EXHIBIT 10.50
LEASE AGREEMENT
THIS AGREEMENT made this _____ day of August, 1994, by and between
WILLIS CORROON CORPORATION, whose address is 26 Century Boulevard, Nashville,
Tennessee 37214, hereinafter called "Lessor", and MAGNETEK, INC., whose address
is 26 Century Boulevard, P.O. Box 290159, Nashville, Tennessee 37229-0159,
hereinafter called "Lessee".
WHEREAS, Lessor is the owner of the Willis Corroon Plaza Building,
with the entire Willis Corroon Plaza hereinafter called "Building", located at
26 Century Boulevard, Nashville, Davidson County, Tennessee;
WHEREAS, subject to the terms, conditions and limitations contained
herein, Lessor agrees to lease to Lessee certain space in such Building;
W I T N E S S E T H:
1. PREMISES. Lessor hereby leases to Lessee and Lessee hereby
leases from Lessor certain space located on Floor 6 North of the Building
("Premises") which is described as shown on Exhibit A attached hereto, subject
to the provisions herein contained. The Lessor and Lessee agree that the
rentable area of the Premises is set forth in Exhibit D and that the rentable
area of the Building is 559,860 square feet. The parties agree that such square
footage shall be final for the purposes of this Lease, whether such areas shall
be more or less as a result of variations in measurement, methods of
measurement, or construction and that such square footage shall not be subject
to later proration or change. Lessee has inspected the Premises and agrees to
accept the same without any agreements, representations, understandings or
obligations on the part of Lessor to perform any alterations, repairs or
improvements except as expressly provided herein. There is reserved from the
demise of the Premises the right to utilize, maintain, repair, alter and/or
replace all facilities or components of facilities that may be located therein
that provide common service for the operation and maintenance of the Building,
including, for example, but not by way of limitation, electrical conduit,
heating and air conditioning duct work, water and discharge piping, fire control
devices and space elevators and stairways, provided that Lessor shall use its
best efforts not to interfere with Lessee's use and enjoyment of the premises
when exercising its rights under this provision.
1.1 Lessor also grants to Lessee, together with and subject to the
same rights granted from time to time by Lessor
to other lessees and occupants of the Building, the right to use the common
parking area and/or parking garage adjoining the Building and any other
facilities intended for common use by all lessees within the Building. The area
designated for parking is P4 North.
2. TERM. The term of this Lease shall commence on September 1, 1994
and shall end on August 31, 1996, unless sooner terminated as provided herein.
3. COMMENCEMENT DATE. Unless otherwise provided herein, rental
shall commence on the date above stated as the commencement of the term. If
possession of the Premises for any purpose other than the completion of tenant
improvements and furnishing the premises is taken by Lessee before the date
stated above for the Commencement of the term of this Lease, rent shall commence
on the date possession is taken for such purpose.
3.1 Upon the expiration or earlier termination of this Lease, or upon
the exercise by Lessor of its right to re-enter the Premises without terminating
this Lease, Lessee shall immediately surrender the Premises to Lessor together
with all alterations, improvements and furnishings and other property as
provided elsewhere herein, in broom-clean condition and in good order, condition
and repair, ordinary wear and tear excepted, failing which Lessor may restore
the Premises to such condition at Lessee's expense. Upon such expiration or
termination, Lessee shall have the right to remove its personal property.
Tenant shall promptly repair any damage caused by any such removal, and shall
restore the Premises to the condition existing prior to the installation of the
items so removed. This provision shall survive the expiration or earlier
termination of this Lease for a period of sixty (60) days unless there is
expressed written notification.
4. BASE RENTAL. Lessee shall and hereby agrees to pay to Lessor at
Lessor's office or at such place as Lessor may from time to time designate in
writing an annual base rental at the rate set forth in Exhibit C which is
attached hereto and incorporated herein by reference (the "Base Rent"). Both
Lessor and Lessee have signed Exhibit C for the purpose of identification. Base
Rent shall be paid without demand, on the first day of each month, in advance.
In the event the term of this Lease commences on a day other than the first day
of a calendar month, then the Base Rent for the first and last fractional month
of the term hereof shall be proportionately reduced.
4.1 The rentals shall be absolute rent inclusion (without deduction
by way of commissions of other collection
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expenses) to the Lessor so that this Lease shall yield to the Lessor the full
amount of base rental and the full amount of installments thereof throughout the
lease term or extensions thereof including Base Rent, Additional Rent, Operating
Expenses and all other sums payable by Lessee hereunder which shall be paid
without notice or demand (except as expressly provided herein)
4.2 The burden of proof of payment of rent in case of controversy
shall be upon the Lessee.
4.3 It is expressly agreed that the covenant by the Lessee to make
payment of rent when due is independent of any and all other covenants contained
in this agreement and the Lessee may not withhold rent for any alleged default
by the Lessor.
4.4 f rent is not paid within fifteen (15) days after the date due,
and Lessor elects not to exercise its rights under paragraph 17.2 hereinafter,
Lessor may collect as a late charge one and one-half percent (1-1/2%) per month
of the delinquent accounts.
5. LESSOR'S RESPONSIBILITIES. Lessor agrees that it shall provide
automatic elevator service, furnish water in the common areas for lavatory and
drinking purposes, electric current, heating, ventilating and air conditioning
to provide a temperature required in Lessor's reasonable judgment, for
comfortable occupancy of the Premises and all public or common areas under
normal business operations, between the hours of 8:00 a.m. and 6:00 p.m. on
Monday through Friday and 8:00 a.m. to 1:00 p.m. on Saturday of each week,
Sundays and holidays are excepted. Lessor will make available, on an exception
basis, electric current, HVAC and elevator services beyond normal business
hours. The cost of such items shall be included in the term Base Rent, as
defined herein. Whenever heat generating machines or equipment are used in the
Premises which materially affect the temperature otherwise maintained by the air
conditioning system, Lessor reserves the right, at Lessee's option, either to
require Lessee to discontinue use of such heat generating machine or equipment,
or to install supplementary air conditioning equipment in the Premises and the
cost of such installation shall be paid by the Lessee to Lessor promptly on
being billed therefor, and the cost of operation and maintenance of said
supplementary equipment shall be paid by Lessee to Lessor on the monthly rent
payment dates, at such rates as may be agreed upon, but in no event at a rate
less than Lessor's actual costs therefor for labor, steam, electricity and
water. The Lessor agrees to provide janitorial service in and about the
Premises, and all public and common areas, Saturdays, Sundays and holidays
excepted,
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which service will include daily trash removal, vacuuming, and cleaning of
bathrooms.
5.1 Lessor does not warrant that any services or utilities will be
free from shortages, failures, variations, or interruptions caused by repairs,
maintenance, replacements, improvements, alterations, changes of service,
strikes, lockouts, labor controversies, accidents, inability to obtain services,
fuel, steam, water or supplies, governmental requirements or requests, or other
causes beyond Lessor's reasonable control. No such failure or interruption of
services or utilities shall be deemed an eviction or disturbance of Lessee's use
and possession of the Premises or any part thereof, or render Lessor liable to
Lessee for damages, or abatement of Rent, or relieve Lessee from performance of
Lessee's obligations under this Lease. Lessor in no event shall be liable for
damages by reason of loss of profits, business interruption or other
consequential damages. Lessor shall exert due and diligent efforts to resume
services. Should services be interrupted for five (5) consecutive business
days, Lessor shall abate Base Rent for the interrupted period of time.
5.2 Lessor shall not be liable or responsible to Lessee for any
inconvenience or any loss or damage either to Lessee or Lessee's property or to
any other person or his property occasioned by any matter either: (1) which is
beyond the control of Lessor; or (2) which may arise through or in any way may
be connected with repair of any part of the demised premises or failure to make
such repairs or from any other cause whatsoever unless caused solely by Lessor's
failure to effect repairs, which are its responsibility, within a reasonable
time following notice by Lessee to Lessor of need of same.
6. LESSEE'S RESPONSIBILITIES. Lessee agrees that its employees,
invitees and licensees shall:
6.1 Observe the rules and regulations hereto attached as Exhibit B
and such further rules and regulations as from time to time may be put in effect
by Lessor for the general safety, comfort and convenience of Lessor, occupants
and tenants of the Building. Any failure by Lessor to enforce any rules and
regulations against either Lessee or any other tenant in the Building shall not
constitute a waiver thereof.
6.2 Give Lessor, its agents and employees, its mortgagees (including
Mortgagee) and any other person or persons authorized by Lessor, including
persons who may be interested in renting or buying the Premises of Building
access to the Premises at all reasonable times after reasonable notice to
Lessee, without charge or diminution of
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the rent, to enable Lessor and/or the others hereinbefore mentioned to examine
the same and/or to make such repairs, additions and alterations as Lessor may
deem advisable without diminution of rent or liability on the part of Lessor
unless expressly provided herein.
6.3 Except for the customary cleaning and trash removal provided for
herein, and damage by casualty provided for in Article 8, Lessee shall keep the
Premises in good and sanitary condition, working order and repair. In the event
any repairs, maintenance or replacements are required, Lessee shall promptly
arrange for the same through Lessor for such reasonable charge as Lessor may
from time to time establish. All such repairs, maintenance or replacements must
be approved in advance by Lessor in writing and shall be performed in a first
class, workmanlike manner. If Lessee does not promptly make arrangements for
necessary repairs, maintenance or replacements, the Lessor may, but shall not be
obligated to, perform such work and the costs paid or incurred by Lessor there
for shall be reimbursed by Lessee promptly after request by Lessor. Lessee
shall indemnify Lessor and pay for any repairs, maintenance or replacements to
areas of the Building outside the Premises, caused, in whole or in part, as a
result of moving any furniture, fixtures or other property to or from the
Premises by Lessee or its agents, employees, contractors or visitors.
6.4 Upon termination of this Lease in any manner whatsoever, remove
Lessee's personal property, goods and effects and those of any other persons
claiming under Lessee, and quit and deliver up the Premises to Lessor peaceably
and quietly in as good order and condition as the same are now, or hereafter may
be improved by Lessor or Lessee, reasonable use and wear and thereof and repairs
which are Lessor's obligations excepted. Except for Lessee's personal property,
all alterations, installments, fixtures, additions, improvements and floor
covering made, installed or attached to or on the Premises either at the expense
of Lessee or Lessor or both, shall be Lessor's property, whether movable or not,
and Lessee shall be responsible for the maintenance thereof, normal wear and
tear excepted, and Lessee shall not remove but may replace said property either
during the term of this Lease or at the expiration thereof without the written
consent of Lessor. In no event shall Lessor be obligated to reimburse Lessee or
otherwise pay for any of such property. If prior to termination of this Lease
or within ten (10) days thereafter Lessor so directs by written notice, Lessee,
at Lessee's sole cost, shall promptly remove such of the foregoing items as are
designated in such notice and restore the Premises to the condition prior to the
date of this Lease, and repair any damage to the Premises caused by such removal
of any such items. If Lessee fails to perform any repairs or restoration,
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or fails to remove any items from the Premises, required hereunder, Lessor may
do so, and Lessee shall pay Lessor the cost thereof on demand. All property
removed from the Premises by Lessor pursuant to any provision of this Lease or
any law may be handled or stored by the Lessor at the cost and expense of the
Lessee, and the Lessor shall in no event be responsible for the value,
preservation or safekeeping thereof. Lessee shall pay Lessor for all expenses
incurred by Lessor in such handling and storage, including Lessor's reasonable
storage charges for so long as the same shall be in Lessor's possession or under
Lessor's control. All property not removed from the Premises or retaken from
storage by Lessee within thirty (30) days after the end of the Term, or
termination of Lessee's right to possession, whichever shall first occur, shall
at Lessor's option be conclusively deemed to have been conveyed by Lessee to
Lessor as by bill of sale without further payment or credit by Lessor to Lessee.
To the extent permitted by applicable law, Lessor shall have a lien against such
property for the costs incurred in removing and storing the same.
6.5 Not overload, damage or deface the Premises or do any act to
bring or keep anything thereof which may make void or voidable any insurance on
the Premises or the Building or which may render an increased risk and/or extra
premium payable for insurance or violate any codes, ordinances or laws of any
governmental body or agency.
6.6 Not make any alteration of or addition to the Premises without
the written approval of Lessor. At Lessor's option, at the termination of the
Lease term, Lessee may be directed to remove all such changes, alterations and
additions and restore the Premises to their original condition prior to the end
of the term of this Lease.
6.7 At its own expense, cause to be discharged or removed by bond,
within fifteen (15) days of the filing thereof, any mechanic's lien filed
against the Premises or the Building for work claimed to have been done for, or
materials claimed to have been furnished to, Lessee.
6.8 Not create or allow any nuisance to exist on said Premises, and
abate any nuisance which may arise promptly and free of expense to Lessor.
7. DAMAGE TO PREMISES. In case of damage to the Premises or the
Building by fire or other casualty, Lessee shall give immediate notice to
Lessor, who may thereupon cause the damage to be repaired with reasonable speed
at the expense of Lessor subject to delays which may arise by reason of
adjustment of loss under insurance policies and for delays beyond the reasonable
control of Lessor, and to the extent
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that the Premises are rendered untenantable, the rent shall proportionately
abate, provided, however, in the event that such damage resulted from or was
contributed to by the act, fault or neglect of Lessee, Lessee's employees,
invitees, licensees, or agents, there shall be no abatement of rent and Lessee
shall be liable to Lessor for all damage, loss and expense suffered or incurred
by Lessor as a result of such damage. In the event or if Lessor shall decide
not to repair or rebuild, this Lease shall, at the option of either Lessee or
Lessor, be terminated as of the date of such damage by written notice from
Lessor to Lessee given within ninety (90) days after the date of such damage,
and the rent shall be adjusted to the date of such damage and Lessee shall
thereupon promptly vacate the Premises.
8. LESSEE'S PERSONAL PROPERTY. All property of Lessee or Lessee's
invitees or guests kept or stored on the Premises shall be so kept at the risk
of Lessee only and Lessor or Lessor's agents shall not be liable for any damage
to property of Lessee nor for the loss of property of Lessee by theft or
otherwise unless caused by Lessor's negligent act.
9. CONDEMNATION. If the whole or substantially the whole of the
Building or the Premises shall be lawfully condemned or taken in any manner for
any public or quasi-public use or purpose, this Lease and the term and estate
hereby granted shall forthwith cease and terminate as of the date of taking
possession of such use or purpose. If less than the whole or substantially the
whole of the Building or the Premises shall be so condemned or taken, then
Lessor (whether or not the Premises be affected) may, at its option, terminate
this Lease and the term and estate hereby granted as of the date of the taking
of possession for such use or purpose by notifying Lessee in writing of such
termination. Upon any such taking or condemnation and the continuing in force
of this Lease as to any part of the Premises, the base rental shall be
diminished by an amount representing the part of the said rent properly
applicable to the portion of the Premises which may be so condemned or taken and
Lessor shall, at its expense, proceed with reasonable diligence to repair, alter
and restore the remaining part of the Building and the Premises to substantially
their former condition to the extent that the same may be feasible. Lessor
shall be entitled to receive the entire award in any condemnation proceeding,
including any award for the value of any unexpired term of this Lease and Lessee
shall have no claim against the proceeds of condemnation.
10. QUIET ENJOYMENT. Lessor covenants that upon Lessee's paying rent
and rent adjustments and observing and performing all the terms, covenants and
conditions of this Lease on its part to be observed and performed, Lessee may
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peaceably and quietly possess and enjoy the Premises. To the extent of Lessor's
interest in such areas, Lessor hereby grants to Lessee such reasonable access to
and through the common area in and around the Building as may be necessary for
Lessee to reasonably enjoy its rights under this Lease.
11. LESSOR ADVANCE TO CURE DEFAULT. If Lessee shall default in the
observance or performance of any term or covenant on its part to be observed or
performed under or by virtue of any of the terms and provisions in any paragraph
of this Lease, Lessor without being under any obligation to do so and without
hereby waiving such default, may remedy such default for the account and at the
expense of Lessee, immediately and without notice in case of emergency, or in
any other case only provided that the Lessee shall fail to remedy such default
with all reasonable dispatch under the circumstances after notice as provided in
17.1.2 hereof. If Lessor makes any expenditures or incurs any obligations for
the payment of money in connection therewith including, but not limited to,
attorney's fees in instituting, prosecuting or defending any action or
proceeding, such sums paid or obligations incurred with interest at the highest
legal rate and costs shall be paid to it by Lessee on demand.
12. CERTIFICATE OF LESSEE. Lessee agrees at any time, and from time
to time, upon not less than fifteen (15) business days prior notice by Lessor,
to execute, acknowledge and deliver to Lessor, a statement in writing certifying
that this Lease is unmodified and in full force and effect if such is the case
(or if there have been modifications, that the same is in full force and effect
as modified and stating the modifications), and the dates to which the rent,
rent adjustments and other charges have been paid, and stating whether or not to
the best knowledge of the signer of such certificate, Lessor is in default in
performance of any covenants, agreement, term, provision or condition contained
in this Lease and, if so, specifying each such default of which the signer may
have knowledge, it being intended that any such statement delivered pursuant
hereto may be relied upon by any prospective purchaser or lessee of the Premises
or of the Building and the land upon which it is erected, any mortgagee or
prospective mortgagee thereof, or any prospective assignee of any mortgagee
thereof.
13. DEFAULT AND REMEDIES.
13.1 EVENTS OF DEFAULT. The occurrence of any of the events described
in Subsections 13.1.1 through 13.1.5 inclusive, of this Subsection 13.1 shall be
and constitute an Event of Default under this Agreement.
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13.1.1 Failure by Lessee to pay in full any Rent or other sum
payable hereunder within fifteen (15) days after the date such payment is due.
13.1.2 Default by Lessee in the observance or performance of any of
the material terms, covenants, agreements or conditions contained in this Lease,
other than as specified in Paragraph 13.1.1 of this Subsection 13, for a period
of thirty (30) days after notice thereof to Lessee by Lessor; provided, however,
that if the term, condition, covenant or obligation to be performed by Lessee is
of such nature that the same cannot reasonably be performed within such thirty
(30) day period, such default shall be deemed to have been cured if Tenant
commence such performance within said thirty (30) day period and thereafter
diligently undertakes to complete the same and does so complete the required
action within a time deemed to be reasonable by Lessor.
13.1.3 Filing by Lessee of a voluntary petition in bankruptcy or a
voluntary petition or answer seeking reorganization, arrangement, readjustment
of the debts of Lessee or for any other insolvency act, law, rule or regulation,
State or Federal, now or hereafter existing, or any action by Lessee, indicating
consent to, approval of or acquiescence in, any such petition or proceeding; the
application by Lessee for, or the appointment by consent or acquiescence of, a
receiver or trustee of Lessee, or for all or a substantial part of the property
of Lessee; the making by Lessee of any general assignment for the benefit of
creditors of Lessee; or the inability of Lessee, or the admission of Lessee of
the inability thereof, to pay the debts of Lessee as they mature; or the filing
of any involuntary petition against Lessee in bankruptcy or seeking
reorganization, arrangement, readjustment of the debts of Lessee or for any
other relief under the Bankruptcy Act, as amended, or under any other insolvency
act, law, rule or regulation, State or Federal, now or hereafter existing, of
the involuntary appointment of a receiver or trustee of Lessee or for all or a
substantial part of the property of Lessee; or the issuance of attachment,
execution or other similar process against any substantial part of the property
of Lessee and the continuation of any such for a period of ninety (90) days
undismissed, unbonded, or undischarged.
13.1.4 This Lease shall not be assigned, subleased, or transferred
by Lessee, whether by operation of law or otherwise under any circumstances.
13.1.5 Any construction, changes or alterations on the Premises,
(without the prior written consent of Lessor, as herein provided).
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13.2 REMEDIES. Whenever any Event of Default shall have happened and
be subsisting after the applicable cure period has expired, Lessor may, to the
extent permitted by law, take any one or more of the remedial steps described in
Paragraph 13.2.1 through 13.2.5, inclusive, of this Subsection 13.2, subject,
however, to the rights, title and interest of any mortgagee.
13.2.1 Lessor may at its option, declare all installments of Base
Rent as adjusted at the time of default payable under Section 4 of this Lease,
for remainder of the lease term to be immediately due and payable whereupon the
same shall become immediately due and payable.
13.2.2 Lessor may re-enter and take possession of the Premises and
improvements without terminating this Lease, and sublease in their entirety the
same for the account of Lessee, holding Lessee liable for the difference in the
rent and other amounts actually paid by such sublessee in such subleasing and
the rents and other amounts payable by Lessee hereunder.
13.2.3 Lessor, as Lessee's agent, without terminating this Lease,
may at Lessor's option enter upon and operate the Premises, including
improvements, and in this connection, Lessee authorizes Lessor upon such entry,
to take over and assume the management, operation and maintenance of such
improvements and in general to perform all actions necessary in connection
therewith in the same manner and to the same extent as Lessee might so act,
using Lessor's best efforts to operate the Premises and improvements for the
account of Lessee, holding Lessee liable for all rent and other amounts payable
by Lessee hereunder.
13.2.4 Lessor may terminate the lease term, exclude Lessee from
possession of the Premises and improvements and will use Lessor's best efforts
to lease the same to another for the account of Lessee, holding Lessee liable
for all rent and other amounts payable by Lessee hereunder.
13.2.5 Lessor may take whatever action at law or in equity may
appear necessary or desirable to collect the rent and other amounts then due and
thereafter to become due or to enforce performance and observance of any
obligation, agreement or covenant of Lessee under this Agreement, and in
connection with such actions to recover any or all damages to Lessor for
Lessee's violation or breach of this Lease.
13.3 APPLICATION OF FUNDS. If any statute or rule of law shall
validly limit the amount of any final
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damages described in Subsection 13.2 of this Section 13 to less than the amount
agreed upon, Lessor shall be entitled to the maximum amount allowable under such
statute or rule of law. In the event Lessor elects to proceed under the
authority of Subsection 13.2.1, 13.2.2, 13.2.3 or 13.2.4 of Subsection 13.2 of
this Section 13, Lessor shall make reasonable effort to collect rentals from
sublessees or new lessees of the entire Premises or portions thereof reserving,
however, within Lessor's own discretion, the right to determine the method of
collection and the extent to which enforcement of collection of delinquent rents
shall be prosecuted, and Lessor shall not be liable for failure to collect
rents. All rents, and all other income derived from operation of the
improvements by Lessor, to the extent such are not paid and applied, by any
sublessee or new lessee of the Premises, shall be applied, first, to the payment
of all sums of money due and owing from time to time under any mortgage and any
other permitted encumbrance upon the Premises superior to the interests of
Lessor; third, to the cost of operating the Premises and improvements; fourth,
to the cost of administration and collection of rents by Lessor; and fifth, to
the payment of rent due and owing Lessor hereunder. Lessee shall be liable to
Lessor for the deficiency, of any, between Lessee's rent hereunder, and that
applied by Lessor to said rents in the manner hereby authorized. No action
taken pursuant to Subsection 13.2 of this Section 13 (including repossession of
the Premises or termination of the lease term) shall relieve Lessee from
Lessee's obligations pursuant to Section 4 of this Lease and Paragraph 13.2.1 of
this Section 13, all of which shall survive any such action, and Lessor may take
whatever action at law or in equity as may appear necessary and desirable to
collect the rent and other amounts then due and thereafter to become due and/or
to enforce the performance and observance of any obligation, agreement or
covenant of Lessee hereunder.
13.4 NO REMEDY EXCLUSIVE. No remedy herein conferred upon or reserved
to Lessor is intended to be exclusive of any other available remedy or remedies,
but each and every such remedy shall be cumulative, and shall be in addition to
every other remedy given under this Agreement or now or hereafter existing at
law or in equity or by statute. No delay or omission to exercise any right or
power accruing upon any default shall impair any such right or power or shall be
construed to be a waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient. In order to entitle
Lessor to exercise any remedy reserved to it in this Section 13, it shall not be
necessary to give any notice, other than such notice as is herein expressly
required by this Agreement.
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13.5 AGREEMENT TO PAY ATTORNEY'S FEES AND EXPENSES. In the event
Lessee should default under any of the provisions of this Agreement and the
Lessor should employ attorneys or incur other expenses for the collection of
rent or the enforcement of performance or observance of any obligation or
agreement herein contained, the Lessee agrees that it will on demand therefor
pay to the Lessor the reasonable fee of such attorneys and such other expenses
so incurred by Lessor.
14. FORCE MAJEURE. For the purposes of any of the provisions of this
Agreement other than Section 4 hereof, and during the term or any extension
hereof, neither Lessor nor Lessee, as the case may be, nor any successor in
interest, shall be considered in breach of, or default in, the obligations
thereof with respect to the Lease (except for the payment of rent on Lessee's
part to be performed) in the event of enforced delay in the performance of or
inability to perform such obligations due to unforeseeable causes beyond the
control and without the fault or negligence thereof, including, but not
restricted to, acts of God, acts of the public enemy, acts of the Federal, State
or local Government, acts of the other party, fires, floods, epidemics,
quarantine restrictions, strikes, freight embargoes, and unusually severe
weather or delays of the contractor or subcontractors due to such causes; it
being the purpose and intent of this Section 14 that in the event of the
concurrences of any such enforced delay, the time or times for performance of
the obligations of Lessor or Lessee, as the case may be, with respect to this
Lease shall be extended for the period of the enforced delay; provided, that the
party seeking the benefit of the provisions of this Section 14 shall be
obligated to remedy a failure to perform caused by force majeure in a diligent
manner in order to avail themselves of this form of relief.
15. RELOCATION OF PREMISES. Anything contained in this Lease to the
contrary notwithstanding the Lessor shall have the option to substitute the
equivalent amount and quality of space elsewhere in Building of the Premises
hereinabove provided for if Lessee occupies less than one-half (1/2) of a full
floor, by giving Lessee ninety (90) days written notice of its intention to do
so at any time prior to the date possession of the Premises is delivered to
Lessee. After such possession is delivered, Lessor reserves the right, at its
option and upon giving thirty (30) days' written notice in advance to the
Lessee, to remove the Lessee from the premises herein specified to any other
available rooms and offices of substantially equal size and quality and area and
equivalent rental located in the Building. Lessor shall bear the expense of
said removal as well as the expense of any renovations or alteration necessary
to make the new space conform generally in arrangement and decor with the
original space covered by this Lease. If Lessor exercises either of
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its options as aforesaid, then and in such event, the substituted space shall
for all intents and purposes be deemed and shall constitute the Premises
hereunder and all the other terms, covenants, conditions, provisions and
agreements of this Lease shall continue in full force and effect and shall apply
to the substituted space.
16. PURPOSE, USE.
16.1 The Premises are to be used for any general office purpose. Use
for any other purpose shall constitute a breach of this Agreement.
16.2 The Lessee further covenants that the Premises shall during the
term of this Lease be used only for lawful and moral purposes, and no part of
the Premises shall be used in any manner whatsoever in violation of the laws of
the United States, State of Tennessee, or the ordinances and laws of the City of
Nashville, and the County of Davidson.
16.3 Lessee agrees to maintain a going business on the Premises
throughout the full term of the lease or any extension thereof.
16.4 Lessee agrees not to display any signs or any other advertising
material either outside the Premises, or which may be visible from outside the
Premises.
17. INSURANCE AND DAMAGES.
17.1 Lessee shall obtain and maintain appropriate amounts of insurance
on leasehold improvements and contents owned or under the responsibility of
Lessee, such insurance shall be for the joint benefit of the Lessor and Lessee,
shall name Lessor and such other persons having an interest in the Premises as
Lessor directs as additional insureds, and shall provide that Lessor shall be
given at least ten (10) days' advance written notice in the event of
cancellation. Lessee will furnish proof of such insurance as Lessor may direct.
17.2 Lessee agrees to carry at its own expense both public liability
and property damage insurance with minimum limits for the public liability
insurance for personal injury (including death) for each person of $1,QOO,000
and $1,000,000 for each occurrence, and for property damage insurance a combined
single limit of not less than $1,000,000 for each occurrence; such policy of
insurance shall be for the joint benefit of the Lessor and the Lessee, shall
name each party as insureds; and shall provide that both Lessor and Lessee shall
be given at least ten (10) days' advance written notice in the event of
cancellation. Lessee will furnish Lessor proof of such insurance.
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17.3 Lessee agrees that it will not cause or permit any use or
vacation of the Premises which will cause the insurance costs of any other
party, including Lessor and other lessees adjacent to the Premises, to increase,
or said insurance to be invalidated. Should such occur, Lessor is empowered to
obtain such insurance on behalf of Lessee and charge its costs to Lessee.
17.4 Lessee agrees not to use the Premises in any fashion which will
endanger the Premises or cause the likelihood of any casualty occurring to be
unusually high.
17.5 Lessee agrees to carry adequate plate glass insurance on all
interior plate glass on the Premises in a company satisfactory to the Lessor
with loss clause payable to the Lessor and Lessee or to promptly replace any
glass on the Premises which may be broken, all without expense to the Lessor.
17.6 The Lessor and Lessee agree that insurance carried by either of
them against loss or damage by fire or other casualty will contain, if available
without additional costs, a clause whereby the insurer waives its right to
subrogation against the other party and other collectible insurance policies to
the extent of any recovery collectible under such insurance policies.
18. TRANSFER OF LESSOR'S RIGHTS. Lessor shall have the right to
transfer and assign, in whole or in part, all and every feature of its rights
and obligations hereunder and in Building and property referred to herein. Such
transfers or assignments may be made either to a corporation, partnership, trust
company, individual or group of individuals, and, howsoever made, are to be in
all things respected and recognized by Lessee and upon assumption of Lessor's
obligations hereunder by said transferees or assignee, the Lessor immediately
prior to said transfer or assignment shall be relieved of all liabilities and
obligations hereunder.
19. DEFINITIONS. As used in this Lease, the following terms shall
have the following meanings:
19.1 "Lessor" and "Lessee" shall be applicable to one or more Persons
as the case may be, and the singular shall include the plural, and the neuter
shall include the masculine and feminine; and if there be more than one, the
obligations thereof shall be joint and several.
19.2 "Person shall mean individuals, trusts, partnerships, joint
ventures, associations, corporations, and any other entities.
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19.3 "Law" shall mean all federal, state, county and local
governmental and municipal laws, statutes, ordinances rules, regulations, codes,
decrees, orders and other such requirements, applicable equitable remedies and
decisions by courts in cases where such decisions are considered binding
precedents in the state in which the Property is located, and decisions of
federal courts applying the laws of such State.
19.4 "Property" shall mean the Building, and any common or public
areas or facilities, easements, corridors, lobbies, sidewalks, loading areas,
driveways, landscaped areas, skywalks, parking garages and lots, and any and all
other structures or facilities operated or maintained in connection with or for
the benefit of the Building, and all parcels or tracts of land on which all or
any portion of the Building or any of the other foregoing items are located, and
any fixtures, machinery, equipment, apparatus, furniture and other personal
property located thereon or therein and used in connection therewith, whether
title is held by Lessor or its affiliates.
20. SAFETY AND SECURITY DEVICES, SERVICES AND PROGRAMS. The parties
acknowledge that safety and security devices, services and programs provided by
Lessor, while intended to deter crime and ensure safety, may not in given
instances prevent theft or other criminal acts, or ensure safety of person or
property. The risk that any safety or security device, service or program may
not be effective, or may malfunction, or be circumvented by a criminal, is
assumed by Lessee, and Lessee shall obtain insurance coverage to the extent
Lessee desires protection against such criminal acts and other losses. Lessee
agrees to cooperate in any reasonable safety or security program developed by
Lessor.
21. HAZARDOUS SUBSTANCES. Lessor represents and warrants to Lessee
that as of the date hereof there are no hazardous substances present in, or
about the Building which are of a type or in an amount, or which are used or
stored in a manner, which violates any Legal Requirements or Insurance
Requirements (such representation and warranty being limited to Lessor's best
knowledge as it relates to the activities of existing lessees of the Building.
22. HOLDING OVER. Unless Lessor expressly agrees otherwise in
writing, Lessee shall pay Lessor 150% of the amount of Rent then applicable, or
the highest amount permitted by Law, whichever shall be less, for each month
(and the full such monthly amount for any partial month) Lessee shall retain
possession of the Premises or any part thereof after expiration or earlier
termination of this Lease, together with all damages sustained by Lessor on
account thereof. The foregoing provisions shall not serve to extend
15
the Term (although Lessee shall remain bound to comply with all provisions of
this Lease until Lessee vacates the Premises). Notwithstanding the foregoing,
at any time before or after expiration or earlier termination of the Lease,
Lessor may serve notice advising Lessee of the amount of Rent and other terms
required, should Lessee desire to enter a month-to-month tenancy (and if Lessee
shall hold over more than one full calendar month after such notice, Lessee
shall thereafter be deemed a month-to month tenant, on the terms and provisions
of this lease then in effect, as modified by Lessor' notices, and except that
Lessee shall not be entitled to any renewal or expansion rights contained in
this Lease or any amendments hereto).
23. NOTICES. All notices or communications which this instrument
requires or permits to be given shall be in writing and shall be mailed or
delivered to the respective addresses set forth below, and to such other address
as may be designated in writing by either party. When notice is by mail, it
shall be sent certified with postage prepaid and shall be complete upon its
deposit in the U.S. Mail:
To Lessor as follows: WILLIS CORROON CORPORATION
Attention: Corporate Real Estate and Facilities
Planning
P.O. Box 305026
Nashville, TN 37230-5026
To Lessee as follows: MAGNETEK, INC.
26 Century Boulevard, 6 North
P.O. Box 290159
Nashville, TN 37229-0159
24. MISCELLANEOUS. This Lease contains the entire contract between
the parties and may be amended only by written agreement signed by Lessor and
Lessee. This Lease shall inure to the benefit of and shall be binding upon
Lessor, Lessee and their respective heirs, legatees, legal representatives,
successors and assigns, subject to all the terms, conditions and contingencies
set forth. This Lease shall be governed by the laws of the State of Tennessee.
If any provision of this Lease be invalid or unenforceable by any court of
competent jurisdiction, such holding shall not operate to invalidate any other
provision hereof.
25. RECORDING. It is agreed between the parties that this Lease will
not be recorded in its present form, but at the request of either party, the
parties will execute a Memorandum of Lease which may be recorded by either
party. Except for the recording of such Memorandum of Lease, nothing contained
in this document shall empower the Lessee to do any act which can, shall, or may
encumber the interest or title of
16
the Lessor, its successors and assigns, in and to the ground and building which
the leased premises are a part.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals in triplicate the day and year first above written.
LESSOR:
WILLIS CORROON CORPORATION
By:
--------------------------
Its:
-------------------------
LESSEE:
MAGNETEK, INC.
By:
---------------------------
Its:
---------------------------
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EXHIBIT A
(Floor Plan to be Attached)
EXHIBIT B
RULES AND REGULATIONS
l. No signs, placards, pictures, advertisements, names or notices shall be
displayed on any part of the outside or inside of the Premises without the
written consent of Lessor, except for the building directory.
2. Lessee shall not operate any machinery or apparatus other than usual small
business machines. A business machine of any unusual type with regard to
size, weight, energy requirements, noise, or climate control shall not be
used without the prior written consent of Lessor which will not be
unreasonably withheld.
3. No article deemed hazardous because of flammability and no explosives shall
be brought into the Building.
4. No additional locks shall be placed upon doors of Premises without written
consent of Lessor. Upon termination of this Lease the Lessee shall
surrender to Lessor all keys and security cards to Premises and security
cards, which will not be unreasonably withheld.
5. Safes, furniture, boxes or other bulky articles shall be brought into and
placed in Building only with written consent of Lessor. Only those
elevators designated by Lessor as freight elevators shall be used to
transport such articles.
6. Window coverings other than those which may be provided by Lessor, either
inside or outside may only be installed with the Lessor's written consent.
7. Lessee shall not attempt or cause to be attempted any additional plumbing
or electrical work including telephone wiring without the prior written
consent of Lessor, which will not be unreasonably withheld.
8. The sidewalks, entrances, lobbies, corridors and stairways of the project
shall not be obstructed or used for storage or for any purpose other than
ingress and egress. Lessee shall move furniture and office furnishings
into or out of the Building only during the hours of 5:30 p.m. to 8:00 a.m.
and on Saturday and Sunday.
9. Lessee shall not make or permit any noise or odor that is objectionable to
other occupants or tenants of this or any adjoining premises to emanate
from Premises and shall
not create or maintain a nuisance thereon, and shall not disturb, solicit
or canvass any occupant of Building and shall not do any act tending to
injure the reputation of Building.
10. Except as provided in Section 8 of the Lease, Lessee agrees that all
personal property brought into the Building and/or Premises shall be at the
risk of the Lessee only and that Lessor shall not be liable for theft
thereof or any other loss of or damage thereto occasioned from any act of
co-tenants, or other occupants of the Building or any other person.
11. Lessor reserves the right to make such other and further reasonable rules
and regulations as in its judgment may from time to time be necessary for
the safety, care and cleanliness of the Building and Premises, and for the
preservation of good order therein, and any such other or further rules and
regulations shall be binding upon the parties.
12. Landlord reserves the right to exclude from the Building between the hours
of 6 p.m. and 8 a.m. and at all hours on Sunday and legal holidays all
persons who do not present a pass to the Building approved by Landlord.
Landlord will furnish passes to persons for whom any tenant requests in
writing. Each tenant shall be responsible for all persons for whom he
requests passes and shall be liable to Landlord for all acts of such
persons. Landlord shall in no case be liable for damages for any error
with regard to the admission to or exclusion from the Building of any
person. In case of an invasion, mob riot, public excitement or other
circumstances rendering such action advisable in Landlord's opinion,
Landlord reserves the right without any abatement of rent to require all
persons to vacate the Building and to prevent access to the Building during
the continuance of the same for the safety of the Tenants and the
protection of the Building and the property in the Building.
EXHIBIT C
August 4, 1994
Mr. C. Ore Davis
Executive Vice President
MagneTek, Inc.
26 Century Boulevard
P.O. Box 290159
Nashville, TN 37229-0159
Dear Ore:
In order to induce Willis Corroon Corporation of Nashville ("Lessor"), to allow
work to commence in the area designated as 6 North of the building known as
Willis Corroon Plaza ("Building"), MagneTek, Inc. ("Lessee"), acknowledges its
intent to enter into a lease under the following basic terms, subject to a
mutually accepted Lease document:
Term: 9/1194 - 10/31/94
Square Footage: 14,309 square feet
Monthly Base Rental: $25,040.75
------------------------------------------------
Term: 11/1194 - 8/31196
Square Footage: 28,618 square feet
Monthly Base Rental: $50,081.50
In the event the lease is not executed within thirty (30) days of this letter,
any costs incurred by Willis Corroon Corporation of Nashville will be reimbursed
by MagneTek, Inc. upon presentation of invoices.
Yours sincerely,
Richard S. Vernale
First Vice President
Real Estate and Facilities Planning
ACKNOWLEDGED AND ACCEPTED:
MAGNETEK, INC. WILLIS C0RROON CORPORATION OF NASHVILLE
By: By:
--------------------------- ----------------------------------
Date: Date:
-------------------------- ------------------------------
EXHIBIT D
REFERENCE DATA AND DEFINITIONS
1. INITIAL PREMISES
The initial premises shall consist of the entire 6th Floor North area and
the Bridge area (including rooms 601 and 602). The total tenantable area
of these defined areas is 28,618 square feet. There is no available
storage area in the building.
2. BASE RENTAL
The proposed lease rental rate shall be a "rent inclusion. " It will
include utilities, taxes, janitorial services, maintenance, security,
operating expenses, and mail service to Lessee's designated floor. The
rental rate will be $21.00 per square foot, inclusive. The rate will be
held flat for the initial three (3) years of the lease. Telecommunications
will be the responsibility of the Lessee.
3. PARKING
Included in the proposed rental rate will be available "structured parking"
for up to 100 vehicles. In addition, Lessor will provide ten (10) reserved
spaces (to be named) for Lessee's exclusive use, at no additional charge.
Parking accommodations will be used on P4 North.
4. TENANT IMPROVEMENTS
Lessor will provide for tenant improvements using the standard demountable
wall system for construction.
In addition, workstations will be included in the rental rate as reflected
in the drawings received with the Request for Proposal (RFP).
5. LEASE TERM
Initial lease term will be for a period of three (3) years commencing on
the date the space is substantially ready for occupancy. MagneTek will be
provided with one (1) five (5)-year renewal option, subject solely to the
consent of Lessee. Lessee shall provide in writing to Lessor its intent to
renew the lease at least six (6) months prior to the initial lease
expiration date.
Lessor shall respond in writing to Lessee within thirty (30) days.
6. EXPANSION OPTION
Lessee shall be granted an expansion option for the area designated as 5
North, effective January 1, 1995. However, in no event shall the space
designated "expansion" be less than one-half the floor. Lessee shall
provide in writing to Lessor at least thirty (30) days prior to January 1,
1995, a notice to exercise the expansion option. Lessor will respond in
writing within thirty (30) days outlining the terms and conditions.
7. SIGNAGE
Subject to Lessor approval, Lessee will be allowed to place appropriate
signage in the areas designated under Item 1 - "Initial Premises."
8. ESCALATION
During the initial term of the lease, there will be no escalation to the
lease rental rate.
9. SECURITY DEPOSIT
The requirement for a security deposit is waived.
10. MISCELLANEOUS
A. HOLDOVER
Any holdover shall, after expiration of lease term, be calculated at
150% of the existing rate and shall be month-to-month.
B. AMENITIES
In addition to structured parking as stated above, Lessee's employees
will be allowed to enjoy the use of the cafeteria, which is subsidized
by Lessor.
C. VENDING
Each of the floor areas has soft drink and snack vending machines. The
soft drink and snack vending machines will continue to be maintained
and supplied by Lessor.
D. SECURITY
Lessor has a very high standard of security sensitivity and maintains
a 24-hour on-site security force.
E. CONFERENCE CENTER
The center is available for use at a nominal client rate, subject to
availability.
F. VAN SERVICE
Lessee will be allowed use of van service to and from the Building and
the airport at no additional charge.