Date, or following an earlier termination
date, may, at the option of Landlord, be deemed to have been abandoned, and in
such case, such items may be retained by Landlord as its property or be
disposed of by Landlord, in ▇▇▇▇▇▇▇▇'s sole and absolute discretion and without
accountability, at Tenant's expense. Notwithstanding the foregoing, if Tenant
is in default under the terms of this Lease, it may remove Tenant's Property
from the Premises only upon the express written direction of Landlord.
Notwithstanding anything contained herein to the contrary, upon the expiration
or earlier termination of this Lease, Tenant shall remove all of the items
noted on Exhibit I hereto as "Tenant will remove".
SECTION 13: REPAIRS AND MAINTENANCE
13.1 Tenant Repairs and Maintenance. Tenant shall, at its expense,
throughout the Term, maintain and preserve, in good working condition, the
Premises and the fixtures and appurtenances therein, subject to ordinary wear
and tear and fire and casualty. Except as otherwise specifically provided in
Exhibit "C" and Section 13.3 hereof, Tenant shall also be responsible for all
repairs and maintenance and all non-structural replacements, interior and
exterior, ordinary and extraordinary, in and to the Premises and the facilities
and systems thereof (including the electrical, mechanical, HVAC, and plumbing
systems, roof and the exterior sidewalks, parking lots, driveways, dock areas
and landscaped areas). Tenant shall enter into preventative maintenance and
service contracts with reputable service providers for maintenance of the HVAC
systems serving the Premises. Any repairs or replacements required to be made
by Tenant to the mechanical, electrical, sanitary, HVAC, or other systems of
the Premises shall be performed by appropriately licensed contractors approved
by Landlord, which approval shall not be unreasonably withheld; provided that
such preventative maintenance and repairs may be done by Tenant's employees to
the extent duly licensed, and Landlord's approval shall not be required in such
instances. Tenant shall maintain, during the period of the General Contractor's
warranty, reasonably detailed maintenance logs describing repairs and
maintenance programs and activities undertaken by Tenant pursuant to its
obligations under this Section 13.1, which maintenance log will be made
available to Landlord and the General Contractor upon reasonable prior notice.
Tenant shall promptly forward to Landlord and General Contractor (x) copies of
any maintenance and service contracts entered into for the HVAC systems to the
extent that Tenant elects to enter into such service and maintenance contracts
rather than to cause such repairs and maintenance to be performed by its duly
licensed employees and (y) copies of any and all service records with respect
to such systems (or to the extent that Tenant elects to cause such repairs and
maintenance to be performed by its duly licensed employees, to make available
upon demand by Landlord copies of Tenant's maintenance logs with respect to the
HVAC systems, which maintenance logs shall be maintained with reasonable
specificity and detail). All such repairs or replacements shall be subject to
the supervision and control of Landlord or Agent, and all repairs and
replacements shall be made with materials of equal or better quality than the
items being repaired or replaced. Without limiting the generality of the
foregoing, Tenant, at its expense, shall promptly replace or repair all
scratched, damaged, or broken
8
doors and glass in and about the Premises and floor coverings in the Premises
and repair and maintain all sanitary and electrical fixtures therein.
13.2 Tenant Equipment. Tenant shall not place a load upon any floor of the
Premises that exceeds either the load per square foot that such floor was
designed to carry pursuant to the Final Plans and Specifications or that which
is allowed by law. Business machines and mechanical equipment belonging to
Tenant that cause noise or vibrations that may be transmitted to the structure
of the Premises to such a degree as to be objectionable or of concern to
Landlord shall, at Tenant's expense, be placed and maintained by Tenant in
settings or cork, rubber or spring-type vibration eliminators sufficient to
eliminate such noise or vibration; provided, however, that Tenant's printing
and other equipment shall not be deemed objectionable except to the extent that
it causes materially more noise or vibration than the equipment described to
Landlord in connection with the formulation of the Final Plans and
Specifications (defined below).
13.3 Landlord Replacements. Notwithstanding anything contained herein to
the contrary, except as otherwise provided in Section 11.1 hereof and Exhibit C
and this Section 13.3, but limited by the extent to which any act, omission or
neglect of Tenant in any way adversely affects any warranties relating to the
structural elements of the Premises, Landlord (and not Tenant) shall be
responsible for any replacement due to structural defects of the foundation,
exterior load bearing walls, roof structure and roof covering and tuckpointing
of the Buildings (as defined in Exhibit C) and no other replacements
whatsoever; provided, however, Tenant shall reimburse Landlord for that portion
of the costs and expenses of any replacement required to be performed hereunder
by Landlord that results (in whole or in part) from (a) the performance by
Tenant or existence of any Alterations, (b) the installation, use or operation
of Tenant's Property in the Premises, (c) the moving of Tenant's Property in or
out of the Premises and/or the Building(s), or (d) any act, omission, or
neglect of Tenant, its employees, agent, contractors, invitees, or others
entering into the Premises by act or omission of Tenant, and such reimbursement
shall be paid, in full, within ten (10) days after Landlord's delivery of
demand therefor.
SECTION 14: UTILITIES
14.1 Purchasing Utilities. Tenant shall purchase all utility services from
the utility or municipality providing such service; shall provide for
scavenger, cleaning and extermination services; and shall pay for such services
when payments are due. Tenant shall be solely responsible for the repair and
maintenance of any meters necessary in connection with such services. Landlord
represents and warrants that the utility capacities specified in the Final
Plans and Specifications shall be available as of the Substantial Completion of
the Improvements; provided, however, that Landlord makes no representation and
warranty with respect to electrical capacity. Tenant represents and warrants
that the utility services proposed to be provided to the Premises pursuant to
the Final Plans and Specifications and including the proposed water pressure,
are adequate for its proposed operations and use of the Premises, including any
contemplated potential expansion of Tenant's operations at the Premises.
14.2 Use of Electrical Energy by Tenant. Tenant's use of electrical energy
in the Premises shall not, at any time, exceed the capacity of (i) any of the
electrical conductors and equipment in or otherwise servicing the Premises; or
(ii) the Premises' HVAC systems.
SECTION 15: LANDLORD'S RIGHTS
15.1 Landlord's Rights of Access. Landlord, Agent and their respective
agents, employees and representatives shall have the right to enter and/or pass
through the Premises at any time or times (a) to examine and inspect the
Premises and to show them to actual and prospective mortgagees or ground
lessees ("Superior Parties") or prospective purchasers or mortgagees of the
Premises or providers of capital to Landlord and its affiliates and all
consultants and advisors relating thereto; and (b) to make such repairs,
alterations, additions and improvements in or to the Premises or its facilities
and equipment as Landlord is required to make. Landlord and Agent shall be
allowed to take all materials into and upon the Premises that may be required
in connection therewith, without any liability to Tenant and without any
reduction or modification of Tenant's covenants and obligations hereunder.
During the period of six (6) months prior to the Expiration Date (or at any
time, if Tenant has vacated or abandoned the Premises or is otherwise in
default under this Lease beyond applicable notice and cure periods ), Landlord
and its agents may exhibit the Premises to prospective tenants. In the exercise
of each of the foregoing rights, Landlord shall give Tenant reasonable prior
notice of its entry and use reasonable efforts to avoid interference with
▇▇▇▇▇▇'s business operations, except in the case of emergency. Nothing set
forth above implies obligations of improvement beyond the Improvements
described in Exhibit C.
SECTION 16: NON-LIABILITY AND INDEMNIFICATION
16.1 Non-Liability. Except as otherwise provided in Section 16.4, and
without limitation on Landlord's liability for breach of this Lease (as such
liability may otherwise be limited hereunder), none of Landlord, Agent, any
affiliates of Landlord ("Landlord Affiliates"), any other managing agent,
Superior Parties, or their respective affiliates, owners, partners, directors,
officers, agents and employees shall be liable to Tenant for any loss, injury,
or damage, to Tenant or to any other person, or to its or their property,
irrespective of the cause of such injury, damage or loss, unless caused by, or
resulting from, the gross negligence or willful misconduct of Landlord, Agent
or their respective agents, servants or employees in the operation or
maintenance of the Premises (subject, however, to the doctrine of comparative
negligence in the event of negligence on the part of Tenant or any of its
contractors). Further, none of Landlord, Agent, any other managing agent,
Superior Parties, or their respective partners, directors, officers, agents and
employees shall be liable (a) for any such damage caused by other persons in,
upon or about the Premises, or caused by operations in construction of any
private, public or quasi-public work; or (b) with respect to matters for which
Landlord is liable, for
9
consequential or indirect damages purportedly arising out of any loss of use of
the Premises or any equipment or facilities therein by Tenant or any person
claiming through or under Tenant.
16.2 Indemnification. Tenant hereby indemnifies, defends, and holds
Landlord and all Landlord Affiliates harmless from and against any and all
claims, judgments, liens, causes of action, liabilities, damages (except for
consequential or speculative damages unless specifically provided for
hereunder), costs, losses and expenses (including, but not limited to
reasonable legal, engineering and consulting fees of engineers, attorneys and
consultants selected by Landlord) arising from or in connection with (a) the
conduct or management of the Premises by Tenant or its employees, agents,
invitees, contractors, or representatives or any business therein by Tenant or
its employees, agents, invitees, contractors, or representatives, or any work
or Alterations done by Tenant or its employees, agents, invitees, contractors,
or representatives, or any condition created in or about the Premises by Tenant
or its employees, agents, invitees, contractors or representatives during
either or both of the Term and the period of time, if any, prior to the Rent
Commencement Date that Tenant may have been given access to the Premises,
including any and all mechanics and other liens and encumbrances in connection
with the Tenant's Work (as defined in Exhibit C) or resulting from a failure by
Tenant to make a payment that it is required to make hereunder; (b) any act,
omission or negligence of Tenant or any of its subtenants or licensees or their
partners, directors, officers, agents, employees, invitees or contractors,
including, but not limited to, any act or omission in connection with the
performance of the Tenant's Work; (c) any accident, injury or damage whatsoever
(unless caused by Landlord's, or its agent's servants or employees, willful
misconduct or gross negligence) occurring in, at or upon the Premises; (d) any
breach or default by Tenant in the full and prompt payment and performance of
Tenant's obligations under this Lease; (e) any breach by Tenant of any of its
warranties and representations under this Lease; and (f) any actions necessary
to protect ▇▇▇▇▇▇▇▇'s interest under this Lease in a bankruptcy proceeding or
other proceeding under the Bankruptcy Code involving Tenant, or its permitted
successors heirs or assigns, as the bankrupt entity. In case any action or
proceeding is brought against Landlord or any Landlord Affiliate by reason of
any such claim, Tenant, upon notice from any or all of Landlord, Agent or any
Superior Party, shall resist and defend such action or proceeding by counsel
reasonably satisfactory to, or selected by, Landlord or such Superior Party.
▇▇▇▇▇▇▇▇'s and ▇▇▇▇▇▇'s obligations under this Section 16.2 shall survive the
termination of this Lease for any reason.
16.3 Force Majeure. The obligations of Tenant hereunder shall not be
affected, impaired or excused, and Landlord shall have no liability whatsoever
to Tenant, with respect to any act, event or circumstance arising out of (a)
Landlord's failure to fulfill, or delay in fulfilling any of its obligations
under this Lease by reason of strikes, lockouts, labor disputes, governmental
preemption of property in connection with a public emergency, inability to
obtain labor or materials, or reasonable substitutes therefore, inclement
weather which delays or precludes activities relating to construction, or
shortages of fuel, supplies, or labor, or any other cause, whether similar or
dissimilar, beyond Landlord's reasonable control; or (b) any failure or defect
in the supply, quantity or character of utilities furnished to the Premises, or
by reason of any requirement, act or omission of any public utility or others
serving the Premises, in each case beyond Landlord's reasonable control.
Landlord covenants and agrees to use reasonable efforts (without cost and
expense to Landlord) to mitigate the adverse effects of the circumstances
described in items (a) and (b) of the preceding sentence. Except as otherwise
expressly provided in Exhibit "C", Tenant shall not hold Landlord or Agent
liable for any latent defect in the Premises, nor, except as otherwise
expressly provided in Section 16.4, shall Landlord be liable for injury or
damage to person or property caused by fire, or theft, or resulting from the
operation of heating or air conditioning or lighting apparatus, or from falling
plaster, or from steam, gas, electricity, water, rain, snow, ice, or dampness,
that may leak or flow from any part of the Premises, or from the pipes,
appliances or plumbing work of the same. Except to the extent of ▇▇▇▇▇▇▇▇'s
gross negligence or willful misconduct, ▇▇▇▇▇▇ agrees that under no
circumstances shall Landlord or Agent be liable to Tenant or any third party
for any loss of, destruction of, damage to or shortage of any property;
including, but not limited to, ▇▇▇▇▇▇'s Property.
16.4 Limitation of Liability. Notwithstanding anything to the contrary
contained in this Lease, the liability of Landlord (and of any Successor
Landlord hereunder) to Tenant shall be limited to the interest of Landlord in
the Premises, and ▇▇▇▇▇▇ agrees to look solely to Landlord's interest in the
Premises for the recovery of any judgment or award against Landlord, it being
intended that Landlord shall not be personally liable for any judgment or
deficiency; provided, however, that if Tenant obtains a final, nonappealable
judgment against Landlord due to a breach of Landlord's obligations under this
Lease (the "Judgment") and the amount of such Judgment exceeds the value of
Landlord's equity interest in the Property as of the date on which the order
entering such final, nonappealable order is entered (the "Equity Interest"),
then Tenant shall be entitled to seek recourse directly against Landlord for an
amount equal to the positive difference, if any, between the amount of the
Judgment and the Equity Interest (the "Deficiency"); provided, further,
however, that the maximum amount of Deficiency for which Landlord shall be
liable is equal to (i) the product of (x) fifteen percent (15% ) and (y) the
fair market value of the Property as of the date of such Judgment less (ii) the
Equity Interest. In addition, Tenant acknowledges that Agent is acting solely
in its capacity as agent for Landlord and, shall not be liable for any
obligations, liabilities, losses or damages arising out of or in connection
with this Lease, all of which are expressly waived by ▇▇▇▇▇▇, except to the
extent of Agent's gross negligence or willful misconduct.
16.5 Waiver of Subrogation. None of Landlord, Agent or Tenant shall be
liable to one another or to any insurance company (by way of subrogation or
otherwise) insuring any such party for any loss or damage to the Premises, the
structure of the buildings located thereon, other tangible property located on
the Premises, or any resulting loss of income, or losses under workers'
compensation laws and benefits, despite the fact that such loss or damage might
have been occasioned by the negligence or misconduct of such party, its agents
or employees, provided and to the extent that any such loss or damage would be
covered by insurance that the party suffering the loss is required to maintain
pursuant to the terms of this Lease. Each of Landlord, Agent and Tenant shall
secure an appropriate clause in, or an endorsement upon, each insurance policy
obtained by it and covering or applicable to the Premises and the personal
property, fixtures, and equipment located therein or thereon, pursuant to which
the insurance company consents to such waiver of right of recovery. The waiver
of right of recovery set forth above in this Section 16.5 shall extend to
Landlord, Agent,
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Tenant, and their respective agents and employees, Superior Parties and to
other appropriate parties designated by Landlord.
SECTION 17: DAMAGE OR DESTRUCTION
17.1 Notification. Tenant shall give prompt notice to Landlord and Agent
of (a) any occurrence in or about the Premises for which Landlord or Agent
might be liable, (b) any fire or other casualty in the Premises, (c) any damage
to, or defect in, the Premises, for the repair of which Landlord or Agent might
be responsible, and (d) any damage to, or defect in any part or appurtenance of
the Premises' sanitary, electrical, HVAC, elevator or other systems located in
or passing through the Premises or any part thereof.
17.2 Repair Provisions. Subject to the provisions of Section 17.4 below,
if the Premises are damaged by fire or other insured casualty, to the extent
insurance proceeds are adjusted, Landlord shall repair or cause Agent to repair
the damage and restore and rebuild the Premises (inclusive of Tenant's Funded
Items (as defined in Exhibit C) and those items of Tenant's Property and that
were part of Total Project Costs but exclusive of any other Tenant's Property
or improvements relating to Tenant's Work) with reasonable dispatch after (a)
notice to it of the damage or destruction and (b) the collection of the
insurance proceeds attributable to such damage, and Tenant shall repair the
damage to and restore and repair Tenant's Property, with reasonable dispatch
after such damage or destruction. Landlord shall use reasonable efforts to
collect such insurance proceeds as expeditiously as possible.
17.3 Rental Abatement. If (a) the Premises are damaged by fire or other
casualty thereby causing the Premises to be inaccessible or (b) the Premises
are partially damaged by fire or other casualty, the Rent shall be abated in
the amount of any rent loss insurance proceeds actually collected by Landlord
from ▇▇▇▇▇▇'s insurer on account of such damage.
17.4 Total Destruction. If the Premises shall be totally destroyed by fire
or other casualty, or if the Premises shall be so damaged by fire or other
casualty that (in the reasonable opinion of a reputable contractor or architect
designated by Landlord) (i) its repair or restoration requires more than one
hundred eighty (180) days or (ii) such repair or restoration requires the
expenditure of more than fifty percent (50%) of the full insurable value of the
Premises immediately prior to the casualty or (iii) except as hereinafter
provided, the damage is less than the amount stated in (i) and (ii) above but
is reasonably anticipated to require in excess of three months to repair or
cost more than twenty-five percent (25%) of the full insurable value of the
Premises to repair, but occurs during the last two (2) years of Lease Term,
Landlord and Tenant shall each have the option to terminate this Lease within
five (5) days after said contractor or architect delivers written notice of its
opinion to Landlord and Tenant, but in all events prior to the commencement of
any restoration of the Premises by Landlord. Notwithstanding item (iii) of the
preceding sentence, except as otherwise provided in this Section 17.4, if and
to the extent a casualty occurs in the final two (2) years of the Initial Term
or the first Renewal Term, as the case may be, Landlord shall be obligated to
restore the Premises if and to the extent that Tenant either has previously
delivered or timely delivers an Extension Notice with respect to the first
Renewal Term or the second Renewal Term, as the case may be, with its notice to
Landlord of such casualty. Nothing in the preceding sentence shall be construed
to relieve Tenant of its obligation to provide to Landlord a timely Extension
Notice pursuant to Section 2.2 of this Lease to properly extend the Term of
this Lease. In the event either party elects to terminate this Lease pursuant
to this Section 17.4, the termination shall be effective as of the 120th date
after the date on which the casualty occurs. If (A) any Superior Party or other
party entitled to the insurance proceeds fails to make such proceeds available
to Landlord in an amount sufficient for restoration of the Premises, or (B) the
issuer of any casualty insurance policies on the Premises fails to make
available to Landlord sufficient proceeds for restoration of the Premises
(except to the extent that Tenant unconditionally agrees to pay the entire
shortfall) then Landlord may not later than thirty (30) days after Landlord
receives written notice of a final determination that such proceeds will not be
made available from Superior Party or the issuer of any casualty insurance
policy, as the case may be, at Landlord's sole option, terminate this Lease,
effective as of the one hundred twentieth (120th) day after such casualty, by
giving Tenant written notice to such effect within one hundred twenty (120)
days after the date of the casualty. For purposes of this Section 17.4 only,
"full insurable value" shall mean replacement cost, less the cost of footings,
foundations and other structures below grade to the extent undamaged.
17.5 Repair or Restoration. Subject to the provisions of Section 17.4
above, Tenant shall not be entitled to terminate this Lease and no damages,
compensation or claim shall be payable by Landlord for purported inconvenience,
loss of business or annoyance arising from any repair or restoration of any
portion of the Premises pursuant to this Section. Landlord shall use its
diligent, good faith efforts to make such repair or restoration promptly and in
such manner as not to unreasonably interfere with Tenant's use and occupancy of
the Premises, but Landlord or Agent shall not be required to do such repair or
restoration work except during normal business hours of business days unless
the cost of any after hours work is covered by insurance or Tenant is willing
to pay the additional cost of such work.
17.6 Liability of Tenant. Notwithstanding any of the foregoing provisions
of this Section, if by reason of any act or omission on the part of Tenant or
any of its subtenants or its or their partners, directors, officers, servants,
employees, agents, or contractors, Landlord shall be unable to collect all of
the insurance proceeds (including, without limitation, rent insurance proceeds)
applicable to damage or destruction of the Premises by fire or other casualty
(the "Insurance Proceeds"), then, without prejudice to any other remedies that
may be available against Tenant, the abatement or reduction of the Rent
provided for herein shall be reduced to the extent resulting therefrom,
notwithstanding lack of usability. Further, and only to the extent that, as a
result of or due to or because of any negligent act or omission by any or all
of Tenant, its agents, employees, invitees and representatives, Landlord is
unable to collect all of the Insurance Proceeds (other than rent insurance
proceeds), then Tenant shall be liable to Landlord for the payment of an amount
equal to that portion of the Insurance Proceeds (other than rent insurance
proceeds) that Landlord is unable to collect.
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SECTION 18: EMINENT DOMAIN
18.1 Total Condemnation. If, in the reasonable opinion of Landlord, the
whole of the Premises, or if any part of the Premises that materially affects
Tenant's use and occupancy of the Premises, shall be taken by condemnation or
in any other manner for any public or quasi-public use or purpose, this Lease
and the term and estate hereby granted shall terminate as of the date of
vesting of title on such taking (herein called "Date of the Taking"), and the
Rent shall be prorated and adjusted as of such date.
18.2 Award. Landlord shall be entitled to receive the entire award or
payment in connection with any taking of the Premises; provided, however, that
if the condemning authority allocates any portion of the award specifically to
Tenant's Property, Tenant shall be entitled to that portion of the award.
Additionally, ▇▇▇▇▇▇ shall have the right to separately pursue, against the
condemning authority, an award in respect of the loss, if any, to Tenant's
Property (including, but not limited to, the Tenant's Improvements that Tenant
is entitled to remove) and to the leasehold improvements or other interest of
Tenant in the Premises paid for by Tenant, without any credit or allowance from
Landlord, provided that such separate award does not diminish or interfere with
Landlord's pursuit of its own award.
18.3 Compensation to Tenant for Temporary Use. If the temporary use or
occupancy of all or any part of the Premises shall be taken by condemnation or
in any other manner for any public or quasi-public use or purpose during the
Term, Tenant shall be entitled, except as hereinafter set forth, to receive
that portion of the award or payment for such taking which represents
compensation for the use and occupancy of the Premises, for the taking of
Tenant's Property, leasehold improvements or other interests of Tenant in the
Premises paid for by Tenant (other than Tenant Funded Improvements) and for
moving expenses, and Landlord shall be entitled to receive that portion that
represents reimbursement for the cost of restoration of the Premises (including
Tenant Funded Improvements). This Lease shall be and remain unaffected by such
taking, and Tenant shall continue to be responsible for all of its obligations
hereunder insofar as such obligations are not affected by such taking and shall
continue to pay, in full, the Rent when due. If the period of temporary use or
occupancy shall extend beyond the Expiration Date, that part of the award that
represents compensation for the use and occupancy of the Premises (or a part
thereof) shall be prorated between Landlord and Tenant so that Tenant shall
receive so much thereof as represents the period up to and including such
Expiration Date and Landlord shall receive so much thereof as represents the
period after such Expiration Date. All monies paid as, or as part of, an award
for temporary use and occupancy for a period beyond the date to which the Rent
have been paid shall be received, held and applied by Landlord as a trust fund
for payment of the Rent becoming due.
18.4 Partial or Temporary Taking. Subject to the rights of any Superior
Mortgagee or Superior Lessor, and other parties having rights to condemnation
proceeds, in the event of any taking of less than the whole of the Premises,
which taking does not result in termination of this Lease, or in the event of a
taking for a temporary use or occupancy of all or any part of the Premises, or
other partial taking of the Premises, that in any such case does not result in
a termination of this Lease: (a) Landlord, at its expense, and to the extent
that a condemnation award or awards shall be sufficient for the purpose, shall
proceed with reasonable diligence to repair the remaining parts of the Premises
(inclusive of that portion of the Premises that represents Tenant Funded
Improvements, but other than those parts of the Premises that are Tenant's
Property and Tenant's Improvements that Tenant is entitled to remove) to
substantially their former condition, to the extent that the same is feasible
(subject to those changes which Landlord reasonably deems desirable and Tenant
reasonably accepts, and to building and other governmental codes and
regulations) and so as to constitute a complete and tenantable Premises, and
(b) Tenant, at its expense, and to the extent any award or awards shall be
sufficient for the purpose, shall proceed with reasonable diligence to repair
Tenant's Property and Tenant's Improvements, to substantially its former
condition, to the extent feasible, subject to such reasonable changes as
Landlord and ▇▇▇▇▇▇ shall agree upon, in writing. Such work by Tenant shall be
deemed Alterations (the approval for which Alterations shall not be
unreasonably withheld by Landlord). Furthermore, in the event of a partial
taking of the Premises that does not result in a termination of this Lease, the
Net Base Rent due hereunder shall be reduced in a proportionate amount, based
upon the proportion that the area that has been taken bears to the total area
of the Premises. Such reduction shall be effective from the date on which the
partial taking occurs until the date, if any, on which the partial taking
terminates and the Premises have been restored in accordance with the terms of
this Lease.
SECTION 19: SURRENDER AND HOLDOVER
On the last day of the Term, or upon any earlier termination of this
Lease, or upon any re-entry by Landlord upon the Premises, (a) Tenant shall
quit and surrender the Premises to Landlord "broom-clean" and in good order,
condition and repair, except for ordinary wear and tear and such damage or
destruction as Landlord is required to repair or restore under this Lease, and
(b) Tenant shall remove all of Tenant's Property therefrom, except as otherwise
expressly provided in this Lease. The obligations imposed under the preceding
sentence shall survive the termination or expiration of this Lease. If Tenant
retains possession of the Premises or any part thereof after the Expiration
Date hereof or after any earlier termination date of this Lease by lapse of
time or otherwise, or termination of Tenant's right to possession: Tenant shall
pay to Landlord one hundred fifty percent (150%) of the Rent last prevailing
hereunder computed on a per-month basis, for each month or part hereof that
Tenant thus remains in possession, and, in addition thereto, Tenant shall pay
all direct and consequential damages sustained by Landlord, by reason of
▇▇▇▇▇▇'s retention of possession; provided, however, that Tenant shall not be
liable to Landlord for consequential damages in connection with a holdover by
Tenant unless such holdover extends beyond thirty (30) days after the
Expiration Date or other earlier termination date of this Lease. There shall be
no renewal or extension of this Lease by operation of law. The provisions of
this Section 19 shall not constitute a waiver by Landlord of any re-entry
rights of Landlord provided hereunder or by law.
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SECTION 20: EVENTS OF DEFAULT
20.1 Bankruptcy of Tenant. It shall be an "Event of Default" by Tenant
under this Lease if Tenant makes an assignment for the benefit of creditors, or
files a voluntary petition under any state or federal bankruptcy or insolvency
law, or an involuntary petition alleging an act of bankruptcy or insolvency is
filed against Tenant under any state or federal bankruptcy or insolvency law
that is not vacated within ninety (90) days, or whenever a petition is filed by
or against (and, to the extent of any such involuntary filing, not vacated
within ninety (90) days) Tenant under the reorganization provisions of the
United States Bankruptcy Code or under the provisions of any law or like
import, or whenever a petition shall be filed by Tenant under the arrangement
provisions of the United States Bankruptcy Code or similar law, or whenever a
receiver of Tenant, or of, or for, the property of Tenant shall be appointed,
or Tenant admits it is insolvent or is not able to pay its debts as they
mature.
20.2 Default Provisions. Each of the following shall constitute an "Event
of Default" by Tenant under this Lease: (a) if Tenant fails to pay Net Base
Rent within five (5) days after written notice from Landlord of the delinquency
thereof; or (b) if Tenant fails to pay Additional Rent or any other sum due to
Landlord within fifteen (15) days after written notice from Landlord with
respect to the delinquency thereof, provided, however, that if and to the
extent that Tenant fails to pay Rent or any other payment required hereunder
when due hereunder more than twice in any consecutive twelve (12) month period,
Landlord shall have no obligation whatsoever for a period of two (2) years
after the latter of such two delinquencies to provide (x) any written notice to
Tenant of any further delinquency or (y) any grace period with respect to Net
Base Rent, Additional Rent or any other sum due hereunder, and, after the
expiration of any such two (2) year period, Tenant shall again be entitled to
written notice and the above described grace period for up to two (2)
delinquencies in any consecutive twelve (12) month period; or (c) if Tenant
fails, whether by action or inaction, to timely comply in any material respect
with, or satisfy, any or all of the obligations imposed on Tenant under this
Lease for a period of thirty (30) days after ▇▇▇▇▇▇▇▇'s delivery to Tenant of
written notice of such default under this subsection 20.2(c); provided,
however, that if the default cannot, by its nature, be cured within such thirty
(30) day period, but Tenant commences and diligently pursues a cure of such
default promptly within the initial thirty (30) day cure period and thereafter
continues to diligently pursue a cure, then Landlord shall not exercise its
remedies under Section 21 unless such default remains uncured for more than one
hundred eighty (180) days after ▇▇▇▇▇▇▇▇'s initial delivery to Tenant of notice
of such default.
SECTION 21: REMEDIES
21.1 Landlord's Cure Rights Upon Default of Tenant. If Tenant defaults in
the performance of any of its obligations under this Lease, Landlord, without
thereby waiving such default, may (but shall not be obligated to) perform the
same for the account, and at the expense of, Tenant, in compliance with any
notice requirements and cure periods set forth in Section 20.
21.2 Landlord's Remedies. If any Event of Default by Tenant under this
Lease remains uncured after applicable notice and cure periods, Landlord, at
its option, without further notice or demand to Tenant, may, in addition to all
other rights and remedies provided in this Lease, or otherwise at law or in
equity: (a) terminate this Lease and ▇▇▇▇▇▇'s right of possession of the
Premises, and recover all damages to which Landlord is entitled under law,
specifically including, without limitation, accelerated Rent attributable to
the balance of the Term, and all Landlord's reasonable expenses of reletting
the Premises (including reasonable repairs, alterations, improvements,
additions, decorations, legal fees and brokerage commissions), or (b) terminate
Tenant's right of possession of the Premises without terminating this Lease;
provided, however, that Landlord shall use its reasonable efforts, whether
Landlord elects to proceed under Subsections (a) or (b) above, to relet the
Premises, or any part thereof for the account of Tenant, for such rent and term
and upon such terms and conditions as are reasonably acceptable to Landlord. If
Landlord shall elect to pursue its rights and remedies under Subsection (b),
then Landlord shall at any time have the further right and remedy to rescind
such election and pursue its rights and remedies under Subsection (a),
including but not limited to such time as Landlord has obtained a tenant to
relet the Premises, which, in Landlord's reasonable judgment, is a suitable
tenant. For purposes of such reletting, Landlord is authorized to decorate,
repair, alter and improve the Premises to the extent deemed reasonably
necessary by Landlord. If the Premises are relet and a sufficient sum is not
realized therefrom, after payment of all Landlord's reasonable expenses of
reletting (including reasonable repairs, alterations, improvements, additions,
decorations, legal fees and brokerage commissions), to satisfy the payment,
when due, of Base Rent and Additional Rent reserved under the Lease for any
monthly period, then Tenant shall, in Landlord's sole judgment, either (i) pay
any such deficiency monthly or (ii) pay such deficiency on an accelerated
basis, which accelerated deficiency shall be discounted at a rate of six
percent (6%) per annum. If Landlord fails to relet the Premises, then Tenant
shall pay to Landlord the sum of (i) the projected costs of Landlord's
reasonable expenses of reletting (including the reasonably anticipated costs of
repairs, alterations, improvements, additions, legal fees and brokerage
commissions) as reasonably estimated by Landlord and (ii) the accelerated
amount of Net Base Rent and Additional Rent due under the Lease attributable to
the balance of the Term discounted at a rate of six percent (6%) per annum.
▇▇▇▇▇▇ agrees that Landlord may file suit to recover any sums due to Landlord
hereunder from time to time and that such suit or recovery of any amount due
Landlord hereunder shall not be any defense to any subsequent action brought
for any amount not theretofore reduced to judgment in favor of Landlord. In the
event Landlord elects, pursuant to Subsection (b) of this Section 21.2, to
terminate Tenant's right of possession only, without terminating this Lease,
Landlord may, at Landlord's option, enter into the Premises, remove ▇▇▇▇▇▇'s
Property, ▇▇▇▇▇▇'s signs and other evidences of tenancy, and take and hold
possession thereof as provided in Section 19 hereof; provided, however, that
such entry and possession shall not terminate this Lease or release Tenant, in
whole or in part, from ▇▇▇▇▇▇'s obligation to pay the Rent reserved hereunder
for the full Term, or from any other obligation of Tenant under this Lease
(except to the extent Landlord shall be able to mitigate its damages as
described above). Any and all property that may be removed from the Premises by
Landlord pursuant to the authority of the Lease or of law, to which Tenant is
or may be entitled, may be handled, removed or stored by Landlord at the risk,
cost and expense of Tenant, and in no event or circumstance shall Landlord be
responsible for the value, preservation or safekeeping thereof. Tenant shall
pay to Landlord, upon
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demand, any and all expenses incurred in such removal and all storage charges
against such property so long as the same shall be in Landlord's possession or
under ▇▇▇▇▇▇▇▇'s control. Any such property of Tenant not retaken from storage
by Tenant within forty-five (45) days after the end of the Term, however
terminated, shall be conclusively presumed to have been conveyed by Tenant to
Landlord under this Lease as in a bill of sale, without further payment or
credit by ▇▇▇▇▇▇▇▇ to Tenant. Upon default and expiration of all cure periods,
Tenant hereby grants to Landlord a first lien upon the interest of Tenant under
this Lease to secure the payment of moneys due under this Lease, which lien may
be enforced in equity; and Landlord shall be entitled as a matter of right to
have a receiver appointed to take possession of the Premises and relet the same
under order of court.
21.3 Additional Rights of Landlord. Any and all reasonable costs, expenses
and disbursements, of any kind or nature, incurred by Landlord in connection
with the enforcement of any and all of the terms and provisions of this Lease,
including reasonable attorneys' fees (through all appellate proceedings), shall
be due and payable upon ▇▇▇▇▇▇▇▇'s submission of an invoice therefor. All sums
advanced by Landlord or Agent on account of Tenant under this Section, or
pursuant to any other provision of this Lease, and all Rent, if delinquent or
not paid by ▇▇▇▇▇▇ and received by Landlord when due hereunder, shall bear
interest at the rate of five percent (5%) per annum above the "prime" or
"reference" or "base" rate of interest publicly announced as such, from time to
time, by The First National Bank of Chicago, from the due date thereof until
paid, and such interest shall be and constitute Additional Rent and be due and
payable upon ▇▇▇▇▇▇▇▇'s or Agent's submission of an invoice therefor. Suit or
suits for the recovery of such damages, or any installments thereof, may be
brought by Landlord from time to time at its election, and nothing contained
herein shall be deemed to require Landlord to postpone suit until the
Expiration Date, nor limit or preclude recovery by Landlord against Tenant of
any sums or damages to which, in addition to the damages particularly provided
above, Landlord may lawfully be entitled by reason of any default hereunder by
Tenant. The various rights, remedies and elections of Landlord reserved,
expressed or contained herein are cumulative and no one of them shall be deemed
to be exclusive of the others or of such other rights, remedies, options or
elections as are now or may hereafter be conferred upon Landlord by law.
21.4 Event of Bankruptcy. In addition to, and in no way limiting the
other remedies set forth herein, Landlord and Tenant agree that if Tenant ever
becomes the subject of a voluntary or involuntary bankruptcy, reorganization,
composition, or other similar type proceeding under the federal bankruptcy
laws, as now enacted or hereinafter amended, then:
(a) "Adequate assurance of future performance" by ▇▇▇▇▇▇
and/or any assignee of Tenant pursuant to Bankruptcy Code Section 365
will include (but not be limited to) payment of a security deposit in
the amount of three (3) times the then-current Rent payable
hereunder.
(b) Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code, shall be deemed,
without further act or deed, to have assumed all of the obligations
of Tenant arising under this Lease on and after the effective date of
such assignment. Any such assignee shall, upon demand by Landlord,
execute and deliver to Landlord an instrument confirming such
assumption of liability.
(c) Notwithstanding anything in this Lease to the
contrary, all amounts payable by Tenant to or on behalf of Landlord
under this Lease, whether or not expressly denominated as "Rent",
shall constitute "rent" for the purposes of Section 502(b)(6) of the
Bankruptcy Code.
(d) If this Lease is assigned to any person or entity
pursuant to the provisions of the Bankruptcy Code, any and all monies
or other considerations payable or otherwise to be delivered to
Landlord or Agent (including Rent and other amounts hereunder), shall
be and remain the exclusive property of Landlord and shall not
constitute property of Tenant or of the bankruptcy estate of Tenant.
Any and all monies or other considerations constituting Landlord's
property under the preceding sentence not paid or delivered to
Landlord or Agent shall be held in trust by Tenant or Tenant's
bankruptcy estate for the benefit of Landlord and shall be promptly
paid to or turned over to Landlord.
SECTION 22: BROKER
Tenant covenants, warrants and represents that the broker set forth in
Section 1.9(A) was the only broker to represent Tenant in the negotiation of
this Lease ("Tenant's Broker"). Landlord covenants, warrants and represents
that the broker set forth in Section 1.9(B) was the only broker to represent
Landlord in the negotiation of this Lease ("Landlord's Broker"). Landlord shall
be solely responsible for paying the commissions of Landlord's Broker and
▇▇▇▇▇▇'s Broker. Each party agrees to and hereby does defend, indemnify and
hold the other harmless against and from any brokerage commissions or finder's
fees or claims therefor by a party (other than ▇▇▇▇▇▇'s Broker and Landlord's
Broker) claiming to have dealt with the indemnifying party and all costs,
expenses and liabilities in connection therewith, including, without
limitation, reasonable attorneys' fees and expenses, for any breach of the
foregoing. The foregoing indemnification shall survive the termination of this
Lease for any reason.
SECTION 23: ESTOPPEL CERTIFICATES
Tenant shall, from time to time and within twenty (20) days after any
request by Landlord, execute and deliver to Landlord (and to any existing or
prospective mortgage lender, ground lessor, or purchaser designated by
Landlord), a statement: (i) certifying that this Lease is unmodified and in
full force and effect (or if there have been modifications, that the same is in
full force and effect as modified and stating the modifications); (ii)
certifying the dates to which the Rent has been paid; (iii) stating whether
Landlord is in default in performance of any of its obligations under this
Lease, and, if so, specifying each such default; (iv) stating whether any event
has occurred which, with the giving of notice or
14
passage of time, or both, would constitute such a default, and, if so,
specifying each such event; and (v) stating whether any rights of Tenant (e.g.,
options) have been waived. Any such statement delivered pursuant hereto shall
be deemed a representation and warranty to be relied upon by the party
requesting the certificate and by others with whom Landlord may be dealing,
regardless of independent investigation. Tenant also shall include in any such
statements such other information concerning this Lease as Landlord or Agent
may reasonably request including, but not limited to, the amount of Rent under
this Lease, and whether Landlord has completed all (if any) improvements to the
Premises required under this Lease. Notwithstanding the foregoing, Landlord
shall deliver to Tenant a proposed document for ▇▇▇▇▇▇'s approval and
signature.
SECTION 24: HAZARDOUS MATERIALS
24.1 Definitions.
(i) "ENVIRONMENTAL LAW" or "ENVIRONMENTAL LAWS" shall
mean all past, present or future federal, state and local
statutes, laws, regulations, directives, ordinances, rules,
codes, policies, guidelines, court orders, decrees, arbitration
awards and the common law, which govern, regulate or impose
liability or standards of conduct concerning the use,
treatment, generation, storage, disposal or other handling or
release of any Hazardous Material or Materials or health and
safety matters, as such have been amended, modified or
supplemented from time to time (including all present and
future amendments thereto and re-authorizations thereof).
Environmental Laws include, without limitation, those relating
to: (i) the manufacture, processing, use, distribution,
treatment, storage, disposal, generation or transportation of
Hazardous Materials; (ii) air, soil, surface, subsurface,
groundwater, odor or noise pollution; (iii) Releases; (iv)
protection of wildlife, endangered species, wetlands,
environmentally sensitive areas or natural resources; (v)
health and safety of employees and other persons; and (vi)
notification requirements relating to the foregoing. Without
limiting the above, Environmental Law also includes the
following: (i) the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. ▇▇.▇▇. 9601 et seq.),
as amended ("CERCLA"); (ii) the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act (42
U.S.C. ▇▇.▇▇. 6901 et seq.), as amended ("RCRA"); (iii) the
Emergency Planning and Community Right to Know Act of 1986 (42
U.S.C. ▇▇.▇▇. 11001 et seq.), as amended; (iv) the Clean Air
Act (42 U.S.C. ▇▇.▇▇. 7401 et seq.), as amended; (v) the Clean
Water Act (33 U.S.C. ▇▇.▇▇. 1251 et seq.), as amended; (vi) the
Toxic Substances Control Act (15 U.S.C. ▇▇.▇▇. 2601 et seq.),
as amended; (vii) the Hazardous Materials Transportation Act
(49 U.S.C. ▇▇.▇▇. 1801 et seq.), as amended; (viii) the Federal
Insecticide, Fungicide and Rodenticide Act (7 U.S.C. ▇▇.▇▇. 136
et seq.), as amended; (ix) the Federal Safe Drinking Water Act
(42 U.S.C. ▇▇.▇▇. 300f et seq.), as amended; (x) the Federal
Radon and Indoor Air Quality Research Act (42 U.S.C. ▇▇.▇▇.
7401, et seq.); (xi) the Occupational Safety and Health Act (29
U.S.C. ▇▇.▇▇. 651 et seq.), as amended; (xii) any other
statute, rule, regulation or order of any governmental
authority having jurisdiction of Hazardous Materials or health
and safety, including, but not limited to, the USEPA, Wisconsin
Department of Natural Resources and the US Nuclear Regulatory
Agency; (xiii) Environmental Permits; (xiv) any state, county,
municipal or local statutes, laws or ordinances similar or
analogous to (including counterparts of) any of the statutes
listed above; and (xv) any rules, regulations, guidelines,
directives, orders or the like adopted pursuant to or
implementing any of the above.
(ii) "ENVIRONMENTAL PERMIT" or "ENVIRONMENTAL PERMITS"
shall mean licenses, certificates, permits, directives,
requirements, registrations, government approvals, agreements,
authorizations, and consents which are required under or are
issued pursuant to an Environmental Law or are otherwise
required by Governmental Authorities.
(iii) "GOVERNMENTAL AUTHORITY" shall mean any agency,
commission, department or body of any municipal, township,
county, local, state or Federal governmental or
quasi-governmental regulatory unit, entity or authority having
jurisdiction or authority over all or any portion of the
Project or the management, operation, use or improvement
thereof.
(iv) "HAZARDOUS CONDITIONS" refers to the existence or
presence, release or threatened release of any Hazardous
Materials on, in, under, at, near, from or about the Property
or any portion thereof (including groundwater) or any other
adverse public health effect.
(v) "HAZARDOUS MATERIAL" or "HAZARDOUS MATERIALS" shall
mean:
(A) any chemical, pollutant, contaminant,
pesticide, petroleum or petroleum product or by product,
radioactive substance, solid waste (including hazardous
or extremely hazardous), special, dangerous or toxic
waste, substance, chemical or material regulated,
listed, limited or prohibited under any Environmental
Law, including without limitation: (i) asbestos,
asbestos-containing material, presumed
asbestos-containing material, polychlorinated biphenyls
("PCBS"), solvents and waste oil; (ii) any "hazardous
materials" or "hazardous substances" as defined under
CERCLA; (iii) any "hazardous waste" as defined under
RCRA; (iv) any hazardous air pollutant or criteria
pollutant as defined under the CAA; and (v) any
hazardous substance defined or regulated under Wisconsin
law; and
(B) even if not prohibited, listed, limited or
regulated by an Environmental Law, all pollutants,
contaminants, hazardous, dangerous or toxic chemical
materials, wastes or any other substances, including
without limitation, any industrial process or pollution
control waste
15
(whether or not hazardous within the meaning of RCRA or
Wisconsin law) which could pose a hazard to the
environment, or the health and safety of any person or
impair the use or value of any portion of the Property.
(vi) "RELEASE" means any spill, discharge, leak,
migration, emission, escape, injection, dumping or other
release or threatened release of any Hazardous Material into
the environment, whether or not notification or reporting to
any governmental agency was or is required. Release includes,
without limitation, historical releases and the meaning of
Release as defined under CERCLA and the meaning of discharges
or spills under the laws of the State of Wisconsin.
(vii) "REMEDIAL ACTION" shall mean any and all
corrective or remedial action, preventative measures, response,
removal, transport, disposal, clean-up, abatement, treatment
and monitoring of Hazardous Materials or Hazardous Conditions,
whether or not at the direction or request of a governmental
authority, and includes all studies, assessments, reports,
analyses or investigations performed in connection therewith to
determine if such actions are necessary or appropriate
(including investigations performed to determine the progress
or status of any such actions).
(viii) "REMEDIAL COSTS" shall include all costs,
liabilities expenses and fees incurred in connection with
Remedial Action, including but not limited to: (i) the fees of
environmental consultants and contractors; (ii) reasonable
attorneys' fees (including compensation for in-house and
corporate counsel provided such compensation does not exceed
customary rates for comparable services); (iii) the costs
associated with the preparation of reports, and laboratory
analysis (including charges for expedited results if reasonably
necessary); (iv) regulatory, permitting and review fees; (v)
costs of soil and/or water treatment (including groundwater
monitoring) and/or transport and disposal; and (iv) the cost of
supplies, equipment, material and utilities used in connection
with Remedial Action.
For purposes of this Section 24, "Landlord's Environmental Liability"
means: any and all losses, liabilities, obligations, penalties, claims, fines,
demands, litigation, actions, expenses, injuries, administrative order,
defenses, costs (including Remedial Costs), judgments, suits, proceedings,
damages (including punitive and exemplary damages), disbursements or expenses
of any kind or nature whatsoever (including attorneys' fees at trial and
appellate levels and experts' fees and disbursements and expenses incurred in
investigating, defending against, settling or prosecuting any suit,
litigation, claim or proceeding) which may at any time be either directly or
indirectly imposed upon, incurred by or asserted or awarded against Landlord
or any of Landlord's parent and subsidiary corporations and their affiliates,
shareholders, directors, officers, employees, and agents in connection with or
arising from: (i) any Hazardous Materials used, exposed, emitted, released,
discharged, generated, manufactured, sold, transported, handled, stored,
treated, reused, presented, disposed of or recycled on, in, at, near, from or
under all or any portion of the Property, or any surrounding areas resulting
therefrom; (ii) any Hazardous Condition and/or Remedial Action to the extent
caused or contributed to by Tenant or any party acting by, through or under
Tenant, including any licensees or invitees of Tenant or such parties; (iii)
any misrepresentation, inaccuracy or breach of any warranty, covenant or
agreement contained or referred to in this Section 24; (iv) any violation,
liability or claim or notice of a violation or liability under any
Environmental Laws or Environmental Permits to the extent caused or
contributed to by Tenant or any party acting by, through or under Tenant,
including any licensees or invitees of Tenant or such parties; or (v) the
imposition of any lien for damages caused by, or the recovery of any costs
incurred for the cleanup of, any release or threatened release of a Hazardous
Materials to the extent caused or contributed to by Tenant or any party acting
by, through or under Tenant, including any licensees or invitees of Tenant or
such parties.
24.2 Prohibition. (i) Tenant shall not use any Hazardous Materials,
as defined herein, except those ordinarily used in the normal course of
Tenant's business, and provided that Tenant shall use such Hazardous Materials
in accordance with their intended use and comply with all applicable
Environmental Laws with respect to their use, storage, transportation and
disposal and (ii) Tenant shall comply and operate its business in accordance
with all applicable Environmental Laws, and will make all improvements,
repairs, alterations and install all pollution control equipment, including
any equipment necessary to monitor such pollution control equipment, in
accordance with all applicable Environmental Laws. Tenant acknowledges that as
the sole operator of the Premises, Tenant will be in possession and control of
the Premises for the term of the Lease. Tenant may use and store reasonable
quantities of the substances listed on Exhibit H attached hereto (the
"Permitted Substances"), all in accordance with (and to the extent permitted
by) all Environmental Laws and according to normal and ordinary business
practices of similar entities engaged in the same or similar operations.
24.3 Tenant's Duties. Tenant shall promptly provide Agent with copies
of all communications, permits or agreements with any Governmental Authority
or any private entity relating in any way to the presence, Release, threat of
Release, placement on, at or in the Premises, or the generation,
transportation, storage, use, treatment, or disposal at, in or on the
Premises, of any Hazardous Materials, except that Tenant shall not be
obligated to provide copies to Landlord of its routine correspondence
regarding Permitted Substances used in its day to day use and operation of the
Premises. Landlord, Agent and their respective agents and employees shall have
the right to enter the Premises and/or conduct appropriate tests, at any time
and from time to time, for the purposes of ascertaining Tenant compliance with
all Environmental Laws. If and to the extent that Landlord reasonably believes
that ▇▇▇▇▇▇'s use and operation of the Premises are not in compliance with all
Environmental Laws in any material respect or any of Tenant's acts or
omissions (or the acts or omissions of Tenant's employees, agents,
representatives or invitees) at the Premises have resulted in a material
breach of Environmental Laws, Tenant shall provide Landlord with the results
of appropriate tests of air, water or soil to demonstrate that Tenant complies
with all Environmental Laws upon written request by Landlord or Agent.
16
24.4 Remedial Action. If the presence, Release, threat of Release,
emissions from, placement on, at or in the Premises or Property or any portion
thereof, or the generation, transportation, storage, use, treatment, or
disposal at or from the Premises or Property or any portion thereof of any
Hazardous Materials gives rise to a Landlord's Environmental Liability, then
Tenant, at its sole cost and expense, shall promptly take any and all Remedial
Action with respect to the Premises or any portion thereof, and shall mitigate
any and all exposure to liability arising from the Hazardous Materials and/or
the Hazardous Conditions, regardless whether required by Environmental Law.
24.5 Indemnity and Release. Except as otherwise provided in Section
2(b)(i) of Exhibit C, Tenant shall and does hereby protect, indemnify, defend
(at trial and appellate levels and with counsel, experts and consultants
acceptable to Landlord and at ▇▇▇▇▇▇'s sole cost) and hold Landlord and each
Landlord Affiliate free and harmless from and against any Landlord's
Environmental Liability (collectively, "Tenant's Indemnification
Obligations"). Except as otherwise provided in Section 2(b)(i) of Exhibit C,
▇▇▇▇▇▇ and its successors and assigns hereby waive, release and agree not to
make any claim or bring any cost recovery action against Landlord under or
with respect to any Environmental Law, except to the extent of any gross
negligence or willful misconduct by Landlord or its agent and their employees.
Tenant's obligation to Landlord under this indemnity shall likewise be without
regard to fault on the part of Tenant or Landlord with respect to the
violation or condition which results in liability to Landlord. The foregoing
indemnity and ▇▇▇▇▇▇'s other obligations under this Section 24 shall
indefinitely survive the expiration or termination of this Lease.
SECTION 25: MISCELLANEOUS
25.1 Merger. All prior understandings and agreements between the
parties are merged in this Lease, which alone fully and completely expresses
the agreement of the parties. No agreement shall be effective to modify this
Lease, in whole or in part, unless such agreement is in writing, and is signed
by the party against whom enforcement of said change or modification is
sought.
25.2 Notices. Any notice required to be given by either party
pursuant to this Lease, shall be in writing and shall be deemed to have been
properly given, rendered or made only if personally delivered or if sent by
Federal Express or other comparable commercial overnight delivery service,
addressed to the other party at the addresses set forth below (or to such
other address as Landlord or Tenant may designate to each other from time to
time by written notice), and shall be deemed to have been given, rendered or
made on the day so delivered or on the first business day after having been
deposited with the courier service:
If to Landlord: First Industrial Development Services Group, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
First Industrial, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
If to Tenant: Golden Books Family Entertainment Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
With a copy to: ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ & Muffy, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Golden Books Family Entertainment, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
25.3 Non-Waiver. The failure of either party to insist, in any one or
more instances, upon the strict performance of any one or more of the
obligations of this Lease, or to exercise any election herein contained, shall
not be construed as a waiver or relinquishment for the future of the
performance of such one or more obligations of this Lease or of the right to
exercise such election, but the Lease shall continue and remain in full force
and effect with respect to any subsequent breach, act or omission. The receipt
and acceptance by ▇▇▇▇▇▇▇▇ or Agent of Rent with knowledge of breach by Tenant
of any obligation of this Lease shall not be deemed a waiver of such breach.
25.4 Legal Costs. Any party in breach or default under this Lease
(the "Defaulting Party") shall reimburse the other party (the "Nondefaulting
Party") upon demand for any costs or expenses that the Nondefaulting
17
Party incurs in connection with the breach or default, regardless whether suit
is commenced or judgment entered. Such costs shall include legal fees and costs
incurred for the negotiation of a settlement, enforcement of rights or
otherwise. Furthermore, in the event of litigation, the court in such action
shall award to the party in whose favor a judgment is entered, a reasonable sum
as attorneys' fees and costs, which sum shall be paid by the losing party.
Tenant shall pay Landlord's reasonable attorneys' fees incurred in connection
with ▇▇▇▇▇▇'s request for ▇▇▇▇▇▇▇▇'s consent under provisions of this Lease
governing assignment and subletting, or in connection with any other act which
▇▇▇▇▇▇ proposes to do and which requires ▇▇▇▇▇▇▇▇'s consent.
25.5 Parties Bound. Except as otherwise expressly provided for in
this Lease, this Lease shall be binding upon, and inure to the benefit of, the
successors and assignees of the parties hereto. Tenant hereby releases
Landlord named herein from any obligations of Landlord for any period
subsequent to the conveyance and transfer of Landlord's ownership interest in
the Premises. In the event of such conveyance and transfer, Landlord's
obligations shall thereafter be binding upon each transferee (whether
Successor Landlord or otherwise). No obligation of either party shall rise
under this Lease until the instrument is signed by, and delivered to, both
Landlord and Tenant.
25.6 Recordation of Lease. Tenant shall not record or file this Lease
(or any memorandum hereof) in the public records of any county or state,
except as may be required in connection with the recording or filing of any
nondisturbance agreement relating hereto.
25.7 Survival of Obligations. Upon the expiration or other
termination of this Lease, neither party shall have any further obligation or
liability to the other except as otherwise expressly provided in this Lease
and except for such obligations as, by their nature or under the
circumstances, can only be, or by the provisions of this Lease, may be
performed after such expiration or other termination. Without limitation of
the foregoing, the provisions of Sections 2, 3, 12, 16, 17.3, 18.3, 19, 22,
and 24 shall survive any termination of this Lease.
25.8 Governing Law; Construction. This Lease shall be governed by and
construed in accordance with the laws of the state in which the Premises are
located. If any provision of this Lease shall be invalid or unenforceable, the
remainder of this Lease shall not be affected but shall be enforced to the
extent permitted by law. The captions, headings and titles in this Lease are
solely for convenience of reference and shall not affect its interpretation.
This Lease shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Lease to be drafted.
Each covenant, agreement, obligation, or other provision of this Lease to be
performed by Tenant, shall be construed as a separate and independent covenant
of Tenant, not dependent on any other provision of this Lease. All terms and
words used in this Lease, regardless of the number or gender in which they are
used, shall be deemed to include any other number and any other gender as the
context may require.
25.9 Time. Time is of the essence of this Lease. If the time for
performance hereunder falls on a Saturday, Sunday or a day that is recognized
as a holiday in the state in which the Premises are located, then such time
shall be deemed extended to the next day that is not a Saturday, Sunday or
holiday in said state.
25.10 Authority of Tenant. If Tenant is a corporation, partnership,
association or any other entity, it shall deliver to Landlord, concurrently
with the delivery to Landlord of an executed Lease, certified resolutions of
Tenant's directors or other governing person or body (i) authorizing execution
and delivery of this Lease and the performance by Tenant of its obligations
hereunder and (ii) certifying the authority of the party executing the Lease
as having been duly authorized to do so. Landlord represents and warrants to
Tenant that (a) the execution and delivery of this Lease and the performance
by Landlord of its obligations hereunder has been duly authorized by all
necessary corporate and partnership action and (b) the party affixing his or
her signature hereto has been duly authorized to execute this Lease on behalf
of ▇▇▇▇▇▇▇▇'s general partner.
25.11 Joint and Several Liability. All parties signing this Lease as
Tenant shall be jointly and severally liable for all obligations of Tenant
hereunder.
25.12 Counterpart Execution. This Lease may be executed in
counterpart and, when all counterpart documents are executed, the counterparts
shall constitute a single binding instrument.
25.13 Riders. All Riders and Exhibits attached hereto shall be deemed
to be a part hereof and hereby incorporated herein.
25.14 WAIVER OF TRIAL BY JURY. THE LANDLORD AND THE TENANT, TO THE
FULLEST EXTENT THAT THEY MAY LAWFULLY DO SO, ▇▇▇▇▇▇ WAIVE TRIAL BY JURY IN ANY
ACTION OR PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY COURT ACTION BROUGHT
BY ANY PARTY TO THIS LEASE WITH RESPECT TO THIS LEASE, THE PREMISES, OR ANY
OTHER MATTER RELATED TO THIS LEASE OR THE PREMISES.
25.15 Lease Contingency. The terms and provisions of this Lease shall
be contingent upon the closing by Landlord of the purchase of fee simple title
to the Land on or before August 4, 1997 (the "Contingency Date"). If Landlord
does not close on the purchase of the Land, for whatever reason, on or before
such date, this Lease shall automatically terminate and neither party shall
have any further obligations, except as may be specifically provided
hereunder. ▇▇▇▇▇▇▇▇ agrees to use best efforts to promptly close upon Land as
soon as reasonably practicable after the Tenant's Permitting Date. In the
event that Landlord is unable to purchase the Land on or prior to the
Contingency Date, and Tenant is not in default hereunder (beyond any
applicable notice and cure periods), Tenant shall purchase, and Landlord shall
make a quit claim conveyance to Tenant, of all assignable plans, permits,
materials, specifications, rights to purchase the Land and the Option Parcel,
and agreements relating to the Project at such time as Tenant has
18
reimbursed Landlord for any costs and expenses incurred by Landlord in
connection with this Lease as of the effective date of such conveyance.
25.16 Right of First Refusal. Tenant shall have the Right of First
Refusal to purchase the Property subject to the terms and conditions set forth
in Exhibit F.
25.17 Landlord's Assignment of this Lease. Within a reasonable period
of time after the later to occur of the Office Building Rent Commencement Date
or the execution of an Acceptance Agreement by Landlord and Tenant with
respect to the Office Building, Landlord covenants and agrees to either (x)
sell, transfer, convey and assign all of its right, title and interest in and
to this Lease to First Industrial, L.P., a Delaware limited partnership
("FILP") or any other Landlord's Affiliate (such assignee being hereinafter
referred to as "Landlord's Transferee") to the extent such Landlord's
Affiliate's liabilities and obligations are guaranteed by FILP (subject to all
of the limitations herein set forth with respect to Landlord's liability),
which guarantee shall be in form reasonably acceptable to Tenant, or (y) cause
FILP to guarantee all of Landlord's liabilities and obligations pursuant to
the Lease (as such liabilities and obligations may be limited by the terms of
this Lease), which guarantee shall be in a form reasonably acceptable to
Tenant. Notwithstanding anything contained herein to the contrary, in the
event that such Landlord's Transferee sells, transfers, conveys or assigns its
right, title, interest, liability and obligation pursuant to this Lease on or
prior to the expiration of the Warranty Period, Landlord's Transferee shall
remain secondarily liable for the satisfaction of only Landlord's obligations
pursuant to Section 7 of Exhibit C. Nothing contained herein shall limit or
affect the provisions of Section 16 of this Lease and nothing contained herein
shall limit or restrict Landlord, FILP or any other successor or assign from
transferring its interest under this Lease.
19
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ have duly executed this Lease
as of the day and year first above written.
LANDLORD: First Industrial Development Services Group, L.P.,
a Delaware limited partnership
By: FI Development Services Corporation,
a Maryland corporation, its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------
Its: President
TENANT: Golden Books Family Entertainment, Inc.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇___________________
Its: Senior Vice President___________________
Acknowledged and agreed by First Industrial, L.P. for the limited
purpose of acknowledging its agreement and acceptance of
Section 25.17:
First Industrial, L.P., a Delaware limited partnership
By: First Industrial Realty Trust, Inc., a Maryland
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇__________________________
Its: Chief Operating Officer______________________
LEASE EXHIBIT A
PREMISES
The Premises shall consist of that certain parcel of land located in
Sturtevant, Wisconsin, and legally described on the attached Exhibit A-1 (the
"Land") together with all infrastructure and utilities (if any) currently
located on the Land (together with the Land, the "Property") and the
"Improvements" defined in Lease Exhibit C attached hereto.
LEASE EXHIBIT B
RENTAL PAYMENTS
B.1 NET BASE RENT. Net Base Rent for both of the Printing Facility and the
Office Building portions of the Premises shall be determined based on Landlord
earning a cash-on-cash "all-in" yield of 11.05% of Total Project Costs (as
defined in Exhibit C); provided, however, that to the extent that any
Additional Landlord Funding Amounts (as defined in Exhibit C) have been
included by Landlord in the Total Project Costs, then Landlord shall be
entitled to earn (and Net Base Rent on such Additional Landlord Funding Amounts
shall be calculated on the basis of) a cash-on-cash all-in yield of 12.05% on
such Additional Landlord Funding Amounts and such amounts shall be amortized
over the initial Term of the Lease. By way of illustration, if the Total
Project Costs were to equal the Maximum Total Project Costs, Landlord would be
entitled to receive annual Net Base Rent of $2,372,918.55 ($5.09 per square
foot), which amount is equal to the product of (x) the Maximum Total Project
Costs and (y) 11.05%. The foregoing example is a hypothetical based upon
current estimates of the Project Budget, and shall in no event be deemed
binding as either a calculation of Net Base Rent or a determination of Total
Project Costs. Landlord will disclose to Tenant its Total Project Costs
(including, without limitation, any net increase or decrease in projected Total
Project Costs that occurs after completion of the Final Plans and
Specifications), it being the intention of the parties that Net Base Rent will
be calculated pursuant to verification of Total Project Costs under an "open
book" procedure. The parties anticipate that Landlord will receive $1,200,000
in proceeds of tax increment financing ("TIF Proceeds") from the Village of
▇▇▇▇▇▇▇▇▇▇ ("Village"), subject to certain requirements with which the parties
will attempt to comply. It is acknowledged and agreed by the parties that (x)
the proposed Developer's Agreement by and between the Village, Landlord and the
Community Development Authority of the Village of ▇▇▇▇▇▇▇▇▇▇ provides that such
TIF Proceeds shall not be delivered to Landlord until the satisfaction of
certain contingencies following the Substantial Completion of the Improvements;
and (y) the TIF Proceeds shall be deducted from Total Project Costs only when,
as, if, and to the extent actually received by Landlord, and, prior to such
receipt, if any, the Total Project Costs used to determine Net Base Rent shall
exclude the TIF Proceeds. Total Project Costs shall include, without
limitation, the costs of all carrying costs accruing in connection with any
funds advanced by Landlord towards Total Project Costs that are later recovered
by Landlord in the form of TIF Proceeds.
It is acknowledged by the parties that the Printing Facility is projected
to be completed approximately 1 month in advance of the Office Building, and
that Tenant shall be obligated to commence paying Net Base Rent allocable to
the Printing Facility as of the Printing Facility Rent Commencement Date. As of
the Printing Facility Rent Commencement Date (and until the final determination
of Net Base Rent pursuant to this Exhibit B on or about the date of the
Substantial Completion of the Office Building), Tenant shall pay as annual Net
Base Rent allocable to the Printing Facility $5.09 per square foot of the
Printing Facility (the "Estimated Net Base Rent"). If and to the extent that
the estimated Total Project Costs referred to in the preceding paragraph are
greater or less than actual Total Project Costs (as the same may be increased
by Additional Landlord Funding Amounts on which Additional Landlord Funding
Amounts Landlord shall be entitled to earn a cash-on-cash "all-in" yield of
12.05% and such amounts shall be amortized over the initial Term of the Lease)
as determined following Substantial Completion of the Improvements, Net Base
Rent payable for the period between the Printing Facility Rent Commencement
Date and the Office Building Rent Commencement Date (the "Interim Period")
shall be recomputed by substituting such actual Total Project Costs for
estimated Total Project Costs in the formula set forth in the preceding
paragraph, and either (x) Landlord shall credit against the next installment(s)
of Net Base Rent due following such recomputation the amount, if any, by which
Net Base Rent for the Interim Period was overpaid, together with interest
thereon at the annual rate of 8%, or (y) Tenant shall pay to Landlord with the
next installment of Net Base Rent due following such recomputation the amount,
if any, by which Net Base Rent for the Interim Period was underpaid, together
with interest thereon at the annual rate of 8%. Landlord and Tenant shall
determine the amount of such difference simultaneously with the determination
(and, if applicable, any redetermination) of Net Base Rent pursuant to Section
B-3 hereof.
B.2 RENT ESCALATIONS. The Net Base Rent shall increase annually,
commencing with the second (2nd) anniversary of the Rent Commencement Date
through the end of the initial Term in the amount of 05/100s Dollars ($.05) per
square foot, but not during any
Renewal Term, except as otherwise determined pursuant to the market rent
calculation for the Renewal Term.
B.3 DETERMINATION AND RECONCILIATION OF NET BASE RENT. Net Base Rent shall
be determined as of the Rent Commencement Date based on actual Total Project
Costs. To the extent that the amounts of any items to be included in or
credited against Total Project Costs are not then finally ascertainable, Net
Base Rent shall be determined using Landlord's best estimates of the amounts of
such items, except that no TIF Proceeds shall be credited against Total Project
Costs until actually received by Landlord. When the actual amounts of such
estimated items are finally ascertained and/or when Landlord actually receives
the TIF Proceeds, Net Base Rent shall be redetermined based on the actual
amounts thereof. If Net Base Rent as so redetermined is greater than or less
than Net Base Rent as previously determined, either: (i) Tenant shall pay to
Landlord with the next installment of Net Base Rent due following such
redetermination the amount, if any, by which Net Base Rent for any prior period
was underpaid, together with interest thereon at the annual rate of 8% or (ii)
Landlord shall credit against the next installment(s) of Base Rent due
following such redetermination the amount, if any, by which Net Base Rent for
any prior period was overpaid, together with interest thereon at the annual
rate of 8%.