TRIPLE NET LEASE
THIS
TRIPLE NET LEASE AGREEMENT (this “
Lease
”), made and entered into as
of the 23rd day of April, 2018, by and between VOLTARI REAL ESTATE
HOLDING LLC, a Delaware limited liability company
(“
Landlord
”),
and THE McCLATCHY COMPANY, a Delaware corporation
(“
Tenant
”).
A.
Landlord
is the owner of certain improved real property (the
“
Premises
”)
located at 1401 Shop Road, in the City of Columbia, County of
Richland, State of South Carolina, and more particularly described
on
Exhibit A
attached hereto and shown on the plan attached hereto as
Exhibit
A-1
.
B.
Landlord
desires to lease to Tenant and Tenant desires to lease from
Landlord the Premises, all upon the terms and conditions
hereinafter set forth.
NOW,
THEREFORE, in consideration of the mutual covenants set forth
herein, the parties do hereby agree as follows:
ARTICLE 1
KEY TERMS
1.1
Lease
of Premises
.
Landlord hereby
leases unto Tenant and Tenant hereby leases from Landlord the
Premises and the buildings, building fixtures and improvements now
or hereafter located thereon (the
“
Improvements
”), and the rights of ingress and egress,
easements and appurtenances thereto. Tenant currently occupies the
Premises, is familiar with the Premises, and its condition and
suitability for Tenant’s use and Tenant acknowledges that
Landlord has not made any warranty or representations, expressed or
implied, as to the condition or suitability of the Premises for
Tenant’s intended use and that Tenant is leasing the Premises
and hereby accepts the Premises in its “AS IS” and
“WHERE IS” condition. Tenant is aware of the
environmental condition of the Premises and shall at all times
occupy the Premises explicitly subject thereto and without recourse
against Landlord. Landlord shall not have any obligation to make
any repairs, alterations or improvements to the Premises either at
or prior to the Commencement Date (as defined below) or at any time
thereafter during the Term (as defined below).
1.2
Term
of Lease
.
1.2.1
Initial
Term
. The initial term of this Lease (“
Initial Term
”) shall commence on
the Commencement Date and shall terminate at 11:59 p.m. on the last
day of the month during which fifteenth (15th) anniversary of the
Commencement Date occurs (the “
Expiration Date
”), subject to
Tenant’s right to extend this Lease as set forth in Section
1.2.3.
1.2.2
Commencement
Date
. The “
Commencement Date
” shall be the
date that The State Media Company, a South Carolina corporation and
an affiliate of Tenant (“
Seller
”), conveys fee title to the
Premises to Landlord.
1.2.3
Extension
Term(s)
. Provided that Tenant is not then in default beyond
any applicable notice and cure period under any term or condition
of this Lease at the time of exercise of its Extension Option (as
hereinafter defined) or at the end of the then-current term, Tenant
shall have the option to extend the Term of this Lease for an
additional five (5) years (each an “
Extension Term”
) on up to three
(3) successive occasions (each an “
Extension Option
”)
provided further that Tenant gives Landlord
written notice (“
Extension Term Exercise
Notice
”) of each such
extension at least twelve (12) months prior to the end of the
then-current term. Notwithstanding the foregoing, the third
Extension Term (if applicable) shall be for a term of four (4)
years and nine (9) months, rather than five (5) years. The Base
Rent due hereunder for each Extension Term shall be determined as
set forth in Section 1.3.1.3.
1.2.3.1
Except
as expressly provided herein, Landlord shall have no additional
obligations during the Initial Term, or any Extension Term, or in
connection with the exercise of any Extension Option, including
without limitation: (i) Landlord shall have no obligations to pay
any brokerage fees; (ii) Landlord shall have no obligation to make
any improvements, alterations or refurbishment to the Premises;
(iii) Landlord shall have no obligation to pay or to provide any
amount of tenant improvement allowance; and (iv) Landlord shall
have no obligation to extend or provide any free or reduced rent
during the Extension Term.
1.2.4
Term
.
For purposes of this Lease, any reference to the
“
Term
” of this
Lease shall include the Initial Term and any Extension
Terms.
1.3
Rent
.
Tenant covenants and agrees to pay to Landlord the following as
rent for lease of the Premises:
1.3.1
Base
Rent
.
1.3.1.1
Initial
Amount
. During the Term hereof, commencing on the
Commencement Date, Tenant shall pay to Landlord, in advance on the
first day of each calendar month in equal monthly installments at
the address set forth in Section 7.1 or such other place as
Landlord may from time to time designate, without demand or right
of set-off except to the extent (if any) otherwise expressly set
forth in this Lease, fixed and minimum annual rental
(“
Base Rent
”) in
the following amounts: during the Initial Term the amount of annual
Base Rent shall be
One Million Six
Hundred Thirteen Thousand and No/100 Dollars ($1,613,000.00)
payable in equal monthly installments of One Hundred Thirty-Four
Thousand Four Hundred Sixteen and 67/100 Dollars
($134,416.67).
1.3.1.2
Adjustments
to Base Rent During Initial Term
. On the day which is the
fifth (5th) anniversary of the Commencement Date, and, thereafter,
on the day which is the tenth (10th) anniversary of the
Commencement Date (each, an “
Adjustment Date
”), the Base Rent
shall be increased above the then-current Base Rent by an amount
equal to 10% of such Base Rent.
1.3.1.3
Adjustments
to Base Rent During Extension Term(s)
.
(a)
The annual Base
Rent due for the first year of each Extension Term shall be the
greater of (1) an amount equal to the then current annual fair
market rental value of the Premises
for a five (5) year term
(“
Fair
Market Rent
”) as of the
commencement of the applicable Extension Term
(“
Fair
Market Adjustment Date
”),
or (2) an amount equal to the annual Base Rent for the immediately
preceding lease year.
In no event shall Fair Market Rent be
less than an amount equal to the annual Base Rent for the
immediately preceding lease year.
(b)
Promptly following
Tenant’s delivery of the Extension Term Exercise Notice,
Tenant and Landlord shall negotiate in good faith, to establish the
Fair Market Rent for the Premises as of the Fair Market Adjustment
Date, in accordance with this Section 1.3.1.3.
(c)
If Landlord and
Tenant cannot agree upon the amount of Fair Market Rent on or
before the date which occurs eight (8) months prior to the
commencement of the applicable Extension Term, Landlord and Tenant
each shall have the right, by written notice to the other, to
submit such Fair Market Rent to arbitration
for determination in accordance with the following
subsections under this Section 1.3.1.3.
(i)
Fair Market Rent
shall be determined by impartial arbitrators, one to be chosen by
Landlord, one to be chosen by Tenant, and a third to be selected,
if necessary, as below provided. The unanimous written decision of
the two first chosen, without selection and participation of a
third arbitrator, or otherwise, the written decision of a majority
of three arbitrators so chosen and selected shall be conclusive and
binding upon Landlord and Tenant.
(ii)
Landlord
and Tenant shall each notify the other of its chosen arbitrator
within ten (10) days following the call for arbitration and, unless
such two arbitrators shall have reached a unanimous decision within
thirty (30) days after their designation, they shall notify the
President of the American Arbitration Association (or such
organization as may succeed to said American Arbitration
Association) and request it to select an impartial third
arbitrator, who shall: be an office building owner, a real estate
counselor or a broker who has at least 10 years professional
experience in the appraisal and/or leasing of commercial office
buildings in the Columbia, South Carolina metropolitan area to
determine Fair Market Rent.
(iii)
Such
third arbitrator and the first two chosen shall, subject to the
commercial arbitration rules of the American Arbitration
Association, hear the parties and their evidence and render their
decision within thirty (30) days following the conclusion of such
hearing and notify Landlord and Tenant thereof. Landlord and Tenant
shall bear the expense of the third arbitrator (if any)
equally.
(iv)
The
decision of the arbitrators shall be binding and conclusive and
judgment upon the award or decision of the arbitrators may be
entered in any federal or state court located in the State where
the Premises are located; and the parties consent to the
jurisdiction of such court. If the dispute between the parties as
to the Fair Market Rent has not been resolved before the
commencement of the Extension Term, then Tenant shall pay Base Rent
based upon ten percent (10%) premium over the annual Base Rent in
effect immediately prior to the commencement of the Extension Term
in question until either the agreement of the parties as to the
Market Rent, or the decision of the arbitrators, as the case may
be, at which time either Tenant shall pay any underpayment to
Landlord or Landlord shall refund any overpayment to
Tenant.
(d)
Once
Fair Market Rent has been established pursuant to this Section
1.3.1.3, then said Fair Market Rent shall constitute the Base Rent
payable commencing on the applicable Fair Market Adjustment Date,
subject to further adjustment as set forth in Section 1.3.1.4
hereof.
(e)
The Fair Market
Rent for the Premises is defined as the current rental rates being
charged for premises similar to the Premises in Columbia, South
Carolina within five (5) miles of the Premises, taking into account
all of the terms and conditions of this Lease other than rental and
assuming a five (5) year term. For example, a determination of Fair
Market Rent may take into consideration, without limitation, (1)
Tenant’s cost of relocation; (2) the annual (or monthly)
amount that a willing non-renewal, non-expiration new tenant would
pay and a willing Landlord would accept for the Premises at
arm’s length, giving appropriate consideration to the value
of the Land, market capitalization rates, annual rental rates per
square foot, types of escalation clauses, length of lease term,
size and location of the Premises, current condition of the
Premises (without any allowance for tenant improvements or
refurbishment), and considering the current (as opposed to the
highest and best) uses of the Premises, and other generally
applicable terms and conditions of tenancy, (3) the fact that
Landlord shall have no obligations to pay any brokerage fees in
connection with exercise of the Extension Option. For purposes of
this Lease, Fair Market Rent for the Premises shall mean the
Premises as defined in this Lease, but excluding any and all Tenant
FFE&I.
(f)
If
the parties have not determined Fair Market Rent prior to the Fair
Market Adjustment Date, using the protocols described above, from
and after the Fair Market Adjustment Date of the then applicable
Extension Term, through and until the establishment of Fair Market
Rent for such term, Tenant shall pay annual Base Rent in an amount
equal to the amount of annual Base Rent in effect immediately prior
to the commencement of the Extension Term, plus an amount equal to
a ten percent (10%) premium over the annual Base Rent in effect
immediately prior to the commencement of the Extension Term. Upon
determination of Fair Market Rent, Landlord shall calculate the
difference, if any, between the amount of annual Base Rent actually
paid by Tenant during the applicable Extension Term pursuant to
this Section 1.3.1.3(f) and the annual Base Rent pursuant to the
determination of Fair Market Rent for the period from the Fair
Market Rent Adjustment Date and the determination date of Fair
Market Rent (the “
Fair Market
Rent Difference
”). Within fifteen (15) calendar days
after the Fair Market Rent has been established using the protocols
described above, if the Fair Market Rent Difference shall be a
negative number, Tenant’s next monthly payment of Base Rent
shall increase by a dollar amount equal to negative one times the
Fair Market Rent Difference. By way of example only, if Tenant paid
$100 of Base Rent and $200 of Base Rent is due pursuant to Fair
Market Rent, the Fair Market Rent Difference is $100 - $200 = -
$100 dollars, and Tenant would owe landlord -1 * - $100 = $100.00,
in addition to Tenant’s next monthly Base Rent payment. If
the Fair Market Rent Difference shall be a positive number,
Landlord in its sole and reasonable discretion may elect either to
(1) offset Tenant’s next monthly payment(s) of Base Rent then
due by an amount equal to the Fair Market Rent Difference, or (2)
refund the amount of the Fair Market Rent Difference to Tenant in
cash payable on or before the date that is thirty (30) days after
the date of determination of the Fair Market Rent.
1.3.1.4
Further Adjustments
. Commencing
on the first day after the conclusion of the first twelve (12) full
calendar months of each Extension Term, and then continuing
annually thereafter on the one (1) year anniversary such date,
the Base Rent shall be increased above
the previous year’s Base Rent by an amount equal to 2.00% of
such prior Base Rent.
1.4
Payment
and Proration of Rental
.
1.4.1
All
Base Rent payments are to be made in advance on the first day of
each calendar month included in the Initial Term and Extension
Terms, if exercised; and for any portion of a calendar month at the
beginning or end of the Initial Term and the Extension Terms if
exercised, at the applicable rate payable in advance for such
portion.
1.4.2
If
the Commencement Date begins on a date other than the first day of
a calendar month, or the Term of the Lease ends on a day other than
the last day of the calendar month, Base Rent for such month shall
be prorated, based on the number of days in the applicable calendar
month. Tenant shall pay an interest charge at the Default Rate set
forth in Section 1.5 for Rent received by Landlord more than five
(5) business days following the due date.
1.4.3
Tenant
shall pay all Base Rent and all other amounts payable directly by
Tenant to Landlord under this Lease without deduction or setoff,
notice or demand, in immediately available funds in lawful money of
the United States, to Landlord at the address for notices to
Landlord set forth in this Lease or at such other place as Landlord
may hereafter designate in writing.
1.5
Default
Rate
. “
Default
Rate
” means an annual rate of interest equal to the
lesser of (a) the maximum rate of interest allowed in the State of
South Carolina for commercial purposes by business entities, or (b)
ten percent (10%).
1.6
Security
Deposit
. Upon Tenant’s execution and delivery of this
Lease, Tenant shall deliver to Landlord a security deposit which
shall be a sum equal to three (3) months Base Rent in the amount of
$403,250.01 (the “
Security
Deposit
”). Except as set forth in this Section 1.6,
Landlord shall hold the Security Deposit throughout the Initial
Term as security for the performance by Tenant of all obligations
to Landlord. The Security Deposit is not an advance payment of Rent
or a measure or limit of Landlord’s damages upon an event of
default. Landlord shall have the right from time to time, without
prejudice to any other remedy Landlord may have on account thereof,
to apply the Security Deposit, or any part thereof, to
Landlord’s damages arising from, or to cure (in whole or in
part), any event of default by Tenant (after giving effect to any
applicable notice and cure period(s)). If Landlord shall so apply
any or all of the Security Deposit, Tenant shall immediately
deposit with Landlord the amount so applied to replenish the
Security Deposit to its original amount. Landlord shall return the
Security Deposit, or such amount thereof not applied in accordance
with the terms of this Lease, to Tenant on or before the date
(“
Refund Date
”)
that is sixty (60) days after the later to occur of (a) the
Expiration Date or earlier termination of the Term and the
surrender of possession of the Premises by Tenant to Landlord at
such time, or (b) the date after the Expiration Date or earlier
termination of the Term (and the surrender of possession of the
Premises by Tenant to Landlord at such time) on which Tenant pays
to Landlord any reconciliation amounts due. While Landlord holds
such Security Deposit, Landlord shall have no obligation to pay
interest on the same and shall have the right to commingle the same
with Landlord’s other funds. If Landlord conveys
Landlord’s interest under this Lease, the Security Deposit,
or any part thereof not previously applied, shall be turned over by
Landlord to Landlord’s grantee, and, if so turned over and
after written notice thereof to Tenant, Tenant agrees to look
solely to such grantee for proper application of the Security
Deposit in accordance with the terms of this Section 1.6 and the
return thereof in accordance herewith. Landlord’s Mortgagee
shall not be responsible to Tenant for the return or application of
any such Security Deposit, regardless of whether it succeeds to the
position of Landlord hereunder, unless such shall have been
actually received by such Landlord’s Mortgagee.
1.7
Net
Lease
. This Lease is intended to be and shall be an absolute
“net, net, net” lease, and the Base Rent and any and
all other sums payable hereunder by Tenant (all of which shall be
deemed to be additional rent) shall be paid without notice or
demand and without set-off, counterclaim, abatement, suspension,
deduction, or defense except to the extent (if any) otherwise
expressly set forth in this Lease. As more particularly set forth
herein, Tenant shall pay all Taxes (hereinafter defined), insurance
premiums, maintenance, repair and replacement costs and expenses,
utility charges and expenses, and all other costs and expenses, of
whatever nature, relating in any way to the Premises and/or the
operation thereof during the Term except as otherwise provided in
this Lease. In addition, this Lease shall continue in full force
and effect and the obligations of Tenant hereunder shall not be
released, discharged, diminished, or otherwise affected by reason
of any damage to or destruction of the Premises, or any part or
parts thereof, by any partial taking, or by any restriction on or
prevention of or interference with any use of the Premises or any
part or parts thereof, except to the extent otherwise expressly set
forth in this Lease. Landlord shall have no responsibility or
obligation, whatsoever, with respect to the Premises or the
condition or use thereof during the Term and shall be absolutely,
without limitation, exculpated from any and all such
responsibilities and/or obligations, all such responsibilities and
obligations being those of Tenant, except as and to the extent that
any such responsibilities or obligations arise from the gross
negligence or willful misconduct of Landlord. For avoidance of
doubt, the foregoing shall not obligate Tenant to pay any Landlord
administrative costs or insurance premiums that Landlord may elect
to incur with respect to the Premises.
1.8
Rent
.
For purposes of this Lease, the Base Rent, Fair Market Rent,
additional rent, and any other sums, charges or amounts of whatever
nature to be paid by Tenant, in favor of Landlord, pursuant to the
provisions of this Lease, shall be collectively referred to herein
as “
Rent
”.
ARTICLE 2
OPERATING COVENANTS
2.1
Use
of Premises
.
2.1.1
Permitted
Uses
. Tenant may use the Premises for operation of a
newspaper publishing and news and digital media business and for
all purposes reasonably and customarily related thereto or as
otherwise permitted by law, including without limitation
administrative and other offices; printing presses; newsprint
storage; warehouse; delivery services; truck fleet parking,
maintenance and repair; website, mobile apps and mobile news
services; advertising services; food services; employee fitness;
communications and transmission tower(s); newspaper recycling;
loading docks; and production facilities.
2.1.2
Restrictions
.
Tenant shall not use or allow the Premises or any portion thereof
to be used for any purpose or use, nor shall any activity be
conducted in, on or upon the Premises, which in any manner
constitutes a public or private nuisance, or which violates any law
or governmental regulation, or which is prohibited by or would
cause cancellation of any insurance policy which Tenant or Landlord
is obligated to maintain hereunder.
2.1.3
Compliance
with Laws, Rules and Regulations
. Tenant acknowledges that
Landlord has made no warranty or representation regarding the
suitability of the Premises for Tenant’s intended use.
Tenant, at its sole cost and expense, shall comply with and conform
to all present and future laws, codes, ordinances, orders,
judgments, decrees, injunctions, rules, regulations and
requirements, even if unforeseen or extraordinary, of every
governmental authority or agency (“
Laws
”),and all covenants,
restrictions and conditions now of record, which in each case may
be applicable to Tenant, Landlord’s ownership of the
Premises, the Premises, or the use, manner of use, occupancy,
possession, operation, maintenance, alteration, repair or
reconstruction of the Premises during the Term, even if compliance
therewith (a) necessitates structural changes or improvements to
the Premises (including changes required to comply with the
American With Disabilities Act of 1990) or (b) requires Tenant to
carry insurance other than as required by the provisions of this
Lease.
2.1.4
Right
to Contest
. Tenant shall have the right to contest the
validity of any Laws of the nature referred to herein, by
appropriate legal proceedings, without cost or expense to Landlord,
which shall be subject to a minimum fourteen (14) business days
prior written notice to Landlord which specifically sets forth the
nature and scope of such legal proceedings and includes final
copies of all materials to be submitted in connection therewith,
and provided that no such action by Tenant shall cause Landlord or
any Landlord parent or affiliate to suffer any civil, or be
subjected to any criminal, penalties, or incur any
expense.
2.1.5
Signs
. During the
Term, Landlord shall have no obligation to provide any signage for
Tenant at the Premises. Tenant shall have the right, at
Tenant’s sole cost, to install any and all signage at the
Premises as deemed necessary or desirable by Tenant for its
business. All signage installed by Tenant on or about the Premises
shall be subject to applicable Laws.
2.2
Real Estate Taxes and
Assessments
.
2.2.1
Definition
. As used
herein, “Real Estate Taxes” shall mean all general and
special real estate taxes and assessments, municipal or county
water and sewer rates and charges and assessments for improvements
to the Premises, which shall be levied against the Premises,
excluding however (a) any increases in taxes resulting from a
change of ownership of the Premises during the Term, (b) any
increases in taxes resulting from improvements made to the Premises
by Landlord which were not requested by Tenant or required by this
Lease, and (c) any revenue, estate, gift, inheritance or succession
tax payable by Landlord or any other tax, assessment, levy or
charge upon or measured in whole or in part by the income or
profits of Landlord.
2.2.2
Payment by Tenant
.
Prior to delinquency, Tenant shall pay or cause to be paid all Real
Estate Taxes accrued against the Premises during the Term and
commencing on and after the Commencement Date. Landlord shall
provide Tenant with copies of all bills for Real Estate Taxes
attributable to the Premises promptly after said bills are received
by Landlord. Notwithstanding any provision of this Lease to the
contrary, Tenant shall not be liable for any fines, obligations or
penalties to the extent arising out of Landlord’s failure to
timely provide Tenant with copies of any bills received by Landlord
for Real Estate Taxes attributable to the Premises, and Landlord
shall pay all such fines, obligations and/or
penalties.
2.2.3
Proration
. Real
Estate Taxes for the fiscal year in which this Lease expires or
terminates shall be prorated between Landlord and Tenant at the
expiration or earlier termination of this Lease so that Tenant
shall pay only that portion of such Real Estate Taxes equivalent to
that proportion which the number of days of such fiscal year
falling within the Term bear to the total number of days of such
fiscal year, and Landlord shall pay only that portion of such Real
Estate Taxes attributable to the number of days of each such fiscal
year not falling within the Term. The party actually paying the
Real Estate Taxes for such fiscal year shall be entitled to
reimbursement from the other promptly following demand based upon
the results of such proration.
2.2.4
Right to Contest
.
Tenant shall have the right to contest in good faith the amount or
validity of any Real Estate Taxes, in whole or in part, by
appropriate administrative and legal proceedings, either in its own
name, Landlord’s name or jointly with Landlord, without any
cost or expenses to Landlord; Tenant shall have the right to
receive any refund of taxes paid resulting from such contest to the
extent attributable to the Term and subject to appropriate
prorations at the commencement and termination of this Lease; and
Tenant may postpone payment of any such contested Real Estate Taxes
pending the prosecution of such proceedings and any appeals so long
as such proceedings shall operate to prevent the collection of such
Real Estate Taxes and the sale of the Premises to satisfy any lien
arising out of the nonpayment of the same; provided that Tenant
promptly shall pay such Real Estate Taxes in the event a final
decision in such contest shall be adverse to and not appealed by
Tenant. Landlord shall promptly execute and deliver to the Tenant
whatever documents may be necessary or proper to permit the Tenant
to so contest any such Real Estate Taxes or which may be necessary
to secure payment of any refund which may result from any such
proceedings.
2.2.5
Refunds
. Landlord
covenants and agrees that if there shall be any refunds or rebates
on account of any Real Estate Taxes paid by Tenant under the
provisions of this Lease, such refund or rebate shall belong to
Tenant. Any such refunds or rebates received by Landlord shall be
held in trust for the benefit of Tenant and shall be forthwith paid
to Tenant. Landlord shall, on request of Tenant, sign any receipt
which may be necessary to secure the payment of any such refund or
rebate, and shall pay over to Tenant such refund or rebate as
received by Landlord. The provisions of this paragraph shall
survive the expiration or earlier termination of this
Lease.
2.2.6
Personal Property
.
Tenant covenants and agrees to pay before delinquency all personal
property taxes, assessments and liens upon Tenant’s FFE&I
and/or other personalty belonging to Tenant and situated within the
Premises.
2.3
Utilities
.
2.3.1
Utility Facilities
.
Throughout the Term hereof and including any extension thereof,
Tenant shall be responsible for and shall promptly pay as and when
due all charges for all utilities at the Premises including without
limitation, heat, water, gas, electricity, telephone, sanitary
sewer and other utilities used or consumed in, on or upon the
Premises (“
Utilities
”). Tenant shall be
responsible for all utility connections. Tenant, at its sole cost
and expense, shall determine the availability of and shall install
in, on and about the Premises all additional or contemporary
facilities, if any, necessary for the provision of any Utilities.
Without limitation, Tenant shall pay all charges and expenses
associated with the use of said facilities and Utilities at the
Premises and Tenant shall pay all connection or other charges
pertaining to the Premises levied by public utilities or
municipalities with respect to their services during the
Term.
2.3.2
Interruption of
Services
. Any interruption or discontinuance of
Tenant’s business, services, or Utilities, shall not
constitute a disturbance of Tenant’s use and possession of
the Premises and shall not relieve Tenant from the performance of
Tenant’s obligations under this Lease. Landlord shall not be
liable to Tenant for any interruption or discontinuance of
Tenant’s business, services, or Utilities, under any
circumstances whatsoever except as and to the extent such
interruption or discontinuance is directly and exclusively caused
by Landlord’s gross negligence or willful
misconduct.
2.4
Improvements and
Alterations
.
2.4.1
By Landlord
.
Landlord shall have no obligation whatsoever to perform, build,
construct, or install any improvements or alterations on or about
the Premises at any time during the Term.
2.4.2
By
Tenant
.
2.4.2
Alterations
. Tenant
shall have the right at any time and from time to time during the
Term to make or suffer to be made any changes, alterations,
additions or improvements on, to or about the Premises
(“
Alterations
”)
as Tenant may reasonably deem necessary or desirable, provided,
however, that the prior written consent of Landlord (which consent
shall not be unreasonably withheld, conditioned or delayed) shall
be required for any Alteration the cost of which is reasonably
likely to exceed $500,000.00 in the aggregate. Any Alterations,
except movable furniture, furnishings, decorations and trade
fixtures or other property comprising part of Tenant’s
FFE&I, shall at once be deemed a part of the realty and belong
to Landlord.
2.4.3
Tenant FFE&I
.
Tenant may install on the Premises such furnishings, trade
fixtures, machinery and equipment as Tenant deems necessary for its
business activities, which upon installation shall constitute part
of Tenant FFE&I as defined below; provided that the
installation and use of all such furnishings, trade fixtures,
machinery and equipment shall be in compliance with any and all
applicable Laws and no such furnishings, trade fixtures, machinery
and equipment shall be installed in any manner which materially and
adversely affects the structural integrity of the Improvements
without the prior written consent of Landlord, which consent shall
not be unreasonably withheld, conditioned or delayed. Title thereto
shall remain in Tenant, even though such furnishings, trade
fixtures, machinery and equipment may be affixed to the
Premises.
2.4.4
Conditions
.
Notwithstanding any provisions to the contrary contained herein,
all Alterations shall be subject to the following
conditions:
2.4.4.1
Tenant shall pay, or cause to be paid, the entire cost of the any
Alteration.
2.4.4.2
Tenant shall provide a written notice to Landlord of Tenant’s
intention to commence any Alteration before commencement (other
than minor decorations to the Premises, such as movable partitions,
carpeting, painting and wallpapering, which shall not be deemed to
constitute an Alteration for the purposes of this Lease). The
notice shall specify the nature of the intended Alteration. Tenant
shall submit to Landlord detailed plans and specifications
regarding same.
2.4.4.3
Tenant shall keep the Premises free from and promptly remove any
mechanic’s liens and indemnify, defend, and hold Landlord
harmless from any and all liability or expense of any kind and
description (including reasonable attorneys’ fees) which may
arise out of or be connected in any way with an Alteration. Any
mechanic’s lien filed against the Premises for an Alteration
or materials furnished to Tenant shall be discharged by Tenant
within sixty (60) days of its filing, at Tenant’s sole
expense, by payment or filing of a bond in an amount equal to the
amount of the claim of the lien issued by a company authorized to
issue surety bonds in South Carolina.
2.4.4.4
Tenant shall obtain and pay for all necessary permits and approvals
and shall comply with all applicable governmental requirements and
insurance rating bureau recommendations.
2.4.4.5
Upon the completion of any Alteration, Tenant
shall furnish to Landlord plans and specifications prepared by a
certified architect depicting such Alterations as installed, if
applicable.
2.4.4.6
Landlord shall have the right to post and maintain on the Premises
any notices of non-responsibility provided for under applicable
law, to record said notices with the Official Records of Richland
County, South Carolina.
2.4.4.7 All
such Alterations shall be completed in a good and workmanlike
manner and upon completion thereof Tenant shall deliver to Landlord
the certificate of occupancy, if applicable.
2.4.4.8 Each
Alteration, when completed, shall be of such character as not to
affect adversely the value of the Premises immediately before such
Alteration.
2.5
Maintenance and
Repairs
.
2.5.1
Generally
.
Throughout the Term hereof, Tenant shall keep and maintain the
Premises (including, without limitation, all Improvements located
therein, all Alterations made thereto, and all fixtures installed
therein) in good condition and repair and Tenant shall be
responsible for any and all maintenance, repairs and replacements
to the Premises, both structural and nonstructural, ordinary or
extraordinary, foreseen or unforeseen, of every nature and kind
whatsoever, including and with respect to, without limitation, any:
structural repairs and replacements, foundations, wear and tear,
exterior and/or load bearing walls, interior and exterior windows,
roof (including all structural and system components thereof), end
of life span replacements, and, mechanical, electrical, plumbing,
heating, ventilation and air conditioning and life safety systems
(the “
Systems
”)
of the Premises, and all landscaping, sidewalks, driveways and
parking areas contained in or about the Premises. Tenant shall make
all such repairs and replacements as may be necessary to keep and
maintain the Premises in accordance with industry standards, and in
a reasonable manner consistent with the management of office
buildings of similar age and construction located in the Columbia,
South Carolina trade area, and to maintain the Premises in
substantially the same condition received by Tenant as of the
Commencement Date. Tenant shall reasonably monitor and inspect the
Premises and its condition, on a reasonably routine basis, and as
necessary, to determine whether repairs, maintenance, or
replacements to the Premises are reasonably required. Except as
otherwise set-forth in Section 2.5.2, Tenant shall perform all
maintenance, repairs, or replacements in a reasonable and timely
manner, without any undue delay, in accordance with industry
standards, and in a reasonable manner consistent with comparable
buildings in the area of Columbia, South Carolina. Without limiting
the generality of the foregoing, Tenant will perform the repair and
maintenance items set forth on
Exhibit B
attached hereto on or before the dates for such items indicated
thereon (the “
Required Repair
and Maintenance Items
”) and in the scope and manner
recommended in that certain property condition report prepared by
LCK and entitled “The State Newspaper Building, 1401 Shop
Road, Columbia, South Carolina Executive Inspection Summary,
February 22, 2018”. Landlord or any person designated by
Landlord (including, without limitation, a professional inspection
engineer or any interested governmental authority) shall be
permitted to inspect the Required Repair and Maintenance Items in
accordance with the terms and conditions of Section 2.10. If Tenant
fails to timely complete any Required Repair and Maintenance Items,
Landlord shall have the right (but not the obligation) to enter
upon the Premises and cause the completion of such Required Repair
and Maintenance Items in accordance with the terms and conditions
of Section 4.5.2. Tenant shall keep and maintain the Premises in a
clean, safe, sanitary and tenantable condition in a manner
compatible with its intended use, shall not permit any garbage,
waste, refuse or dirt of any kind to accumulate in or about the
Premises, shall keep all Systems in good working order and
operating condition, shall keep all drives, parking areas,
entrances and pedestrian walkways free from snow and ice and shall
make any repairs, replacements or improvements which may be
required by any applicable Laws. Tenant shall not cause
deterioration, waste, damage or injury to the Premises. Landlord
shall not be required to make any repairs, alterations, maintenance
or replacements in or to the Premises. For the avoidance of doubt,
Tenant’s maintenance responsibilities shall be at a standard
of a prudent and reasonable owner of comparable property, and
Tenant shall be responsible for the repair of any wear and tear or
damage that occurs to the Premises including, without limitation,
as a result of any failure to maintain or repair the Premises in a
reasonable and timely manner. Landlord shall not be required to
make demand or compel Tenant’s performance of the obligations
set forth in this Section 2.5, and any delay or failure by Landlord
with respect thereto, shall not be a waiver of any Landlord
rights.
2.5.2
Capital Items
.
Notwithstanding the foregoing, during the last year of the Term,
Tenant shall not be required to make any capital repairs to the
Premises unless, within such one (1) year period, (a) such repair
is necessary to maintain the safety of the Premises, or a life
safety system servicing the Premises, (b) the condition needing
repair would materially worsen without such repair, (c) the failure
to make such repair would materially decrease the value of the
Premises, or (d) Tenant has commenced such repair prior to or
during such one (1) year period.
2.5.3
Warranties
.
To facilitate Tenant’s repair, maintenance and restoration
obligations under this Lease, Tenant shall have the right and
license during the Term to enforce any trade, material and/or
equipment warranties held by Landlord with respect to the Premises
or any part thereof, and Landlord shall use good faith, due
diligence and reasonable commercial efforts to cooperate with
Tenant in the enforcement of any such warranties.
2.5.4
Survival
. Any
obligations of Tenant pursuant to this Section 2.5 which arise
during the Term shall survive the termination of this
Agreement.
2.6
Insurance
.
2.6.1
Commercial General Liability
.
Tenant shall, at Tenant’s sole expense, during the entire
Term hereof, keep in full force and effect a policy of commercial
general liability insurance with respect to the Premises, and the
business operated by Tenant in the Premises, in which the primary
coverage per accident or occurrence is not less than $9,000,000.00
combined single limit, except that such insurance in excess of
$1,000,000.00 may be covered by a so-called “umbrella”
or “excess coverage” policy. Each such policy shall
name Landlord and Landlord’s lender as an additional
insured.
2.6.2
Property Insurance
. Tenant
shall, at Tenant’s sole expense, during the entire Term, keep
in full force and effect a policy of “all risk”
property insurance against fire, vandalism, malicious mischief, and
such other hazards as are from time to time included in a standard
extended coverage endorsement, insuring the Premises in an amount
equal to the full replacement value of the Premises (with an agreed
amount endorsement, excluding land value), and insuring the
betterments and improvements made by it to the Premises, and all
trade fixtures, furnishings and equipment owned by Tenant and
located on or within the Premises, in an amount equal to the full
replacement value thereof.
2.6.2.1
At
all times when any work is in process in connection with the
performance of any Alterations or Premises related work, including
with respect to the installation of Tenant’s FFE&I and
Personal Property if affixed to the Premises, Tenant shall carry
builder’s risk insurance covering all Alterations, in form
and amounts and with companies satisfactory to Landlord, naming
Landlord and any other party in interest as an additional insured,
and Tenant shall require all contractors and subcontractors to
maintain the following insurance:
(a)
The insurance
described in Section 2.6.1;
(b)
Worker’s
Compensation, as required by law;
(c)
Automobile
liability insurance, including but not limited to, passenger
liability, on all owned, non-owned and hired vehicles in connection
with the Premises, with a combined single limit per occurrence of
not less than Two Million Dollars ($2,000,000.00) for bodily injury
and property damage.
2.6.3
Form
.
The policies required under this Section 2.6 may be furnished by
Tenant under any blanket policy carried by it (provided the minimum
limits set forth above are applicable to the Premises) or under a
separate policy therefor. The insurance shall be with carriers with
a Best Insurance rating of “A” or better and a
financial size rating of “XII” or better. Certificates
of the insurers, on such forms as Landlord shall reasonably
approve, evidencing the maintenance of such insurance policies
shall be delivered to Landlord prior to commencement of the Term,
and, upon renewals, not less than fifteen (15) days prior to the
expiration of a coverage period. Landlord will be entitled to
participate in the adjustment of any losses and to receive
insurance proceeds to the extent of its interest in and rights
under the foregoing policies.
2.6.4
Release
and Waiver of Subrogation
. Tenant hereby releases Landlord,
its officers, directors, employees and agents from any and all
liability or responsibility (or anyone claiming through or under
them by way of subrogation or otherwise) for any loss or damage to
property covered by insurance required to be maintained by Tenant
under this Lease, or otherwise covering the Premises, even if such
loss or damage shall have been caused by the fault of negligence of
Landlord, and Tenant’s insurance policies hereunder shall be
endorsed to provide such waiver of subrogation.
2.6.5
Indemnity
.
Tenant agrees to indemnify and save Landlord harmless against and
from any and all claims, damages, losses, liabilities, costs, and
expenses (including without limitation, reasonable attorneys’
fees), arising out of (a) Tenant’s use or occupancy of the
Premises during the Term, (b) the conduct or management of the
business conducted by Tenant or any subtenant or other occupant in
the Premises during the Term, (c) any breach or default on the part
of the Tenant in the performance of any covenant or agreement on
the part of the Tenant to be performed pursuant to the terms of
this Lease during the Term (d) any act or negligence of Tenant, its
agents, contractors, servants, guests, employees, subtenants,
concessionaires or licensees in or about the Premises during the
Term, and (e) as a result of any illegal activity conducted by
Tenant or its employees at the Premises, if any. In case any action
or proceeding is brought against Landlord by reason of any such
claim, Tenant, upon notice from Landlord, shall defend such action
or proceeding which is brought against Landlord by reason of any
such claim. Tenant, upon notice from Landlord, covenants to defend
such action or proceeding by attorneys reasonably satisfactory to
Landlord. Tenant is aware of the environmental condition of the
Premises as of the Commencement Date, and Tenant covenants not to
sue Landlord for any matter arising therefrom, and hereby releases
Landlord and its affiliates, and waives any claims, damages,
liability, or responsibilities of any nature or kind against
Landlord, arising in connection with the environmental condition of
the Premises as of the Commencement Date.
2.7
Environmental
Matters
.
2.7.1
No
Discharge by Tenant
. During the Term of this Lease, Tenant
shall not allow any Hazardous Substances, to be installed, used,
introduced, stored, treated, disposed of, generated, released,
discharged, dumped, or transported in, upon or over the Premises in
violation of applicable law, nor allow any soil or ground water
pollution or contamination with any Hazardous Substances on or
about the Premises. Tenant shall conduct its operations during the
Term of this Lease in compliance with all requirements of any
Environmental Laws relating to the handling, use, storage, release
and disposal of Hazardous Materials on or about the
Premises.
2.7.2
Definition
.
For purposes of this Lease, “Hazardous Substances”
shall mean any substance or material defined or designated as
hazardous or toxic waste, hazardous or toxic material, a hazardous,
toxic or radioactive substance, hazardous or potentially hazardous
to human health, or other similar term, by any federal, state or
local environmental and/or health statute, regulation, or ordinance
presently in effect. The term “Hazardous Substances”
shall also include, without limitation, raw materials, building
components, the products of any manufacturing or other activities
on the Premises, wastes, petroleum, and source, or by-product
material. For purposes of this Lease, “Environmental
Laws” shall mean any law, statute, ordinance or regulation
pertaining to health, industrial hygiene, Hazardous Substances, or
the environment.
2.7.3
Removal
.
Notwithstanding any other provision of this Lease, upon discovery
of any Hazardous Substances on, in, or about the Premises, or any
release or threatened release of any Hazardous Substances on, in or
about the Premises, Tenant shall promptly notify Landlord thereof
in writing. Tenant shall promptly take all actions necessary at its
sole cost and expense (a) to comply with applicable law and
Environmental Laws requiring notification of government agencies
and any other person or entity concerning such Hazardous
Substances, and (b) to remove or remediate from the Premises all
such Hazardous Substances to the extent (i) Tenant, its employees,
agents, independent contractors or other representatives caused
such Hazardous Substances
to be
spilled, released, discharged or deposited after
the Commencement Date on or about the Premises during the Term of
this Lease, and (ii) required under applicable Environmental Laws.
Tenant shall handle and dispose of such Hazardous Substances in
accordance with Environmental Laws.
2.7.4
Permitted
Substances
. Notwithstanding the
foregoing, Landlord acknowledges that from time to time in the
course of usual, ordinary and/or customary practice of operating
Tenant’s businesses at the Premises and carrying out the uses
permitted by this Lease (including without limitation the
production of newspapers and vehicle storage, fueling and
maintenance), Tenant may bring on to and use on the Premises
customary legal quantities of certain Hazardous Substances (such as
inks, cleansers, solvents, lubricants, fuels, etc.), and Landlord
hereby consents to such use so long as the ownership, handling and
use of said substances is only in those amounts common and
customary for the subject business practice and in full compliance
with all Environmental Laws.
2.7.5
Existing
Condition
. The parties
acknowledge that, as of the Commencement Date of this Lease, (a)
Landlord is purchasing the Premises from Tenant, (b) Tenant is
leasing the Premises in its current condition and Landlord shall
have no obligations to Tenant pursuant to this Lease for the
presence of Hazardous Substances on or about the Premises existing
as of the Commencement Date, (c) Tenant shall have no obligations
to Landlord pursuant to this Lease for the presence of Hazardous
Substances on or about the Premises existing as of the Commencement
Date, and (d) both Landlord and Tenant are aware of the
environmental conditions on the Premises disclosed by or described
in those items set forth in
Exhibit
C
attached hereto
(“
Existing
Conditions
”).
2.8
Tenant
FFE&I
. The parties acknowledge and agree that as of the
Commencement Date, the Premises contains substantial furnishings,
trade fixtures, equipment, machinery, personal property, inventory
and supplies which are owned by Tenant, are not fixtures of the
sort typically exclusively related to the operation or maintenance
of real property, and are used in connection with Tenant’s
business on the Premises (the “
Tenant FFE&I
”), including
without limitation those items described on
Exhibit D
hereto. Nothing to the contrary in this Lease withstanding, all
Tenant FFE&I installed by or at the request of Tenant in the
Premises shall be and remain the property of Tenant and they shall
be deemed personal property no matter how they are affixed to the
Premises and shall be removable at any time during the Term of this
Lease (or, in the event of an early termination of this Lease, at
any time within thirty (30) days after the date of such
termination). The removal of any such FFE&I shall be at the
expense of Tenant, who shall repair any damage or injury to the
Premises occasioned by the removal thereof.
2.9
Quiet
Enjoyment
. Landlord covenants, warrants and represents to
Tenant that it has full right and power to execute and perform this
Lease and to grant the estate demised herein. So long as Tenant
shall duly and punctually perform and observe all of its
obligations under this Lease, Tenant, for itself and its authorized
assignees and subtenants hereunder, shall peaceably and quietly
enjoy the Premises free from hindrance by Landlord or any party
claiming by, through or under Landlord, subject, however, to zoning
laws and ordinances, and recorded easements and
restrictions.
2.10
Landlord’s Reserved
Rights; Right of Entry
. Landlord, at all times upon not less
than twenty-four (24) hours advance notice (except in the case of
emergency, in which case notice shall be given to the extent
practical), shall have the right during Tenant’s regular
business hours to enter the Premises to inspect and to monitor the
same, to supply any service to be provided by Landlord to Tenant
hereunder, to show the Premises to prospective purchasers,
investors, service providers, mortgagees or tenants (provided that,
unless Tenant is in default beyond any applicable notice and cure
periods, the period for showing the Premises to prospective tenants
is limited to the last two (2) years of the Term) and to post
notices of non- responsibility. Landlord shall not damage the
Premises in any material respect as a result of such entry or
access and shall otherwise conduct the same so as to comply with
Tenant’s reasonable safety and security requirements at the
Premises (provided Tenant shall be responsible for providing
advance notice of such requirements prior to each such access) and
in such a manner as not to interfere with present occupants, uses
and/or operations on the Premises. Tenant shall have the right (but
not the obligation) to accompany Landlord or its agents at all
times they are on the Premises.
ARTICLE 3
TRANSFER EVENTS
3.1
Assignments by Tenant
. Except
as otherwise expressly provided herein, Tenant shall have no right
to assign or transfer this Lease, sublet all or any part of the
Premises, grant a mortgage on Tenant’s leasehold interest
under this Lease or otherwise hypothecate any interest of Tenant
hereunder, or grant a license or other use or occupancy right to
any other person or entity to use all or any part of the Premises,
whether voluntarily, involuntarily or by operation of law or
whether directly or indirectly (any of the foregoing being a
“
Transfer
”), in
each case without the prior written consent of Landlord, which
consent may not be unreasonably withheld, conditioned or delayed.
Without limiting any other reasonable basis for Landlord’s
withholding consent to a proposed Transfer, Tenant acknowledges
that it shall be reasonable for Landlord to withhold its consent to
a proposed Transfer where (i) the proposed transferee is not, in
Landlord’s reasonable opinion, sufficiently creditworthy to
perform the obligations such transferee will have under this Lease
and the proposed Transfer document; or (ii) the proposed transferee
is not a publicly traded company listed on the New York Stock
Exchange or Nasdaq Stock Market and will, in Landlord’s
reasonable judgment, be unable to provide adequate financial
reports or other disclosures as may be necessary in order to meet
Landlord’s then-applicable investment guidelines and/or legal
requirements. Notwithstanding the foregoing, Tenant may engage in
any of the following transactions (each, a “
Permitted Transfer
”) without the
consent of the Landlord: (a) the sublease or assignment of
Tenant’s interest under this Lease (the “
Tenant Interest
”) to any Affiliate
(as defined herein) of Tenant provided Tenant guarantees to
Landlord the payment and performance of such Affiliate’s
obligations hereunder, in form and substance reasonably acceptable
to Landlord; (b) the sublease or assignment of the Tenant Interest
in connection with a transaction pursuant to which Tenant (or any
Affiliate of Tenant) is merged or consolidated with any other
entity or pursuant to which all or substantially all of
Tenant’s voting stock or assets (including, without
limitation, the Tenant Interest) are sold or transferred as a
“going concern” and in a single transaction, or (c) the
sublease or license to unaffiliated third parties of portions of
the Premises comprising not more than 65% of the rentable area of
the Premises in the aggregate; provided, however, that (i) the
Transfer shall be made in good faith and for a legitimate business
purpose other than circumventing the restrictions on Transfer
otherwise applicable under this Section 3.1, (ii) Tenant shall have
given Landlord at least fifteen (15) days’ prior written
notice of any intended Permitted Transfer (which notice shall
contain information reasonably necessary for Landlord to conclude
that Tenant’s intended transaction qualifies as a Permitted
Transfer), and (iii) the Permitted Transfer shall be subject to all
of the other terms and conditions of this Lease. As used herein,
“
Affiliate
”
shall mean any entity which controls, is controlled, or is under
common control with Tenant.
3.1.1
Consent
.
In the event Tenant desires to enter into a Transfer other than a
Permitted Transfer, Tenant shall notify Landlord in writing at
least thirty (30) days in advance of the proposed effective date of
Transfer, of Tenant’s intent to so Transfer, the proposed
effective date of such Transfer, and the terms and conditions of
the Transfer including all rent and other consideration to be paid
by the proposed transferee, and shall request in such notification
that Landlord consent thereto. Upon request, Tenant shall provide
Landlord with all additional information relating to any proposed
Transfer as may be reasonably requested by Landlord. If Landlord
consents in writing to a Transfer, such consent shall be deemed
conditioned upon Tenant’s compliance with the provisions of
Section 3.1.2 below within thirty (30) days of Landlord’s
consent (or any shorter period as may be applicable as set forth in
Section 3.1.2) and the failure to so comply in a timely manner
shall be deemed to give Landlord reasonable cause for withholding
or withdrawing its consent.
3.1.2
Conditions
to Transfer
. The following conditions shall apply to any
Transfer:
3.1.2.1
At
the time of such Transfer, this Lease must be in full force and
effect without any default of Tenant existing beyond any applicable
notice and cure period.
3.1.2.2
The
transferee shall assume in the case of an assignment, by written
instrument, in form and content reasonably satisfactory to
Landlord, the due performance of all Tenant’s obligations
under this Lease, including any accrued obligations at the time of
the assignment.
3.1.2.3
A
copy of the Transfer instrument and the original assumption
agreement pursuant to Section 3.1.2.2 above (both in form and
content satisfactory to Landlord) fully executed by the transferee,
shall be received by Landlord within twenty (20) days from the
effective date of such Transfer.
3.1.2.4
Such
Transfer shall be subject to all the provisions, terms, covenants
and conditions of this Lease including but without limitation all
use restrictions and restrictions on Transfer hereunder and Tenant
shall continue to be and remain primarily and unconditionally
liable hereunder.
3.1.2.5
Except
in the case of a Permitted Transfer, Tenant shall, within ten (10)
days of Landlord’s billing Tenant therefor, reimburse
Landlord for Landlord’s reasonable attorneys’ fees for
examination of and/or preparation of any documents in connection
with such Transfer, up to a maximum amount of
$2,500.00.
3.1.3
Any
purported Transfer not made in full compliance with the provisions
of this Section 3.1 shall, at Landlord’s election, be void
and shall confer no rights upon any third person. No act or conduct
by the Landlord other than its express written consent shall
constitute its consent or waiver of its consent rights with respect
to a particular Transfer. No Transfer or consent to Transfer will
operate to waive Landlord’s rights with respect to any future
Transfer. Except as explicitly agreed to by Landlord in writing, a
Transfer or Permitted Transfer shall not relieve Tenant from the
performance of the obligations set forth in this
Lease.
3.1.4
The
Premises is leased to certain existing tenants as of the
Commencement Date which are described on
Exhibit E
attached hereto (the “
Existing Leases
”). For avoidance
of doubt, the Existing Leases (and any renewals thereof) are not
being assigned to Landlord as part of Landlord’s purchase of
the Premises from the Seller, and shall be treated as subleases
between the Tenant and such parties, and are exempt from the
requirements and restrictions of the foregoing paragraph. Tenant
shall use commercially reasonable efforts to amend each of the
Existing Leases to explicitly make it a sublease, expressly
subordinate to this Lease. In the event that and Existing Leases
shall not be explicitly subordinate to the terms and provisions of
this Lease, Tenant shall attorn to Landlord and shall at all times
administer such Existing Leases in accordance with the terms of
this Lease. Immediately and automatically, in the event of a
termination of this Lease, the Existing Leases shall be deemed to
have been assigned by Tenant to Landlord, and Tenant shall transfer
and assign to Landlord any security deposit, claim, or amounts held
in connection with an Existing Leases to Landlord. Without
Landlord’s prior written consent, which shall not be
unreasonably withheld or delayed, Tenant shall not enter into any
amendments or extensions of the Existing Leases that would serve to
cause the terms of such Existing Leases to extend beyond the
Term.
3.2
No
Liens
. Without in each instance
the prior written consent of Landlord, Tenant shall not directly or
indirectly create or permit to be created or to remain, and will
immediately discharge, any lien, encumbrance, or charge on, or
pledge of, the Premises, or any part thereof, the interest of
Tenant hereunder or therein, or the Rent or other payments
hereunder, other than: (a) this Lease; (b) any assignment, pledge,
lien, encumbrance, charge, conditional sale, or title retention
agreement affecting the Premises, resulting solely from (i) any
action by Landlord or (ii) any liability or obligation of Landlord
which Tenant is not obligated by this Lease to assume; (c) liens
for Taxes not yet payable arising after the Commencement Date; or
(d) liens of mechanics, materialmen, suppliers, or vendors, or
rights thereto, incurred in the ordinary course of business after
the Commencement Date for sums which under the terms of the related
contracts are not yet due, provided that such reserve or other
appropriate provision, if any, as may be required by generally
accepted accounting principles shall have been made therefor. In
amplification and not in limitation of the foregoing, Tenant shall
not knowingly permit any portion of the Premises to be used by any
person or persons or by the public, as such, at any time or times
during the Term, in such manner as might tend to impair the title
or interest of Landlord in the Premises, or any portion thereof, or
in such manner as might make possible a claim or claims of adverse
use, adverse possession, prescription, dedication, or other similar
claims of, in, to, or with respect to the Premises, or any part
thereof.
3.3
Assignment
by Landlord
. In the event of a sale or conveyance by
Landlord of the Premises, or in the event of an assignment or
transfer of Landlord’s interest in this Lease, the same shall
operate to release Landlord from any future liability upon any of
the covenants or conditions herein contained which accrues after
the date of transfer, and in such event Tenant agrees to look
solely to the successor in interest of Landlord in and to this
Lease, provided that (a) such transfer is made subject to the terms
of this Lease and (b) the transferee expressly agrees in writing to
assume the Landlord’s obligations. This Lease shall not be
affected by any such sale or conveyance, and Tenant agrees to
attorn to the purchaser or grantee, which shall be obligated on
this Lease only so long as it is the owner of Landlord’s
interest in and to this Lease.
3.4
Surrender and Return of Premises Upon
Lease Expiration
. Upon the termination of this Lease, by
expiration or otherwise, Tenant shall surrender the Premises
(including without limitation, all Improvements located therein,
all Alterations made thereto and all fixtures installed therein,
except Tenant’s FFE&I, and except to the extent (if any)
otherwise expressly set forth herein), to Landlord in condition
comparable to that received by Tenant on the Commencement Date
(ordinary wear and tear excepted), vacant and free from all tenants
and occupants, broom clean, free of all trash and debris and
otherwise in the same good order, condition and repair in which
Tenant is obligated to keep, repair, and maintain the Premises
throughout the Term pursuant to Section 2.5, excepting only damage
from casualty or condemnation that Tenant is not responsible for
the repair or restoration of to the extent (if any) expressly
provided hereunder. All of Tenant’s FFE&I, moveable
furnishings, trade fixtures and other equipment and personal
property owned by Tenant shall be removed from the Premises by
Tenant, at Tenant’s sole expense, by no later than the date
of termination, and Tenant shall repair any and all damage caused
by such removal. In the event Tenant fails so to remove any such
moveable furnishings, trade fixtures and other equipment and
personal property, or fails to repair any such damage to the
Premises or the Property, Landlord may do so and Tenant shall
reimburse Landlord for the actual reasonable documented
out-of-pocket cost of such removal and repair upon demand. In any
event, any trade fixtures, equipment, furniture and other personal
property of Tenant which remain in the Premises for over thirty
(30) days following the expiration or earlier termination of the
Term, at the Landlord’s option, shall be deemed abandoned by
Tenant and retained as the property of the Landlord or sold or
otherwise disposed of by the Landlord, in any such case without any
liability to or recourse by the Tenant or anyone claiming by,
through or under the Tenant. The provisions of this Section 3.4
shall survive the expiration or earlier termination of this
Lease.
3.5
Right
to Repurchase
. As set forth herein, Tenant shall have the
right to repurchase the Premises upon the expiration of the term of
this Lease (including Extension Term(s), if applicable) upon
mutually agreeable terms and conditions (the “
Repurchase Option
”). In the event
that Tenant wishes to exercise the Repurchase Option, Tenant shall
deliver written notice of such election to Landlord not later than
one hundred eighty (180) days prior to the expiration of this Lease
(including Extension Term(s), if applicable), which notice shall
include the proposed terms and conditions of Tenant's repurchase
offer. Landlord shall review the offer and shall have the option,
in Landlord's sole and absolute discretion, to: (a) accept the
offer, or (b) refuse the offer, and the parties shall negotiate
reasonably and in good faith manner for a period of thirty (30)
days in attempt to arrive at reasonable and mutually acceptable
terms and conditions for such repurchase. In the event that the
parties have been unable to agree on terms and conditions for the
repurchase during such thirty (30) day period, Landlord shall be
precluded for a period of three (3) months following the expiration
of the Lease from selling the Premises to a third party for a
purchase price less favorable than the last offered by Tenant. If
Landlord determines that the terms and conditions of Tenant’s
proposal are acceptable, then the parties shall proceed with the
negotiation of a mutually agreeable purchase and sale agreement for
the repurchase in accordance with the terms of such
proposal.
ARTICLE 4
ADVERSE EVENTS
4.1
Destruction of Improvements
. If
the Premises, or any portion thereof, are destroyed or damaged by
fire, explosion, or any other event whatsoever (a
“
Casualty
”),
then Tenant shall, as soon as practicable, repair, restore, and
rebuild the Premises to a condition equivalent to that existing
prior to such casualty, and shall do so each time and as often as
any portion of the Premises shall be destroyed or damaged. Except
as expressly provided in Section 4.1.1, below, no damage or
destruction of any building or any of the fixtures or other
property therein shall be grounds for the termination of this Lease
or relieve the Tenant from any obligation created or imposed by
virtue of this Lease, any laws of the state in which the Premises
is located to the contrary notwithstanding; including, but without
limiting the generality of the foregoing, Tenant’s obligation
to make payment of the Rent and all other charges on the part of
the Tenant to be paid, and the Tenant’s obligation to perform
all other covenants and agreements on the part of the Tenant to be
performed. For avoidance of doubt, Tenant shall have the right to
any and all insurance proceeds that may be payable in connection
with a Casualty except as expressly set forth below. Tenant shall
in any event be entitled to all insurance proceeds received on
account of any damage or destruction to Tenant’s FFE&I
and other personal property.
4.1.1
Notwithstanding
anything contained in this Lease to the contrary, if 50% or more of
the Improvements are damaged or destroyed by fire or other casualty
during the last two (2) years of the Term hereof, or if, in
Landlord’s or Tenant’s reasonable opinion supported by
the opinion of third party experts, it will reasonably take more
than 270 days from the date of payment of the loss by the insurance
carrier to restore the Improvements to their condition immediately
prior to such casualty, then Landlord and Tenant each shall have
the right to terminate this Lease by giving the other party written
notice of such termination within forty-five (45) days after the
date of such damage or destruction, specifying a termination date
of at least one hundred twenty (120) days after the date of such
notice of termination. If this Lease is terminated as aforesaid,
Tenant shall pay or cause to be paid to Landlord on or prior to the
date of termination insurance proceeds or a direct payment from
Tenant, or any combination of the two, in an aggregate amount equal
to (a) the proceeds of all insurance maintained by Tenant hereunder
covering such loss, (b) any deductible or other self-retained
amount covering such loss and (c) any remaining amount necessary so
that Landlord shall have received in full the reasonably estimated
cost to restore the Improvements to their condition immediately
prior to such casualty.
4.2
Eminent
Domain
. If all or substantially all of the Premises shall be
sold to or taken by any public authority under its power of
condemnation or the threat thereof, this Lease shall terminate as
of the date possession shall be transferred to the acquiring
authority, and the Rent payable hereunder shall be apportioned
accordingly. Upon any taking of less than substantially all of the
Premises, this Lease shall continue in force as to the part of the
Premises not taken. In the event of any such partial taking,
Tenant, at Tenant’s sole cost except as otherwise provided
herein, shall diligently rebuild or restore the remainder of the
Premises to the condition in which they existed at the time of such
taking. Except as herein specifically provided otherwise, all
damages awarded by or amounts paid by the acquiring authority for
any such taking, whether for the whole or a part of the Premises,
shall belong to and be the property of Landlord; provided that
Tenant shall have the right to make its separate claim for
compensation for any loss or damage it suffers to its trade
fixtures and for statutory relocation expenses, provided any such
claim does not reduce the amount of the award otherwise payable to
Landlord. In the event of a partial taking any proceeds received by
Landlord shall first be applied to reimburse Tenant for the costs
of rebuilding or restoring the Premises to its condition at the
time of taking on mutually agreeable, reasonable terms and
conditions (which may include, without limitation, those that an
institutional construction lender would customarily and reasonably
require for disbursement of construction loan
proceeds).
4.2.1
Notwithstanding
anything contained in this Lease to the contrary, if more than
fifty percent (50%) of the floor area of the Premises are taken
during the last year of the Term, Landlord and Tenant each shall
have the right to terminate this Lease by giving to the other
written notice of such termination within thirty (30) days after
the date of such taking, specifying a termination date of at least
sixty (60) days and not more than ninety (90) days after the date
of notice of termination. Failure to give notice of termination
within such thirty (30) day period shall be deemed to be a waiver
of such right of termination.
4.3
Landlord’s Non-Liability
.
Landlord shall not be liable to Tenant, and Tenant hereby waives
all claims against Landlord, for any injury or damage to any person
or property (including without limitation Tenant’s FFE&I)
in or about the Premises resulting from the Premises, or any part
thereof or any equipment thereof, becoming out of repair; flooding
of basements or other areas; damages caused by sprinkling devices,
air conditioning apparatus, snow, frost, water leakage, steam,
excessive heat or cold, falling plaster, broken glass, sewage, gas,
odors or noise or the bursting or leaking of pipes or plumbing
fixtures; any act or neglect of other tenants or occupants or
employees in the Premises; or any other thing or circumstance
whatsoever concerning the Premises, whether of a like nature or of
a wholly different nature, to the fullest extent permitted by
applicable law, except as and to the extent any such claims
directly and exclusively arise out of Landlord’s gross
negligence or willful misconduct. All property in or about the
Premises belonging to Tenant, its agents, employees or invitees
shall be there at the risk of Tenant or other person only, and
Landlord shall not be liable for damage thereto or theft,
misappropriation or loss thereof. If Tenant shall recover a money
judgment against Landlord pursuant to a Landlord default of this
Lease, Landlord’s liability shall be limited to
Landlord’s interest in the Premises and shall levy
exclusively against Landlord’s right, title and interest in
the Premises, including the rents, income, and insurance proceeds
thereof.
4.4
Holding
Over
. If Tenant remains in the Premises beyond the
expiration of the Term, or sooner following an early termination as
provided for herein, such holding over shall not be deemed to
create any tenancy at will, but Tenant shall be a tenant at
sufferance only, subject to all of Tenant’s obligations set
forth herein except that Base Rent shall be payable for
Tenant’s use and occupancy at a daily rate equal to one
hundred fifty percent (150%) of the Base Rent otherwise provided
for herein. The acceptance of a purported rent check following
termination shall not constitute the creation of a tenancy at will,
it being agreed that Tenant’s status shall remain that of a
tenant at sufferance, at the aforesaid daily rate. Any reference in
this Lease to Tenant’s obligations continuing during the
period of any holdover shall not be deemed to grant Tenant the
right to a holdover or imply Landlord’s consent to any such
holdover. In addition, Tenant shall indemnify Landlord for, from,
and against all costs, claims, liabilities and damages arising
directly from or in any manner related to any such
holdover.
4.5
Default
.
4.5.1
If
(a) default be made in the payment of Base Rent or any other sum or
amount payable hereunder by Tenant, and such default shall continue
for ten (10) days after receipt of written notice of default, or
(b) default be made in any of the other covenants or conditions
herein contained on the part of Tenant and such default shall
continue for thirty (30) days after written notice thereof shall
have been given to Tenant, (except that such thirty (30) day period
shall be automatically extended for an additional period of time
reasonably necessary to cure such default if such default cannot be
cured within such first 30 day period and provided Tenant commences
the process of curing such default within said first 30-day period
and continuously and diligently pursues such cure to completion),
or (c) Tenant shall make an assignment for the benefit of
creditors, or (d) a petition is filed by or against Tenant to have
Tenant adjudged a bankrupt or for reorganization, liquidation,
dissolution or arrangement under any law relating to bankruptcy
(unless, in the case of a petition filed against Tenant, the same
is dismissed within ninety (90) days), or (e) a receiver or trustee
of Tenant’s or guarantor’s property shall be appointed
and such receiver or trustee, as the case may be, shall not be
discharged within ninety (90) days after such appointment, or (f)
Tenant shall be dissolved or liquidated or proceedings shall have
been commenced to dissolve or liquidate, or (g) Tenant shall fail
to maintain insurance coverage as required herein, or (h) Tenant
shall make an assignment or Transfer in violation of this Lease,
then in any such case, Landlord may, without further notice to
Tenant, except as required by this subsection, terminate
Tenant’s tenancy and recover possession of and reenter the
Premises without accepting a surrender of the Premises or affecting
Tenant’s liability for past Rent and other charges due or
future Rent and other charges to accrue hereunder. In the event of
any such default, Landlord shall be entitled to recover from
Tenant, in addition to Rent, all other actual damages sustained by
Landlord proximately caused by the breach of this Lease, including,
but not limited to, the costs, expenses and reasonable attorney
fees incurred by Landlord in enforcing the terms and provisions
hereof and in reentering and recovering possession of the Premises
and for the cost of repairs, alterations and brokerage and
reasonable attorney fees connected with the reletting of the
Premises. As an alternative, at the election of Landlord, Landlord
shall have the right to accept a surrender of the Premises (without
the need for any affirmative act or acquiescence by Tenant),
without any further rights or obligations on the part of Landlord
or Tenant (other than Tenant’s obligation for Rent and other
sum due and owing through the date of acceptance of surrender), so
that Landlord may relet the Premises without any right on the part
of Tenant to any credit or payment resulting from any reletting of
the Premises. Tenant shall remain liable for the timely payment of
any economic deficit or deficiency, if any, resulting from a
reletting of the Premises pursuant to the terms of this Lease.
Alternatively, at the option of the Landlord, in the event
Tenant’s tenancy is so terminated, Landlord may recover
forthwith against Tenant as damages for loss of the bargain and not
as a penalty an aggregate sum, which at the time of such
termination of Tenant’s tenancy, represents the amount of the
excess, if any, of the value of the whole balance of Base Rent,
charges and all other sums payable hereunder for the entire balance
of the Term herein reserved or agreed to be paid by Tenant, over
the then current fair market rental value of the Premises, such
difference to be discounted to net present value at the rate of 1%
per annum. In case of a default under this Lease, Landlord may, in
addition to terminating Tenant’s tenancy and/or accepting a
surrender, or in lieu thereof, pursue such other legal or equitable
remedy or combination of remedies and recover such other damages
for breach of tenancy and/or contract as available at law or
otherwise. All of the remedies available to Landlord under this
Lease shall be cumulative and may be exercised by Landlord without
any prejudice to or waiver of Landlord’s rights, in any order
or combination that Landlord shall require.
4.5.2
Cure
and Recover
. All covenants and agreements to be performed by
the Tenant under any of the terms of this Lease shall be performed
by Tenant at Tenant’s sole cost and expense and without any
abatement of rent. If the Tenant shall fail to pay any sum of money
required to be paid by it hereunder, other than rent, or shall fail
to perform any other act on its part to be performed hereunder, and
such failure shall continue for 30 days after notice thereof by the
Landlord, the Landlord may, but shall not be obligated to, cure
such default, without waiving or releasing the Tenant from any
other default by Tenant under this Lease. All sums so paid by the
Landlord and all necessary incidental costs (including reasonable
attorney’s fees) incurred by Landlord in enforcing any of the
terms, covenants or conditions of this Lease, or curing any default
or in suing for or obtaining relief by reason of a breach thereof,
together with interest on all of the foregoing at the rate set
forth below from the date of payment or incurring by the Landlord,
shall be payable as additional Rent to the Landlord on demand.
Landlord shall have, in addition to any other right or remedy of
the Landlord, the same rights and remedies in the event of the
nonpayment thereof by the Tenant as in the case of default by the
Tenant in the payment of Rent. Landlord may use the Security
Deposit and to effectuate any such cure.
4.5.3
Remedies
Cumulative
. Landlord’s rights hereunder shall be in
addition to, and not in lieu of, every other right or remedy
provided for herein or now or hereafter existing at law or in
equity by statute or otherwise, including, but not limited to
injunctive relief, specific performance and damages. The exercise
or beginning of exercise by Landlord of any one or more rights or
remedies, provided herein or now or hereafter existing at law or in
equity by statute or otherwise, shall not preclude the simultaneous
or later exercise by Landlord of any or all other rights or
remedies provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise. All such rights and
remedies shall be considered cumulative, nonexhaustive, and
nonexclusive.
4.5.4
Landlord’s
Defaults
. Any failure by Landlord to perform the
Landlord’s obligations as set forth herein shall not be
deemed to be in default hereunder unless such default shall remain
uncured for more than thirty (30) days following written notice
from Tenant specifying the nature of such default and provided
Landlord has not commenced to cure such default during such thirty
day period, or, such longer period as may be reasonably required to
correct such default. In no event whatsoever shall Landlord be
liable hereunder for any consequential, special punitive or any
indirect damages.
4.5.5
Right
to Cure
. Tenant may, but shall not be obligated to, cure any
default of Landlord under this Lease. If Tenant at any time pays
any sum or performs any act which requires the payment of any sum
in connection with Tenant’s cure of a default by Landlord
hereunder, then the sum so paid by Tenant shall be immediately due
and payable by Landlord to Tenant and Landlord in its sole and
reasonable discretion may elect either to (1) offset Tenant’s
next monthly payment(s) of Base Rent then due by an amount equal to
the sum so paid by Tenant, or (2) reimburse the sum so paid by
Tenant in cash payable on or before the date that is thirty (30)
days after the date Tenant has notified Landlord in writing of
Landlord’s obligation to reimburse Tenant for such sum. If
Landlord has not so paid within thirty (30) business days
after Tenant has notified Landlord in writing of Landlord’s
obligation to reimburse Tenant for such sum, such sum shall bear
interest at the rate of ten percent (10%) per annum (but in no
event to exceed the maximum amount allowed by law) from the date
the sum is paid by Tenant until the date Tenant is reimbursed by
Landlord.
4.6
No Landlord’s
Lien
. Notwithstanding anything herein to the contrary,
Landlord will not claim, Landlord
shall not have, and Landlord does hereby fully and completely waive
any “landlord’s lien” or “lessor’s
lien” or other lien or security interest of any kind, be it
contractual or statutory (“
Landlord’s
Lien
”), on or against
the
goods, equipment, chattels, FFE&I, personal
property, or other property of any and every kind owned by Tenant
and now or hereafter placed or installed in or on the Premises, and
no such Landlord’s Lien shall be available for Landlord in
connection with the
non-payment of
Rent, the default by Tenant under this Lease, or for any other
reason.
4.7
No
Punitive or Consequential Damages
.
Except as otherwise expressly set forth
herein, Tenant shall not be liable to Landlord at any time for any
consequential or indirect damages or for any punitive damages under
or in connection with this Lease or the Premises.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
5.1
Representations and
Warranties by Tenant
. The representations and warranties of
Tenant in this Section 5.1 are a material inducement for Landlord
to enter into this Lease. Tenant represents and warrants to
Landlord as follows:
5.1.1
Power and
Authority
. Tenant is a corporation, duly organized and in
good standing under the laws of the State of Delaware. Tenant has
full power and authority to enter into this Lease and to perform
this Lease. The execution, delivery and performance of this Lease
by Tenant have been duly and validly authorized by all necessary
corporate action on the part of Tenant and all required consents or
approvals by the shareholders, officers and/or directors of Tenant
have been duly obtained. Each individual executing this Lease on
behalf of said corporation represents and warrants that he or she
is duly authorized to execute and deliver this Lease on behalf of
said corporation, and that this Lease is binding upon said
corporation in accordance with its terms. This Lease is a legal,
valid and binding obligation of Tenant, enforceable against Tenant
in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
arrangement, moratorium or other similar laws from time to time in
effect which affect the rights of creditors generally or by
limitations upon the availability of equitable
remedies.
5.1.2
Patriot
Act
.
(a)
Neither
execution or performance of this Lease by Tenant, nor the use of
the Premises by Tenant pursuant to this Lease, will violate the
Trading with the Enemy Act, as amended, or any of the foreign
assets control regulations of the United States Treasury Department
(31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto. In addition,
Tenant warrants, represents and covenants that neither Tenant nor
any owner, officer, director, partner or member of Tenant, nor any
of its respective affiliated entities is or will be an entity or
person (i) that is listed in the Annex to, or is otherwise subject
to the provisions of Executive Order 13224 issued on September 24,
2001 (“
EO13224
”), (ii) whose name appears
on the United States Treasury Department’s Office of Foreign
Assets Control (“
OFAC
”) most current list of
“Specifically Designed National and Blocked Persons”
(which list may be published from time to time in various mediums
including, but not limited to, the OFAC website,
http:www.treas.gov/ofac/t11sdn.pdf), (iii) who commits, threatens
to commit or supports “terrorism”, as that term is
defined in EO 13224, or (iv) who is otherwise affiliated with any
entity or person listed in subparts (i) – (iii) above. Any
and all parties or persons described in subparts [i] – [iv]
above are herein referred to as a “
Prohibited Person.
”
(b)
Tenant
further represents, warrants, covenants and agrees that neither
Tenant, nor any director or officer of Seller, nor any of their
respective affiliated entities, has or will knowingly (i) conduct
any business, nor engage in any transaction or dealing, with any
Prohibited Person, including, but not limited to, the making or
receiving of any contribution of funds, goods, or services, to or
for the benefit of a Prohibited Person, or (ii) engage in or
conspire to engage in any transaction that evades or avoids, or has
the purpose of evading or avoiding, or attempts to violate, any of
the prohibitions set forth in EO13224.
5.2
Representations
and Warranties By Landlord
. The representations and
warranties of Landlord in this Section 5.2 are a material
inducement for Tenant to enter into this Lease. Landlord represents
and warrants to Tenant as follows:
5.2.1
Power and
Authority
. Landlord is a limited liability company, duly
formed and organized and in good standing under the laws of the
State of Delaware and qualified to do business under the laws of
the State of South Carolina. Landlord has full power and authority
to enter into this Lease and to perform this Lease. The execution,
delivery and performance of this Lease by Landlord have been duly
and validly authorized by all necessary company action on the part
of Landlord and all required consents or approvals by the members
and managers of Landlord have been duly obtained. This Lease is a
legal, valid and binding obligation of Landlord, enforceable
against Landlord in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar laws from
time to time in effect which affect the rights of creditors
generally or by limitations upon the availability of equitable
remedies.
5.2.2
Patriot Act
.
Neither execution or performance of this Lease by Landlord, nor the
ownership of the Premises by Landlord, will violate the Trading
with the Enemy Act, as amended, or any of the foreign assets
control regulations of the United States Treasury Department (31
CFR, Subtitle B, Chapter V, as amended) or any enabling legislation
or executive order relating thereto. In addition, Landlord
warrants, represents and covenants that neither Landlord nor any
owner, officer, director, partner or member of Landlord, nor any of
its respective affiliated entities, is or will be a Prohibited
Person.
Landlord further
represents, warrants, covenants and agrees that neither Landlord,
nor any director or officer of Landlord, nor any of their
respective affiliated entities, has or will knowingly (a) conduct
any business, nor engage in any transaction or dealing, with any
Prohibited Person, including, but not limited to, the making or
receiving of any contribution of funds, goods, or services, to or
for the benefit of a Prohibited Person, or (b) engage in or
conspire to engage in any transaction that evades or avoids, or has
the purpose of evading or avoiding, or attempts to violate, any of
the prohibitions set forth in EO13224.
5.3
Brokers
.
Landlord and Tenant each covenant that they have not dealt with any
real estate broker, finder or other such party entitled to be paid
a fee or a commission with respect to this Lease. Each party shall
indemnify and hold the other party harmless from all damages,
claims, liabilities or expenses, including reasonable
attorneys’ fees, resulting from any claims that may be
asserted against the other party by any real estate broker or
finder with whom the indemnifying party either has or is purported
to have dealt.
ARTICLE 6
LEASE ADMINISTRATION
6.1
Estoppel
Statements
. Landlord and Tenant each agree that at any time
and from time to time upon not less than fifteen (15) days prior
request of the other party, the party of whom the request is made
shall execute, acknowledge and deliver to the requesting party a
statement in writing certifying (a) that this Lease is unmodified
and in full force and effect (or if there have been modifications,
specifying the same), (b) the dates to which the rent and other
charges have been paid, (c) that the other party is not in default
under any provisions of this Lease (or if such party knows of any
such default, specifying the same) and (d) such other matters as
such party or such party’s mortgagee shall reasonably
request; it being intended that any such statement may conclusively
be relied upon by Landlord (if requested by Landlord), Tenant (if
requested by Tenant), any person proposing to acquire
Tenant’s or Landlord’s interest in this Lease or any
prospective mortgagee of or assignee of any mortgage upon,
Landlord’s interest. Any such certification shall be deemed
to have been given for good and valuable consideration whether so
stated or not.
6.2
Subordination,
Non-Disturbance and Attornment
.
Tenant agrees that this Lease is and shall automatically be and
shall remain subordinate to the interests of any holder (a
“
Superior
Holder
”) of any present
or future mortgage, deed of trust, ground lease or master lease
upon all or any part of the Premises (each, a
“
Superior
Instrument
”),
irrespective of the time of execution or time of recording of any
such Superior Instrument, and to all renewals, extensions thereof,
modifications or amendments thereto or advances thereunder, as
applicable, without the execution of any further document,
instrument, or approval by Tenant. Upon the request of Landlord or
any Superior Holder, Tenant shall enter into a subordination,
non-disturbance and attornment agreement with such Superior Holder
in the form of
Exhibit
F
annexed hereto or such other
form as may be required by such Superior Holder and reasonably
acceptable to Tenant. Notwithstanding the foregoing or anything to
the contrary contained herein, at the request in writing of any
Superior Holder, this Lease shall be deemed superior to its
Superior Instrument, whether this Lease was executed before or
after such Superior Instrument lease, and Tenant shall execute such
documents in recordable form as the Superior Holder shall
request.
6.3
Waiver
.
One or more waivers of any covenant or condition by either party
shall not be construed as a waiver of a subsequent breach of the
same covenant or condition, and the consent or approval by either
party to or of any act by the other party requiring the first
party’s consent or approval shall not be deemed to render
unnecessary the first party’s consent or approval to or of
any subsequent similar act by the other party. No breach of a
covenant or condition of this Lease shall be deemed to have been
waived by either party, unless such waiver be in writing signed by
such party.
6.4
Recording
.
This Lease shall not at any time be recorded in the public records.
At the request of either Landlord or Tenant, a short form or
memorandum of this Lease in the form attached hereto as
Exhibit
G
, shall be signed by all parties hereto and recorded in the
public records. The costs of any such recording shall be borne by
the party requesting recordation.
ARTICLE 7
GENERAL PROVISIONS
7.1
Notices
.
All notices and demands by any party to any other shall be given in
writing and either personally served or sent by a nationally
recognized overnight courier or by United States certified mail,
postage prepaid, return receipt requested, and addressed as
follows:
If to
Tenant
:
The McClatchy Company 2100 Q Street
Sacramento, CA
95816
Attention: R.
Elaine Lintecum
Fax:
916-326-5586
E-Mail:
elintecum@mcclatchy.com
with a
mandatory copy
to:
The McClatchy Company 2100 Q Street
Sacramento, CA
95816
Attention: Legal
Department
Fax:
916-326-5586
E-Mail:
cmuilenburg@mcclatchy.com
If to
Landlord
:
Voltari Real Estate Holding LLC
767 Fifth Avenue,
Suite, 100
New York. NY
10153
Attn: Peter A.
Kaouris
Email:
pkaouris@vltc.us
Fax
No.: (212) 750 - 5826
with a
mandatory copy
to:
Brown Rudnick LLP
185
Asylum Street
Hartford,
Connecticut 06103
Attn:
Thomas J. Regan, Esq.
Email:
tregan@brownrudnick.com
Fax No.
(860) 509-6501
Any
party may, upon prior notice to the others, specify a different
address for the giving of notice. Notices shall be effective on the
date of personal service or one day after sending if sent by
overnight courier or two (2) Business Days after sending if sent by
certified mail, return receipt requested. As used herein,
“Business Day” shall mean any day other than a
Saturday, Sunday or holiday recognized by banks in New York
City.
7.2
Attorneys’
Fees
. Should either party hereto commence an action against
the other to enforce any obligation under this Lease, the
prevailing party (as determined in such action) shall be entitled
to recover from the non-prevailing party reasonable
attorneys’ fees, costs and expenses incurred in contesting
such dispute.
7.3
Force
Majeure
. In the event that Landlord or Tenant shall be
delayed or hindered in or prevented from the performance of any act
required hereunder other than the payment of Rent, by reason of
strikes, lockouts, labor troubles, inability to procure materials,
failure of power, restrictive governmental laws, regulations,
orders or decrees, riots, insurrection, war, acts of God, cyber
attack or data incident, inclement weather, or other reason beyond
such party’s reasonable control, then performance of such act
shall be excused for the period of the delay and the period for the
performance of any such act shall be extended for a period
equivalent to the period of such delay. In the event that Landlord
or Tenant shall be delayed or hindered in or prevented from the
performance of any act required hereunder, including the payment of
Rent, by reason of failure of power, cyber attack or data incident,
then performance of such act shall be excused for the period of the
delay and the period for the performance of any such act shall be
extended for a period equivalent to the period of such
delay.
7.4
Construction
and Effect
. THIS LEASE SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF SOUTH CAROLINA and the provisions hereof shall be
construed in accordance with their fair meaning. Each of the
parties hereto has agreed to the use of the particular language of
the provisions of this Lease (and all attached exhibits), and any
questions of doubtful interpretation shall not be resolved solely
by any rule or interpretation providing for interpretation against
the party who causes the uncertainty to exist or against the
drafter. The subject headings have been inserted in this Lease for
convenience only and shall not be used to alter or interpret the
content of this Lease. The invalidity, illegality or
unenforceability of any provision contained in this Lease shall not
affect or render invalid, illegal or unenforceable the remainder of
this Lease. In this Lease the neuter gender includes the feminine
and masculine, and the singular number includes the plural wherever
the context so requires. If more than one Tenant is named above,
the obligation of each of such Tenant hereunder shall be and is
joint and several.
7.5
Time;
Covenants Run With Land
. Time is of the essence of this
Lease. All the covenants, agreements, conditions and restrictions
set forth in this Lease are intended to be and shall be construed
as covenants running with the Premises, binding upon, inuring to
the benefit of and enforceable by the parties hereto and their
successors and assigns, subject to any restrictions and/or
limitations that might be specifically set forth elsewhere in this
Lease.
7.6
Integration;
Amendment
. There are no representations or agreements
between the parties hereto relating to the subject matter contained
herein other than contained in this Lease. This Lease (and the
exhibits attached hereto) is the complete and final integration of
all arrangements and agreements between the parties hereto relating
to the subject matter contained herein. This Lease (and the
exhibits attached hereto) supersedes all previous letter
agreements, other documents, and other agreements, oral or written,
by or between the parties relating to the subject matter contained
herein, provided that the terms of this Lease shall not be deemed
to limit any provisions of that certain Purchase and Sale Agreement
dated as of January 19, 2018, as amended, by and between Seller and
Landlord which by their terms expressly survive the closing of the
transactions contemplated therein, provided however, if there shall
be any conflict between the obligations of the Tenant pursuant to
this Lease, the provisions of this Lease shall control. Any
amendment of or supplement to this Lease must be in writing and
executed by all the parties hereto.
7.7
Exhibits
.
All exhibits and/or other documents to which reference is made
herein are hereby deemed incorporated in this Lease by this
reference.
7.8
Further
Cooperation
. The parties hereto agree to cooperate in
executing any other or further documents appropriate or necessary
to carry out the provisions of this Lease.
7.9
Counterparts
.
This Lease may be executed simultaneously or in any number of
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same Lease. Facsimile
and PDF (portable document format) signatures on this Lease shall
be binding as if original.
7.10
Relationship
of Parties
. The relationship of the parties hereto is that
of Landlord and Tenant, and it is expressly understood and agreed
that Landlord does not, in any way, nor for any purpose, become a
partner of Tenant or a joint venturer with Tenant in the conduct of
Tenant’s business or otherwise. Nothing contained in this
Lease shall be taken or construed to create any agency between
Landlord and Tenant or to authorize the Tenant to do any act or
thing or to make any contract so as to encumber in any manner the
title of the Landlord to the Premises or to create any claim or
lien upon the interest of the Landlord in the
Premises.
7.11
Financial
Statements
.
If at any time,
Tenant shall cease to be a publicly traded company
listed on
the New York Stock Exchange or Nasdaq Stock Market,
Tenant shall provide consolidated financial
statements to Landlord at the end of each quarter in accordance
with Landlord’s applicable securities requirements or as
otherwise requested by the Landlord, reflecting Tenant’s
performance on a quarterly basis, and shall reimburse Landlord for
its reasonable expenses related to such
compliance.
7.12
Survival
of Obligations
. Any obligations
of Tenant occurring prior to the expiration or earlier termination
of this Lease shall survive such expiration or earlier
termination.
7.13
Waiver
of Jury Trial
. TO THE MAXIMUM
EXTENT PERMITTED BY LAW, LANDLORD AND TENANT EACH WAIVE THE RIGHT
TO TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF OR WITH RESPECT
TO THIS LEASE.
7.14
Binding
Effect
. The covenants,
agreements and obligations herein contained, except as herein
otherwise specifically provided, shall extend to, bind and inure to
the benefit of the parties here to and their respective personal
representatives, heirs, successors and assigns of Tenant (but in
the case of assigns only to the extent that assignment is permitted
hereunder). No third party, other than such successors and assigns,
shall be entitled to enforce any or all of the terms of this Lease
or shall have rights hereunder whatsoever. The submission of this
document for examination does not constitute an offer to lease, or
a reservation of, or option for, the Premises and this document
becomes effective and binding only upon the execution and delivery
hereof by both Landlord and Tenant. Tenant confirms that Landlord
has made no representations or promises with respect to the
Premises or the making or entry into of this Lease except as are
expressly set forth herein, and agrees that no claim or liability
shall be asserted by Tenant against Landlord for, and Landlord
shall not be liable by reason of breach of any representations or
promises not expressly stated in this Lease. This Lease can be
modified or altered only by agreement in writing between Landlord
and Tenant.
7.15
Modifications
.
Tenant agrees to execute any reasonable modification of this Lease
which may be required by a lender as a condition to making a
mortgage loan on the Premises; provided that no such modification
shall alter the rent or term provided herein or reduce the full
economic value hereof or involve cost to
Tenant.
7.16
Independent
Covenants
. Tenant waives all
rights to (a) any abatement, suspension, deferment, reduction or
deduction of or from Rent, and/or (b) quit, terminate or surrender
this Lease or the Premises or any part thereof, except, in either
case, as expressly provided herein. Tenant hereby acknowledges and
agrees that the obligations of Tenant hereunder shall be separate
and independent covenants and agreements, that Rent shall continue
to be payable in all events and that the obligations of Tenant
hereunder shall continue unaffected, unless the requirement to pay
or perform the same shall have been terminated pursuant to an
express provision of this Lease. Tenant agrees that Tenant shall
not take any action to terminate, to rescind or to avoid this Lease
notwithstanding any default by Landlord hereunder. Landlord and
Tenant each acknowledges and agrees that the independent nature of
the obligations of Tenant hereunder represents fair, reasonable and
accepted commercial practice with respect to the type of property
subject to this Lease, and that this agreement is the product of
free and informed negotiation during which both Landlord and Tenant
were represented by counsel skilled in negotiating and drafting
commercial leases in South Carolina. Such acknowledgements,
agreements and waivers by Tenant are a material inducement to
Landlord entering into this Lease.
[Remainder of Page Intentionally Blank - Signature Page
Follows]
IN
WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first above written.
|
“Landlord”
VOLTARI
REAL ESTATE HOLDING, a Delaware limited liability
company
By:
/s/ Peter A.
Kaouris
Name:
Peter A.
Kaouris
Its:
Chief Accounting
Officer
|
“Tenant”
THE
McCLATCHY COMPANY, a Delaware corporation
By:
/s/ R. Elaine
Lintecum
Name:
R. Elaine
Lintecum
Its:
Vice President, Finance
& CFO
|