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EXHIBIT 10.34
AGREEMENT OF LEASE
Between
▇▇▇▇▇▇ STREET, CAPITAL CORPORATION
as Landlord
and
▇.▇. ▇▇▇▇▇▇▇ COMPANY
as Tenant
for premises located at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
and
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Dated: As of July 31, 1992
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Table of Contents
Article Page
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I. Demised Premises - Term of Lease..................................... 1
II. Rent .............................................................. 2
III. Use of Premises; Environmental Matters............................... 6
IV. Taxes and Impositions................................................ 8
V. Insurance............................................................ 13
VI. Right to Perform Covenants of Tenant................................. 19
VII. Repairs and Maintenance.............................................. 19
VIII. Compliance with Orders and Ordinances................................ 24
IX. Changes and Alterations.............................................. 26
X. Discharge of Liens................................................... 29
XI. Access to Premises by Landlord....................................... 31
XII. Assignment and Subletting............................................ 32
XIII. No Waste............................................................. 37
XIV. Damage or Destruction................................................ 37
XV. Condemnation......................................................... 38
XVI. Indemnification...................................................... 41
XVII. Mortgage Subordination............................................... 45
XVIII. Signs .............................................................. 48
XIX. Conditional Limitations - Default Provisions......................... 49
XX. Surrender - Personal Property........................................ 55
XXI. Quiet Enjoyment...................................................... 56
XXII. Certificates......................................................... 56
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XXIII. Remedies - Waiver.................................................... 57
XXIV. Force Majeure........................................................ 58
XXV. Notices.............................................................. 59
XXVI. Broker .............................................................. 60
XXVII. Non-Liability of Landlord............................................ 61
XXVIII. Recording of Lease................................................... 62
XXIX. Holding Over......................................................... 62
XXX. Excavation of Adjoining Premises..................................... 63
XXXI. Miscellaneous........................................................ 64
XXXII. Termination Right.................................................... 65
XXXIII. Purchase Option...................................................... 66
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THIS LEASE, made as of the ___ day of July 1992 between ▇▇▇▇▇▇ STREET
CAPITAL CORPORATION, a Delaware corporation, with offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, hereinafter called "Landlord," and ▇.▇. ▇▇▇▇▇▇▇
COMPANY, a Minnesota corporation, with an address c/o Weksel Davies & Co., Inc.,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, hereinafter called "Tenant".
W I T N E S S E T H:
In consideration of the covenants, conditions and agreements
hereinafter contained, Landlord and Tenant mutually agree as follows:
ARTICLE I
Demised Premises - Term of Lease
Section 1.1. Demised Premises. Landlord hereby leases to Tenant and
Tenant hereby takes and hires from Landlord, subject to the terms of this Lease,
those two improved parcels of real property commonly known and designated as ▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇, and that single parcel of real property commonly known and
designated as ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, all of which are legally
described on Exhibit A attached hereto and made a part hereof, together with all
improvements situated, lying and being thereon and all related contract and
other intangible rights conveyed to Landlord pursuant to the Purchase and Sale
Agreement for Improved Real
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Property Between Tenant, as Seller, and Landlord, as Buyer, of even date
herewith (collectively, the "Demised Premises"); SUBJECT, HOWEVER, to the
matters set forth in Exhibit B annexed hereto and made a part hereof (the
"Permitted Title Exceptions").
Section 1.2. Term. Landlord leases the Demised Premises to Tenant for a
term of One Hundred Twenty (120) months plus the balance of the month in which
the Commencement Date occurs (referred to herein as the "Term") commencing the
date hereof (the "Commencement Date") and ending on July 31, 2002 (the
"Expiration Date"), unless sooner terminated as hereinafter provided.
ARTICLE II
Rent
Section 2.1. Basic Rent. Tenant shall pay Landlord an annual basic rent
during the Term (hereinafter called "Basic Rent") as follows:
(a) Commencing on the Commencement Date through and including July 31,
1995, Three Hundred Ninety-nine Thousand Nine Hundred Ninety-nine and 96/100
Dollars ($399,999.96), payable in equal monthly installments of Thirty-three
Thousand Three Hundred Thirty-three and 33/100 Dollars ($33,333.33) each.
(b) Commencing on August 1, 1995 through and including July 31, 1996,
Four Hundred Ninety-nine Thousand Nine Hundred Ninety-two Dollars ($499,992),
payable in equal monthly
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installments of Forty-one Thousand Six Hundred sixty-six Dollars ($41,666) each.
(c) Commencing on August 1, 1996 through and including the Expiration
Date, Six Hundred Twenty-four Thousand Nine Hundred Ninety-six Dollars
($624,996) per annum, payable in equal monthly installments of Fifty-two
Thousand Eighty-three Dollars ($52,083) each.
Tenant covenants and agrees to pay to Landlord all Basic Rent due
hereunder in lawful money of the United States in advance on the first day of
each calendar month during the term hereof, together with Additional Rent as
hereinafter set forth, without any deduction, offset or abatement whatsoever.
All amounts due from Tenant to Landlord under this Lease shall be paid by good
and sufficient check (subject to collection) to Landlord at the address set
forth on the first page of this Lease. The annual Basic Rent payable on account
of any partial calendar month during the term, if any, shall be prorated. On the
Commencement Date, Tenant shall make the Basic Rent payment due for that portion
of the month of July, 1992 occurring within the Term and for the month of
August, 1992.
Section 2.2. Net Lease. The parties intend that the Basic Rent shall
be paid to Landlord absolutely net and that except as otherwise expressly
provided herein, all costs, expenses and obligations of every kind and nature
whatsoever relating to the Demised Premises or the Tenant's use or occupancy
thereof accruing after the Commencement Date shall be
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paid by Tenant, including but not limited to real estate taxes, assessments,
water and sewer charges, utility charges and all other charges or expenses of
any nature whatsoever, and Tenant covenants and agrees to indemnify, defend and
hold harmless Landlord from and against all such costs, fees, expenses and
obligations, excluding, however, Landlord's income and franchise taxes.
Section 2.3. Additional Rent; Late Payment. In addition to Basic Rent,
all other payments to be made hereunder by Tenant to Landlord, and all payments
made by Landlord an behalf of Tenant, and all of Landlord's costs (including,
without limitation, reasonable attorneys' fees) incurred in connection with
enforcing this Lease shall be defined as and deemed for the purpose of securing
the collection thereof to be "Additional Rent" hereunder, whether or not
designated as such, and shall be due and payable as set forth herein; and
Landlord shall have the same rights and remedies upon Tenant's failure to pay
the same as for the non-payment of Basic Rent.
If Tenant shall fail to pay Basic Rent or any Additional Rent within
five (5) days after the same shall be due and same shall remain unpaid five (5)
days following notice from Landlord thereof ("Late Payment Notice"), Tenant
shall pay Landlord a service charge in an amount equal to 4% of the past due
payment of Basic Rent or Additional Rent, to reimburse Landlord for its
administrative and other cost and expenses incurred on account of Tenant's late
payment, and shall also
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pay Landlord interest on any such past due payment from the due date of such
Basic Rent or Additional Rent at a rate equal to the lesser of (i) four percent
(4%) above the prime rate as announced from time to time by Citibank, N.A. in
New York,, New York, or (ii) the highest legal rate of interest (the "Overdue
Rate"). If Tenant shall make any payment of Basic Rent or Additional Rent late,
so as to incur service and interest charges pursuant to the immediately
preceding sentence, two (2) times in any successive 12-month period during the
Term, from and after such second late payment interest on all future late
payments of Basic Rent or Additional Rent during the succeeding 12-month period
shall accrue from the due date and the service charge during the succeeding
12-month period shall be due and payable for any payment of Basic Rent or
Additional Rent paid more than five (5) days after the same shall be due
irrespective of whether Landlord gives Tenant a Late Payment Notice.
Landlord, at its election, shall have the right (but not the
obligation) after ten (10) days prior notice to Tenant (except for emergencies
or to prevent the loss of any interest of Landlord in the Demised Premises, in
which case no notice shall be necessary) to pay for or perform any act that
requires the expenditure of any sums of money by reason of the failure or
neglect of Tenant to perform any of the provisions of this Lease within the
period provided herein, and in the event Landlord shall at its election pay such
sums or perform such
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acts requiring the expenditure of moneys, Tenant shall reimburse and pay
Landlord, upon demand, all such reasonable sums together with interest at the
Overdue Rate, which shall be deemed for the purpose of securing the collection
thereof to be Additional Rent hereunder and payable by Tenant as such.
Section 2.5. No Setoff or Abatement. Except to the extent specifically
set forth in this Lease, no setoff against or abatement or reduction of rent,
charges or other compensation shall be claimed by or allowed to Tenant, or any
persons claiming under it, under any circumstances, whether for inconvenience,
discomfort, interruption of business, or otherwise, arising from the making of
alterations, changes, additions, improvements or repairs to the Demised Premises
or improvements located thereon by virtue or because of any present or future
governmental laws, ordinances, requirements, orders, directions, rules or
regulations or by virtue or arising from, and during, the restoration of the
Demised Premises after the destruction or damage thereof by fire or other cause
or the taking or condemnation of any portions thereof or arising from any other
cause or reason.
ARTICLE III
Use of Premises; Environmental Matters
Section 3.1. Use. Tenant shall not use the Demised Premises in
violation of applicable Requirements (as defined in Section 8.1).
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Except to the extent required in connection with the operation of the
Demised Premises and reasonable amounts of materials required in connection with
Tenant's present business activities at the Demised Premises (each of which
shall be stored, used, treated and disposed of in compliance with all
Environmental Laws), Tenant shall not and shall not permit any Subtenants to,
use any portion of the Demised Premises for the storage, treatment, disposal,
warehousing or distribution of any flammables, explosives, or radioactive
materials, asbestos-containing materials, hazardous or toxic materials,
gasoline, waste, or other petroleum products, soil or water pollution, hazardous
wastes, toxic substances, corrosive materials, potentially or allegedly
carcinogenic substances, substances alleged or believed to result in
reproductive toxicity, or similar substances or materials, including without
limitation, any substances or materials defined as hazardous, toxic or
environmentally unsafe under any governmental law, regulation or ordinance.
Tenant shall not, and shall not permit any subtenants to, commit any acts or
omissions which would give rise to liability under any Environmental Law. Tenant
will not suffer any act to be done or any condition to exist thereon or any part
thereof or any article to be brought thereon, which may be dangerous, unless
safeguarded as required by law, or which may, in law, constitute a nuisance,
public or private, or which may make void or voidable any insurance then in
force with respect thereto.
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Tenant will not use or allow the Demised Premises or any part thereof
to be used or occupied for any unlawful purpose or in violation of any
certificate of occupancy or certificate of compliance, if any, covering or
affecting the use of the Demised Premises or any part thereof.
ARTICLE IV
Taxes and Impositions
Section 4.1. Payment By Tenant. Except to the extent otherwise
provided in Section 4.2 hereof, Tenant covenants and agrees to pay all of the
following items: general and special real estate taxes and other taxes
(including without limitation, any personal property taxes, sales taxes, use
taxes, taxes based upon the receipt of rent and the like), assessments, water
and sewer rents, rates and charges, excises, levies, license and permit fees,
fines, penalties and other governmental charges and any interest or costs with
respect thereto, charges for any easement or agreement maintained for the
benefit of the Demised Premises, and charges for public and private utilities
(including, without limitation, gas, electricity, light, heat, air-conditioning,
power and telephone and other communication services), and any other federal,
state or local governmental charges, general and special, ordinary and
extraordinary, foreseen and unforeseen, and which during the Term may be
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assessed, levied, confirmed, imposed upon, or grow or become due and payable out
of or in respect of, or charged with respect to, or become a lien on the Demised
Premises, or the sidewalks or streets in front of or adjoining the Demised
Premises, or any other appurtenances of the Demised Premises, or any personal
property, equipment, systems or other facility used in the operation thereof, or
any use or occupancy thereof, or any document to which Tenant is a party
creating or transferring an interest or estate in the Demised Premises (all such
items being herein called "Impositions"); each such Imposition or installment
thereof during the term of this Lease to be paid not later than the day before
any fine, penalty, interest or cost may be added thereto or imposed by law for
the non-payment thereof. If, by law, any Imposition may at the option of the
taxpayer be paid in installments (whether or not interest shall accrue on the
unpaid balance of such Imposition), Tenant may exercise the option to pay the
same in such installments. Landlord covenants and agrees to: (A) give Tenant
prompt notice of the amount and payment due date of any Imposition following
Landlord's receipt of any notice thereof; and (B) cause any mortgagee of all or
any part of the Demised Premises to allow Tenant to pay Impositions in
installments.
Section 4.2. Exclusions. Nothing herein contained shall require Tenant
to pay municipal, state or federal income, inheritance, estate, succession,
transfer, or gift taxes of
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Landlord, or any corporate franchise tax imposed upon Landlord or any corporate
successor of Landlord.
Section 4.3. Apportionment. Any Imposition relating to a fiscal period
which includes both a period prior to the Commencement Date and a period
following the Commencement Date shall be paid in full by Tenant. Any imposition
relating to a fiscal period which includes both a period prior to the Expiration
Date and a period following the Expiration Date or earlier consensual
termination date shall be apportioned and adjusted between Landlord and Tenant
so that Landlord shall only be responsible in respect to that portion of such
Impositions which bears the same ratio to the full Impositions that the part of
the fiscal period which falls after the Expiration Date or earlier consensual
termination date bears to the entire fiscal period. The Tenant's responsibility
shall apply to the remainder of the Impositions.
Section 4.4. Right to Contest. Tenant shall have the exclusive right,
at its own expense, to contest the amount or validity, in whole or in part, of
any Imposition by appropriate proceedings diligently conducted in good faith,
but only after payment of such Imposition unless such payment would operate as a
bar to such contest or in Tenant's reasonable determination interfere materially
with the prosecution thereof, in which event payment of such Imposition shall be
postponed if, and only so long as:
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(1) neither the Demised Premises nor any part thereof would by reason
of such postponement or deferment be, in the reasonable judgment of Landlord, in
immediate danger of being forfeited or lost; and
(2) If requested by Landlord, Tenant shall have deposited with Landlord
the amount so contested and unpaid, together with all interest and penalties in
connection therewith, and all charges that may or might be assessed against or
become a charge on the Premises or any part thereof in such proceedings.
Upon the termination of any such proceedings, it shall be the
obligation of Tenant to pay the amount of such Imposition, or part thereof, as
finally determined in such proceedings, the payment of which may have been
deferred during the prosecution of such proceedings, together with any costs,
fees (including counsel fees), interest, penalties or other liabilities in
connection therewith, and, upon such payment, Landlord shall return, with
interest, any amount deposited with it with respect to such Imposition as
aforesaid, provided, however, that Landlord shall, if requested by Tenant,
disburse said moneys on deposit with it directly to the imposing authority to
whom such Imposition is payable. If, at any time during the continuance of such
proceedings, Landlord shall deem the amount deposited as aforesaid insufficient,
Tenant shall, upon demand, make an additional deposit as aforesaid of such
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additional sums as Landlord may reasonably request, and upon failure of Tenant
so to do, the amount theretofore deposited may be applied by Landlord to the
payment, removal and discharge of such Imposition, and the interest and
penalties in connection therewith and any costs, fees (including counsel fees)
or other liability accruing in any such proceedings, and the balance, if any,
shall be returned to Tenant and the deficiency, if any, shall be paid by Tenant
to Landlord on demand.
Section 4.5. Refunds. Tenant shall have the exclusive right to seek a
reduction in the valuation of the Demised Premises assessed for tax purposes and
to prosecute any action or proceeding in connection therewith. Tenant shall be
authorized to collect any tax refund of any tax paid by Tenant obtained by
reason thereof and to retain the same subject to Tenant's obligation to pay to
Landlord its pro-rata share thereof pursuant to the provisions of Section 4.3
hereof.
Section 4.6. Joining In Proceedings. Landlord shall not be required to
join in any proceedings referred to in Sections 4.4 or 4.5 hereof unless the
provisions of any law, rule or regulation at the time in effect shall require
that such proceedings be brought by and/or in the name of Landlord or any owner
of the Land, in which event Landlord shall join in such proceedings or permit
the same to be brought in its name. Landlord shall not ultimately be subject to
any liability for the payment of any costs or expenses in connection with any
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such proceedings, and Tenant will indemnify and save harmless Landlord from any
such costs and expenses.
Section 4.7. Landlord's Cooperation. Landlord agrees that whenever
Landlord's cooperation is required in any of the proceedings brought by Tenant
as aforesaid, Landlord will reasonably cooperate therein, provided same shall
not entail any cost or expense to Landlord.
Section 4.8. Evidence of Non-Payment. Any certificate, advice or ▇▇▇▇
of the appropriate official designated by law to make or issue the same, or to
receive payment of any Imposition, of non-payment of such Imposition, shall be
prima facie evidence that such Imposition is due and unpaid at the time of the
making or issuance of such certificate, advice or ▇▇▇▇, at the time or date
stated therein.
ARTICLE V
Insurance
Section 5.1. Tenant's Insurance. (a) Tenant at its sole cost and
expense shall procure and maintain in full force and effect throughout the term
of this Lease general comprehensive public liability insurance (including
automobile liability insurance) against claims for bodily injury, death and/or
property damage occurring upon, in, about or adjacent to the Demised Premises or
on, in or about any easement or appurtenances or any part thereof. All such
insurance shall be
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written an any "occurrence" basis and shall include (without limiting the
generality of the foregoing) coverage for continual or repeated exposure to
conditions which result in bodily injury or property damage neither expected nor
intended from the standpoint of the insured. All such insurance shall afford
protection to the limit of not less than $5,000,000 with respect to bodily
injury or death to any one person and to the limit of not less than $2,000,000
for damage to property. The foregoing limits shall be increased in the event
that Landlord, in its reasonable judgment, shall determine that the amounts of
insurance are inadequate to pay any claims that may be brought under the
foregoing policies.
(b) During the Term, Tenant shall keep all Improvements insured against
loss or damage by an "all-risk" insurance policy insuring against risks usually
covered by insurance policies carried by institutional owners for similarly
situated properties similar to the Demised Premises (including earthquake, fire,
lightning, windstorm, tornado, hail, explosion, riot and civil commotion and
other casualties usually covered by customary extended coverage) in a minimum
amount equal to their "full replacement value". The term "full replacement
value" as used herein shall mean one hundred (100%) of the actual replacement
cost, including debris removal, exclusive, however, of cost of excavation,
foundation and footings below the basement floor. Such full replacement value
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shall be ascertained from time to time at Tenant's expense (but not more
frequently than once during any two (2) year period) at the request of Landlord,
by the insurance carrier then insuring the Improvements or, at Landlord's
option, by an independent appraiser who shall be acceptable to Landlord. Tenant
shall also maintain steam boiler and machinery insurance, with limits of not
less than $1,000,000, if there is a boiler or pressure object or similar
equipment in the Demised Premises.
(c) All insurance policies shall provide that (1) Landlord (including
any single managing agent, from time to time, of the property constituting the
Demised Premises) and Tenant are additional or named insureds, as applicable,
and upon request of Landlord, the holders of any mortgages and the lessors under
any ground or underlying leases affecting the Building shall be added as
additional insureds; and (2) such policies will not be cancelled or materially
changed without at least thirty (30) days' prior written notice to Landlord and
the holders of any mortgages and the lessors under any ground or underlying
leases. The Tenant shall use all reasonable best efforts to obtain insurance
policies which shall provide that: (1) the interest of the Landlord shall be
insured regardless of any breach or violation by Tenant of any warranties,
declarations or conditions contained in such policies; (2) the interest of the
Landlord therein shall not be invalidated by
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the use or operation of the Demised Premises for purposes which are not
permitted by such policies, nor by any foreclosure or other proceedings relating
to the Demised Premises, nor by change in title to or ownership of the Demised
Premises; and (3) if any premium or installment is not paid when due, or if such
insurance would lapse or be cancelled, terminated or materially changed for any
reason whatsoever, the insurers will promptly notify Landlord and any such
lapse, cancellation, termination or change shall not be effective as to the
Landlord for thirty days after receipt of such notice and the insurers shall
permit Landlord to pay such premium or installment. Appropriate certification
shall be made to the Landlord by each insurer with respect to the foregoing
matters. Any such insurance may be carried under blanket policies maintained by
the Lessee so long as such policies otherwise comply with the provisions of this
Article V. Such policies are to be written by a company having a general policy
holder's rating or equivalent of not less than A and a rating or equivalent in
financial size of Category X as rated in the most current "Best's" insurance
reports and authorized and licensed to issue such policies in the State where
the Demised Premises is located. Tenant shall deliver to Landlord certificates
of insurance and proof of full payment of the premiums therefor on the
Commencement Date of this Lease. At all times during the term of this Lease when
any insurance policy is obtained or renewed, Tenant shall deliver to Landlord
certificates of all
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insurance required hereunder and proof that same have been fully paid for and
are in full force and effect. On any default by Tenant in obtaining or
delivering any such policy or policies or failure to pay the charges therefor,
then Landlord (on not less than three (3) business days' notice to Tenant
unless the Demised Premises would become uninsured prior to the expiration of
such three (3) business day period), in addition to its other rights and
remedies, may secure or pay the charges for any such certificates, and Tenant
shall pay to Landlord as Additional Rent all sums expended by Landlord therefor.
(d) No act shall be done in or about the Demised Premises that causes a
cancellation of any insurance policy covering the Building or any part thereof
or any of its contents. Tenant shall not, without the prior written consent of
Landlord, use any apparatus, machinery or device in or about the Demised
Premises that will overload the Building or any portion thereof.
(e) The insurance required under Section 5.1 may be effected under a
blanket policy or policies covering the Demised Premises and other property and
assets not constituting a part of the Demised Premises, provided that any such
blanket policy shall, in any case, comply in all other respects with the
requirements of this Article V and provided further that such policy(ies) shall
provide for a reserved amount thereunder (as evidenced by certificate(s) of
insurance delivered to Landlord hereunder on the Commencement Date) with respect
to
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the Demised Premises so as to assure that the amount of insurance required by
this Section 5.1(b) will be available notwithstanding any losses with respect to
other properties or assets covered by such blanket policy(ies).
Section 5.2. Waiver of Subrogation. Landlord and Tenant hereby each
release the other party, and such other party's shareholders, agents, employees,
officers, directors and authorized representatives, from any claims such
releasing party may have for personal injury or death, damage to the Demised
Premises, personal property, improvements and alterations of either party in or
about the Demised Premises, to the extent any such liability is covered by any
fire, casualty or other policy of insurance insuring such party or all or any
part of the Demised Premises. Landlord and Tenant shall each cause their
respective insurance policies required to be carried under this Lease to provide
that the insurer waives all right to recovery by way of subrogation against the
other, its shareholders, agents, employees, officers, directors and authorized
representatives.
Section 5.3. Primary Coverage. All insurance required under this Lease
shall be primary as to Landlord and in the event of loss shall be
non-contributing with any other insurance maintained by Landlord.
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ARTICLE VI
Right to Perform Covenants of Tenant
Section 6.1. Landlord's Performance. If Tenant shall at any time fail
to perform any act on its part to be performed hereunder, then within ten (10)
days after service of notice by Landlord (except in the case of an emergency, in
which case no advance notice shall be required), Landlord may, but shall not be
obligated to, may make any other payment or perform any other act on the part of
Tenant to be made and performed as provided in this Lease, in such manner and to
such extent as Landlord may reasonably deem desirable, and in exercising any
such rights, to pay necessary and incidental costs and expenses, employ counsel
and incur and pay reasonable attorneys' fees. All sums so paid by Landlord and
all necessary and incidental costs and expenses in connection with the
performance of any such act by Landlord, together with interest thereon at the
Overdue Rate from the date of the making of such expenditure by Landlord, shall
be deemed Additional Rent hereunder and, except as otherwise in this Lease
expressly provided, shall be payable to Landlord an demand.
ARTICLE VII
Repairs and Maintenance
Section 7. 1. Tenant's Repairs. Tenant has leased the Demised Premises
from Landlord after a full and complete
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examination of its physical condition, as well as the title thereto and
knowledge of its present uses and the uses permitted and not permitted under the
provisions of this Lease or under applicable laws. Tenant accepts the Demised
Premises in the condition or state in which it now is without any representation
or warranty, express or implied, in fact or by law, by Landlord and without
recourse to Landlord, as to the title thereto, the nature, physical condition or
usability thereof or the use or uses to which the Demised Premises or any part
thereof may be put. Except as otherwise provided in the immediately following
paragraph, Landlord shall not be required to furnish any services or facilities
or to make any repairs or alterations in or to the Demised Premises at any time
during the Term and Tenant hereby assumes the full and sole responsibility for
the condition, construction, operation, repair, demolition, replacement,
maintenance and management of the Demised Premises, including but not limited to
the performance of all burdens running with the Land as of the date hereof.
Tenant, at its sole cost and expense, shall take good care of the
Demised Premises and shall keep the same in good order and condition, and shall
make all structural and non-structural repairs of any nature whatsoever,
interior and exterior, ordinary as well as extraordinary, foreseen as well as
unforeseen. Notwithstanding the foregoing, Landlord shall
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make all repairs or replacements of any nature whatsoever required to the
Demised Premises and any improvements constructed thereon if necessitated solely
by reason of the gross negligence or intentional acts of Landlord, or its
employees, officers, invitees, contractors or agents. If Landlord shall be
required to make any repairs or replacements to the Demised Premises pursuant to
the immediately preceding sentence, Landlord shall promptly commence such work
following notice of the need therefor, and diligently prosecute same to
completion, subject, however, to the provisions of Section 24.1 hereof. All
repairs and replacements made by Tenant shall be at least equal in quality and
class to the original work, and Tenant shall use only new building supplies or
materials. With respect to any act, operation, omission, or condition that may
be out of compliance with, in violation of, or otherwise giving rise to
liability or potential liability under any Environmental Law, Tenant shall, and
shall cause its Subtenants to, implement all measures necessary or required to
eliminate such act, operation, omission or condition as a source of liability or
potential liability.
Tenant shall keep and maintain all portions of the Demised Premises
adjoining the same in a clean and orderly condition and shall keep all sidewalks
and parking areas part of or adjoining the Demised Premises free of
accumulations of dirt, rubbish, snow and ice. All improvements and alterations
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and all equipment and fixtures made or installed by the Tenant (excluding
Tenant's movable fixtures and trade equipment) shall immediately upon completion
or installation thereof be and become the property of Landlord without payment
therefor by Landlord, and shall be surrendered to Landlord upon the expiration
of this Lease. Notwithstanding the immediately preceding sentence, Tenant shall
have the right from time to time or at the end of the Term to remove any of
Tenant's trade fixtures, provided Tenant repairs any damage to the Demised
Premises resulting therefrom. Tenant shall at its own expense procure, maintain
in effect, and comply with all conditions of any and all permits, licenses, and
other governmental and regulatory approvals required for Tenant's use of the
Premises, including, without limitation, discharge of (appropriately treated)
materials or wastes into or through any storm drains or sewers serving the
Demised Premises. Except as discharged into the storm drains or sewer in strict
accordance and conformity with all applicable Environmental Laws, Tenant shall
cause any and all Hazardous Material (as hereinafter defined) removed from the
Demised Premises to be removed and transported solely by duly licensed haulers
to duly licensed facilities for final disposal of such materials and wastes.
Upon expiration or earlier termination of the term of the Lease, Tenant shall
cause all Hazardous Materials to be removed from the Demised Premises and to be
transported for use, storage, or disposal in
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accordance and compliance with all applicable Environmental Laws; provided,
however, that Tenant shall not take any remedial action in response to the
presence of any Hazardous Material in or about the Demised Premises, nor enter
into any settlement agreement, consent decree, or other compromise in respect to
any claims relating to any Hazardous Material in any way connected with the
Demised Premises without first notifying Landlord of Tenant's intention to do so
and affording Landlord ample opportunity to appear, intervene, or otherwise
appropriately assert and protect Landlord's interest with respect thereto.
Landlord agrees to promptly respond to any request made by Tenant pursuant to
the preceding sentence.
Section 7.2. "As Is". Landlord shall not be required to furnish any
service or facilities or to make any repairs or alterations in or to the Site.
Tenant hereby takes same "as is" and assumes the full and sole responsibility
for the condition, operation, repair, replacement, appearance, maintenance and
management thereof. Landlord shall have no liability to Tenant, nor shall
Tenant's covenants and obligations under this Lease be reduced or abated in any
manner whatsoever, by reason of any inconvenience, annoyance, interruption on
injury to business arising from Landlord's making any repairs or changes which
Landlord is required or permitted by this Lease, or required by law, to make in
or to any portion of the Site or Improvements, unless due solely to Landlord's
gross negligence.
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ARTICLE VIII
COMPLIANCE WITH ORDERS AND ORDINANCES
Section 8.1. Compliance. Tenant shall at all times and in all respects
comply with all Environmental Laws. Tenant, at its sole cost and expense, shall
promptly comply with all present and future laws, ordinances, orders, rules,
regulations and requirements of all federal, state, country and municipal
governments and appropriate departments, commissions, boards and officers
thereof, and the orders, rules and regulations of the local Board of Fire
Underwriters, or any other body exercising similar functions, foreseen or
unforeseen, ordinary as well as extraordinary, and whether or not the same
require structural repairs or alterations, which may be applicable to the
Demised Premises, the sidewalks, curbs and vaults, if any, adjoining the Demised
Premises or to the use or manner of use of the Demised Premises (collectively,
"Requirements"). Tenant shall likewise observe and comply with the requirements
of all policies of public liability, fire and all other policies of insurance at
any time in force with respect to the Demised Premises.
Section 8.2. Protest. Tenant shall have the right, following ten (10)
days' prior written notice to Landlord (unless such time delay shall prejudice
Tenant's right to contest), to contest by appropriate legal proceedings
prosecuted diligently and in good faith, without cost or
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expense to Landlord, the validity or application of any Requirements. If
compliance therewith may legally be held in abeyance without incurring any lien,
charge, or liability of any kind that could result in loss of title to the
Demised Premises or Tenant's leasehold interest in the Demised Premises, and
without subjecting Tenant or Landlord or their respective employees, officers,
directors or shareholders to any criminal liability of whatever nature for
failure to comply therewith, Tenant may postpone compliance therewith until the
final determination of any such proceedings, provided that all such proceedings
shall, in Landlord's reasonable judgment, be prosecuted with all due diligence
and dispatch. Before commencement of any contest or challenge by Tenant, Tenant
shall indemnify Landlord against all liability for damages, interest, penalties
and expenses (including reasonable attorneys' fees and expenses), resulting from
or incurred in connection with such contest or non-compliance. Tenant shall not
stay its compliance with any Requirement if such non-compliance or contest shall
result in or constitute a default under any institutional mortgage of the fee of
the Demised Premises. Tenant shall keep Landlord apprised of the status of any
such proceedings.
Before commencement of any contest or challenge by Tenant, upon request
by Landlord Tenant shall procure and deliver to Landlord, at Tenant's expense,
either (i) the bond of a surety company satisfactory to Landlord, which bond
shall
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be in form and substance satisfactory to Landlord, and shall be in an amount at
least equal to one hundred percent (100%) of the cost of compliance (as
estimated by a reputable contractor designated by Landlord), and shall indemnify
Landlord against the cost thereof and against all liability for damages,
interest, penalties and expenses (including reasonable attorneys' fees and
expenses), resulting from or incurred in connection with such contest or
non-compliance, or (ii) other security satisfactory to Landlord in its sole
discretion, the interest on which shall be paid to Tenant if the security
remains intact.
ARTICLE IX
Changes and Alterations
Section 9.1. Consent Required. Tenant shall make no alteration, change
or addition, structural or otherwise (whether or not Tenant is required by law
or this Lease to make same), to the Demised Premises without the prior written
consent of the Landlord, which consent shall not be unreasonably withheld with
respect to non-structural alterations. Tenant, however, shall not be required
to obtain Landlord's consent prior to the installation of Tenant's trade
fixtures or operating equipment or Tenant alterations, changes or improvements
which do not have an aggregate cost (with respect to any series of related
improvements) exceeding
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$25,000 and which do not materially affect the Improvements' structure, systems
or exterior aesthetics. Prior to the installation of any alterations as to which
Landlord's consent is required, Tenant shall submit to Landlord any relevant
space plans and mechanical drawings of the proposed alterations as well as
updates on the work in progress, and "as-built" plans and specifications upon
completion. Alterations shall be diligently performed in a good and workmanlike
manner, using new materials and equipment at least equal in quality and class to
original installations of the Demised Premises. Alterations requiring Landlord's
consent shall be performed by contractors first reasonably approved in writing
by Landlord.
Prior to making any repairs requiring Landlord's consent and requesting
Landlord's consent thereto, change or addition, Tenant shall deliver to Landlord
(a) detailed plans, specifications of the proposed repair or alteration and an
itemized estimate of cost; (b) the written consent of the holders of any
institutional mortgage to which this Lease may be subordinate, when such consent
is required by the terms of any such mortgage: (c) the written consent, if
required, of any issuer of any fire, liability or other insurance required to be
maintained hereunder to keep such policies in full force and effect; and (d) all
necessary permits and certificates for the commencement and prosecution of
permitted alterations and for final approval thereof.
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Section 9.2. Insurance. In connection with any work of any nature
performed to the Demised Premises by Tenant, the contractors employed or
retained by Tenant for any alteration, change or addition shall and will take
out and carry, at their own cost and expense, full workmen's compensation
insurance with respect to any work upon such repairs, alteration, change or
addition, as well as any other insurance as may then be required by law, and the
original policies for such workmen's compensation and other insurance, and
certificates thereof naming Landlord as insured, shall be delivered to Landlord
prior to commencement of any work and, on request, at reasonable intervals
thereafter during the work and shall refer specifically to such alterations.
During the performance of any alterations the estimated cost of which exceeds
$10,000, Tenant shall maintain "all risk-builder's risk" insurance and such
other insurance customarily obtained by prudent persons in connection with the
construction of alterations. Prior to commencing any such alterations, Tenant
shall deliver to Landlord a certificate from the insurance carrier for the
afore-described insurance, showing Landlord as named insureds and evidencing
that the required insurance is in full force and effect and the premiums
therefor are fully paid.
Section 9.3. Bond. Before proceeding with any repairs or any permitted
alteration that will cost more than One Hundred Thousand Dollars ($100,000) as
estimated by a
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reputable contractor designated by Landlord, Tenant shall obtain and deliver to
Landlord either (i) a performance bond and a labor and materials payment bond
(issued by a corporate surety licensed to do business in the state where the
Demised Premises is located), each in an amount equal to one hundred twenty-five
percent (125%) of such estimated cost and in form reasonably satisfactory to
Landlord, or (ii) such other security as shall be reasonably satisfactory to
Landlord, the interest on which shall be paid to Tenant, if the security remains
intact.
ARTICLE X
Discharge of Liens
Section 10.1. Liens Prohibited. Tenant will not create or permit to
be created or to remain, and will discharge, any lien, encumbrance or charge
levied on account of any Imposition or any mechanic's, laborer's or
materialman's or environmental lien or any mortgage, conditional sale, title
retention agreement or chattel mortgage, or otherwise) which might be or become
a lien, encumbrance or charge upon the Demised Premises or any part thereof or
the income therefrom. Tenant will not suffer any other matter or thing whereby
the estate, rights and interest of Landlord in the Demised Premises or any part
thereof might by impaired; provided that any Imposition may, after the same
becomes a lien on the Demised
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Premises, be paid or contested in accordance with Article IV hereof and any
mechanic's, laborer's or materialman's lien may be discharged in accordance with
Section 10.2 hereof.
Section 10.2. Mechanic's Liens. If any mechanic's, laborer's or
materialman's lien shall at any time be filed against the Demised Premises or
any part thereof, Tenant, within twenty (20) days of the notice of the filing
thereof, will cause the same to be discharged of record by payment, deposit,
bond or order of a court of competent jurisdiction. If Tenant shall fail to take
action as required herein within the period aforesaid, then, in addition to any
other right or remedy, Landlord may, but shall not be obligated to, discharge
the same either by paying the amount claimed to be due or by procuring the
discharge of such lien by deposit or by bonding proceedings, and in any such
event Landlord shall be entitled, if Landlord so elects, to compel the
prosecution of an action for the foreclosure of such lien by the lienor and to
pay the amount of the judgment in favor of the lienor with interest, costs and
allowances. Any amount so paid by Landlord and all costs and expenses incurred
by Landlord in connection therewith, together with interest thereon at the
Overdue Rate from the respective dates of Landlord's making of the payment or
incurring of the cost and expense, shall constitute Additional Rent payable by
Tenant under this Lease and shall be paid by Tenant to Landlord on demand.
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Section 10.3. No Consent by Landlord. Nothing contained in this Lease
shall be deemed or construed in any way as constituting the consent or request
of Landlord, express or implied, by inference or otherwise, to any contractor,
subcontractor, laborer or materialman for the performance of any labor or the
furnishing of any materials for any specific improvement, alteration to or
repair of the Demised Premises or any part thereof, nor as giving Tenant any
right, power or authority to contract for or permit the rendering of any
services or the furnishing of any materials that would give rise to the filing
of any lien against the Demised Premises or any part thereof.
ARTICLE XI
Access to Premises by Landlord
Section 11.1. Landlord's Access. Landlord and its authorized
representatives shall have the right to enter the Demised Premises at all
reasonable times on reasonable advance notice (except in the case of an
emergency in which case no notice shall be required) for the purpose of:
(a) Inspecting the same.
(b) Making any repairs, alterations, additions or improvements in or to
the Demised Premises required to be made by Landlord pursuant to Section 7.1
hereof. Landlord shall be entitled to take such materials into and upon the
Demised
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Premises that may be required in connection therewith, without any liability to
Tenant and without any reduction of Tenant's obligations hereunder.
(c) Exhibiting the Demised Premises for the purposes of sale or
mortgage or, during the final two years of the Term, lease.
Section 11.2. Re-entry. If Tenant has removed substantially all of its
property from and abandoned the Demised Premises at any time during the last
twelve (12) months of the Term, Landlord may from and after such twelve (12)
month date, with twenty (20) days' notice to Tenant (during which time Tenant
does not dispute the fact that it has abandoned the Demised Premises), enter the
Demised Premises and alter, renovate or decorate the same without liability to
Tenant and without reducing or otherwise affecting Tenant's obligations
hereunder.
ARTICLE XII
Assignment and Subletting
Section 12.1. Assignment. Tenant may not assign this Lease without the
prior written consent of Landlord, which consent may be withheld or delayed in
Landlord's sole discretion (except in connection with the sale, merger or
reorganization of all or substantially all of Tenant's assets occurring after
the 60th month of the Term provided that after
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such sale, merger or reorganization of the successor has a net worth computed in
accordance with generally accepted accounting practices at least equal to the
net worth of Tenant as of the Commencement Date, in which case such consent
shall not be unreasonably withheld). Notwithstanding any such consent, no
assignment of this Lease shall be valid or effective unless:
(a) At the time of the assignment, this Lease is in full force and
effect and Tenant is not in default hereunder beyond applicable notice and cure
periods.
(b) The assignment is duly executed and acknowledged, in proper form
for recording, and an executed counterpart thereof shall be delivered to
Landlord together with Tenant's request for Landlord's consent to the
assignment.
(c) The assignee unconditionally assumes, in the instrument of
assignment, the due performance and observance of all of the terms, covenants
and conditions of Tenant under this Lease to be performed and observed from and
after the effective date of the assignment.
Any assignment which violates any provision of this Section 12.1 shall
be deemed a prohibited assignment and as such, shall be null and void.
Notwithstanding the assignment of this Lease in accordance with the
foregoing, Tenant shall remain liable at all times for the performance of all
terms and obligations imposed on Tenant under the Lease with the same force and
effect as though there had been no assignment.
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Section 12.2. Sublease. Tenant shall not sublet all or any part of the
Demised Premises without the prior written consent of Landlord, which consent
may be withheld or delayed in Landlord's sole discretion. Notwithstanding the
immediately preceding sentence, Landlord agrees not to unreasonably withhold its
consent to a sublet of all or part of the Demised Premises to an Affiliate (as
hereinafter defined) of Tenant. As used herein, "Affiliate" shall mean: (i) any
entity that directly or indirectly controls, is controlled by, is under common
control with, or owns a fifty percent (50%) or greater interest in, Tenant; (ii)
any entity in which Tenant owns a fifty percent (50%) or greater interest,
either directly or indirectly, or (iii) any entity which has acquired all or
substantially all of the assets of Tenant by merger, consolidation, purchase or
other transfer. Tenant shall have the right to sublet any portion of the Demised
Premises without Landlord's consent to any entity they may purchase a division
of Tenant provided that such sublease relates only to that portion of the
Demised Premises then being used by such division, Tenant shall remain primarily
liable under this Lease with respect to the sublet portion of the Demised
Premises, and Tenant shall give Landlord written notice of such sublease within
ten (10) days of its effective date, together with a copy of the sublease
agreement. Notwithstanding such consent or any sublease not requiring Landlord's
consent pursuant to
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the immediately preceding sentence, however, no sublease shall be valid or
effective unless:
(a) At the time of such sublease, this Lease is in full force and
effect and Tenant is not in default hereunder beyond applicable notice and cure
periods.
(b) The sublease is duly executed and acknowledged and an executed
counterpart thereof is delivered to Landlord together with Tenant's request for
Landlord's consent to the sublease.
(c) Any sublease and any renewal, extension or modification thereof
shall contain a provision (self-operative and without further instruments of
subordination) that it is subject and subordinate to (i) this Lease and any
amendments or modifications hereof, and (ii) any and all mortgages to which this
Lease is or may in the future be subject, or which are now or may hereafter
become a lien upon the Demised Premises, and to all renewals, modifications,
consolidations, replacements and extensions thereof.
Any sublease which violates any provision of this Section 12.2 shall be
deemed a prohibited sublet and as such, shall be null and void. Landlord hereby
approves the present Sublease in effect for a portion of the Demised Premises
with Enscan, Inc. dated February 28, 1992.
Section 12.3. Consideration Due Landlord.
(a) Notwithstanding anything in this Lease to the contrary, if this
Lease is assigned or the Demised Premises
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sublet to any person or entity pursuant to the provisions of the Bankruptcy
Code, 11 U.S.C. Section 101 et seq. (the "Bankruptcy Code"), any and all monies
or other consideration payable or otherwise to be delivered in connection
therewith shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of Tenant or of
the estate of Tenant within the meaning of the Bankruptcy Code. Any and all
monies or other considerations constituting Landlord's property under the
preceding sentence not paid or delivered to Landlord shall be held in trust for
the benefit of Landlord and be promptly paid or delivered to Landlord. Any
person or entity to which this Lease is assigned or the Demised Premises sublet
pursuant to the provisions of the Bankruptcy Code shall be deemed without
further act or deed to have assumed all of the obligations arising under this
Lease on and after the date of such assignment or subleasing. Any such assignee
or sublessee shall upon demand execute and deliver to Landlord an instrument
confirming such assumption.
(b) Adequate assurance of future performance by an assignee expressly
permitted under the Bankruptcy Code shall be deemed to mean the deposit of cash
or an unconditional letter of credit from a commercial bank in an amount equal
to twelve (12) months' Basic Rent plus an amount equal to all Additional Rent
paid or payable by Tenant for the twelve (12) months
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preceding the year in which the assignment is intended to be effective, which
deposit shall be held by Landlord for the balance of the Term, without interest,
as security for the full performance of all of Tenant's obligations under this
Lease.
ARTICLE XIII
No Waste
Section 13.1. No Waste. Tenant will not suffer, permit or commit any
waste or damage, nuisance, disfigurement or injury to the Demised Premises.
ARTICLE XIV
Damage or Destruction
Section 14.1. Damage or Destruction.
(a) In the event of any casualty resulting in damage or destruction to
the Demised Premises Tenant shall promptly give written notice thereof to
Landlord.
(b) In the event that, at any time during the Term, the Demised
Premises shall be destroyed or damaged by virtue of an event which is within the
coverage of the "all risk" or other insurance policies required to be carried by
Tenant in accordance with the terms of this Lease (an "insurable casualty"),
then Tenant at its own cost and expense (and regardless of the sufficiency of
the insurance proceeds) shall cause the same to be repaired, rebuilt, restored
and replaced
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(collectively, the "restoration") as soon thereafter as reasonably possible to
the same (or similar) condition existing immediately prior thereto.
Section 14.2. Uninsurable Casualty. In the event that at any time
during the Term the Demised Premises shall be destroyed by virtue of an event
which is not an insurable casualty, Tenant shall make restoration at Tenant's
sole cost and expense (and notwithstanding that there are no insurance proceeds)
pursuant to the provisions of Section 14.1 and Article IX.
Section 14.3. No Surrender. No destruction of or damage to the Demised
Premises or any part thereof by fire or any other casualty shall permit Tenant
to surrender this Lease or relieve Tenant from its liability to pay the full
Basic Rent, Additional Rent and other charges payable under this Lease or from
any of its other obligations hereunder, and Tenant waives any rights now or
hereafter conferred upon it by statute or otherwise to quit or surrender this
Lease or the Demised Premises or any part thereof, or to any suspension,
diminution, abatement or reduction of Basic Rent and Additional Rent on account
of any such destruction or damage.
Section 14.4. Environmental. With respect to any liability or alleged
liability arising under any Environmental Law, Tenant shall give and shall cause
its Subtenants to give, timely and proper notice and shall undertake any other
measures
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42
necessary to ensure that it obtains any indemnification, defense, contribution
or reimbursement that may be available for such liability or alleged liability.
ARTICLE XV
Condemnation
Section 15.1. Awards. In the event that the Demised Premises, or any
part thereof, shall be taken in condemnation proceedings or by exercise of any
right of eminent domain, Landlord shall be entitled to collect from any
condemnor the entire award that may be made in any such proceedings, without
deduction therefrom for any estate hereby vested in or owned by Tenant. Except
as set forth below, no such condemnation shall affect or diminish any of
Tenant's obligations under this Lease. Tenant shall execute any and all further
documents that may be required in order to facilitate collection by Landlord of
any and all such awards. Tenant, in cooperation with Landlord, shall have the
right to appear in any condemnation proceedings for the purposes of protecting
Tenant's interest hereunder provided Tenant's appearance does not reduce or
diminish Landlord's award.
Section 15.2. Taking. If less than all or substantially all, but more
than 25% of the aggregate improved acreage of the Demised Premises shall be
taken in condemnation or by right of eminent domain (a "Condemnation"), and as a
result thereof Tenant reasonably determines that it will be
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unable to operate within the Demised Premises notwithstanding Landlord's work to
restore the remainder of the Demised Premises to a complete architectural unit,
Tenant may terminate this Lease by written notice delivered to Landlord not
later than thirty (30) days following the vesting of title in the condemning
authority. Time shall be of the essence with respect to said 30-day period. If
this Lease is not terminated by Tenant as herein provided, all of the net award
(less Landlord's reasonable expenses in recovering same) received by Landlord
shall be used to make a complete architectural unit of the Demised Premises.
Section 15.3. Adjustment of Rent. If a portion of the Demised Premises
shall be taken in a Condemnation, and this Lease shall continue, then Basic Rent
and Additional Rent, from and after the date of vesting of title in the
condemnor of the part so taken, shall be adjusted to a just and appropriate
Basic Rent and Additional Rent, according to the nature and extent of the
taking. If the parties, within sixty (60) days from the date of such vesting of
title, cannot agree to, or arrive at, the new Basic Rent and Additional Rent,
the issue with-respect thereto shall be submitted for arbitration by one
arbitrator acceptable to both Landlord and Tenant pursuant to the rules of the
American Arbitration Association, or if not in existence, any successor entity,
and Basic Rent and Additional Rent so fixed shall thereupon become the Basic
Rent and
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Additional Rent payable hereunder by Tenant for the balance of the term of this
Lease. If Landlord and Tenant are unable to agree upon a single arbitrator in
accordance with the immediately preceding sentence, Landlord and Tenant shall
each select a single arbitrator who shall then appoint a third arbitrator who
shall determine the new Basic Rent and Additional Rent. Pending final resolution
of the adjusted Basic Rent and Additional Rent, Tenant shall continue to pay the
full Basic Rent and Additional Rent payable hereunder had no Condemnation
occurred; provided, however, that after such determination, Landlord shall
credit (or, if the Term shall end prior to such credit being applied, repay)
Tenant against Basic Rent and Additional Rent then coming due with an amount
equal to the excess of any Basic Rent and Additional Rent paid by Tenant for
such period over the amount of the Basic Rent and Additional Rent for such
period as so reduced.
ARTICLE XVI
Indemnification
Section 16.1. Indemnity. Tenant will indemnify and save harmless
Landlord, its employees, officers, directors, agents, representatives and
shareholders, against and from all liabilities, obligations, damages, penalties,
claims, costs, charges and expenses, including attorneys' fees, which may be
imposed upon or incurred by or asserted against any of such
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indemnified parties by reason of any of the following occurring during the term
of this Lease;
(a) any work or thing done in, on or about the Demised Premises, or any
part thereof, which is the obligation of Tenant;
(b) any use, non-use, possession, occupation, condition, operation,
maintenance or management of the Demised Premises or any part thereof or any
street, alley, sidewalk, curb, vault, passageway or space adjacent thereto;
(c) any negligence on the part of Tenant or any of its agents,
contractors, servants, employees, sub-tenants, licensees or invitees;
(d) any accident, injury or damage to any person or property occurring
in, or on the Demised Premises or any part thereof or any street, alley,
sidewalk, curb, vault, passageway or space adjacent thereto;
(e) any failure on the part of Tenant to perform or comply with any of
the covenants, agreements, terms or conditions contained in this Lease, or any
sublease, on its part to be performed or complied with; and
(f) any Environmental Liability (as hereinafter defined).
In case any action or proceeding is brought against Landlord by reason
of any such claim, Tenant upon written notice from Landlord will at Tenant's
expense resist or defend such action or proceeding by counsel approved by
Landlord in
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writing, such approval not to be unreasonably withheld. Any indemnification by
Tenant herein may be met by insurance maintained by Tenant for such purposes.
The foregoing indemnity shall survive the expiration or earlier termination of
the Term of this Lease.
The term "Environmental Liability" shall mean any and all losses,
liabilities, obligations, penalties, claims, litigation, demands, defenses,
costs, judgments, suits, proceedings, damages (including consequential and
punitive damages), disbursements or expenses of any kind or nature whatsoever
(including attorneys' fees and disbursements and expenses incurred in
investigating, defending against or prosecuting any litigation, claim or
proceeding) which may at any time be imposed upon, incurred by or asserted or
awarded against Landlord, as applicable, or any other Indemnitee in connection
with or arising from (a) the presence in, on, under, or about the Demised
Premises, or any discharge or release in or from the Demised Premises of any
Hazardous Material (as hereinafter defined) or Tenant's use, analysis, storage,
transportation, disposal, release, threatened release, discharge, or generation
of any Hazardous Material to, in, on, under, about, or from the Demised Premises
(including, without limitation, the groundwater or any surrounding areas) during
the Term or any subsurface Hazardous Materials that existed under the Land prior
to the Commencement Date which may seep or flow therefrom; (b) any violation or
claim of violation by
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Tenant or any subtenant of the Demised Premises or assignee of Tenant's rights
under this Lease of any Environmental Laws (as hereinafter defined) relating to
the Demised Premises; or (c) the imposition of any lien for damages caused by or
the recovery of any costs for any remedial actions required by any governmental
authority or court order to be performed on the Demised Premises or any other
property as a result of the occurrence of any event described in subsection (a)
or (b) of this sentence.
The term "Environmental Laws" means all federal, state or local laws,
ordinances, requirements and regulations (including consent decrees and
administrative orders) or duties under the Common Law relating to health,
safety, industrial hygiene, waste disposal, or the protection of the
environment, including, without limitation: the federal Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the federal
Superfund Amendments and Reauthorization Act of 1986, the federal Resource
Conservation and Recovery Act of 1976, the federal Clean Air Act, the federal
Water Pollution Control Act and federal Clean Water Act of 1977, the federal
Insecticide, Fungicide and Rodenticide Act, the federal Pesticide Act of 1978,
the federal Toxic Substances Control Act, the federal Safe Drinking Water Act,
the federal Hazardous Materials Transportation Act, and all amendments thereto
and regulations adopted and publications promulgated pursuant thereto. The term
"Hazardous Materials" means all oil and
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petroleum products, asbestos, polychlorinated biphenyls, urea formaldehyde, and
all other materials now or hereafter classified as hazardous or toxic under any
Environmental Law.
16.2 Survival of obligations. Anything to the contrary in this
Agreement notwithstanding, the covenants of Landlord contained in this Article
XVI shall remain in full force and effect after and survive the expiration or
termination of this Lease.
16.3 Insuring of obligations. To effectuate the purposes of this
Article XVI, Tenant will provide for and insure, in the liability policies
required in Article V hereof, not only its own liability in respect of the
matters therein mentioned but also the liability pursuant to this Article
(excluding, however, the matters in 16.1(f)).
ARTICLE XVII
Mortgage Subordination
Section 17.1. Lease Subordination. Subject to all of the provisions of
this Article, this Lease is subject and subordinate to all institutional
mortgages which are now or may hereafter become a lien upon the Demised Premises
and to all renewals, modifications, consolidations, replacements and extensions
thereof; provided, however, Tenant shall have the right to receive any casualty
insurance proceeds and such rights shall govern any contrary provisions
contained in any
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such institutional mortgages. Such subordination shall only be effective if the
mortgagee agrees that Tenant shall not be disturbed hereunder and its interest
under this Lease shall not be affected in the event of a foreclosure or
termination of the mortgage, provided Tenant is not then in default of any of
its obligations hereunder beyond applicable notice and cure periods. The above
subordination provision shall be self-operative and no further instrument of
subordination shall be required; however, Tenant shall promptly execute,
acknowledge and deliver such other written instruments reasonably requested by
Landlord or the mortgagee of any such mortgage or any of their respective
successors in interest to evidence such subordination provided such agreements
provide Tenant with the non-disturbance rights described in this Section 17.1.
Section 17.2. No Termination. If any act or omission of Landlord would
give Tenant the right, immediately or after lapse of a period of time, to cancel
or terminate this Lease, or to claim a partial or total eviction, Tenant shall
not exercise such right (a) until it has given written notice of such act or
omission to Landlord and any mortgagee whose name and address shall previously
have been furnished to Tenant, and (b) until a reasonable period for remedying
such act or omission shall have elapsed following the giving of such notice and
following the time when such superior mortgagee
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shall have become entitled under such superior mortgage to remedy the same
(which reasonable period shall in no event be less than the period to which
Landlord would be entitled under this Lease or otherwise, after similar notice,
to effect such remedy), provided such superior mortgagee shall with due
diligence give Tenant notice of intention to, and commence and continue to,
remedy such act or omission.
Section 17.3. Attornment. If any superior mortgagee shall succeed to
the rights of Landlord under this Lease, whether through possession or
foreclosure action or delivery of a new lease or deed, then at the request of
the party so succeeding to Landlord's rights ("Successor Landlord"), and upon
the Successor Landlord's written agreement to accept Tenant's attornment, Tenant
shall attorn to and recognize such Successor Landlord as Tenant's landlord under
this Lease and shall promptly execute and deliver any instrument that the
Successor Landlord may reasonably request to evidence such attornment. Upon such
attornment this Lease shall continue in full force and effect as a direct lease
between the Successor Landlord and Tenant upon all of the terms, conditions and
covenants as are set forth in this Lease except that the Successor Landlord
shall not (a) be liable for any previous act or omission of Landlord under this
Lease; (b) be subject to any offset, not expressly provided for in this Lease,
which theretofore shall have accrued to Tenant against
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Landlord; or (c) be bound by any previous modification of this Lease or by any
previous prepayment of more than one month's Basic Rent or Additional Rent
except for amounts due under the last sentence of Section 15.3, unless such
modification or prepayment shall have been expressly approved in writing by a
superior mortgagee through or by reason of which the Successor Landlord shall
have succeeded to the rights of Landlord under this Lease.
Section 17.4 Modifications Required. If any then present or prospective
superior institutional mortgagee shall require any modification(s) of this
Lease, Tenant shall promptly execute and deliver to Landlord such instruments
effecting such modification(s) as Landlord shall reasonably request, provided
that such modification(s) do not adversely affect in any material respect any
of Tenant's rights under this Lease.
ARTICLE XVIII
Signs
Section 18.1. Tenant, at its expense, shall have the right to place
signs upon the Demised Premises and an the roof of any improvements constructed
upon the Demised Premises provided that any sign shall comply with all
Requirements. Tenant shall maintain the same at its expense, shall be liable for
and shall hold Landlord harmless from any damage to the
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Demised Premises and any injury to any person caused by reason of any sign, and
shall, at its expense, remove all signs upon the termination of the Lease and
repair all damage to the Demised Premises resulting from same.
ARTICLE XIX
Conditional Limitations - Default Provisions
Section 19.1. Default. If at any time during the term of this Lease:
(a) Tenant shall file a petition commencing a voluntary proceeding
under any chapter of the Bankruptcy Code, be adjudicated an insolvent, file a
petition seeking for itself any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar arrangement under any present
or future statute, law, rule or regulation, or file an answer admitting the
material allegations of a petition filed against it in any such proceeding,
consent to the filing of such a petition or acquiesce in the appointment of a
trustee, receiver, custodian or other similar official for it or all or any
substantial part of its assets or properties, or take any action looking to its
dissolution or liquidation; or an order for relief against Tenant shall have
been entered under any chapter of the Bankruptcy Code, or if a decree or order
by a court having jurisdiction in the premises shall have been entered approving
as properly filed a petition seeking
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reorganization, arrangement, readjustment, liquidation, dissolution or similar
relief against Tenant under any present or future statute, law, rule or
regulation, which is not dismissed within sixty (60) days, or
(b) any trustee, receiver, custodian or other similar official shall be
appointed for Tenant or for all or any substantial part of its assets or
properties, without Tenant's consent, and such appointment shall not be vacated
within sixty (60) days of such appointment or an order, judgment or decree shall
be entered against Tenant and shall continue in effect for any period of ten
(10) consecutive days without a stay of execution, or any execution or writ or
process shall be issued under any action or proceeding against Tenant whereby
Tenant's business or use of the Demised Premises is restrained, enjoined or
prohibited, or
(c) Tenant shall make an assignment for the benefit of its creditors,
generally not pay its debts as they become due or admit in writing its inability
to pay its debts as they become due, then, upon the expiration of the time
periods set forth in Sections 19.1(a)-(c), this Lease shall terminate and
Tenant shall vacate the premises, surrender same to Landlord and pay all sums
due hereunder without any further act or deed on the part of Landlord and
without any notice to Tenant. The word "Tenant" as used in this Section 19.1
shall be deemed to
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mean Tenant herein named, or, in the event of an assignment or sublet of this
Lease in accordance with the provisions of Article XII, such word shall be
deemed also to mean the assignee or sublessee in possession of the Demised
Premises.
Section 19.2. Liquidated Damages. If this Lease shall terminate
pursuant to the provisions of Section 19.1, Landlord shall be entitled to
receive from Tenant, as liquidated damages, an amount equal to the maximum
amount allowed by statute or rule of law in effect at the time when and
governing the proceeding in which such damages are to be proved, whether or not
such amount be greater than an amount otherwise allowed under this Article.
Section 19.3. Termination. If Tenant shall:
(a) fail to make payment of any Basic Rent or Additional Rent when the
same becomes due and payable and such default shall continue for a period of ten
(10) days after notice by Landlord to Tenant, or
(b) be in default in the performance of any of the other terms,
covenants and conditions of this Lease and such default shall not have been
remedied within twenty (20) days after notice by Landlord to Tenant specifying
such default, or, where such default reasonably cannot be remedied within such
period of twenty (20) days, if Tenant shall not have commenced the remedying
thereof within such period and shall not be proceeding with due diligence to
remedy it, then,
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Landlord, at its election, may terminate this Lease on five (5) days'
notice to Tenant and upon such termination Tenant shall quit and surrender the
Demised Premises to Landlord.
Section 19.4. Re-entry. If this Lease shall terminate pursuant to the
provisions of this Article XIX, Landlord may re-enter and resume possession of
the Demised Premises and remove all persons and property therefrom either by
summary proceedings or by a suitable action or proceeding, at law or in equity,
without being liable for any damage therefor.
Section 19.5. Damages. If this Lease shall terminate pursuant to the
provisions of this Article or by summary proceedings, Landlord shall have no
obligation to mitigate its damages, and shall be entitled to recover from Tenant
as damages:
(a)(i) an amount equal to all expenses incurred by Landlord in
recovering possession of the Demised Premises and in connection with the
reletting thereof, including the cost of repairing, renovating or remodeling the
Demised Premises, and any broker's commissions; (ii) the cost of performing any
work required to be done by Tenant under this Lease, and all damages resulting
from Tenant's default in performing such work; and (iii) the cost of placing the
Demised Premises in the same condition as that in which Tenant is required to
surrender them
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to Landlord, which amounts shall be due and payable by Tenant to Landlord at
such time or times as they shall have been incurred; and
(b) an amount equal to the Basic Rent and Additional Rent less the net
rent collected by Landlord an reletting the entire Demised Premises or any part
thereof, which amount shall be due and payable at the same time at which the
Basic Rent and Additional Rent would have become due and payable had this Lease
not terminated. Tenant consents that Landlord shall be entitled to institute
separate actions or suits or proceedings for the recovery of such amount or
amounts, and Tenant hereby waives the right to enforce or assert the rule
against splitting a cause of action as a defense thereto and shall not interpose
any non-compulsory counterclaim in any such action(s).
(c) Landlord, at its election, which shall be exercised by the service
of a notice an Tenant, may collect from Tenant, and Tenant shall pay in lieu of
the sums becoming due under the provisions of subsection (b) after the service
of such notice, an amount equal to the difference between the Basic Rent and
Additional Rent required to be paid by Tenant under this Lease (from the date of
the service of such notice to the end of the term of this Lease which had been
in force immediately prior to any termination effected under this Article), and
the then fair and reasonable rental value of the Demised Premises for the same
period as determined by Landlord.
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Section 19.6. Waiver. If and to the extent permitted by law, Tenant,
for itself and for all persons claiming through or under it, hereby waives any
and all rights which are or may be conferred upon Tenant by any present or
future law to redeem the Demised Premises after a warrant to dispossess shall
have been executed or after judgment in an action of ejectment shall have been
made and entered.
Section 19.7. Definitions. The words "re-enter" and "re-entry," as
used in this Article XIX, are not restricted to their technical legal meanings.
Section 19.8. Proof of Value. If the Demised Premises or any part
thereof be relet by Landlord for the unexpired Term or any part thereof, by
reason of termination of this Lease, before presentation of proof in connection
with a claim for liquidated damages to any court, the amount of rent reserved
upon such reletting shall be deemed prima facie to be the fair and reasonable
rental value for the part or the whole of the premises so relet during the term
of the reletting.
Section 19.9. Notice Waived. Tenant hereby waives the service of any
notice in writing by Landlord of its intention to re-enter, except as otherwise
provided in this Lease.
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ARTICLE XX
Surrender - Personal Property
Section 20.1. Surrender. Tenant shall an the last day of the Term or
upon any earlier termination of this Lease, or upon any re-entry by Landlord
upon the Demised Premises pursuant to Article XIX, surrender and deliver the
Demised Premises to Landlord without delay and in good order, condition and
repair, reasonable wear and tear excepted, free and clear of all lettings and
occupancies, and of all liens and encumbrances, other than those, if any,
created or consented to by Landlord.
Section 20.2. Personalty. Any personal property of Tenant which shall
remain in the Demised Premises after the termination of this Lease and the
removal of Tenant from the Demised Premises may, at the option of Landlord, be
deemed to have been abandoned by Tenant and either may be retained by Landlord
as its property or be disposed of, without accountability, in such manner as
Landlord may see fit, but if disposed of by removal from the Demised Premises,
Tenant shall pay Landlord the costs and expenses thereby incurred.
Section 20.3. Survival. The provisions of this Article XX shall survive
termination of this Lease.
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ARTICLE XXI
Quiet Enjoyment
Section 21.1. Quiet Enjoyment. Tenant, subject to the terms of this
Lease, upon paying the Basic Rent and Additional Rent and performing the terms,
covenants and conditions of this Lease, shall peaceably and quietly have, hold,
occupy, possess and enjoy the Demised Premises during the Term of this Lease
without hindrance by anyone claiming by, through or under Landlord.
ARTICLE XXII
Certificates
Section 22.1. Certificates. Each party shall, at its expense, at any
time and from time to time, within ten (10) days after request by the other
party, deliver a written instrument to the other party or to a person, firm or
corporation specified by the other party, duly executed and acknowledged,
certifying:
(a) that this Lease is unmodified and in full force and effect, or if
there has been any modification, that the same is in full force and effect, as
modified, and stating any such modification;
(b) whether or not to the best of such party's knowledge there are any
then existing set-offs or defenses against the enforcement of any of the terms,
agreements, covenants, conditions and limitations of this Lease and any
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modification thereof upon the part of Tenant to be performed or complied with,
and if so, specifying the same;
(c) the dates to which Basic Rent, Additional Rent and other charges
hereunder have been paid;
(d) to the best of such party's knowledge, the existence of any default
hereunder, and if so, a description of the default, and whether or not any event
has occurred which, with the giving of notice or the passing of time or both,
would constitute a default hereunder, and if so, specifying each such default;
and
(e) such other information concerning this Lease as the other party may
reasonably request.
Any statement delivered by either party pursuant to this Article XXII
shall be deemed to be a representation and warranty which may be relied upon by
the other party and by others with whom the other party may be dealing,
regardless of independent investigation.
ARTICLE XXIII
Remedies - Waiver
Section 23.1. Remedies Cumulative. The specific remedies to which
Landlord or Tenant may resort under the provisions of this Lease are cumulative
and are not intended to be exclusive of any other remedies or means of redress
to which it may be lawfully entitled in case of any breach or threatened
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breach by the other of any of the terms, covenants and conditions of this Lease.
Section 23.2. No Waiver. No delays or omission by either party hereto
to exercise any right or power accruing upon any non-compliance or default by
the other party with respect to any of the terms of this Lease shall impair any
such right or power or be construed to be a waiver thereof, except as otherwise
herein provided. A waiver by either of the parties hereto of any of the
covenants, conditions or agreements hereof to be performed by the other shall
not be construed to be a waiver of any succeeding breach thereof or of any other
covenant, condition or agreement herein contained. Receipt by Landlord of
payment by Tenant of any sum of money payable by Tenant in accordance with this
Lease shall not be construed to be a waiver of any of the terms of this Lease.
ARTICLE XXIV
Force Majeure
Section 24.1. Force Majeure. Except for Tenant's obligation to pay
Basic Rent and Additional Rent, the time for Landlord or Tenant, as the case may
be, to perform any of its respective obligations hereunder shall be extended if
and to the extent that the performance thereof shall be prevented due to
strikes, lockouts, acts of God, enemy action, civil commotions, warlike
operations, invasions, rebellions,
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hostilities, governmental regulations or controls, inability to obtain labor or
materials despite due diligence, unavoidable casualty or other causes beyond the
control of the party (except inability to obtain financing) whose performance is
required. Except as expressly provided to the contrary, the obligations of
Tenant hereunder shall not be affected, impaired or excused, nor shall Landlord
have any liability whatsoever to Tenant, (a) because Landlord is unable to
fulfill, or is delayed in fulfilling, any of its obligations under this Lease
due to any of the matters set forth in the first sentence of this Article XXIV,
or (b) because of any failure or defect in the supply, quality or character of
electricity, water, or any other utility or service furnished to the Demised
Premises for any reason.
ARTICLE XXV
Notices
Section 25.1. Notices. All notices, demands, requests, offers and
acceptances shall be in writing and shall be deemed sufficiently given if
delivered personally including, without limitation, overnight delivery service
and facsimile transmission (if actually received) or sent by certified mail,
return receipt requested, postage prepaid, addressed to the appropriate party at
its address first hereinabove stated, except as otherwise specifically stated in
this Lease.
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Duplicate copies of all notices to Tenant shall be simultaneously sent to
Proskauer ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. Duplicate copies of all notices to Landlord shall be
simultaneously sent to ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, One Citicorp Center, ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., and to ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Either party may at any time
change its address for the aforementioned purposes by notice thereof given to
the other party in the same manner. The time of giving of such notice, demand,
request, offer and acceptance shall be deemed to be the time when same is (i)
personally delivered to the party for which. it is intended (ii) the next
business day if sent by overnight courier, or (iii) the date received if sent by
certified mail.
ARTICLE XXVI
Broker
Section 26.1. No Broker. Landlord and Tenant each represents and
warrants to the other that no broker or finder has acted on its behalf in
connection with this Lease or the transactions contemplated hereby. Each party
agrees to indemnify and hold and save the other harmless from any claim or
demand for commission or other compensation by any broker, finder or similar
agent claiming to have been employed by or on behalf of such party.
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ARTICLE XXVII
NON-LIABILITY OF LANDLORD
SECTION 27.1. NOTICE OF TRANSFER. The term "Landlord" as used herein
means the owner of the Demised Premises, and in the event of the sale,
assignment or transfer by such owner of its interest in the Demised Premises,
the Landlord shall promptly give notice of the fact to Tenant setting forth the
name and address of the transferee, and thereupon the owner selling, assigning
or transferring its interest herein shall be released and discharged as Landlord
herein from all liabilities and obligations thereafter accruing and thereupon
all such liabilities and obligations shall be binding upon the transferee.
SECTION 27.2. NON-LIABILITY. Neither Landlord nor any partner, joint
venturer, director, officer, agent, servant or employee of Landlord shall be
liable to Tenant for any loss, injury or damage to Tenant, or to its property,
unless the cause of such injury, damage or loss was the gross negligence or
willful misconduct of Landlord, its agents, contractors, shareholders, servants
or employees. Further, neither Landlord nor any partner, joint venturer,
director, officer, agent, servant or employee of Landlord shall be liable for
any damage caused by other tenants or persons (except as otherwise provided in
the immediately preceding sentence) in, upon or
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about the Demised Premises, or caused by operations in construction of any work.
Landlord's total liability under this Lease shall in all events be limited to
Landlord's interest in the Demised Premises or, if applicable, net proceeds
derived from the sale thereof.
ARTICLE XXVIII
RECORDING OF LEASE
SECTION 28.1 MEMORANDUM. Tenant shall not record this Lease. However,
at the request of either party, the other party shall promptly execute,
acknowledge and deliver a memorandum of lease with respect to this Lease
sufficient for recording, which memorandum shall specifically refer to the
Purchase Option. Such memorandum shall not be deemed to change or otherwise
offset any of the obligations or provisions of this Lease. Whichever party
records a memorandum of lease shall pay all recording costs and expenses,
including any taxes that are due upon recording.
ARTICLE XXIX
HOLDING OVER
SECTION 29.1. HOLD OVER. If Tenant shall hold over after the expiration
of the Term, such tenancy shall be deemed a month-to-month tenancy unless
otherwise agreed, which tenancy may be terminated pursuant to applicable state
law. During such Tenancy, Tenant agrees to pay to Landlord the greater of
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(x) the fair market rental value for the Demised Premises, as reasonably
determined by Landlord, and (y) two times the Basic Rent and Additional Rent
payable during the last full month of the Term, and to be bound by all of the
terms, covenants and conditions herein specified, so far as applicable. If
Landlord shall not give written consent to a hold over by Tenant, such tenancy
may be terminated pursuant to applicable state law, and until Tenant has vacated
the Demised Premises it shall pay to Landlord rent computed in accordance with
the immediately preceding sentence.
ARTICLE XXX
EXCAVATION OF ADJOINING PREMISES
SECTION 30.1. ACCESS. If any excavation shall be made upon the Demised
Premises or any other parcel of land near the Demised Premises, or shall be
authorized to be made, Tenant shall at Landlord's request afford, to the person
causing or authorized to cause such excavation, license to enter upon the
Demised Premises for the purpose of doing such work as is reasonably necessary
to preserve the walls of the Demised Premises from injury or damage and to
support them by proper foundations without any claim for damages or indemnity
against Landlord or diminution or abatement of Basic Rent and Additional Rent.
Any such work shall be performed, if practicable, in a manner so as to minimize
disruption of Tenant's use and enjoyment of the Demised Premises.
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ARTICLE XXXI
Miscellaneous
Section 31.1. Headnotes. The headnotes, captions or table of contents
in this Lease are inserted only as a matter of convenience and for reference and
in no way define, limit or describe the scope or intent of this Lease or in any
way affect this Lease.
Section 31.2. Modifications. This Lease contains the entire agreement
between the parties and any executory agreement hereafter made shall be
ineffective to change, modify, waive, abandon or discharge it, in whole or in
part, unless it is in writing and signed by the party against whom enforcement
thereof is sought. This Lease cannot be changed, waived, abandoned or terminated
orally.
Section 31.3. Obligations and Covenants. All agreements, obligations
and undertakings of either of the parties to this Lease shall be deemed to be
covenants whether or not so denominated in this Lease.
Section 31.4. Governing Law and Validity of Provisions. This Lease
shall be construed and enforced in accordance with the laws of the State of
Minnesota. If any provision of this Lease or the application thereof, to any
extent, be unenforceable, the remainder of this Lease shall not be affected
thereby, and each provision hereof shall be valid and be enforced to the fullest
extent permitted by law.
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Section 31.5. Successors and Assigns. The terms, covenants, conditions,
provisions and agreements in this Lease shall bind and inure to the benefit of
Landlord and Tenant and their respective successors and permitted assigns.
Section 31.6. Tenant's Liability for Payments. Any liability for
payments hereunder (including, without limitation, Additional Rent) shall
survive the expiration of the Term or earlier termination of this Lease.
Section 31.7. Request for Landlord's Consent. If Tenant shall request
Landlord's consent and Landlord shall fail or refuse to give its consent, Tenant
shall not be entitled to any damages for any withholding by Landlord of its
consent; Tenant's sole remedy shall be an action for specific performance or
injunction, and such remedy shall be available only in those cases where
Landlord has expressly agreed in writing not to unreasonably withhold its
consent or where, as a matter of law, Landlord may not unreasonably withhold its
consent.
ARTICLE XXXII
Termination Right
Tenant acknowledges and agrees that Landlord shall have the
unrestricted right to terminate this Lease at any time following the sixtieth
(60th) month of the Term in connection with any bona-fide sale or other
transfer of the Demised Premises to an unrelated third party upon One Hundred
Eighty
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(180) days' prior written notice to Tenant, and upon the termination date
designated by Landlord in such early termination notice the Term shall expire as
fully and completely as though said early termination date were the Expiration
Date. Upon the request of Landlord, Tenant shall enter into a recordable
agreement terminating this Lease, which agreement shall have been recorded by
Landlord at its sole cost and expense.
ARTICLE XXXIII
Purchase Option
Provided that Tenant shall not be in monetary default (unless Landlord
is paid all actual damages incurred in connection with any such default at or
prior to any closing under this Article XXXIII) of any of the terms, covenants
and conditions of this Lease, at any time during the Term through the expiration
of the forty-second (42nd) full month of the Term (the "Option Period"), Tenant
shall have the option (the "Purchase Option") to purchase the Demised Premises
at a purchase price equal to the difference between (x) Four Million Dollars
($4,000,000), and (y) the aggregate Basic Rent and any condemnation awards
received by Landlord under this Lease through and including the date of closing
of title. Tenant may exercise the Purchase Option by delivering to Landlord at
least thirty (30) days' prior written notice of its intention to exercise the
Purchase Option, which notice must be given prior
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to the expiration of the Option Period, as to which time period time shall be of
the essence. As a condition to closing, Tenant shall pay all costs and expenses
of any nature incurred by Landlord in connection with the exercise of the
Purchase Option by Tenant and transfer of the Demised Premises to Tenant,
including but not limited to reasonable attorneys' fees, recording fees,
transfer taxes and all other expenses (excluding any of Landlord's income
taxes). The transfer of the Demised Premises to Tenant shall be made by
corporate special warranty deeds (equivalent to a New York bargain and sale deed
with covenants against grantor's acts), subject to no liens in addition to the
Permitted Title Exceptions other than those created or consented to by Tenant,
and shall otherwise be on an "as-is" basis, without any representation or
warranty
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made by Landlord as to any other matter relating to the Demised Premises,
including but not limited to their physical condition.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the day and year above written.
LANDLORD:
▇▇▇▇▇▇ STREET CAPITAL CORPORATION
[SEAL]
By: [sig]
-------------------------------------
Title: President
----------------------------------
TENANT:
▇.▇. ▇▇▇▇▇▇▇ COMPANY
[SEAL]
By: [sig]
-------------------------------------
Title:
----------------------------------
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EXHIBIT A
Legal Description
73
LEGAL DESCRIPTION
PARCEL A (New Plant)
Tract 1:
Commencing at a point on the Westerly right of way line of the Chicago and
North Western Transportation Company (formerly Minneapolis and St. Louis
Railroad Company) 816.41 feet North
00(degrees)58' West of point of intersection of said right of way line with
the South line of Section 18, Township 107 North, Range 22 West, which
point of intersection is 638.2 feet South 89(degrees)53.5' West of the
Southeast corner of said Section 18, and running thence 432.77 feet South
89(degrees)52.5' West, thence 507.03 feet North 0(degrees)14.5' West
parallel with the West line of Southeast Quarter of the Southeast Quarter
of said Section 18 to the North line of said Southeast Quarter of Southeast
Quarter of said Section 18, thence 426.35 feet North 89(degrees)52.5' East
along the North line of said Southeast Quarter of Southeast Quarter of said
Section 18 to the Westerly right of way line of said railroad, thence 507.8
feet South 0(degrees)58' East to the point of beginning; except the North
10 feet thereof, said bearings being assumed and based on the Westerly
right of way line of said railroad being South 0(degrees)58' East;
AND
Commencing at a point on the Westerly right of way line of the Chicago and
North Western Transportation Company (formerly Minneapolis and St. Louis
Railroad Company) 816.41 feet North 0(degrees)58' West of point of
intersection of said right of way line with the South line of Section 18,
Township 107 North, Range 22 West, which point of intersection is 638.2
feet South 89(degrees)53.5' West of the Southeast corner of said Section
18, and running thence South 89(degrees)52.5' West to the West line of the
Southeast Quarter of said Section 18, thence South along said West line to
the South line of said Section 18, thence East along the South line of
said Section 18 to the Westerly right of way line of said railroad, thence
Northerly along said Westerly right of way line of said railroad to the
point of beginning; except the South 50 feet thereof.
Tract 2:
That part of the Southeast Quarter of the Southeast Quarter of Section
18, Township 107 North, Range 22 West, bounded and described as follows:
Beginning at a point on the South line of 10th Avenue Southwest (formerly
San ▇▇▇▇ Road), a distance 50 feet Westerly, measured at right angles,
from the center line of the main tract of the Chicago and North Western
Transportation Company (formerly Minneapolis and St. Louis Railroad
Company), as said main tract centerline was originally located and
established across said Section 18, thence Southerly parallel with said
original main trace centerline, a distance of 790 feet, thence Easterly at
right angles to the last described course, a distance of 25 feet, more or
less, to a point distant 25 feet Westerly, measured at right angles, from
the centerline of the main tract of said railroad, as said main tract is
now located, thence Northerly parallel with said last described main tract
centerline, a distance of 790 feet, more or less, to a point on the South
line of said ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, thence Westerly along said South line
of 10th Avenue Southwest, a distance of 25 feet, more or less, to the point
of beginning.
Tract 3:
Beginning at the center of the Southeast Quarter of Section 18, Township
107 North, Range 22 West, thence South on the North and South center line
of said Southeast Quarter a distance of 110
74
feet; thence East a distance of 33 feet; thence Northeast a distance of
140.2 feet to the East and West center line of said Southeast Quarter,
thence West to the point of beginning a distance of 118 feet, except the
North 10 feet thereof, which North 10 feet has heretofore been conveyed
to the City of Waseca on May 14, 1955, by deed filed of record in the
office of the Register of Deeds in and for Waseca County on May 15,
1955, in Book K of Quit Claim Deeds, page 539.
Tract 4:
The West 18 acres of the Southeast Quarter of the Southeast Quarter of
Section 18, Township 107 North, Range 22 West, lying West of the Chicago
and North Western Transportation Company (formerly the Minneapolis and
St. Louis Railroad Company) tracks: except the North 10 feet and the
South 50 feet thereof, and also excepting those properties described as
Tracts 1, 2 and 3 immediately hereinabove.
Tract B (Parking Lot):
Lot 8, except the West 33 feet thereof, Block 1, Auditor's Replat of
▇▇▇▇'▇ Addition, originally Clear Lake City, to the Village of Waseca,
Minnesota, according to the Plat thereof on file and of record in the
office of the Register of Deeds in and for Waseca County, Minnesota.
Parcel C (Old Plant)
Tract 1:
▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇'▇ Addition to the Village, now City, of
Waseca, Minnesota, according to the Plat thereof on file and of record
in the office of the Register of Deeds in and for Waseca County,
Minnesota.
Tract 2:
▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇'▇ Addition to the Village, now City, of
Waseca, according to the Plat thereof on file and of record in the
office of the Register of Deeds in and for Waseca County, Minnesota.
Tract 3:
The West 1/2 of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ of the Village, now City,
of Waseca, Minnesota, according to the Plat thereof on file and of
record in the office of the Register of Deeds in and for Waseca County,
Minnesota.
Tract 4:
The East 1/2 of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ of the Village, now City,
of Waseca County, Minnesota, according to the Plat thereof on file and
of record in the office of the Register of Deeds in and for Waseca
County, Minnesota.
75
Tract 5:
The West 67 feet of the East 100 feet of Lots 3 and 4 in Block 3 and
the West 50 feet of ▇▇▇▇ ▇ ▇▇▇ ▇, ▇▇ ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ of the
Village, now City, of Waseca, Minnesota, according to the Plat
thereof on file and of record in the office of the Register of Deeds
in and for Waseca County, Minnesota.
PARCEL D (Old ▇▇▇▇▇▇▇▇▇ Building)
All of Block 22 of Auditor's Addition to Barney's Addition in the
City of Waseca, Minnesota, except the East 191 feet thereof,
according to the Plat thereof on file and of record in the office of
the County Recorder in and for Waseca County, Minnesota.
AND
The West 44 feet of the North 50 feet of the East 191 feet of Block
22 of Auditor's Addition to Barney's Addition to the City of Waseca,
Minnesota, and being in the Southeast Quarter of the Northeast
Quarter of Section 18 in Township ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
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EXHIBIT B
---------
Title Exceptions
77
SCHEDULE B
NOTE: THIS IS A PRO FORMA POLICY
File Number Policy Number
This policy does not insure against loss or damage by reason of the following:
1. Rights of tenants as tenants only under unrecorded leases as follows:
▇.▇. ▇▇▇▇▇▇▇ Company - Enscan, Inc. lease of___________________
▇▇▇▇▇▇ Street Capital Corporation - ▇.▇. ▇▇▇▇▇▇▇ Company lease
of July ___, 1992.
SEE ADDENDUM ATTACHED HERETO FOR ADDITIONAL EXCEPTIONS
78
CONTINUATION OF SCHEDULE B:
NEW PLANT, PARCEL A, TRACT 4:
2. As to Parcel A, Tracts 1 (Second Paragraph), 3 and 4 are subject to an
existing highway (Fourth Street Southwest, City of Waseca) on the West
side thereof. See survey made for ▇.▇. ▇▇▇▇▇▇▇ Company by ▇.▇. ▇▇▇▇▇▇▇▇,
registered professional engineer and land surveyor, as to part of the
Southeast Quarter of the Southeast Quarter of Section 18, Township 107
North, Range ▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇:
3. Easement to the City of Waseca dated May 2, 1929 and filed June 1, 1929,
recorded in Book S of Miscellaneous, on page 91, for the construction of
a sanitary sewer running east/west through the center of ▇▇▇ ▇, ▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇▇'▇ Addition to the City of Waseca.
4. Easement to the City of Waseca as created in Quit Claim Deed dated
January 16, 1979 and filed January 23, 1979, recorded in Book R of Quit
Claim Deeds, on page 66, for sanitary sewer purposes, covering the South
10 feet of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇'▇ Addition to the City of Waseca.
OLD PLANT, PARCEL C, TRACT 2:
5. Easement to the City of Waseca as created in Quit Claim Deed dated
January 15, 1979 and filed January 23, 1979, recorded in Book R of Quit
Claim Deeds, on page 66, for sanitary sewer purposes, covering the North
10 feet of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇'▇ Addition to the City of Waseca.
OLD PLANT, PARCEL C, TRACT 3:
6. Easement to the City of Waseca dated July 17, 1929 and filed August 24,
1929, recorded in Book S of Miscellaneous, on page 167, for the
construction and maintenance of a sanitary sewer, its course being
described as South through the west side of Lot 2 to the middle of said
lot and thence east through the center of said Block 3 to the east side
of said block and thence through the center of Block 3 of the Original
Plat of Waseca, Minnesota.
7. Easement to the City of Waseca as created in Quit Claim Deed dated
January 16, 1979 and filed January 23, 1979, recorded in Book A of Quit
Claim Deeds, on page 65, for sanitary sewer purposes, covering the South
10 feet of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ of the City of Waseca.
OLD PLANT, PARCEL C, TRACT 4:
8. Easement to the City of Waseca dated June 17, 1929 and filed June 8,
1929, recorded in Book S of Miscellaneous, on page 95, for the
construction and maintenance of a sewer, over, through and upon the E
1/2 of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ of the City of Waseca,
Minnesota.
9. Easement to the City of Waseca as created in Quit Claim Deed dated
January 16, 1979 and filed January 23, 1979, recorded in Book R of Quit
Claim Deeds, on page 66, for a sanitary sewer easement on the South 10
feet of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ of the City of Waseca.
OLD PLANT, PARCEL C, TRACT 5:
79
10. Basement to the City of Waseca as created in Quit Claim Deed dated January
16, 1979 and filed January 23, 1979, recorded in Book R of Quit Claim
Deeds, on page 66, for sanitary sewer easement on the North 10 feet of ▇▇▇
▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ of the City of Waseca.
PARCEL D (Old ▇▇▇▇▇▇▇▇▇ Building)
11. Well and Pipeline Easement as created in Warranty Deed dated July 1, 1942
and filed July 15, 1942, recorded in Book 37 of Deeds, on page 488, for the
well located on the 60 feet West of the East 87 feet of the North 50 feet
on the East 191 feet of Block 22 of Auditor's Addition to Barney's Addition
to the City of Waseca, Minnesota.
12. Joint Well Agreement dated July 1, 1942 and filed May 17, 1949, recorded in
Book 4 of Miscellaneous, on page 217, regarding the well and pipeline as
described in Paragraph 19 hereinabove.
13. REAL ESTATE TAXES DUE AND PAYABLE IN THE YEAR 1992 IN THE AMOUNT OF
$265,374.00 AND SUBSEQUENT YEARS.
NOTE: First half 1992 real estate taxes are all paid.
Second half taxes can be paid on or before October 15, 1992,
without penalty.
14. SPECIAL ASSESSMENTS HEREAFTER LEVIED.
NOTE: There remains an unpaid balance of special assessments due on the
following parcels: (This amount is the balance due after the
installment certified over for payment with the real estate taxes
due and payable in 1992.
PARCEL ID NO. ▇▇-▇▇▇-▇▇▇▇: $20,211.24
PARCEL ID NO. ▇▇-▇▇▇-▇▇▇▇: 132.91