Attached files
Exhibit 10.2
AMENDED AND RESTATED LEASE
by and between
WILL PARTNERS, LLC
a Delaware limited liability company,
as LESSOR
AND
WORLD KITCHEN, INC.
a Delaware corporation
as LESSEE
April 26, 2000
TABLE OF CONTENTS
| ARTICLE 1 | 1 | |||
| 1.1 | Leased Property; Term | 1 | ||
| ARTICLE 2 | 2 | |||
| 2.1 | Definitions and Certain Dispute Resolution Procedures | 2 | ||
| ARTICLE 3 | 5 | |||
| 3.1 | Basic Rent | 5 | ||
| 3.2 | Additional Rent | 6 | ||
| 3.3 | Late Payment | 6 | ||
| 3.4 | Offset and Recapture Procedure | 6 | ||
| ARTICLE 4 | 7 | |||
| 4.1 | Payment of Impositions | 7 | ||
| 4.2 | Notice of Impositions | 7 | ||
| 4.3 | Adjustment of Impositions | 7 | ||
| 4.4 | Utility Charges | 7 | ||
| 4.5 | Insurance Premiums | 7 | ||
| 4.6 | Limitation on Impositions | 7 | ||
| ARTICLE 5 | 8 | |||
| 5.1 | No Termination, Abatement, etc | 8 | ||
| ARTICLE 6 | 9 | |||
| 6.1 | Ownership of the Leased Property | 9 | ||
| 6.2 | Lessee’s Equipment | 9 | ||
| ARTICLE 7 | 9 | |||
| 7.1 | (a) Lessor’s Work | 9 | ||
| 7.2 | Lessee’s Work | 10 | ||
| 7.3 | Construction by Lessee | 10 | ||
| 7.4 | Condition of the Leased Property | 11 | ||
| 7.5 | Use of the Leased Property | 11 | ||
| ARTICLE 8 | 12 | |||
| 8.1 | Compliance with Legal and Insurance Requirements, Instruments, etc | 12 | ||
| 8.2 | Capital Improvement Credit | 12 | ||
| ARTICLE 9 | 13 | |||
| 9.1 | Maintenance and Repair | 13 | ||
| 9.2 | Encroachments, Restrictions, etc | 13 | ||
| ARTICLE 10 | 13 | |||
| 10.1 | Alterations, Substitutions and Replacements | 13 | ||
| ARTICLE 11 | 14 | |||
| 11.1 | Environmental Matters | 14 | ||
| ARTICLE 12 | 14 | |||
| 12.1 | Liens | 14 | ||
| ARTICLE 13 | 15 | |||
| 13.1 | Permitted Contests | 15 | ||
| ARTICLE 14 | 15 | |||
| 14.1 | Insurance | 15 | ||
| 14.2 | Policy Provisions and Certificates | 16 | ||
| 14.3 | Subrogation | 16 | ||
| ARTICLE 15 | 17 | |||
| 15.1 | Notice of Damage, Destruction or Taking; Condemnation Awards | 17 | ||
| 15.2 | Taking for Temporary Use | 17 | ||
| 15.3 | Other Taking; Damage or Destruction; Repair or Replacement | 17 | ||
| ARTICLE 16 | 18 | |||
| 16.1 | Intentionally Omitted | 18 | ||
| ARTICLE 17 | 18 | |||
| 17.1 | Events of Default | 18 | ||
| 17.2 | Surrender; Entry by Lessor | 20 |
| 17.3 | Reletting by Lessor | 20 | ||
| 17.4 | Current Liquidated Damages | 20 | ||
| 17.5 | Final Liquidated Damages | 20 | ||
| 17.6 | Waiver | 21 | ||
| 17.7 | Limitation on Damages | 21 | ||
| ARTICLE 18 | 21 | |||
| 18.1 | Lessor’s Right to Cure Lessee’s Event of Default | 21 | ||
| ARTICLE 19 | 21 | |||
| 19.1 | Holding Over | 21 | ||
| ARTICLE 20 | 22 | |||
| 20.1 | No Recourse to Lessor | 22 | ||
| ARTICLE 21 | 22 | |||
| 21.1 | Risk of Loss | 22 | ||
| ARTICLE 22 | 22 | |||
| 22.1 | Indemnification by Lessee | 22 | ||
| ARTICLE 23 | 22 | |||
| 23.1 | Assignment | 22 | ||
| 23.2 | Intentionally Omitted | 23 | ||
| 23.3 | Excess Rental | 23 | ||
| ARTICLE 24 | 23 | |||
| 24.1 | Lessor’s Right to Inspect | 23 | ||
| 24.2 | Financial Statements | 23 | ||
| ARTICLE 25 | 24 | |||
| 25.1 | No Waiver by Lessor | 24 | ||
| ARTICLE 26 | 24 | |||
| 26.1 | Remedies Cumulative | 24 | ||
| ARTICLE 27 | 24 | |||
| 27.1 | Acceptance of Surrender | 24 | ||
| ARTICLE 28 | 24 | |||
| 28.1 | No Merger of Title | 24 | ||
| ARTICLE 29 | 24 | |||
| 29.1 | Conveyance by Lessor | 24 | ||
| ARTICLE 30 | 25 | |||
| 30.1 | Quiet Enjoyment | 25 | ||
| ARTICLE 31 | 25 | |||
| 31.1 | Notices | 25 | ||
| 31.2 | Amendments and Modifications | 26 | ||
| 31.3 | Successors and Assigns | 26 | ||
| 31.4 | Headings and Table of Contents | 26 | ||
| 31.5 | Counterparts | 26 | ||
| 31.6 | Governing Law | 26 | ||
| 31.7 | Estoppel Certificates | 26 | ||
| 31.8 | Subordination and Attornment | 26 | ||
| 31.9 | Lessee’s Attornment Upon Foreclosure | 26 | ||
| 31.10 | Submission To Jurisdiction; Waivers | 27 | ||
| 31.11 | Waivers of Jury Trial | 27 | ||
| 31.12 | Miscellaneous | 27 | ||
| 31.13 | Memorandum of Lease | 27 | ||
| 31.14 | Brokers | 27 | ||
| 31.15 | Restoration by Lessee | 27 | ||
| ARTICLE 32 | 28 | |||
| 32.1 | Options To Extend Term | 28 | ||
| 32.2 | Rent | 28 | ||
| 32.3 | Fair Market Rent | 28 | ||
| ARTICLE 33 | 29 | |||
| 33.1 | Fair Market Value Purchase Option | 29 |
| ARTICLE 34 | 30 | |||
| 34.1 | Expansion Rights | 30 | ||
| ARTICLE 35 | 30 | |||
| 35.1 | First Source Agreement | 30 |
LEASE
THIS AMENDED AND RESTATED LEASE (this “Lease”) is dated as of the 26th day of April, 2000 (the “Effective Date”), and is between WILL PARTNERS, LLC, a Delaware limited liability company (“Lessor”), having an address at 3421 Manhattan Avenue, Manhattan Beach, California 90266, and WORLD KITCHEN, INC., a Delaware corporation (“Lessee”), having its principal office at One Pyrex Place, Elmira, New York, 14902-15555.
RECITALS
WHEREAS, LESSOR and EKCO HOUSEWARES, INC., Lessee’s predecessor in interest), entered into a Lease made as of the 13th day of May, 1999 (the “Original Lease”);
WHEREAS, by Assignment and Assumption dated as of April 26, 2000 EKCO HOUSEWARES, INC., assigned all of its right, title and interest in and to the Lease to the Lessee hereunder; and
WHEREAS, this Lease is intended to amend and restate the Original Lease;
NOW THEREFORE, in consideration of the foregoing recitals which are incorporated herein as if fully set forth and for other good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, Lessor and Lessee have agreed to amend and restate the original lease.
ARTICLE 1
1.1 Leased Property; Term. Upon and subject to the terms and conditions hereinafter set forth, Lessor leases to Lessee and Lessee leases from Lessor all of Lessor’s rights and interest in and to the following property (collectively, the “Leased Property”):
(a) the plots, pieces or parcels of land (the “Land”) described in Exhibit A attached hereto, measuring in the aggregate approximately 1,258 linear feet by 2,010 linear feet;
(b) all buildings (the building constructed by Lessor thereon consisting of approximately 700,200 square feet being hereinafter the “Building”), structures, Fixtures and other improvements presently situated or hereafter constructed upon the Land (collectively, the “Leased Improvements”);
(c) all easements, rights and appurtenances relating to the Land and the Leased Improvements;
(d) all equipment, machinery, fixtures and other items of property, including all components thereof, now or hereafter located in or on, and used in connection with the operation or maintenance of, the Leased Improvements, which are now or hereafter owned by Lessor, including, without limitation, all furnaces, boilers, heaters, electrical equipment, heating, plumbing, ventilating, refrigerating, waste disposal, air-cooling and air conditioning apparatus, sprinkler systems and fire and theft protection equipment and which are hereby deemed by the parties hereto to constitute real estate under the laws of the State, together with all replacements, modifications, alterations and additions thereto, other than Lessee’s Equipment, as defined in Section 6.2 (collectively, the “Fixtures”); and
(e) the furniture, equipment, trade fixtures, furnishings and other items of personal property, if any, owned by Lessor (collectively, the “Personal Property”).
Subsequent to the Commencement Date (hereinafter defined), Lessee shall have exclusive possession and control of the Leased Property, subject, however, to the reservations and other matters, if any, of record affecting the Property described in Exhibit F and the completion by Lessor of any Punchlist Items. The Term of this Lease has commenced upon the Commencement Date (hereinafter defined), and shall continue for a term of fifteen (15) years thereafter so as to end on March 31, 2015, unless extended or earlier terminated pursuant to, and in accordance with, the provisions of this Lease (the “Term”).
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ARTICLE 2
2.1 Definitions and Certain Dispute Resolution Procedures. As used in this Lease, (a) unless otherwise specified, all references to Sections and articles shall refer to Sections or articles of this Lease, (b) all terms defined herein in the singular shall have the same meanings when used in the plural and vice versa, and (c) capitalized terms shall have the respective meanings set forth in this Lease.
“Actual Leasable Area of the Building” means 700,934 square feet.
“Additional Rent”: As defined in Section 3.2.
“Alterations”: As defined in Section 10.1.
“Basic Rent”: As defined in Section 3.1.
“Business Day”: Each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which national banks in the City of New York, State of New York are authorized, or obligated, by law or executive order to close.
“Commencement Date”: Shall mean March 1, 2000.
“Consolidated Tangible Net Worth”: The consolidated net worth of any Person less the sum of the following consolidated items: (a) any surplus resulting from any write-up of assets; (b) goodwill, including any amounts (however designated on the balance sheet of such Person) representing the cost of acquisitions of Subsidiaries in excess of underlying tangible assets, unless an appraisal of such assets made by a firm of nationally recognized appraisers acquisition shall indicate sufficient value to cover such excess; (c) patents, trademarks, copyrights, leasehold improvements not recoverable at the expiration of a lease and deferred charges (including, but not limited to, unamortized debt discount and expense, organization expenses, experimental and development expenses, but excluding prepaid expenses and prepaid taxes); (d) any amounts at which shares of capital stock of such Person appear on the asset side of the balance sheet of such Person; and (e) any amount of indebtedness not included in the computation of the consolidated net worth of such Person.
“Environmental Laws”: Means any and all present and future federal, state and local laws, ordinances, and regulations, policies and any other requirements of any governmental agency relating to health, safety, the environment or to any Hazardous Materials (hereinafter defined), including without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), the Resource Conservation Recovery Act (RCRA), the Hazardous Materials Transportation Act, the Toxic Substance Control Act, the Clean Water Act, the Occupational Safety and Health Act (to the extent said Act may contain requirements relating to Hazardous Materials), and the Illinois Responsible Property Transfer Act, each as hereafter amended from time to time, and the present and further rules, and regulations and guidance documents promulgated under any of the foregoing by any federal, state or local governmental authority having jurisdiction over the Leased Property.
“Environmental Report”: That certain environmental audit report for the Leased Property entitled “Phase I Environmental Assessment,” dated March 4, 1999, prepared by Carlson Environmental, Inc.
“Event of Default”: As defined in Section 17.1.
“Fair Market Rent”: As defined in Section 32.2.
“Fair Market Value”: As defined in Section 15.4.
“First Source Agreement”: As defined in Article 35.1.
“Fixtures”: As defined in Section 1.1.
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“Guarantor”: None.
“Hazardous Materials”: Any flammable explosives, radioactive materials, hazardous materials, hazardous wastes, hazardous or toxic substances, asbestos or any material containing asbestos, or any other substance or material, the use, treatment, storage or disposal of which is regulated under any Environmental Laws.
“Impositions”: All taxes (including, without limitation, all ad valorem, sales and use, single business, gross receipts, transaction privilege or similar taxes), assessments (including, without limitation, all assessments for public improvements or benefits, whether or not to be completed within the Term), water, sewer or other rents and charges, excises, levies, fees (including, without limitation, license, permit, inspection, authorization and similar fees), and all other governmental and quasi-governmental charges in each case whether general or special, ordinary or extraordinary, or foreseen or unforeseen, of every character in respect of the Leased Property and/or the Basic Rent or Additional Rent (including all interest and penalties thereon), which may be assessed or imposed on or in respect of or be a lien upon (a) Lessor or Lessor’s Assignees, if any, (b) the Leased Property or any part thereof or any rent therefrom or any estate, right, title or interest therein, or (c) any occupancy, operation, use or possession of, or sales from, or activity conducted on, or in connection with, the Leased Property or the leasing or use of the Leased Property or any part thereof, or the acquisition of the Leased Property by Lessor, to the extent any of the foregoing are attributable to the period constituting the Term of this Lease. Except as otherwise provided in Article 4, nothing contained in this Lease shall be construed to require Lessee to pay (and such items shall not constitute “Impositions”) any tax, assessment, levy or charge imposed on Lessor or Lessor’s Assignees, if any, for the privilege of doing business in the State specifically as a corporation or other business entity, or any capital levy, estate, inheritance, succession, transfer, net income or net revenue or franchise tax of Lessor or Lessor’s Assignees, if any; or any tax, assessment, levy, imposition or charge based on the gross income or gross rents received therefrom from Lessee whether or not wholly or partially as a capital levy or otherwise which is calculated without deduction of any portion of such gross income or gross rents so received; or (b) a license fee measured by the gross rents received from Lessee which is calculated without deduction of any portion of such gross rents so received; or (c) any other tax, assessment, levy, imposition, charge or license fee however described or imposed whether imposed upon Lessor or Lessor’s Assignee. Notwithstanding the foregoing, Impositions shall not include special assessments, if any, in connection with the initial development of the Leased Property, or any such special assessments levied as a result of design or construction errors, omissions or deficiencies in the improvements installed in connection with the initial development of the Leased Property and the surrounding area (the “Corrective Special Assessments”).
“Indenture”: Any mortgage, deed of trust or deed to secure debt, as applicable, constituting a lien on the Leased Property as the same may be modified, amended or supplemented from time to time, which may be executed as security for any indebtedness of the Lessor.
“Insurance Requirements”: All requirements necessary to maintain in force the insurance policy(ies) applicable to the Leased Property.
“Insured Property”: As defined in Section 14.1.
“Land”: As defined in Section 1.1.
“Leased Improvements”: As defined in Section 1.1.
“Leased Property”: As defined in Section 1.1.
“Lease Year”: A twelve (12) month period commencing on the Commencement Date or on an annual anniversary date thereof, as the case may be.
“Legal Requirements”: All federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions affecting either the Leased Property or the construction, use or alteration thereof, whether now or hereafter enacted and in force, including any which may (a) require repairs, modifications or alterations in or to the Leased Property or (b) in any way limit the use and enjoyment thereof, and all permits, licenses and authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Lessee to the extent such agreements,
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restrictions and encumbrances are created by the acts of Lessee, at any time in force affecting the Leased Property or private covenants and restrictions of record which are either set forth in Exhibit F or which are approved by Lessee in writing after the date hereof.
“Lessee’s Equipment”: As defined in Section 6.2.
“Lessor’s Assignees”: Collectively, any assignees now or hereafter designated in any collateral assignment of Lessor’s interest in this Lease as additional security for any indebtedness of Lessor also secured by an Indenture.
“Officer’s Certificate”: A certificate of Lessee or Lessor signed by the president or any vice president or the treasurer, or another officer, the managing member or other similar person authorized to so sign by the board of directors, bylaws or other governing instruments of Lessee or Lessor.
“Offset and Recapture Procedure”. As defined in Section 3.4.
“Overdue Rate”: A late charge in an amount equal to five percent (5%) of the amount that is then due, plus interest on the amount then due equal to the annual interest rate being equal to the interest rate set forth in the then applicable Indenture (the “Indenture Rate”) plus five percent (5%) per annum; or such rate as is permitted by law, if less. In the event there is at the time no Indenture Rate, such term shall mean eight percent (8%) per annum.
“Payment Date”: Any due date for the payment of the installments of Basic Rent.
“Permitted Use”: Warehousing, assembly, packaging, processing, light manufacturing, distribution, and services and office uses ancillary thereto, as permitted by the applicable zoning code and any amendments thereto.
“Person”: Any individual, corporation, partnership, joint venture, estate, trust, unincorporated association, limited liability company, any federal, state, county or municipal government, or any bureau, department or agency thereof, and any fiduciary acting in such capacity on behalf of any of the foregoing.
“Redevelopment Agreement”: The agreement between Lessor and the Village in the form of Exhibit C.
“Rent”: Collectively, the Basic Rent and Additional Rent.
“State”: The State of Illinois.
“Subsidiary”: (a) Any corporation more than fifty percent (50.0%) of whose voting stock is owned or controlled, directly or indirectly, by such entity or one or more other Subsidiaries of such entity, or (b) any limited partnership of which such entity or any of its Subsidiaries is a general partner, or (c) any other entity (other than a corporation) in which such entity or one or more other Subsidiaries of such entity, or such entity and one or more other Subsidiaries of such entity, directly or indirectly, owns more than fifty percent (50.0%) of the outstanding capital stock or has the power, through the ownership or voting stock, by contract or otherwise, to direct or cause the direction of the management and policies of such entity.
“Taking”: A taking or voluntary conveyance during the Term hereof of all or part of the Leased Property, or any interest therein or right accruing thereto or use thereof, as the result of, or in settlement of any condemnation or other eminent domain proceeding affecting the Leased Property whether or not a formal condemnation or other eminent domain shall have actually been commenced if a voluntary conveyance occurs under threat of such proceeding.
“Taking-Termination Date”: As defined in Section 15.3.
“Taking-Termination Notice”: As defined in Section 15.3.
“Term”: As defined in Section 1.1.
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“Unavoidable Delays”: Delays due to strikes, lockouts, inability to procure materials, power failure, acts of God, governmental restrictions, enemy action, civil commotion, fire, unavoidable casualty or other causes beyond the control of Lessor or Lessee, provided that lack of funds regardless of the cause therefor shall not be deemed a cause beyond the control of either party, except as expressly set forth herein.
“Village”: The Village of Monee, Will County, Illinois.
ARTICLE 3
3.1 Basic Rent. Lessee will pay to Lessor commencing on the Commencement Date, in lawful money of the United States of America which shall be legal tender for the payment of public and private debts at Lessor’s address set forth above or at such other place or to such other Persons as Lessor from time to time may designate in writing upon fifteen (15) days prior written notice to Lessee, a net rental (the “Basic Rent”) in advance during the Term, as follows:
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| Period |
Basic Rent/ Month |
Basic Rent/ Annum |
Basic Rent/ Square Foot of the Leaseable Area of the Building | ||||||
| Commencement Date - end of the 12th full calendar month |
$ | 211,833.33 | $ | 2,542,000.00 | $ | 3.63 | |||
| 13th through 24th full calendar month |
214,750.83 | 2,577,010.00 | 3.68 | ||||||
| 25th through 60th full calendar month |
217,501.67 | 2,610,020.00 | 3.73 | ||||||
| 61st through 120th full calendar month |
244,876.92 | 2,938,523.00 | 4.20 | ||||||
| 121st through 180th full calendar month |
275,486.50 | 3,305,838.00 | 4.72 | ||||||
(a) When Due. If the Commencement Date is not on the first day of a month, the Basic Rent for the first month of the Lease Term shall be prorated accordingly. The proportionately reduced Basic Rent, if applicable, for any partial first month of the Lease Term shall be paid within fifteen (15) days after the Commencement Date.
(b) Payment Method. Lessee agrees to wire federal or other immediately available funds in payment of the Basic Rent to Lessor, or as Lessor may direct in writing, on the day each payment is due, or if such day is not a Business Day then on the Business Day following such date, so that Lessor shall receive immediately available funds in such location as Lessor may designate on each such date. Lessee may pay Basic Rent by check only if permitted by Lessor’s Assignees. Except as provided in this Lease, the Basic Rent shall be paid absolutely net to Lessor, so that this Lease shall yield to Lessor the full amount of the installments of Basic Rent throughout the Term, all as more fully set forth in this Lease.
3.2 Additional Rent. Except as provided in this Lease, in addition to the Basic Rent, commencing on the Commencement Date, Lessee will also pay and discharge as additional rent (collectively, the “Additional Rent”) all other amounts, liabilities, obligations and, all Impositions which Lessee assumes or agrees to pay under this Lease, and in the event of any failure on the part of Lessee to pay any of the foregoing, every fine, penalty, interest and cost which may be added for nonpayment or late payment of the Impositions, and Lessor shall have all legal, equitable and contractual rights, powers and remedies provided either in this Lease or by statute or otherwise as in the case of non-payment of the Basic Rent.
3.3 Late Payment. If any installment of Basic Rent shall not be paid on or before its due date and Lessee fails to pay the amount due for five (5) days after receipt by Lessee of written notice of such failure, and to the extent Lessor pays any other Additional Rent that Lessee has so failed to pay, Lessee will pay Lessor on demand, as Additional Rent, interest on such overdue amount computed at the Overdue Rate on the amount of such installment, from the due date of such installment to the date of payment thereof.
3.4 Offset and Recapture Procedure Any payment, cost or amount due Lessee (i) pursuant to Sections 4.6, 7.1, and 8.2 hereof; or, (ii) pursuant to the terms of that certain Reserve Reimbursement Agreement between Lessor and Lessee dated of even date herewith (the “Reserve Agreement”); or (iii) pursuant to the terms of Section 4(b) of that certain Restricted Account Agreement between Lessor, Lessee and Lessor’s Assignee dated April 27, 2000; or (iv) pursuant to the terms of that certain First Amended and Restated Limited Liability Company Agreement of Will Partners, LLC dated as of April 26, 2000 (the “LLC Agreement”); in each case which is not paid when due, such being the “Offset Amount,” may be offset or at Lessee’s option recaptured, together with interest thereon at the Overdue Rate, against the then current Basic Monthly Rent next coming due. If, at the expiration of the Term (as the same may be extended), Lessee has not fully recovered any Offset Amount, then Lessor shall, on or before said date, reimburse Lessee for the unrecovered amounts due Lessee pursuant to the provisions of this Lease or the LLC Agreement. The obligation set forth in this Section shall specifically be binding on successors and assigns of the Lessor and shall run with the Land and this
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Lease shall constitute a lien on the Leased Property subordinate to the Indenture until any unrecovered Offset Amount is paid in full. In the event Lessee purchases the Leased Property, then the amount of the unrecovered Offset Amount shall be a credit to Lessee against the purchase price. This Section 3.4 is deemed to be the “Offset and Recapture Procedure”.
ARTICLE 4
4.1 Payment of Impositions. Subject to Section 13.1 relating to permitted contests, Lessee will pay, or cause to be paid, all Impositions before any fine, penalty, interest or cost may be added for non-payment, such payments to be made directly to the taxing authorities where feasible, and will promptly, upon request, furnish to Lessor and Lessor’s Assignees, if any, copies of official receipts or other satisfactory proof evidencing such payments, and upon request, shall provide Lessor’s Assignees with periodic status reports as to all such payments in respect of the Leased Property. If any Imposition may, at the option of the taxpayer, lawfully be paid in installments (whether or not interest shall accrue on the unpaid balance of such Imposition), Lessee may exercise the option to pay the same (and any accrued interest on the unpaid balance of such Imposition) in the maximum number of installments permitted by law and in such event, shall pay only such installments attributable to the period of the Term hereof as the same respectively become due and before any fine, penalty, premium, further interest or cost may be added thereto. If any assessment for a public improvement is required to be paid in one lump sum payment, Lessee shall pay such lump sum payment provided, however, Lessor shall use its best efforts to cause payments for assessments to be made in installments over the longest period permitted by law. Lessee, at its expense, shall prepare and, to the extent it may legally do so, file all tax returns and reports in respect of any Imposition as may be required by governmental authorities. All bills for general real estate taxes and assessments shall be directed to Lessee. Lessee shall have the authority to negotiate with the taxing authority as to the term over which any special assessments are paid (excluding the benefits provided to Lessor pursuant to the Redevelopment Agreement), which Lessor acknowledges may be over the longest period permitted by law. Lessee shall be responsible only for the installments of such assessments attributable to the period of the Term. If any refund shall be due from any taxing authority in respect of any Imposition paid by Lessee, the same shall be retained by Lessee. The provisions of this Section 4.1 shall survive termination of this Lease.
4.2 Notice of Impositions. Lessor shall give prompt notice to Lessee of all Impositions payable by Lessee hereunder of which Lessor at any time has knowledge other than general ad valorem real estate taxes (or substitutes therefor). Lessor’s failure to give any such notice shall in no way diminish Lessee’s obligations hereunder unless Lessee has not otherwise received actual notice thereof.
4.3 Adjustment of Impositions. Impositions imposed in respect of the calendar year period during which the Term terminates shall be adjusted and prorated between Lessor and Lessee, whether or not such Imposition is imposed before or after such termination (to the extent the Imposition applies to any period during the Lease Term), and Lessee’s obligation to pay its prorated share thereof shall survive such termination. The foregoing shall not limit Lessor’s damages in the event such termination is by reason of an Event of Default by Lessee.
4.4 Utility Charges. Lessee will pay or cause to be paid when due all charges for electricity, power, gas, oil, water and other utilities used in connection with the Leased Property.
4.5 Insurance Premiums. Lessee will pay or cause to be paid all premiums for the insurance coverage required to be maintained pursuant to Section 14.1.
4.6 Limitation on Impositions. Notwithstanding the provisions of this Article 4:
1. Lessor agrees that ad valorem general real estate taxes for the Leased Property payable by Lessee during the initial year the Leased Property is fully assessed will be forty-five cents ($.45) times the Actual Leasable Area of the Building (the “Estimated Tax Amount”). The Estimated Tax Amount shall cumulatively increase by an amount equal to two and one percent (2.5%) per annum (each such cumulatively increased tax amount being hereinafter an “Escalated Tax Amount”) through July 13, 2017. The terms “Estimated Tax Amount” and “Escalated Tax Amount” shall be deemed to include any taxes enacted in lieu of or as substitutes for general ad valorem real estate taxes other than taxes on Lessor’s Indenture unless imposed uniformly throughout the State.
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2. Lessor and Lessee agree that if, during the period ending July 13, 2017, the actual ad valorem general real estate taxes (“Actual Taxes”) for the Leased Property attributable to the initial year of full assessment exceed the Estimated Tax Amount, or if any Actual Taxes for any subsequent tax year exceed the Escalated Tax Amount applicable to the year in question or if there is imposed any Corrective Special Assessment (such excess in each case being hereinafter an “Excess Amount”) then Lessee shall deliver written notice of the same to Lessor, together with copies of applicable tax bill(s) and the following shall apply:
(a) Lessee shall not be liable for any Actual Taxes which exceed the Estimated Tax Amount, or the applicable Escalated Tax Amount, as the case may be;
(b) Notwithstanding the foregoing, Lessee shall pay or cause to be paid any Excess Amount prior to accrual of any interest or penalty thereon and Lessor shall reimburse Lessee for the same as provided in subsection (c) below;
(c) Upon the payment of any Excess Amount, Lessee shall deliver an invoice and evidence of payment therefor to Lessor and Lessor shall reimburse Lessee for the Excess Amount, together with interest at the rate of five percent (5%) per annum from the date paid by Lessee until reimbursed to Lessee, which reimbursement shall be paid to Lessee by no later than December 1st in the year that Lessee delivers such invoice and evidence. Upon reimbursement to Lessee of the Excess Amount, Lessee shall be deemed to have assigned to Lessor all right, title and interest in and to any refunds or other recovery against the Village with respect to the Excess Amount reimbursed by Lessor to Lessee. Upon reimbursement to Lessee, Lessee shall execute such reasonable confirmations of the foregoing assignment as Lessor may request within thirty (30) days after written request therefor. Lessor shall have the right, at Lessor’s sole cost and expense, at any time thereafter, to pursue the enforcement of the provisions of the Redevelopment Agreement to the extent of the Excess Amount reimbursed to Lessee, including, without limitation, any protesting of the Taxes necessary to cause the Actual Taxes to be reduced to either the Estimated or Escalated Tax Amounts, as the case may be, for the year in question, or to such lower amounts as may permit recovery of the Excess Amount to Lessor. Notwithstanding anything contained in this Lease to the contrary, however, Lessee acknowledges that general ad valorem real estate taxes cannot be contested without compliance with the conditions set forth in the Redevelopment Agreement.
(d) If Lessor fails to reimburse Lessee within the time provided in subsection (c) above, Lessee shall have the right to offset the Excess Amount pursuant to the Offset and Recapture Procedure.
3. The provisions of this Section 4.6 apply only to the amount of general ad valorem real estate taxes or taxes enacted in lieu of, or substitutes for, general ad valorem taxes, including any increases attributable to a sale of Lessor’s interest in the Leased Property, and are not applicable to any increase in the amount of Impositions hereunder due to special assessments which may be levied or assessed against the Leased Property (provided that in no event shall Lessee be liable for special assessments levied in connection with initial development of the Leased Property except to the extent specifically provided in the Redevelopment Agreement as reimbursement of the tax increment financing contemplated thereunder) or Corrective Special Assessments.
ARTICLE 5
5.1 No Termination, Abatement, etc. Except as otherwise specifically provided herein, Lessee shall remain bound by this Lease in accordance with its terms and shall neither take any legal action to modify, surrender or terminate the same, nor seek nor be entitled to any abatement, deduction, deferment or reduction of Rent, or set-off against the Rent, nor shall the respective obligations of Lessor and Lessee be otherwise affected by reason of (a) any damage to, or destruction of, the Leased Property or any portion thereof from whatever cause except for the grossly negligent acts or omissions or willful misconduct of Lessor or Lessor’s Assignees, or any Taking of the Leased Property or any portion thereof, (b) the lawful or unlawful prohibition of, or restriction upon, Lessee’s use of the Leased Property or any portion thereof, the interference with such use by any Person or by reason of any eviction by paramount title, or any other defect in title, (c) any claim which Lessee has or might have against Lessor or against any of Lessor’s Assignees, if any, or by reason of any default or breach of any warranty by Lessor under this Lease, any other agreement between Lessor and Lessee, or to which Lessor and Lessee are parties, (d) any bankruptcy, insolvency, reorganization, composition, readjustment, liquidation, dissolution, winding up or other proceedings affecting Lessor or any assignee or transferee of
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Lessor, or any action with respect to this Lease that may be taken by a trustee or receiver of Lessor or any assignee of Lessor or by any court in any such proceeding, unless such action judicially terminates the Lease, or (e) for any other cause whether similar or dissimilar to any of the foregoing. Except as otherwise specifically provided herein, Lessee hereby specifically waives all rights, arising from any occurrence whatsoever, which may now or hereafter be available to Lessee by law or in equity to (i) modify, surrender or terminate this Lease or quit or surrender the Leased Property or any portion thereof, or (ii) entitle Lessee to any abatement, reduction, suspension or deferment of the Rent or other sums payable by Lessee hereunder, except as otherwise specifically provided in this Lease. The obligations of Lessor and Lessee hereunder shall be separate and independent covenants and agreements and the net Basic Rent and Additional Rent and all other sums payable by Lessee hereunder shall continue to be payable in all events unless the obligations to pay the same shall be terminated, or modified, pursuant to the express provisions of this Lease.
ARTICLE 6
6.1 Ownership of the Leased Property. Lessee and Lessor agree that the Leased Property (and upon completion, all additions, alterations and improvements thereto) is the property of Lessor and that Lessee has only the right to exclusive possession, control, and use of the Leased Property upon the terms and conditions of this Lease.
6.2 Lessee’s Equipment. Lessee may, at its expense, install or assemble or place on the Land or in the Leased Improvements, and remove and substitute, any items of machinery, equipment, furnishings or trade fixtures or other personal property owned by Lessee and used or useful in Lessee’s business (collectively, “Lessee’s Equipment”), and Lessee shall remove the same upon the expiration or prior termination of the Term; provided, however, that Lessee shall have no right to remove any item which constitutes a Fixture. All Lessee’s Equipment shall be and remain the property of Lessee (Lessor hereby disclaiming any contractual or statutory lien with respect to the same), provided that any of Lessee’s Equipment not removed by Lessee upon the expiration or earlier termination of this Lease shall be considered abandoned by Lessee and may be appropriated, sold, destroyed or otherwise disposed of by Lessor without first giving notice thereof to Lessee and without obligation to account therefor. All reasonable costs and expenses incurred in removing, storing and disposing of Lessee’s Equipment shall be paid by Lessee. Lessee will repair, at its expense, all damage to the Leased Property caused by the removal of Lessee’s Equipment, whether effected by Lessee or Lessor. Lessor shall not be responsible for any loss or damage to Lessee’s Equipment.
ARTICLE 7
7.1 (a) Lessor’s Work. Lessor has, at its expense, constructed the Premises in conformance, in all material respects of the plans and specifications prepared by Steve Rankin & Associates, incorporating in such construction all work described in, and in compliance with, Exhibit E and Exhibit H attached hereto (“Lessor’s Work”). Lessor represents that all Lessor’s Work has been performed in a good and workmanlike manner using new materials, and in compliance with the building permit therefor and Legal Requirements applicable as of the date of performance, to the extent the same apply thereto. Lessee, by its execution hereof, hereby approves the architectural plans (which are part of Lessor’s Plans [hereinafter defined]) attached hereto as Exhibit H. Lessor has caused detailed plans and specifications to be prepared for Lessor’s Work consistent with Exhibit E and Exhibit H hereto (“Lessor’s Plans”), which plans have been approved by Lessee. Lessor’s Plans are incorporated by reference and deemed a part of Exhibit H to this Lease.
(b) Construction of Building. Intentionally Omitted.
(c) Substantial Completion. Lessor and Lessee acknowledge that Lessor’s Work is substantially complete, except for the “punchlist” items set forth in that certain letter agreement executed between Lessor and Lessee dated as of March 21, 2000 (the “Punchlist Items”).
(d) Punchlist. Lessor shall use its best efforts to complete the Punchlist Items within forty-five (45) days, but in all events within sixty (60) days, after the schedule of Punchlist Items has been mutually developed as set forth above and shall cause the same to be completed in accordance with the Lessor’s Plans (“Punchlist Completion Date”).
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Lessee agrees that it will sign-off, as having been completed, on any completed Punchlist Item upon request by Lessor within five (5) business days of Lessor’s request.
If all such Punchlist Items are not completed in accordance with the terms of this Lease on or before the Punchlist Completion Date, Lessee may offset the amount of unpaid Punchlist Costs pursuant to the Offset and Recapture Procedure; provided however, (i) any such offset amount was utilized to complete Punchlist Items and (ii) Lessee provides appropriate lien waivers as requested by Lessor’s Assignees.
(e) Warranty. Upon receipt of notice from Lessee, Lessor shall promptly repair, or replace when necessary, any defect in Lessor’s Work for which Lessor has received notice during the period ending one (1) year following March 1, 2000. With respect to Punchlist Items, the warranty described in the preceding sentence shall be deemed to have commenced at the time of substantial completion of the item in question and shall end one (1) year thereafter. This obligation shall not apply to defects that are the result of (i) Lessee’s violations of: the Lease, manufacturers or supplier’s warranties, negligent acts or omissions or willful misconduct; (ii) ordinary wear and tear; (iii) acts or omissions of third-parties not acting for or on behalf of the Lessor, unless caused by Lessor’s grossly negligent acts or omissions or willful misconduct; (iv) Alterations by Lessee, or Lessee’s Work and (v) damage as a result of fire or other casualty, unless caused by Lessor’s negligent acts or omissions or willful misconduct. Lessee shall not be required to utilize any specific contractor or material supplier for maintenance to preserve any construction warranties, and may perform such maintenance by its own employees so long as Lessee complies with the requirements of such warranties for the entire duration thereof and so long as only qualified contractors or employees are used. Lessor further agrees to procure for Lessee the benefit of any manufacturer’s or installer’s warranties with respect to heating, ventilating, air conditioning and other fixtures and/or equipment installed by Lessor at the Premises as part of Lessor’s Work (subject to the rights of Lessor’s Assignee). To the extent that any of the Lessor’s Work is covered by a guarantee or warranty which has been assigned to the Lessee, Lessee agrees that, prior to it requesting that Lessor do or cause to be done any repairs or replacements pursuant to this Section, Lessee shall first request of the applicable supplier that such repairs or replacement be done by said supplier in accordance with the terms of its guaranty or warranty.
If Lessor receives notice of a defect within the applicable one (1) year period described above, Lessor shall diligently prosecute the correction of same. If Lessor fails to correct any defect in Lessor’s Work pursuant to this Section 7.1, then Lessee shall, at its option, correct such defects (“Defect Cost”). Lessor shall obtain any temporary certificate of occupancy (“C.O.”) (or final inspections, in lieu thereof if the Village will not issue a C.O. prior to completion of Lessee’s Work and/or occupancy by Lessee) related to Lessor’s Work.
7.2 Lessee’s Work. All work not provided herein to be done by Lessor shall be performed by Lessee, at Lessee’s expense, and deemed to be Lessee’s Work, and Lessee shall do and perform, at its expense, all Lessee’s Work diligently and promptly and in accordance with the following provisions. Lessee acknowledges and agrees that the performance of any Lessee’s Work which is not in the nature of installation of trade fixtures and trade equipment may delay the issuance of a certificate of occupancy or temporary certificate of occupancy.
7.3 Construction by Lessee.
(a) Upon tender of possession of the Leased Property to Lessee, Lessee agrees to accept possession of the Leased Property and to perform the Lessee’s Work in a good and workmanlike manner. Lessee shall apply for all necessary building permits prior to commencing Lessee’s Work. By entering into possession of the Leased Property, Lessee shall be deemed to have accepted the Leased Property and to have acknowledged that the Leased Property fully complies with Lessor’s covenants and obligations hereunder, subject to: (i) the Lessor’s representations and warranties contained herein; (ii) the warranties to be obtained by Landlord pursuant to Section 7.1(e); (iii) latent defects; (iv) Punchlist Items; and (v) the right of Lessee to approve future title exceptions pursuant to Section 7.4 hereof. All Lessee’s Work is to be done by Lessee, at Lessee’s sole expense, and in accordance with the plan and specifications, as approved by Lessor and Lessor’s Assignee, such approval not to be unreasonably withheld. Lessee agrees to submit to Lessor and Lessor’s Assignee complete plans and specifications including engineering, mechanical and electrical work covering Lessee’s Work. Lessor shall review and approve Lessee’s plans, or notify Lessee of any failure of Lessee’s plans and specifications to meet with Lessor’s approval, within six (6) business days of the receipt of same. In the event Lessor fails to notify Lessee of the approval by Lessor of Lessee’s plans within the time period provided above, Lessee’s plans shall be deemed approved.
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(b) Lessee’s Work shall be done in accordance with all applicable Legal Requirements including, without limitation, the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. and Lessee’s plans shall be certified to by an Illinois licensed registered architect or professional engineer, as appropriate. Lessee shall not perform any work at the Leased Property until Lessor has given Lessee written approval of Lessee’s plans and specifications (or the same are deemed approved as provided above) and Lessee has obtained appropriate builder’s risk, property damage and commercial general liability insurance naming Village, Lessor, Lessee, and Lessor’s Assignees as their interest may appear as required by this Lease and established the same to Lessor’s reasonable satisfaction. Any of Lessee’s Work causing venting, opening, sealing, waterproofing or any altering of the roof shall be performed by Lessor’s roofing contractor or by a roofing contractor selected by Lessee and approved by Lessor, in Lessor’s sole discretion, and shall be done at Lessee’s sole expense. Lessee shall provide Lessor with a certificate from the roofing contractor that all of Lessee’s Work causing venting, opening, sealing, waterproofing or in any way altering the roof has been performed in compliance with the plans and specifications and in accordance with all guarantees or warranties for the roof. Lessee hereby covenants and agrees to hold Lessor harmless and will indemnify, protect and, at Lessor’s option, defend Lessor and Lessor’s Assignee, with counsel reasonably approved by Lessor, from any damage to the Leased Property resulting, directly or indirectly, from Lessee’s venting, opening, sealing, waterproofing or any other way altering the roof. If the nature of Lessee’s Work is such that the C.O. cannot issue until occupancy by Lessee and/or completion of Lessee’s Work, then Lessee agrees to furnish Lessor a C.O. from all applicable local authorities at the completion of Lessee’s Work and/or upon Lessee’s occupancy. Lessee shall also be responsible for the prompt removal of Lessee’s construction debris.
(c) Lessee shall post such notices of non-responsibility as Lessor or Lessor’s Assignees shall reasonably require.
7.4 Condition of the Leased Property. Lessee acknowledges that it has examined title to, and the condition of, the Leased Property prior to the execution and delivery of this Lease and so long as such complies with Exhibit F has found the same to be satisfactory for all purposes hereunder. Lessee expressly approves the list of title exceptions set forth in Exhibit A-1 attached hereto (“Permitted Exceptions”). Lessor agrees that no other matter shall be placed of record without Lessee’s prior written consent. Lessee acknowledges that various easements may be required by the Village and various utility companies in connection with development of the Leased Property (“Development Easements”) and agrees not to unreasonably withhold, condition or delay consent to such Development Easements. Any response to a request for approval of a Development Easement shall be delivered within ten (10) Business Days of the request for such approval and if approval is denied or conditioned, shall specifically state the reasons for the withholding or conditioning. Requests for approval not responded to within ten (10) Business Days shall automatically be deemed approved. Lessee shall not be entitled to withhold its consent so long as the Development Easement(s) requested are consistent with the development standards for other first class industrial properties in the greater Chicago Metropolitan area and do not interfere with Lessee’s use of and access to the Leased Property or result in any increased cost to Lessee. Lessor agrees to deliver to Lessee copies of any foundation or as built surveys required by the terms of Lessor’s Indenture to Lessee simultaneously with such delivery to Lessor’s Assignee. Any such surveys shall be certified to Lessee and any title company which Lessee shall have delivered prior notice of to Lessor. Except as expressly set forth herein, Lessee is renting the Leased Property “as is” in its present condition. EXCEPT AS EXPRESSLY SET FORTH HEREIN, LESSOR MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, IN RESPECT OF THE LEASED PROPERTY OR ANY PART THEREOF, EITHER AS TO ITS FITNESS FOR USE, DESIGN OR CONDITION FOR ANY PARTICULAR USE OR PURPOSE OR OTHERWISE, AS TO COMPLIANCE WITH LEGAL REQUIREMENTS, AS TO QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, LATENT OR PATENT, OR AS TO LESSOR’S TITLE THERETO OR OTHERWISE, IT BEING AGREED THAT ALL SUCH RISKS ARE TO BE BORNE BY LESSEE. LESSEE ACKNOWLEDGES THAT THE LEASED PROPERTY HAS BEEN INSPECTED BY LESSEE AND IS SATISFACTORY TO IT. Notwithstanding anything herein to the contrary, as to any Disclaimed Lessor’s Work, Lessee does not accept such work or the condition of the Leased Premises but, rather, Lessor shall remain responsible throughout the Term for all repairs, maintenance and correction, as may be appropriate, necessitated Disclaimed Lessor’s Work.
7.5 Use of the Leased Property. Lessee may use the Leased Property only for the Permitted Use. Lessee agrees that it will not permit any unlawful occupation, business or trade to be conducted on the Leased Property or any use to be made thereof contrary to any Legal Requirements or Insurance Requirements applicable thereto. Lessee shall
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not use or occupy or permit the Leased Property to be used or occupied, nor do or permit anything to be done in or on the Leased Property or any part thereof, in a manner that may make it impossible to obtain any insurance thereon which Lessee is, or may be, required to furnish hereunder, or that will cause or be likely to cause structural or other material injury to any of the Leased Improvements or the Personal Property, or that will constitute a public or private nuisance or waste.
ARTICLE 8
8.1 Compliance with Legal and Insurance Requirements, Instruments, etc. Subject to Section 13.1 relating to permitted contests, Lessee, at its expense, will promptly (a) comply with all Legal Requirements and Insurance Requirements (but as to Insurance Requirements, Lessee shall be deemed in compliance so long as it has complied in all material respects) in respect of the use, operation, maintenance, repair and restoration of the Leased Property, whether or not compliance therewith shall require structural changes in any of the Leased Improvements or interfere with the use and enjoyment of the Leased Property, and whether or not such Legal Requirements or Insurance Requirements represent a change in policy of the entity promulgating or enforcing any such Legal Requirement or Insurance Requirement, and (b) procure, maintain and comply with all licenses and other authorizations required for any use of the Leased Property then being made, and for the proper erection, installation, operation and maintenance of the Leased Improvements or any part thereof.
8.2 Capital Improvement Credit. If Lessee is required, pursuant to Section 8.1 or 9.1 hereof, to make any capital improvement, repair or replacement to the roof, structural elements, HVAC or other building systems of the Leased Property which individually cost in excess of One Hundred Thousand Dollars ($100,000), then Lessee shall deliver prior written notice to Lessor of the need for such improvement, repair or replacement, including detailed information as to the nature and estimated cost thereof for Lessor’s approval, not to be unreasonably withheld. At the expiration of this Lease, provided no Event of Default exists hereunder, Lessee shall receive from Lessor a reimbursement for the unamortized portion of such capital improvement, repair, or replacement approved by Lessor (or binding pursuant to the last sentence hereof) applicable to the period beyond the Lease Term. The amount of such capital improvement shall be amortized over the useful life of the improvement in question (as determined by Internal Revenue Service standards) at an interest rate equal to the lesser of (a) ten percent (10%) or (b) Lessee’s actual cost of borrowing to pay for such capital improvement. In the event of a dispute between Lessor and Lessee as to the necessity for such capital improvement, repair or replacement, Lessor and Lessee shall submit such dispute to a mutually acceptable independent architect, engineer or contractor (as appropriate for the item in question) whose decision shall be final, binding and conclusive on the parties. Any amounts not paid to Lessee within thirty (30) days shall become a lien upon the Leased Property, which lien shall be subordinate to the lien of any Lessor’s Assignee. If Lessor fails to reimburse Lessee within such thirty (30) days, Lessee shall have the right to offset the amount owed under this Section 8.2 pursuant to the Offset and Recapture Procedure. The expiration date of the Term shall be deemed extended during the period of any good faith negotiations for a renewal pursuant to Section 19.1 of the Lease. Notwithstanding the foregoing, Lessor shall have no obligation to Lessee with respect to said expenditure if the same was necessitated by Lessee’s negligence, willful acts, or failure to maintain the building in accordance with warranty requirements. The provisions of this Section 8.2 shall not apply with respect to events of damage or destruction, and Lessor and Lessee acknowledge that the provisions of Article 15 shall be controlling upon the occurrence of the same. In the event Lessor purchases the Leased Property, then the amount that would otherwise be reimbursed to Lessee pursuant to this Section 8.2 shall be a credit in favor of Lessee against the purchase price.
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ARTICLE 9
9.1 Maintenance and Repair. (a) Except as provided in Section 7.1, Lessee, at its expense, will maintain and repair the Leased Property and all private roadways, sidewalks and curbs appurtenant thereto in good condition, repair and working order (ordinary wear and tear excepted), and, with reasonable promptness, make all necessary and appropriate repairs and replacements thereto of every kind and nature, whether interior or exterior, structural or non-structural, ordinary or extraordinary, foreseen or unforeseen, or arising by reason of a condition existing prior to the commencement of the Term of this Lease (concealed or otherwise). All repairs and replacements shall be at least equivalent in quality to the original work. Lessee will not take or omit to take any action the taking or omission of which might materially impair the value or the usefulness of the Leased Property or any part thereof or commit any waste of the Leased Property or any part thereof.
(b) Except as expressly provided in this Lease, Lessor shall not under any circumstances be required to build any improvements on the Leased Property, or to make any repairs, replacements, alterations or renewals of any nature or description to the Leased Property, whether ordinary or extraordinary, structural or non-structural, foreseen or unforeseen, or to make any expenditure whatsoever in connection with this Lease, or to maintain the Leased Property in any way. Lessee hereby waives the right to make repairs at the expense of Lessor pursuant to any law in effect at the time of the execution this Lease or hereafter enacted.
(c) Nothing contained in this Lease and no action or inaction by Lessor shall be construed as constituting the consent or request of Lessor, expressed or implied, to any contractor, subcontractor, laborer, materialman or vendor to or for the performance of any labor or services or the furnishing of any materials or other property for the construction, alteration, addition, repair or demolition of or to the Leased Property or any part thereof.
(d) Upon the expiration or prior termination of the Term, Lessee will vacate and surrender the Leased Property to Lessor in the condition in which the Leased Property was originally received from Lessor, except as repaired, rebuilt, restored, altered or added to as permitted or required by the provisions of this Lease, ordinary wear and tear excepted.
9.2 Encroachments, Restrictions, etc. If Lessee shall cause or have caused any of the Leased Improvements to encroach upon any property, street or right-of-way adjacent to the Leased Property, or to violate the agreements or conditions contained in any restrictive covenant or other agreement affecting the Leased Property, or any part thereof, or shall impair the rights of others under any easement or right-of-way to which the Leased Property is subject, then promptly upon the request of Lessor or at the behest of any Person affected by any such encroachment, violation or impairment, Lessee shall, at its expense, subject to its right to contest the existence of any encroachment, violation or impairment and in such case, in the event of an adverse final determination, either (i) obtain valid and effective waivers or settlements of all claims, liabilities and damages resulting from each such encroachment, violation or impairment, whether the same shall affect Lessor or Lessee or (ii) make such changes in the Leased Improvements and take such other actions as shall be necessary to remove such encroachment and to end such violation or impairment, including, if necessary, the alteration of any of the Leased Improvements. Any such alteration shall be made in conformity with the requirements of Section 10.1.
ARTICLE 10
10.1 Alterations, Substitutions and Replacements. Lessee, at its expense, may at any time and from time to time make interior, non-structural alterations of, and interior nonstructural additions to, the Leased Improvements or any part thereof and substitutions and replacements for the same (collectively, “Alterations”), provided that (a) the market value of the Leased Property shall not be reduced or its usefulness impaired, (b) the work shall be done expeditiously and in a good and workmanlike manner using new materials of good quality, (c) the plans and specifications for any single Alteration with an estimated cost in excess of Two Hundred Thousand Dollars ($200,000.00) shall be approved in advance in writing by Lessor and, if required by the terms of Lessor’s Indenture, Lessor’s Assignees, such approval not to be unreasonably withheld, (d) Lessee shall comply with all Legal Requirements and Insurance Requirements, if any, applicable to the work, (e) subject to Articles 12 and 13 of this Lease, Lessee shall promptly pay all costs and expenses and discharge any and all liens arising in respect of the work and (f) no Alteration shall adversely affect the mechanical,
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utility, heating, ventilating and air conditioning systems or electrical systems of the Leased Improvements. All Alterations shall immediately become and remain the property of Lessor, shall be deemed part of the Leased Property, and shall be subject to all of the terms and provisions of this Lease. No Alterations shall be made which would tie in or connect any Leased Improvements on the Leased Property with any other improvements on property adjacent to the Leased Property. At the time Lessee seeks Lessor’s approval, Lessee may request that Lessor determine, as a part of its approval, whether the Alteration must be removed and/or the Leased Property be restored. Lessee shall not be obligated to restore Alterations that Lessor, at the time of granting its approval, indicates need not be removed or for which restoration need not be performed.
Subject to the provisions of Article 35, Lessor agrees that Lessee’s right to expand the Building is pre-approved and shall not be subject to the provisions of this Section 10.1.
ARTICLE 11
11.1 Environmental Matters. In the event any activity has been conducted at the Leased Property prior to the date of the Environmental Report, or in the future will be conducted at the Leased Property following the Commencement Date or any past or any future use of the Leased Property following the Commencement Date in any manner (a) which has or would cause the Leased Property to become a hazardous waste treatment storage or disposal facility within the meaning of, the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901 et seq., or any other federal, state or local law, rule, ordinance or regulation relating to Hazardous Materials, (b) has or would cause a release or threatened release of Hazardous Materials from the Leased Property within the meaning of, or otherwise bring the Leased Property within the ambit of, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601-9657, or any other federal, state or local law, rule, ordinance or regulation relating to Hazardous Materials, or (c) has or would cause the point source discharge of pollutants or effluents into any water source or system, or the discharge into the air of any emissions, which would require a permit under the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq., or the Clean Air Act, 42 U.S.C. §§ 7401 et seq., or any other federal, state or local law, rule, ordinance or regulation relating to Hazardous Materials, Lessee agrees to promptly notify Lessor and Lessor’s Assignees, if any, and further agrees promptly to so notify such parties of any claim made with respect to any of such matters. In the event that the Lessee discovers that Hazardous Materials exist on the Leased Property in violation of any applicable law, rule, ordinance or regulation (whether or not disclosed in the Environmental Report) Lessee shall also promptly notify Lessor of such condition and shall take such actions as are required by applicable law. Lessee agrees to comply with each of the recommendations, if any, contained in the Environmental Report for the protection, operation and maintenance of the Leased Property and shall not use the Leased Property in violation of any Environmental Laws.
Notwithstanding anything herein contained, Lessee shall not be responsible for, and accepts no liability for, any violation of any Environmental Law or for any use involving Hazardous Materials that is not disclosed in the Environmental Report or that results from conduct of Lessor or Lessor’s contractor, its subcontractors, materialmen, agents, and employees.
ARTICLE 12
12.1 Liens. Subject to Section 13.1 relating to contests, Lessee will not directly or indirectly create or allow to remain and will promptly discharge at its expense any lien, encumbrance, attachment, title retention agreement or claim upon the Leased Property or any attachment, levy, claim or encumbrance in respect of the Basic Rent or Additional Rent provided under this Lease arising out of Lessee’s (or its agents’ or employees’) occupancy of or activities with respect to the Leased Property, not including, however, (a) this Lease, (b) any Indenture, (c) restrictions, liens and other encumbrances which are consented to in writing by Lessor and Lessor’s Assignees, if any, or any easements which do not materially and adversely affect (1) the marketability of title to the Leased Property, (2) the use of the Leased Property for all purposes of this Lease, or (3) the fair market value of the Leased Property, provided that Lessee shall first have delivered an Officer’s Certificate to Lessor and Lessor’s Assignees, if any, certifying as to the matters set forth in clauses (1) and (2), (d) liens for those taxes of Lessor which Lessee is not required to pay hereunder, (e) subleases permitted by Article 24, liens for Impositions or for sums resulting from noncompliance with Legal Requirements so long as (1) the same are not yet payable or are payable without the addition of any fine or penalty or (2) such liens are in the
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process of being contested as permitted by Section 13.1, and (f) liens of mechanics, laborers, materialmen, suppliers or vendors for sums either disputed or not yet due, provided that (1) the payment of such sums shall not be postponed under any related contract for more than thirty (30) days after the completion of the action giving rise to such lien and such reserve or other appropriate provisions as shall be required by law or sound accounting principles shall have been made therefor or (2) any such liens are in the process of being contested as permitted by Section 13.1. Notwithstanding anything contained herein to the contrary, Lessee acknowledges and agrees that Impositions shall not be contested below the levels specified in the Redevelopment Agreement.
ARTICLE 13
13.1 Permitted Contests. Lessee, on Lessor’s behalf, but at Lessee’s expense, may contest, by appropriate legal proceedings conducted in good faith and with due diligence, the amount or validity or application, in whole or in part, of any Imposition or any Legal Requirement or Insurance Requirement or any lien, encumbrance, charge or claim not permitted by Section 12.1, provided that (a) in the case of an unpaid Imposition, lien, encumbrance, charge or claim, the commencement and continuation of such proceedings shall suspend the collection thereof from Lessor and/or from the Leased Property, (b) neither the Leased Property nor any rent therefrom nor any part thereof or interest therein would be in any immediate danger of being sold, forfeited, terminated, canceled or lost, (c) in the case of a Legal Requirement, Lessor would not be in any danger of civil or criminal liability for failure to comply therewith pending the outcome of such proceedings, (d) in the case of a Legal Requirement and/or an Imposition, lien, encumbrance or charge, Lessee shall give such reasonable security as may be demanded by Lessor or Lessor’s Assignees, if any, to insure ultimate payment of the same, including, without limitation, all interest and penalties thereon, and to prevent any sale or forfeiture of the Leased Property, the Basic Rent and any Additional Rent by reason of such non-payment or noncompliance, provided, however, Lessee is not permitted to contest, and the provisions of this Section shall not be construed to permit Lessee to contest, the payment of Basic Rent, Additional Rent or any other sums payable by Lessee to Lessor hereunder, (e) in the case of an Insurance Requirement, the coverage required by Article 14 shall be maintained, and (f) if such contest be finally resolved against Lessor or Lessee, Lessee shall, as Additional Rent due hereunder, promptly pay the amount required to be paid, together with all interest and penalties accrued thereon, or comply with the applicable Legal Requirement or Insurance Requirement. Lessee shall indemnify and save Lessor harmless against any liability, cost or expense of any kind that may be imposed upon Lessor in connection with any such contest and any loss resulting therefrom.
ARTICLE 14
14.1 Insurance. So long as this Lease remains in effect, Lessee agrees to maintain at all times and at its expense insurance, covering the Leased Property as follows:
(a) Property Insurance. Insurance with respect to the Leased Improvements against any peril included within the classification “All Risks of Physical Loss,” with extended coverage in amounts at all times sufficient to prevent it from becoming a co-insurer within the terms of the applicable policies, but in any event such insurance shall be maintained in an amount equal to the full insurable value of the Leased Property and with reasonable deductibles. The term “full insurable value” as used herein shall mean the actual replacement cost of the Leased Property (without taking into account any depreciation, and exclusive of excavations, footings and foundations, landscaping and paving).
(b) Liability Insurance. Comprehensive general liability insurance, including bodily injury, death and property damage liability, dram shop coverage and umbrella liability insurance against any and all claims, including all legal liability to the extent insurable imposed upon Lessor and Lessor’s Assignees as their interests may appear and all court costs and reasonable attorneys’ fees and expenses, arising out of or connected with the possession, use, leasing, operation, maintenance or condition of the Leased Property in such amounts as Lessor’s Assignees may require, but in no event for a combined single limit of less than $1,000,000.00 minimum (or a $3,000,000.00 minimum if the Leased Property contains one or more elevators) with a $2,000,000.00 minimum (or a $6,000,000.00 minimum if the Leased Property contains one or more elevators) general aggregate limit. In the event that any payment of proceeds is made under any umbrella liability insurance policy, the Lessee shall immediately purchase additional umbrella liability insurance coverage so that at all times there shall be no less than a $1,000,00.00 minimum (or a $3,000,000.00 minimum
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if the Leased Property contains one or more elevators) of liability insurance coverage per occurrence with a $2,000,000.00 minimum (or a $6,000,000.00 minimum if the Leased Property contains one or more elevators) general aggregate limit.
(c) Workers’ Compensation Insurance. Statutory workers’ compensation insurance (to the extent the risks to be covered thereby are not already covered by other policies of insurance maintained by it), with respect to any work on, about or regarding the Leased Property.
(d) Business Interruption Insurance. Business interruption and/or loss of “rental value” insurance in an amount sufficient to avoid any co-insurance penalty and to provide proceeds which will cover a period of one (1) year.
(e) Boiler and Machinery Insurance. Broad form boiler and machinery insurance covering all boilers or other pressure vessels, machinery and equipment located in, on or about the Leased Property and insurance against loss of occupancy or use arising from any such breakdown in an amount equal to 100% of the actual replacement cost of such machinery (without taking into account any depreciation) and containing reasonable deductibles.
(f) Flood Insurance. If all or any portion of the Leased Property is located within a federally designated flood hazard zone, flood insurance as is generally available and in such amount and with such deductibles as Lessor’s Assignees may require.
All insurance policies shall be in form and substance acceptable to Lessor’s Assignees, shall name Lessor’s Assignees and their successors and assigns as their interest may appear as additional insureds, mortgagees and/or loss payees, as deemed appropriate by Lessor’s Assignees, with the exception of the property exclusively owned by Lessee, such as inventory, machinery and equipment, and shall provide that all proceeds are payable to Lessor’s Assignees. All insurance companies providing such insurance shall have a Best’s rating of at least A-.
14.2 Policy Provisions and Certificates. The insurance maintained by Lessee under clauses (a), (b), (d), (e), and (f) of Section 14.1 shall name Lessor and Lessee, as named insureds, as their respective interests may appear, and shall bear a standard non-contributory first mortgagee endorsement, as appropriate, in favor of Lessor’s Assignees, if any, as loss payees. The insurance maintained by Lessee under clauses (a), (b), (d), (e) and (f) of Section 14.1 shall provide that all property losses insured against shall be adjusted by Lessee (prior to an Event of Default) (subject to Lessor’s approval of final settlement of estimated losses of Fifty Thousand Dollars ($50,000.00) or more) and that the proceeds thereof shall be paid to Lessor, and Lessor’s Assignees, to be applied in the manner hereinafter set forth in Section 15.1 and Section 15.3. All insurance maintained by Lessee shall provide that (a) no cancellation or reduction thereof shall be effective until at least thirty (30) days after receipt by Lessor and Lessor’s Assignees, if any, of written notice thereof, and (b) all losses shall be payable notwithstanding any act or negligence of Lessor, Lessor’s Assignees, if any, or Lessee or their respective agents or employees which might, absent such agreement, result in a forfeiture of all or part of such insurance payment and notwithstanding (i) the occupation or use of the Leased Property for purposes more hazardous than permitted by the terms of such policy, (ii) any foreclosure or other action or proceeding taken pursuant to any provision of any Indenture upon the happening of an event of default thereunder, or (iii) any change in title or ownership of the Leased Property or any part thereof. Lessee will, within fifteen (15) days after the same first becomes due hereunder, furnish to Lessor and Lessor’s Assignees, if any, certificates for the insurance required by Section 14.1, and not less than thirty (30) days before the expiration of any such insurance, certificates evidencing the replacement or renewal thereof, together with written evidence that the premium therefor has been paid.
14.3 Subrogation. During the period prior to completion of any Punchlist Items, in respect of any real, personal or other property located in, at or upon the Leased Property, and in respect of the Leased Property itself, Lessee hereby releases Lessor and Lessor’s Assignees, if any, from any and all liability or responsibility to Lessee or anyone claiming by, through or under Lessee, by way of subrogation or otherwise, for any loss or damage caused by fire or any other casualty whether or not such fire or other casualty shall have been caused by the willful fault or gross negligence of Lessor or Lessor’s Assignees, if any, or anyone for whom any of said Persons may be responsible. If generally available from insurance carriers, then, during the period prior to completion of the Punchlist Items, Lessee shall require its fire, extended coverage and other casualty insurance carriers to include in Lessee’s policies a clause or endorsement whereby the insurer waives any rights of subrogation against Lessor and Lessor’s Assignees, if any.
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14.4 Other Insurance. Lessee shall not take out separate insurance concurrent in form or contributing in the event of loss with that required by this Article to be furnished by Lessee unless Lessor and Lessor’s Assignees, if any, are included therein as named insureds as their respective interests may appear, with loss payable as in this Article provided. Lessee shall immediately notify Lessor and Lessor’s Assignees, if any, whenever any such separate insurance is taken out and shall deliver the policy or policies or duplicates thereof, or certificates evidencing the same as provided in this Article.
ARTICLE 15
15.1 Notice of Damage, Destruction or Taking; Condemnation Awards. In case of any material damage to or destruction of the Leased Property or any part thereof or in case of any Taking, Lessee shall forthwith give notice thereof to Lessor. If Lessor shall be advised by the condemning authority of a proposed Taking, Lessor shall forthwith give notice thereof to Lessee. In case of any such Taking (whether permanent or temporary), damage or destruction, Lessor shall be entitled to all awards or insurance payments on account thereof, other than as expressly set forth herein. Lessee shall be entitled to any awards made (i) for the taking of personal property, inventory or trade fixtures belonging to Lessee including Lessee’s Equipment, (ii) for the interruption of Lessee’s business or its moving costs, (iii) for the value of any leasehold improvements installed and paid for by Lessee, or (iv) or other compensable tenant claims, including, without limitation, moving expenses; provided in no event shall Lessee be entitled to any award made for the value of the leasehold. Unless an Event of Default shall have occurred, all sums so received by Lessor, shall be applied in accordance with the provisions of Section 15.3, except that any such sums received with respect to a Taking for temporary use shall be applied in accordance with the provisions of Section 15.2. For the purposes of this Lease, all amounts paid pursuant to any agreement with any condemning authority in settlement of any condemnation or other eminent domain proceeding affecting the Leased Property shall be deemed to constitute an award made in such proceeding whether or not the same shall have actually been commenced. For the purposes of this Article, the terms “net proceeds” and “net awards” shall mean, respectively, (i) any insurance proceeds in respect of any damage to or destruction of the Leased Property or any part thereof, or (ii) any awards in connection with any Taking thereof, in each case, less all costs and expenses, including attorneys’ fees, incurred in connection with the seeking and obtaining of any such proceeds or awards.
15.2 Taking for Temporary Use. In case of a Taking for temporary use, there shall be no termination, cancellation or modification of this Lease, and Lessee shall continue to perform and comply with (except as such performance and such compliance may be rendered impossible by reason of such Taking) all of its obligations under this Lease and shall in no event be relieved of its obligation to pay punctually all Rent or any other charges payable hereunder. If no Event of Default shall have occurred, Lessor shall pay the net awards received by it (whether by way of damages, rent or otherwise) by reason of such Taking to Lessee within thirty (30) days of receipt of said award. If an Event of Default shall have occurred, any such net award shall be retained by Lessor, to the extent of the Event of Default (and allowable damages therefor). “Temporary Use,” as used in this Section 15.2, shall mean a Taking of the entire Leased Property (or such a substantial portion of the Leased Property as would render the balance unsuitable for Lessee’s Permitted Use) for a period of up to one hundred eighty (180) days.
15.3 Other Taking; Damage or Destruction; Repair or Replacement.
(a) Except as otherwise provided in Section 15.2 regarding Temporary Use, Lessee shall have the option to terminate this Lease if, as a result of any Taking (including a Taking of off-site improvements or access), (i) the remaining leasable area of the Building is less than the original leaseable area of the Building and cannot, within six (6) months from the effective date of the Taking, be increased to the original leaseable area of the Building solely with the use of the Net Award (as otherwise herein reduced) which determination shall be made within forty five (45) days of the effective date of the Taking; or (ii) in Lessee’s sole and absolute discretion, the Building is no longer suitable for the continued operation of Lessee’s business within six (6) months from the effective date of the Taking, solely with the use of the Net Award which shall be determined within forty five (45) days of the effective date of the Taking (as otherwise herein reduced). Lessee must exercise such option by delivering written notice to Lessor (the “Taking Termination Notice”) not later than ninety (90) days after the effective date of such Taking (which, for purposes hereof, shall mean the earlier of delivery of possession or transfer of title to the condemning authority, unless, in the case of prior transfer of
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title, Lessee is permitted to continue occupying the Leased Property until delivery of possession) (the “Taking Termination Date”).
(b) In the event that Lessee delivers a Taking-Termination Notice to Lessor then, the entire proceeds of any Taking and the right thereto shall be assigned to and shall belong to Lessor and this Lease shall terminate as of the Taking-Termination Date at which time the parties shall be released from any and all obligations and liabilities arising up to and including the Taking-Termination Notice.
(c) Except as otherwise provided in Subsection (a) and (b) hereof, in case of any damage to or destruction of the Leased Property or any part thereof, or in case of any Taking other than for Temporary Use, Lessee will promptly commence and complete with due diligence (subject to Unavoidable Delays) the replacement and repair of the Leased Property in order to restore it as nearly as practicable to the value and condition thereof immediately prior to such damage, destruction or Taking, provided Lessor or Lessor’s Assignees has made the insurance proceeds or condemnation award available to Lessee and such funds are adequate to restore. In the event such funds are not adequate to restore the Leased Property, Lessor may elect within forty five (45) days after the damage or Taking to terminate this Lease unless Lessee agrees to provide the funds necessary to complete repairs. If an Event of Default shall have occurred, Lessor may, at its option, retain all or of any portion of net proceeds of insurance and/or net awards for a Taking, to the extent of the Event of Default, and any allowable damages therefrom. Upon completion of construction, Lessee shall deliver to Lessor (i) a copy of a permanent, unconditional certificate of occupancy for the Leased Property and (ii) an Officer’s Certificate and a certificate of an engineer or architect satisfactory to Lessor certifying to the completion of the repair or replacement of the Leased Property, the payment of the cost thereof in full, and the amount of such cost, and upon receipt of such certificates by Lessor, any balance of such proceeds and awards or other payments not required to be held or applied in accordance with the preceding sentence, shall if no Event of Default shall have occurred, (1) in the case of insurance proceeds, be paid over to, and retained by Lessee, and (2) in the case of an award for a Taking, be paid over to Lessor. In the event of a Taking of such character as not to require any repair or replacement of the Leased Improvements, and upon delivery to Lessor of an Officer’s Certificate certifying that such partial Taking has not materially affected the condition or use of the Leased Property, any net award or other payment for such Taking shall, if no Event of Default shall have occurred, be paid over to Lessor. If an Event of Default shall have occurred prior to the time of Lessor’s receipt of any insurance proceeds or awards or other payment for a Taking pursuant to this Section, the same shall be applied in the manner specified in any Indenture.
ARTICLE 16
16.1 Intentionally Omitted.
ARTICLE 17
17.1 Events of Default. If any one or more of the following events (individually, an “Event of Default”) shall occur:
(a) if Lessee shall fail to make payment of any Basic Rent or Additional Rent payable by Lessee under this Lease within five (5) days of Lessee’s receipt of Lessor’s written notice of such failure to pay; or
(b) if Lessee shall fail to observe or perform any other material term, covenant or condition of this Lease and such failure shall continue for a period of thirty (30) days after written notice thereof to Lessee, unless such failure cannot with due diligence be cured within a period of thirty (30) days, in which case such failure shall not be deemed to continue if Lessee proceeds promptly and with due diligence to cure the failure and diligently completes the curing thereof; or
(c) if Lessee shall make a general assignment for the benefit of its creditors, or shall file a voluntary petition in bankruptcy, or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking, consenting to, or acquiescing in reorganization, arrangement, adjustment, composition, liquidation, dissolution or similar relief under any present or future statute, law or regulation, or shall file an answer admitting or failing to deny
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the material allegations of a petition against it for any such relief, or shall admit in writing its inability to pay its debts as they mature; or
(d) if any proceeding against Lessee seeking any of the relief mentioned in clause (c) of this Section shall not have been stayed or dismissed within sixty (60) days after the commencement thereof; or
(e) if a trustee, receiver or liquidator of Lessee or of any substantial part of its properties or assets, or of Lessee’s estate or interest in the Leased Property shall be appointed with the consent or acquiescence of Lessee, or if any such appointment, if not so consented to or acquiesced in, shall remain unvacated or unstayed for a period of sixty (60) consecutive days; or
(f) if Lessee shall be liquidated or dissolved, or shall begin proceedings toward such liquidation or dissolution or shall, in any manner, permit the divestiture of substantially all its assets; provided that a liquidation or dissolution of Lessee, or the beginning of proceedings toward a liquidation or dissolution of Lessee, or the divestiture of substantially all the assets of Lessee, shall not be an Event of Default with respect to Lessee, if the survivor of such merger with Lessee or the purchaser of such assets from Lessee shall assume all of Lessee’s obligations under this Lease by a written instrument, in form and substance reasonably satisfactory to Lessor and Lessor’s Assignees, if any, or by operation of law, and, if so long as immediately after giving effect to any such merger or asset sale the Lessee or other corporation (if not the Lessee) surviving the same shall have a Consolidated Tangible Net Worth at least equal to the Consolidated Tangible Net Worth of Lessee immediately prior to such merger or asset sale. At the request of Lessor, Lessee shall deliver an opinion of counsel, reasonably satisfactory to Lessor, stating that such instrument of assumption is valid, binding and enforceable against the parties thereto in accordance with its terms, subject to customary exceptions with respect to enforceability; or
(g) Intentionally Omitted.
(h) Intentionally Omitted.
(i) if any of the material representations or material warranties made by Lessee in this Lease proves to be untrue in any material respect; or
(j) there shall be rendered against the Lessee a final judgment or decree in an amount in excess of Five Million and No/100 Dollars ($5,000,000.00) and the Lessee, as the case may be, shall have failed to satisfy such judgment or to appeal therefrom (or from the order, decree or process pursuant to which such judgment was granted, passed, entered or affirmed) and to obtain a stay of execution thereof within the period prescribed by law for appeals, and to have such judgment discharged within sixty (60) days after the expiration of such period or the period of any such stay, whichever shall later expire; or
(k) Any material report, certificate, financial statement or other instrument delivered to Lessor by or on behalf of Lessee is false or misleading in any material respect when made or delivered.
Upon an Event of Default, Lessor may, at its option and without limitation on any other remedies available to it, (i) terminate this Lease by giving Lessee written notice of such termination and upon the giving of such written notice, the Term shall terminate and all unaccrued rights of Lessee under this Lease shall cease, or (ii) to continue to enforce Lessee’s obligation to pay Basic Rent, Additional Rent, and all other sums due under this Lease (including such amounts as may be due by reason of acceleration) without terminating this Lease. Lessee will pay as Additional Rent all costs and expenses incurred by or on behalf of Lessor, including, without limitation, reasonable attorneys’ fees and expenses, as a result of any Event of Default hereunder.
Notwithstanding anything contained herein to the contrary, in the event Lessor receives a notice of default under Lessor’s Indenture relating to Lessee’s nonperformance of any covenant, terms or conditions of this Lease, which default is not cured by Lessee within thirty (30) days from the effective date of such notice, Lessor shall have the immediate right to pay such sum or perform any such covenant, term and condition as necessary to avoid creating a default under such Indenture.
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17.2 Surrender; Entry by Lessor. If an Event of Default shall have occurred, whether or not this Lease has been terminated pursuant to Section 17.1, Lessee shall, if required by Lessor so to do, immediately surrender the Leased Property to Lessor and quit the same, and if permitted by applicable law, Lessor may enter upon and repossess the Leased Property by reasonable force, summary proceedings, ejectment or otherwise, and may remove Lessee and all other Persons and any and all personal property from the Leased Property. Lessor shall be under no liability for or by reason of any such entry, repossession or removal. Notwithstanding anything contained in this Lease to the contrary, Lessor agrees to comply with any forcible entry and detainer act prior to entering the Leased Property.
17.3 Reletting by Lessor. If an Event of Default shall have occurred, whether or not this Lease has been terminated pursuant to Section 17.1, Lessor shall use its best efforts to relet the Leased Property or any part thereof for the account of Lessee, in the name of Lessee or otherwise, for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the then current Term) and on such conditions (which may include concessions or free rent) and for such purposes as Lessor may determine, and may collect, receive and retain the rents resulting from such reletting.
17.4 Current Liquidated Damages. Neither (a) the termination of this Lease pursuant to Section 17.1, (b) the repossession of the Leased Property, (c) the failure of Lessor to relet the Leased Property, nor (d) the reletting of all or any portion thereof, shall relieve Lessee of its liability and obligations hereunder, all of which shall survive any such termination, repossession or reletting. In the event of any such termination, Lessee shall forthwith pay to Lessor all Rent due and payable to and including the date of such termination. Thereafter, monthly on the days on which the Basic Rent would have been payable under this Lease if the same had not been terminated and until the end of what would have been the then current Term in the absence of such termination, Lessee, at Lessor’s option, shall pay Lessor as and for liquidated and agreed current damages for Lessee’s default:
(a) an amount equal to the Basic Rent and Additional Rent that would have been payable by Lessee hereunder if the Term had not been terminated, less
(b) the net proceeds, if any, of any reletting of the Leased Property or any part thereof, after deducting all of Lessor’s expenses in connection therewith, including, without limitation, repossession costs, brokerage commissions, attorneys’ fees and expenses and any repair or alteration costs and expenses incurred in connection with such reletting.
17.5 Final Liquidated Damages. At any time after the termination of this Lease pursuant to Section 17.1, whether or not Lessor shall have collected any current damages pursuant to Section 17.4, Lessor, at its option, shall be entitled to recover from Lessee and Lessee will pay to Lessor on demand as and for liquidated and agreed final damages for Lessee’s default (it being agreed that it would be impractical or extremely difficult to fix the actual damages), and in lieu of all current damages provided in Section 17.4 beyond the date to which the same shall have been paid.
(a) the sum of (i) any past due Rent together with interest thereon (to the extent permitted by law) computed from the due date thereof to the date of payment of all sums due and owing at the Overdue Rate (or at the maximum rate permitted by law, whichever is the lesser), (ii) the remaining payments of Basic Rent (which would otherwise have become due during the remainder of the then current Term but for such termination) as of the later of the date to which Basic Rent shall have been paid or the date to which Lessee shall have paid current damages pursuant to Section 17.4 together with interest thereon computed from the later of such dates to the date of payment of all sums due and owing at the Overdue Rate, and (iii) an amount equal to the Additional Rent and other charges (as reasonably estimated by Lessor) which would be payable hereunder from such date for what would have been the then unexpired current Term had the same not been terminated calculated on a quarterly basis, less
(b) the then fair net rental value of the Leased Property for the period from the date of payment of such liquidated damages to the date which would have been the then expiration date of the then current Term had this Lease not been terminated (after deducting all reasonable estimated expenses to be incurred in connection with reletting the Leased Property, including, without limitation, repossession costs, brokerage commissions, attorneys’ fees and expenses and repair and alteration costs and expenses).
If any statute or rule of law shall validly limit the amount of such liquidated final damages to less than the amount above
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agreed upon, Lessor shall be entitled to the maximum amount allowable under such statute or rule of law.
17.6 Waiver. If this Lease is terminated pursuant to Section 17.1, Lessee waives, to the extent permitted by applicable law, (a) any right which may require Lessor to sell or otherwise divest its interest in the Leased Property or any part thereof in mitigation of Lessor’s damages as set forth in this Article 17, (b) any notice of re-entry or of the institution of legal proceedings to that end (provided, however, that Lessor shall comply with any requirements with respect to forcible entry and detainer statutes), (c) any right of redemption, re-entry or repossession, (d) any right to a trial by jury with respect to the payment of any Basic Rent or Additional Rent in the event of summary proceedings to enforce the remedies set forth in this Article 17, and (e) any other rights which might otherwise limit or modify any of Lessor’s rights or remedies under this Article 17.1.
17.7 Limitation on Damages. Notwithstanding anything contained in this Lease to the contrary, Lessor and Lessee hereby waive any claim for consequential, punitive, special or other extraordinary damages, it being agreed that each party shall be limited to their respective actual damages, provided, however, the foregoing shall not be deemed to preclude Lessor from receiving any damages for a deficiency in rent resulting from a reletting of the Premises as customarily calculated in the State, or to preclude Lessee from recovering the amounts pursuant to the Offset and Recapture Procedure hereof.
ARTICLE 18
18.1 Lessor’s Right to Cure Lessee’s Event of Default. If Lessee shall fail to make any payment or perform any act required to be made or performed under this Lease such that an Event of Default has occurred pursuant to Article 17, Lessor, and without waiving or releasing any obligation or Event of Default, may (but shall be under no obligation to) at any time thereafter make such payment or perform such act for the account and at the expense of Lessee, and may enter upon the Leased Property for such purpose and take all such action thereon as, in Lessor’s opinion, may be necessary or appropriate therefor. No such entry shall be deemed an eviction of Lessee. All sums so paid by Lessor and all costs and expenses (including, without limitation, attorneys’ fees and expenses) so incurred, together with interest thereon (to the extent permitted by law) at the Overdue Rate from the date on which such sums or expenses are paid or incurred by Lessor, shall be paid by Lessee to Lessor on demand.
ARTICLE 19
19.1 Holding Over. If Lessee shall for any reason remain in possession of the Leased Property after the expiration of the Term or earlier termination of the Term hereof (except pursuant to the provisions of Section 6.2) with Lessor’s consent, such possession shall be as a month-to-month tenant during which time Lessee shall pay as rental, (a) one and one-half (1.5) times the monthly Basic Rent payable during the last year of the Term on the first day of each month, and (b) all Additional Rent and all other sums, if any, payable by Lessee pursuant to the provisions of this Lease. Notwithstanding the foregoing, Basic Rent payable at the expiration of the Term of this Lease shall not be increased pursuant to the provisions of this Section 19.1 if Lessor and Lessee are, at the time of the expiration of the Term, negotiating in good faith for a renewal of this Lease. Either party shall have the right to terminate such negotiations by delivering thirty (30) days’ prior written notice to the other. During such period of month-to-month tenancy, Lessee shall be obligated to perform and observe all of the terms, covenants and conditions of this Lease but shall have no rights thereunder other than the right to continue its occupancy and use of the Leased Property. Nothing contained herein shall constitute the consent, express or implied, of Lessor to the holding over of Lessee after the expiration or earlier termination of this Lease. Lessor agrees to deliver thirty (30) days notice to Lessee prior to the scheduled expiration date of the Term that Lessor has a need for immediate possession of the Leased Property at the expiration of the Term. Any claim for damages by Lessor (other than the increased Basic Rent described above) resulting from such holdover shall be conditioned upon Lessor’s delivery of such notice to the extent the same is required by the provisions of this Section 19.1.
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ARTICLE 20
20.1 No Recourse to Lessor. No recourse shall be had against Lessor or Lessor’s Assignees, or its successors or assigns, or its employees, officers, directors, shareholders or members for any claim based on any failure by Lessor in the performance or observance of any of the agreements, covenants or provisions contained in this Lease. In the event of any such failure, recourse shall be had solely against the Leased Property. Nothing contained in the foregoing, however, shall restrict the right of Lessee to commence any proceeding against Lessor for the breach of its agreements or covenants contained in this Lease; provided, however, that, in the event that any judgment is obtained against Lessor, the same shall not be the basis of a right of offset, deferment or reduction of the Rent due hereunder until the rendering of a final non-appealable judgment.
ARTICLE 21
21.1 Risk of Loss. Subject to the provisions or Article 15, and except to the extent caused by Lessor’s gross negligence or willful misconduct, the risk of loss or of decrease in the enjoyment and beneficial use of the Leased Property in consequence of the damage or destruction thereof by fire, the elements, casualties, thefts, riots, wars or otherwise, or in consequence of foreclosures, attachments, levies or executions (other than by Lessor and those claiming from, through or under Lessor) is assumed by Lessee, and Lessor shall in no event be answerable or accountable therefor. None of the events mentioned in this Section shall entitle Lessee to any abatement of Basic Rent or Additional Rent, except as specifically provided herein.
ARTICLE 22
22.1 Indemnification by Lessee. Lessee will protect, indemnify, save harmless and defend Lessor and Lessor’s Assignees, if any, from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) imposed upon or incurred by or asserted against Lessor or any of Lessor’s Assignees, if any, by reason of: (a) the acquisition and ownership of, or the holding of any security in, Lessee’s interest in the Leased Property; (b) any accident, injury to or death of persons or loss of or damage to property occurring on or about the Leased Property or adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (c) any use, non-use or condition in, on or about the Leased Property, or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (d) any Impositions; (e) any failure on the part of Lessee to perform or comply with any of the terms of this Lease; (f) performance of any labor or services or the furnishing of any materials or other property in respect of the Leased Property or any part thereof, except to the extent performed by or at the direction of Lessor; (g) the nonperformance of any of the terms and provisions of any and all existing and future subleases of the Leased Property to be performed by the Lessor thereunder; (h) except as provided in Article 11, the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, release, or threatened release of any Hazardous Materials on, from, or affecting the Leased Property or any other property; (i) except as provided in Article 11, any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Materials; (j) except as provided in Article 11, any lawsuit brought or threatened, settlement reached, or governmental order relating to such Hazardous Materials; or (k) except as provided in Article 11, any violation of laws, orders, regulations, requirements or demands of government authorities, which are based upon or in any way related to such Hazardous Materials including, without limitation, the costs and expenses of any remedial action, reasonable attorneys’ and consultant’s fees, investigation and laboratory fees, court costs and litigation expenses. Any amounts which become payable by Lessee under this Section shall be paid on demand, and if not timely paid, shall bear interest (to the extent permitted by law) at the Overdue Rate from the date of such final determination to the date of payment. Lessee, at its expense, shall contest, resist and defend any such claim, action or proceeding asserted or instituted against Lessor, or any of Lessor’s Assignees, if any, and may compromise or otherwise dispose of the same as Lessee sees fit. Nothing herein shall be construed as indemnifying Lessor or Lessor’s Assignees against Lessor’s grossly negligent acts or willful acts. Lessee’s liability for a breach of the provisions of this Section arising during the Term hereof shall survive any termination of this Lease.
ARTICLE 23
23.1 Assignment. Lessee may assign or sublet (“Transfer”) this Lease, its interest in the Leased
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Property, or any of its rights or obligations hereunder, without the prior written consent of Lessor, provided:
(a) That such assignment or subletting shall in no manner relieve Lessee of any of the obligations undertaken by it under this Lease; and
(b) That Lessee provide written notice to Lessor of such Transfer and, upon the request of any Lessor’s Assignee, Lessee will provide to such Lessor’s Assignee evidence of the assumption of the liability and continuing obligations of Lessee hereunder.
No such assignment, mortgage, pledge, hypothecation or transfer of this Lease, sublease or any other relinquishment of possession or rights to any of the Leased Property shall in any way discharge or diminish any obligations of Lessee to Lessor hereunder and Lessee shall remain directly and primarily liable, as principal rather than as surety, for the prompt payment of the Rent and for the performance and observance of all of the covenants and conditions contained in this Lease to be performed by Lessee. Notwithstanding the foregoing, if Lessee proposes to Transfer its interest in all or substantially all of the Building (which, for purposes hereof, shall be deemed to be ninety percent (90%) or more of the Building) in a single transaction, Lessor shall have the right, in its sole discretion, to elect to (but shall not be obligated to) terminate this Lease and to re-take possession thereof. In the event Lessor elects to terminate this Lease, Lessee shall be relieved of any liability accruing from and after the effective date of such termination.
23.2 Intentionally Omitted.
23.3 Excess Rental. If Lessee assigns, subleases or otherwise transfers its interest hereunder, Lessee shall in consideration therefor, pay to Lessor, as Additional Rent:
(a) in the case of an assignment, an amount equal to fifty percent (50.0%) of all sums and other considerations paid to Lessee by the assignee for or by reason of such assignment in excess of Basic Rent and Additional Rent hereunder for the remainder of the Term as the same may be extended pursuant to Article 32 below (for purposes of this calculation such sums paid to Lessee shall not include sums paid for the sale of Lessee’s leasehold improvements, equipment, furniture, furnishings or other personal property); and
(b) in the case of a sublease, fifty percent (50.0%) of any rents, additional charges or other consideration payable under the sublease to Lessee by the subtenant which is in excess of the Basic Rent and Additional Rent accruing during the term of the sublease in respect of the subleased space (at the rate per square foot payable by Lessee hereunder) pursuant to the terms hereof. Such amount shall not include sums paid for the sale or rental of Lessee’s leasehold improvements, equipment, furniture or other personal property. The sums payable under this Section shall be paid to Lessor with thirty (30) days of when such sums are received from subtenant.
ARTICLE 24
24.1 Lessor’s Right to Inspect. Lessee shall permit Lessor and Lessor’s Assignees, if any, and their respective authorized representatives to inspect the Leased Property during Lessee’s usual business hours upon twenty-four (24) hours prior written notice; and to exhibit the Leased Property to prospective purchasers. Any entry by Lessor or Lessor’s Assignees shall be made in a manner that does not interfere with Lessee’s business operations. Notwithstanding anything contained herein to the contrary, Lessor or Lessor’s Assignees shall be liable for their respective gross negligence or willful misconduct in connection with their access to the Leased Property.
24.2 Financial Statements. Lessee shall provide Lessor with Lessee’s audited financial statements (including but not limited to balance sheets, income statements, and statements of changes in financial position) at least annually, no later than March 31 for the prior year ended December 31, and shall also provide quarterly audited financial statements (if Lessee has quarterly audited statements prepared, and otherwise unaudited quarterly financial statements) within ninety (90) days of the end of the prior calendar quarter. Notwithstanding the foregoing, so long as Lessee is publicly traded, Lessee shall not be required to comply with the provisions of this Section 24.2.
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ARTICLE 25
25.1 No Waiver by Lessor. No failure by Lessor to insist upon the strict performance of any term hereof or to exercise any right, power or remedy consequent upon a breach thereof, and no acceptance of full or partial payment of Rent during the continuance of any such breach, shall constitute a waiver of any such breach or of any such term. No waiver of any breach shall affect or alter this Lease, which shall continue in full force and effect with respect to any other then existing or subsequent breach. Subject to the terms of any subordination, non-disturbance and attornment agreement entered into between Lessee, any Lessor’s Assignee and/or Lessor (which shall be in a form substantially similar to Exhibit B), foreclosure, sale or other proceeding under any Indenture shall not effectuate a termination of this Lease or discharge or otherwise affect the obligations of Lessee hereunder.
ARTICLE 26
26.1 Remedies Cumulative. Each legal, equitable or contractual right, power and remedy of Lessor now or hereafter provided either in this Lease or by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power and remedy and the exercise or beginning of the exercise by Lessor of any one or more of such rights, powers and remedies shall not preclude the simultaneous or subsequent exercise by Lessor of any or all of such other rights, powers and remedies.
ARTICLE 27
27.1 Acceptance of Surrender. No surrender to Lessor of this Lease or of the Leased Property or any part thereof or of any interest therein shall be valid or effective unless agreed to and accepted in writing by Lessor and no act by Lessor or any representative or agent of Lessor, other than such a written acceptance by Lessor, shall constitute an acceptance of any such surrender.
ARTICLE 28
28.1 No Merger of Title. There shall be no merger of this Lease or of the leasehold estate hereby by reason of the fact that the same Person may acquire, own or hold, directly or indirectly, (a) this Lease or the leasehold estate created hereby or any interest in this Lease or such leasehold estate and (b) the fee estate in the Leased Property or any interest therein.
ARTICLE 29
29.1 Conveyance by Lessor. If Lessor or any successor owner of the Leased Property shall convey the Leased Property other than as security for a debt, Lessor or such successor owner, as the case may be, shall thereupon be released from all future liabilities and obligations of the Lessor under this Lease and all such future liabilities and obligations shall thereupon be binding upon the new owner, subject to the provisions of Article 21.
Notwithstanding anything contained herein to the contrary, if no uncured Event of Default pursuant to Section 17.1(a) is applicable then, under no circumstances during the initial Term or any Extension Period of the Lease shall Lessor engage in negotiations to sell or otherwise to transfer the Leased Property to any Person engaged in the business of manufacturing, selling, distributing, or otherwise relating to houseware products, pest control and small animal care and control products, or pet products (“Competitor”).
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ARTICLE 30
30.1 Quiet Enjoyment. So long as no Event of Default exists, Lessee shall peaceably and quietly have, hold and enjoy the Leased Property for the Term hereof, free of any claim or other action by Lessor or Lessor’s Assignees, if any, or anyone claiming by, through or under any of them, but subject to all liens and encumbrances of record.
ARTICLE 31
31.1 Notices. All notices, demands, requests, consents, approvals and other communications hereunder shall be in writing and personally delivered or couriered (by Federal Express or another reputable, national overnight delivery service), addressed to the respective parties, as follows:
| (a) | if to Lessee: | WORLD KITCHEN, INC. | ||
| One Pyrex Place | ||||
| Elmira, NY 14902-1555 | ||||
| Fax (607) 974-1854 | ||||
| with a copy to: | ||||
| and: | Simpson Thatcher & Bartlett | |||
| 425 Lexington Avenue | ||||
| New York, NY 10017-3909 | ||||
| Attn: Mardi Merjian, Esq. | ||||
| Fax (212) 455-2505 | ||||
| (b) | if to Lessor: | WILL PARTNERS, LLC | ||
| c/o Griffin Capital | ||||
| 3421 Manhattan Avenue | ||||
| Manhattan Beach, California 90266 | ||||
| Attn: Kevin A. Shields | ||||
| Fax (310) 546-7550 | ||||
| with a copy to: | Wildman, Harrold, Allen & Dixon | |||
| 225 West Wacker Drive | ||||
| Chicago, Illinois 60606-1229 | ||||
| Attn: Mary P. Higgins | ||||
| Fax (312) 201-2555 | ||||
| (c) | if to Contractor: | Kiferbaum Construction | ||
| 790 Estate Drive | ||||
| Deerfield, Illinois 60015 | ||||
| Attn: Jacob Kiferbaum | ||||
| and: | Anderson and Associates | |||
| 1250 Larkin Avenue | ||||
| Suite 100 | ||||
| Elgin, Illinois 60123 | ||||
| Attn: Mike Anderson | ||||
or to such other address as either may hereafter designate, and shall be effective upon receipt as evidenced by a receipt signed by a Person at such address authorized to accept delivery, or upon refusal to accept delivery.
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31.2 Amendments and Modifications. Neither this Lease nor any provision hereof may be amended, waived, discharged or terminated except by an instrument in writing signed by Lessor and Lessee.
31.3 Successors and Assigns. All the terms and provisions of this Lease shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
31.4 Headings and Table of Contents. The headings and table of contents in this Lease are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
31.5 Counterparts. This Lease may be executed in any number of counterparts, each of which shall be an original, but all of which shall together constitute one and the same instrument.
31.6 Governing Law. THIS LEASE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE.
31.7 Estoppel Certificates. Within twenty (20) days of the request of the other party, either party will execute, acknowledge and deliver to the other party a certificate stating (a) that this Lease is unmodified and in full force and effect (or, if there have been modifications, that this Lease is in full force and effect as modified, and setting forth such modifications), (b) the dates to which Rent and other sums payable hereunder have been paid, and (c) either that to the knowledge of the party no default of Event of Default exists under this Lease or specifying each such default or Event of Default of which the party has knowledge.
31.8 Subordination and Attornment.
(a) Simultaneous with the execution of this Lease by Lessor, Lessor shall cause the Subordination and Non-disturbance Agreement in the form of Exhibit B to be executed by all then current ground lessors and holders of all Indentures. In such case, this Lease is subject to and subordinate to all ground leases and Indentures which affect the Land or the Leased Property and which are of public record as of the date Lessor acquires title to the Land, and to all renewals, modifications, consolidations, replacements and extensions thereof. However, if the lessor under any such ground lease or any of Lessor’s Assignees shall advise Lessor that it desires or requires this Lease to be made prior and superior thereto, then, within twenty (20) days of written request of Lessor to Lessee, Lessee shall promptly execute, acknowledge and deliver any and all customary or reasonable documents or instruments which Lessor and such lessor or Lessor’s Assignee deems necessary or desirable to make this Lease prior thereto. However, if any lessor under any such future ground lease or any Lessor’s Assignee holding or offering to hold such future mortgage or deed of trust shall desire or require that this Lease be made subject to and subordinate to such future ground lease, mortgage or deed of trust then Lessee agrees, within twenty (20) days after Lessor’s written request therefor, to execute, acknowledge and deliver to Lessor any and all documents or instruments requested by Lessor or by such ground lessor or Lessor’s Assignee as may be necessary or proper to assure the subordination of this Lease to such future ground lease or Indenture, but only if such lessor or Lessor’s Assignee agrees to recognize Lessee’s rights under this Lease and agrees not to disturb Lessee’s quiet possession of the Leased Premises in an instrument substantially in the form of Exhibit B. If Lessor assigns the Lease as security for a loan, Lessee agrees to execute such documents as are reasonably requested by the Lessor’s Assignee and to provide reasonable provisions in the Lease protecting the security interest of such Lessor’s Assignee which are customarily required by institutional lenders making loans secured by a deed of trust. Without limiting the foregoing, Lessee hereby approves the form of Subordination, Non-Disturbance and Attornment Agreement attached hereto as Exhibit B.
(b) In addition, as a condition of any future subordination of this Lease, any holder of a future Indenture or ground lease on the Leased Property shall enter into a subordination, non-disturbance and attornment agreement, in a form substantially similar to that attached hereto as Exhibit B.
31.9 Lessee’s Attornment Upon Foreclosure. Lessee shall, upon request, attorn (i) to any purchaser of the Leased Property at any foreclosure sale or private sale conducted pursuant to any Indenture encumbering the Leased Property, (ii) to any grantee or transferee designated in any deed given in lieu of foreclosure of any security interest encumbering the Leased Property, or (iii) to the lessor under an underlying ground lease of the Land, should such ground lease be terminated; provided that such purchaser, grantee or lessor is not a Competitor of Lessee and such Purchaser,
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grantee or lessor recognizes Lessee’s rights under this Lease, and has previously entered into the subordination, non-disturbance and attornment agreement with Lessee contemplated in Section 31.8(b) above.
31.10 Submission To Jurisdiction; Waivers. Each of the parties hereto hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this Lease and the other Operative Agreements to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of the courts of the United States of America for the Northern District of Illinois, Eastern Division or the Circuit Court of Will County, Illinois, and the applicable appellate courts;
(b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail) postage prepaid, to such party at its address set forth in Section 31.1 or at such other address of which the parties hereto shall have been notified pursuant thereto; and
(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by Law.
31.11 Waivers of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE LESSOR AND THE LESSEE HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THE PAYMENT OF ANY BASIC RENT AS ADDITIONAL RENT PURSUANT TO THIS LEASE OR OTHER PAYMENTS DUE PURSUANT TO ANY OTHER OPERATIVE AGREEMENT TO WHICH SUCH ENTITY IS A PARTY AND FOR ANY COUNTERCLAIM THEREIN.
31.12 Miscellaneous. Anything contained in this Lease to the contrary notwithstanding, all claims against, and liabilities of, the Lessee and Lessor arising prior to any date of termination of this Lease shall survive such termination. If any term or provision of this Lease or any application thereof shall be invalid or unenforceable, the remainder of this Lease and any other application of such term or provision shall not be affected thereby. Neither this Lease nor any provision hereof may be changed, waived, discharged or terminated except by an instrument in writing signed by Lessor, Lessee and Lessor’s Assignees, if any. All the terms and provisions of this Lease shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. The headings in this Lease are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. This Lease shall be governed by and construed in accordance with the laws of the State.
31.13 Memorandum of Lease. Lessor and Lessee shall, promptly upon the request of either, enter into a short form memorandum of this Lease, in the form of Exhibit D attached hereto, signed by Lessor and Lessee and otherwise in recordable form, which memorandum shall then be recorded in the applicable public records in the county where the Land is located and/or in the public records of the State.
31.14 Brokers. Lessor and Lessee each represent and warrant to the other that they have had no dealings with any broker or agent in connection with this Lease other than Brett Broaddus at Alliance Commercial (“Broker”), whose commission has been paid by Lessor; and (ii) each party covenants to hold harmless and indemnify and defend the other from and against any and all cost, expense, or liability for any compensation, commissions, or damages claimed by any brokers or other agents with respect to this Lease or the obligations thereof, other than Broker.
31.15 Restoration by Lessee. Lessor and Lessee agree that, notwithstanding the provisions of Article 7, the exhibits to the Lease, or the Lessor’s Plans previously approved by Lessee pursuant to Article 7 of the Lease, Lessor and Lessee mutually agreed by change order during the performance of Lessor’s Work that Lessor would not be required to install certain dock equipment (such dock equipment consisting of dock levelers and door seals and herein referred to as
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“Dock Equipment”) at the forty one (41) dock positions specified in Exhibit G (attached hereto, and by this reference made a part hereof) as the Type “A” docks, and in lieu of such Type A docks, Lessor installed Type B docks, as each of said dock types is described in Exhibit G. Lessee acknowledges and agrees that Lessor’s agreement to partially complete the 41 dock doors located as indicated in Exhibit G and to increase the maximum amount allocable to Lessee’s office improvements as a result of such partial completion was expressly conditioned upon Lessee’s agreement to complete said 41 docks upon the occurrence of any of the following events: (a) the transfer of Lessee’s interest under the Lease; (b) an Event of Default by Lessee; and (c) the expiration or sooner termination of the Lease (the occurrence of any of (a), (b) or (c) is hereinafter referred to as a “Restoration Event”). Upon the occurrence of a Restoration Event, Lessee, at Lessee’s sole cost and expense, shall cause the aforesaid 41 dock doors to be completed by installing the Dock Equipment, which obligation shall survive the expiration or sooner termination of the Lease. Lessee shall install the Dock Equipment in accordance with the approved Lessor’s Plans, using comparable or better equipment, and in a good and workmanlike manner, obtain not less than a one year warranty with respect to workmanship and materials and complete the same within seventy five (75) days after the occurrence of a Restoration Event.
ARTICLE 32
32.1 Options To Extend Term. So long as Lessee occupies at least seventy five percent (75%) of the Leased Improvements, and subject to the condition set forth in clause (b) below, Lessee shall have two options to extend the term of this Lease with respect to the entirety of the Leased Property on all of the terms, covenants and conditions of this Lease (each an “Extension Option”), the first for a period of five (5) years from the expiration of the fifteenth (15th) full year of the Lease Term (the “First Extension Period”), and the second (the “Second Extension Period”) for a period of five (5) years from the expiration of the First Extension Period, subject to the following conditions:
(a) Each Extension Option shall be exercised, if at all, by notice of exercise given to Lessor by Lessee not more than sixty (60) days after receipt of the final written determination of the Fair Market Rent for the applicable Extension Period (each a “Rent Notice”). The determination of the Fair Market Rent shall only be given by Lessor to Lessee simultaneous with the delivery to Lessee by Lessor of the determination of the FMV of the Leased Property being given pursuant to Section 34 of this Lease;
(b) Anything herein to the contrary notwithstanding, if an Event of Default by Lessee has occurred, either at the time Lessee exercises either extension option or on the commencement date of the First Extension Period or the Second Extension Period, as applicable, Lessor shall have, in addition to all of Lessor’s other rights and remedies provided in this Lease, the right to terminate such option(s) to extend upon notice to Lessee.
32.2 Rent. Not more than fifteen (15) months or less than twelve (12) months prior to the (i) expiration of Lease Term or (ii) the expiration of the First Extension Period, as applicable, Lessor shall give Lessee written notice of Lessor’s determination of the then current Fair Market Rent (hereinafter defined) for the Leased Property. Notwithstanding anything contained herein, if Lessor fails to provide the final determination of Fair Market Rent to Lessee within the time frame specified herein, then the Lease shall continue at the then applicable Basic Rent until Lessor fulfills its obligations pursuant to this Article 32 and (i) Lessee elects to exercise its option, (ii) Lessee elects to terminate the Lease with such termination becoming effective, at Lessee’s option, (a) as of the scheduled expiration date of the then current term or (b) twelve (12) months from the date of Lessee’s receipt of the Rent Notice, or (iii) Lessee elects to exercise its purchase option contained herein.
32.3 Fair Market Rent. “Fair Market Rent” shall be determined as follows: At least fifteen (15) months prior to the expiration of the Lease Term or the first Extension Period, as applicable, Lessor shall deliver to Lessee the proposed Basic Rent for such first Extension Period or second Extension Period, as applicable. Such amount shall be based on a current Fair Rental Market Analysis performed by a licensed real estate broker of Lessor’s choosing. Within ten (10) business days following receipt of Lessor’s proposed Basic Rent, Lessee shall give Lessor written notice of a disagreement, if any, as to the Basic Rent based upon an analysis of the current Fair Market Rental Value of the Leased Property that is less than that determined by Lessor’s broker, whereupon Lessee and Lessor shall jointly select a third licensed real estate broker to determine the current Fair Market Rental Value of the Leased Property. Within sixty (60) days after the designation of the third broker, each of the three brokers shall submit their written determination of the Fair Market Rent of the Leased Property in accordance with this section to both Lessor and Lessee. If the Fair Market Rent of the Leased Property is determined by any two or all three of such brokers is identical, then the Fair Market Rent for
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purposes of the Extension Option shall be such identical amount. If the Fair Market Rent as determined by each such broker is different from the others, but two of such determinations are within five percent (5%) of each other, then the rent pursuant the Fair Market Rent shall be the arithmetic mean of the such two amounts. In all other cases, the highest and lowest of such determination shall be disregarded and the Fair Market Rent shall be equal to the middle, or remaining, determination. Notwithstanding anything contained herein to the contrary, the determination of the Fair Market Rent shall not include the square footage of the Expansion Area or the improvements on the Expansion Area constructed by Lessee at Lessee’s sole cost and expense.
Lessor shall pay all costs associated with the broker designated by Lessor, and Lessee shall pay all costs associated with the broker designated by Lessee. Lessor and Lessee shall share equally all costs associated with the third broker.
ARTICLE 33
33.1 Fair Market Value Purchase Option. So long as no Event of Default exists, Lessee is hereby granted the following rights and options to purchase the Leased Property for a purchase price equal to the Leased Property’s Fair Market Value, as defined below (the “FMV”).
(a) The option exercise price shall equal the FMV of the Leased Property as of the applicable option exercised. FMV is defined as the price at which the Leased Property could be sold by a person who desires, but is not required to sell, and is sought by a person who desires, but who is not required to buy, after due consideration of all the elements reasonably affecting value provided that in no event shall the FMV be less than the Exit Purchase Price, as defined below. For purposes of determining the FMV of the Leased Property, Lessor and Lessee shall within ten (10) days of FMV Determination Notice each designate an independent real estate appraiser duly licensed in the State and having not less than ten (10) years experience appraising commercial properties in the area of the Leased Property and shall notify each other in writing of such designation. Within the next ten (10) days, such appraisers shall designate a third independent real estate appraiser with the same credentials and reasonably acceptable to both Lessor and Lessee and shall notify Lessor and Lessee of such designation. After their appointment, all three such appraisers shall be directed to determine, independently, the FMV of the Leased Property. Within sixty (60) days after the designation of the third appraiser, each of the three appraisers shall submit their written determination of the FMV of the Leased Property in accordance with this section to both Lessor and Lessee. If the FMV of the Leased Property is determined by any two or all three of such appraisers is identical, then the FMV for purposes of the Purchase Option shall be such identical amount. If the FMV as determined by each such appraiser is different from the others, but two of such determinations are within five percent (5%) of each other, then the purchase price pursuant the FMV Purchase Option shall be the arithmetic mean of the such two amounts. In all other cases, the highest and lowest of such determination shall be disregarded and the FMV shall be equal to the middle, or remaining, determination. Notwithstanding anything contained herein to the contrary, the determination of the FMV shall not include the square footage of the Expansion Area or the improvements on the Expansion Area constructed by Lessee at Lessee’s sole cost and expense.
Lessor shall pay all costs associated with the appraiser designated by Lessor, and Lessee shall pay all costs associated with the appraiser designated by Lessee. Lessor and Lessee shall share equally all costs associated with the third appraiser.
(b) For purposes hereof, “Exit Purchase Price” shall mean an amount equal to the sum of (a) the principal balance of any Lessor’s Indenture due at the closing of Lessee’s acquisition of the Leased Property; (b) any exit, defeasance, prepayment, yield maintenance, or other fees or penalties resulting from defeasance or prepayment of such Lessor’s Indenture (it being agreed that (a) and (b) above shall be adjusted as required to account for differences between the estimated date of closing and the actual date of closing of the sale to Lessee); and (c) the then current amount, if any, of Lessor’s equity in the Leased Property arising as a result of any decrease in the FMV of the Leased Property.
(c) Each Purchase Option shall be exercised, if at all, by notice of exercise given to Lessor by Lessee not more than sixty (60) days after receipt of the final determination of the FMV for the applicable purchase option (each a “FMV Determination Notice”).
(d) In the event the Lessee exercises a Purchase Option the transfer of the Leased Property shall be
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consummated effective as of the last day of the then applicable Term of this Lease and Lessor shall convey to Lessee title to the property free and clear of all liens, covenants or exceptions to title except as are set forth on Exhibit F hereto and which may have been previously approved by Lessee in writing if not set forth on Exhibit F hereto. Lessee and Lessor shall execute such documents as are required by Legal Requirements and/or which are then customarily executed in the conveyance of property of the nature of the Leased Property in the Village. Lessor and Lessee shall prorate all rent and other charges due under this Lease to the day of closing, Lessor shall be responsible for the payment of all state and county transfer or conveyance taxes as well as the cost to deliver to Lessee a title insurance policy in the amount of the purchase price with all premiums paid at closing and with such endorsements as are provided for in Section 33 hereof.
ARTICLE 34
34.1 Expansion Rights. Lessee, at Lessee’s sole cost and expense, shall have the option to expand the Building (the “Expansion”) in accordance with expansion plans to be approved by Lessor pursuant to the procedures set forth in Section 7.3(b) hereof in the area marked on Exhibit A attached hereto (the “Expansion Area”). Following the approval of the plans by Lessor, no further approval of Lessor or Lessor’s Assignees shall be required, provided there are no material changes to such plans or changes that adversely affect the structure of the Building. All construction of the Expansion shall be equal or better in quality than the original construction of the Building; and Lessee shall obtain warranties from all contractors and materialmen comparable to the warranties obtained by Lessor in connection with the original construction of the Building. All work for the Expansion shall be completed in a lien free manner, subject to the right of Lessee to contest any lien as provided for elsewhere in this Lease, and subject to written confirmation that any Indenture of Lessor’s Assignee remains a first lien on the Leased Property. No additional Basic Monthly Rent shall be payable to Lessor as a result of Lessee’s construction of the Expansion, however upon completion of the Expansion, the same shall be included as part of the Building for all other purposes of this Lease, with the exception of Lessor’s obligations under Article VII and the provisions of Section 4.6 hereof.
ARTICLE 35
35.1 First Source Agreement. In connection with the Redevelopment Agreement between Lessor and Village, and as an exhibit thereto, is a document entitled “First Source Agreement”. Lessee agrees to comply with the First Source Agreement to the extent applicable to Lessee, consistent with Lessee’s collective bargaining agreement and employment polices, including without limitation, retention policies and such other factors as are generally prevailing with respect to Lessee’s employment practices and provided Lessee has no obligation to hire any employee at a wage rate greater than Lessee would otherwise pay.
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IN WITNESS WHEREOF, the parties have caused this Lease to be executed.
| LESSOR: | ||||
| WILL PARTNERS LLC, a Delaware limited liability company | ||||
| By: | Will Acquisitions, LLC, a Delaware limited liability company | |||
| By: | /s/ Kevin A. Shields | |||
| Kevin A. Shields, Managing Member | ||||
| LESSEE: | ||||
| WORLD KITCHEN, INC., a Delaware corporation | ||||
| By: | /s/ Raymond J. Kulla | |||
| Printed Name: | Raymond J. Kulla | |||
| Title: | Vice President and Secretary | |||
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