EXHIBIT 10(mm)
AMENDED AND RESTATED LEASE
BETWEEN
DUNNINGAN REALTY LLC
LANDLORD
AND
THE DRESS BARN, INC.
TENANT
PREMISES: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
DATED: June 24, 2003
TABLE OF CONTENTS
ARTICLE 1. CERTAIN DEFINITIONS; CONSTRUCTION OF TERMS.........................................................1
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Section 1.1. Definitions...............................................................................1
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Section 1.2. List of Defined Terms.....................................................................6
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ARTICLE 2. DEMISED PREMISES; TERM.............................................................................8
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Section 2.1. Premises..................................................................................8
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Section 2.2. Intentionally Omitted.....................................................................8
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Section 2.3. Commencement Date.........................................................................8
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ARTICLE 3. RENT AND RENT ABATEMENT............................................................................8
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Section 3.1. Fixed and Additional Rent.................................................................8
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Section 3.2. Intentionally Omitted.....................................................................9
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Section 3.3. Rent Reductions for Legal Requirements....................................................9
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Section 3.4. Occupancy Taxes...........................................................................9
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ARTICLE 4. COMPLETION AND OCCUPANCY OF THE PREMISES...........................................................9
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Section 4.1. Condition of Premises.....................................................................9
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Section 4.2. Tenant's Improvements.....................................................................9
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ARTICLE 5. USE................................................................................................9
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Section 5.1. Use.......................................................................................9
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Section 5.2. Restrictions on Use......................................................................10
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Section 5.3. Tenant's Licenses and Permits............................................................10
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Section 5.4. Floor Loads..............................................................................10
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ARTICLE 6. REAL ESTATE TAXES AND OPERATING EXPENSES..........................................................10
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Section 6.1. Tenant's Tax Payment.....................................................................10
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Section 6.2. Tenant's Right to Contest Taxes..........................................................11
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Section 6.3. Operating Expense Payment................................................................12
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Section 6.4. Expiration Date..........................................................................13
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Section 6.5. Landlord's Statement.....................................................................13
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Section 6.6. Refund to Tenant.........................................................................14
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ARTICLE 7. LIMITED ARBITRATION...............................................................................14
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Section 7.1. Limited Arbitration......................................................................14
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ARTICLE 8. INSURANCE.........................................................................................15
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Section 8.1. Tenant Not to Affect Insurance...........................................................15
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Section 8.2. Increase in Insurance Rates..............................................................15
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Section 8.3. Tenant Liability Insurance...............................................................15
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Section 8.4. Tenant Not to Carry Concurrent Insurance.................................................16
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Section 8.5. Waiver of Subrogation....................................................................16
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Section 8.6. Landlord All Risk insurance..............................................................17
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Section 8.7. Tenant's Charges for All Risk Insurance..................................................18
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Section 8.8. Parties Liability for Fire Unaffected....................................................18
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ARTICLE 9. COMPLIANCE WITH LAWS..............................................................................19
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Section 9.1. Tenant's Compliance with Laws............................................................19
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Section 9.2. Tenant's Right to Contest Legal Requirements.............................................19
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Section 9.3. Landlord's Compliance with Legal Requirements............................................19
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Section 9.4. Tenant's Compliance with Environmental Laws..............................................20
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Section 9.5. Landlord's Compliance with Environmental Laws............................................20
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Section 9.6. Additional Environmental Provisions......................................................21
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ARTICLE 10. IMPROVEMENTS.....................................................................................22
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Section 10.1. Consent Requirement for Improvements.....................................................22
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Section 10.2. Tenant Completion of Improvements........................................................23
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Section 10.3. Notices of Violation.....................................................................24
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Section 10.4. Mechanics' Liens.........................................................................24
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Section 10.5. Landlord Approval of Contractors.........................................................24
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Section 10.6. Labor Disputes...........................................................................24
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Section 10.7. Tenant's Fixtures........................................................................24
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Section 10.8. Consent Not Waiver of Landlord's Rights..................................................25
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ARTICLE 11. REPAIRS..........................................................................................25
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Section 11.1. Tenant Repairs...........................................................................25
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Section 11.2. Landlord Repairs.........................................................................25
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Section 11.3. Capital Expenditures.....................................................................25
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Section 11.4. Subject to Casualty and Condemnation.....................................................26
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ARTICLE 12. NET LEASE........................................................................................26
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Section 12.1. Net Lease................................................................................26
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ARTICLE 13. BUILDING ELECTRICITY COSTS.......................................................................26
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Section 13.1. Electricity Costs........................................................................26
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Section 13.2. Intentionally Omitted....................................................................26
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ARTICLE 14. TENANT'S UTILITIES...............................................................................26
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Section 14.1. Heating..................................................................................26
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Section 14.2. Water and Sewer Payments.................................................................26
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Section 14.3. Added Utility Usage......................................................................27
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Section 14.4. Landlord's Services......................................................................27
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ARTICLE 15. DAMAGE TO OR DESTRUCTION OF THE PREMISES.........................................................27
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Section 15.1. Reconstruction of Premises...............................................................27
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Section 15.2. Termination of Lease.....................................................................28
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Section 15.3. Tenant's Property and Tenant's Improvements..............................................29
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Section 15.4. No Release of Tenant.....................................................................29
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Section 15.5. Tenant Effect on Insurance...............................................................29
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ARTICLE 16. EMINENT DOMAIN...................................................................................29
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Section 16.1. Total Condemnation.......................................................................29
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Section 16.2. Termination of Lease.....................................................................30
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Section 16.3. Restoration of the Premises..............................................................30
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Section 16.4. Condemnation Award.......................................................................30
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Section 16.5. Temporary Taking.........................................................................31
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ARTICLE 17. ASSIGNMENT, MORTGAGING AND SUBLETTING............................................................31
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Section 17.1. Landlord Consent Required................................................................31
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Section 17.2. Tenant Not Released......................................................................32
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Section 17.3. Assignment and Sublease to Affiliates....................................................32
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Section 17.4. Transfer to Successor Corporation........................................................32
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Section 17.5. Landlord Take Back and Consent Rights....................................................33
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Section 17.6. Sharing of Profits on Take Back..........................................................34
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Section 17.7. Assignment/Subletting Requirements.......................................................34
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Section 17.8. Landlord's Rights on Subleases...........................................................35
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Section 17.9. Bankruptcy Assumption....................................................................36
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ARTICLE 18. SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE....................................................37
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Section 18.1. Subordination............................................................................37
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Section 18.2. Tenant not to Violate Mortgage...........................................................37
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Section 18.3. Attornment to Successor Landlords........................................................37
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Section 18.4. Notice of Default to Superior Interest...................................................38
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Section 18.5. Non-Disturbance Agreement................................................................39
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Section 18.6. No Existing Mortgages....................................................................39
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ARTICLE 19. CURING DEFAULTS; ATTORNEY'S FEES AND EXPENSES....................................................40
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Section 19.1. Curing Tenant's Default..................................................................40
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Section 19.2. Curing Landlord's Default................................................................40
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Section 19.3. Attorneys' Fees..........................................................................41
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ARTICLE 20. NON-LIABILITY AND INDEMNIFICATION................................................................41
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Section 20.1. Non-Liability............................................................................41
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Section 20.2. Release of Landlord......................................................................41
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Section 20.3. Tenant's Indemnity.......................................................................42
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Section 20.4. Landlord's Indemnity.....................................................................42
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Section 20.5. Consequential Damages Waiver.............................................................42
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Section 20.6. Tenant's Payment Obligation..............................................................42
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ARTICLE 21. ACCESS; CHANGE IN FACILITIES; COMMON AREAS.......................................................42
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Section 21.1. Land.....................................................................................42
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Section 21.2. Landlord's Access to Premises............................................................43
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Section 21.3. Common Areas.............................................................................43
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Section 21.4. Tenant's Use of Common Areas.............................................................44
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Section 21.5. Non Liability of Landlord and Tenant.....................................................44
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ARTICLE 22. DEFAULT..........................................................................................44
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Section 22.1. Tenant's Default.........................................................................44
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Section 22.2. Limit on Landlord Notices................................................................45
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Section 22.3. Termination of Services..................................................................45
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ARTICLE 23. RE-ENTRY BY LANDLORD; REMEDIES...................................................................45
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Section 23.1. Re-Entry by Landlord.....................................................................45
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Section 23.2. Waiver of Redemption.....................................................................46
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Section 23.3. Landlord's Rights not Exclusive..........................................................46
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Section 23.4. Landlord's Rights upon Termination.......................................................46
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Section 23.5. Landlord's Damages.......................................................................47
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Section 23.6. Landlord's Rights Not Limited............................................................48
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Section 23.7. Landlord's Rights Cumulative.............................................................48
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ARTICLE 24. SURRENDER........................................................................................48
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Section 24.1. Surrender................................................................................48
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Section 24.2. Tenant's Failure to Surrender............................................................49
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Section 24.3. Tenant's Holdover........................................................................49
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Section 24.4. Obligations Survive Termination..........................................................49
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ARTICLE 25. INABILITY TO PERFORM.............................................................................49
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Section 25.1. Inability to Perform.....................................................................49
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ARTICLE 26. WAIVER OF COUNTERCLAIMS AND JURY TRIAL...........................................................49
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Section 26.1. Waiver of Counterclaim and Jury Trial....................................................49
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ARTICLE 27. NO OTHER WAIVER..................................................................................50
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Section 27.1. No Waiver................................................................................50
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Section 27.2. Landlord's Rights not Affected...........................................................50
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ARTICLE 28. QUIET ENJOYMENT; OPERATION OF BUILDING...........................................................50
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Section 28.1. Quiet Enjoyment..........................................................................50
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Section 28.2. Landlord's Restrictions on Leasing.......................................................51
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Section 28.3. Notice of Other Leases...................................................................51
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ARTICLE 29. SIGNAGE..........................................................................................51
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Section 29.1. Signage..................................................................................51
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ARTICLE 30. SHORING; NO DEDICATION...........................................................................51
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Section 30.1. Shoring..................................................................................51
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Section 30.2. Landlord Right to Close Property.........................................................52
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ARTICLE 31. NOTICE OF ACCIDENTS..............................................................................52
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Section 31.1. Notice of Accidents......................................................................52
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ARTICLE 32. BROKERAGE........................................................................................52
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Section 32.1. Brokers..................................................................................52
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ARTICLE 33. INTENTIONALLY OMITTED............................................................................52
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Section 33.1. Intentionally Omitted....................................................................52
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ARTICLE 34. CONSENTS; APPROVALS..............................................................................52
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Section 34.1. Delay in Consent.........................................................................52
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Section 34.2. Landlord Right to Employ Professionals...................................................52
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ARTICLE 35. NOTICES..........................................................................................53
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Section 35.1. Notices..................................................................................53
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ARTICLE 36. ESTOPPEL CERTIFICATE.............................................................................54
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Section 36.1. Tenant's Estoppel Certificate............................................................54
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Section 36.2. Landlord's Estoppel Certificate..........................................................54
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ARTICLE 37. PARTIES BOUND....................................................................................54
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Section 37.1. Parties Bound............................................................................54
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Section 37.2. Meaning of term "Landlord"...............................................................55
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Section 37.3. Landlord Limitation of Liability.........................................................55
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Section 37.4. Landlord Right to Use Agents.............................................................55
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Section 37.5. Meaning of the Word "Tenant".............................................................55
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Section 37.6. Rights Only Granted to Tenant............................................................56
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Section 37.7. Submission of Lease not an Offer.........................................................56
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Section 37.8. Intentionally Omitted....................................................................56
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ARTICLE 38. PARKING AND LOADING..............................................................................56
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Section 38.1. Tenant's Parking and Loading Areas.......................................................56
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Section 38.2. Intentionally Omitted....................................................................56
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ARTICLE 39. INTENTIONALLY OMITTED............................................................................56
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Section 39.1. Intentionally Omitted....................................................................56
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Section 39.2. Intentionally Omitted....................................................................56
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ARTICLE 40. MISCELLANEOUS....................................................................................56
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Section 40.1. Entire Agreement.........................................................................56
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Section 40.2. No Representations.......................................................................57
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Section 40.3. Governing Law............................................................................57
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Section 40.4. Tenant's Financial Information...........................................................57
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Section 40.5. Use of "include"........................................................................57
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Section 40.6. Severability.............................................................................57
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Section 40.7. Headings.................................................................................57
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Section 40.8. Counterparts.............................................................................57
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ARTICLE 41. VACANT SPACE.....................................................................................57
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Section 41.1. Vacant Space.............................................................................57
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EXHIBIT A..........................................................................................................
Intentionally Omitted..............................................................................................
EXHIBIT B..........................................................................................................
Qualified Architects...............................................................................................
EXHIBIT C..........................................................................................................
Intentionally Omitted..............................................................................................
EXHIBIT D..........................................................................................................
The Land...........................................................................................................
EXHIBIT E..........................................................................................................
The Premises.......................................................................................................
EXHIBIT F..........................................................................................................
Fixed Rent.........................................................................................................
EXHIBIT G..........................................................................................................
Intentionally Omitted..............................................................................................
EXHIBIT H..........................................................................................................
Intentionally Omitted..............................................................................................
EXHIBIT I..........................................................................................................
Intentionally Omitted
EXHIBIT J..........................................................................................................
Intentionally Omitted..............................................................................................
EXHIBIT K..........................................................................................................
Signage............................................................................................................
EXHIBIT L..........................................................................................................
Intentionally Omitted..............................................................................................
EXHIBIT M..........................................................................................................
Tenant's Loading Area..............................................................................................
EXHIBIT N..........................................................................................................
Tenant's Parking Area..............................................................................................
EXHIBIT O..........................................................................................................
Intentionally Omitted..............................................................................................
AMENDED AND RESTATED LEASE
This Amended and Restated Lease ("Lease"), dated June 24, 2003, between
▇▇▇▇▇▇▇▇ REALTY LLC, a Delaware limited liability company, having an office at
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Landlord"), and THE DRESS BARN,
INC., a Connecticut corporation, having an office at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Tenant").
W I T N E S S E T H:
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WHEREAS, American Telephone and Telegraph Company ("AT&T") entered into
a Lease for the Premises (as hereinafter defined) with Tenant dated April 30,
1993 (the "Original Lease"); and
WHEREAS, AT&T subsequently conveyed the Real Property (as hereinafter
defined), including AT&T's interest as landlord of the Premises, to Rockland
Warehouse Corporation ("RWC") and RWC succeeded to AT&T's interest as landlord
under the Original Lease; and
WHEREAS, RWC subsequently conveyed the Real Property, including RWC's
interest as landlord of the Premises, to Landlord and Landlord succeeded to
RWC's interest as landlord under the Original Lease; and
WHEREAS, Landlord and Tenant desire to amend the Original Lease in
certain respects.
NOW THEREFORE, in consideration of the terms and covenants set forth
herein, Landlord and Tenant hereby agree that for convenience the Original Lease
is amended and restated in its entirety as follows:
ARTICLE 1. CERTAIN DEFINITIONS; CONSTRUCTION OF TERMS
Section 1.1. Definitions.
In addition to those terms defined in particular provisions of this
Lease, for the purposes of this Lease and all exhibits to the Lease the
capitalized terms defined in this Section 1.1 shall have the following meanings,
which meanings shall be applicable to singular and plural nouns, and verbs of
any tense:
(a) "Base Tax Guarantee" shall mean the amount by which the Taxes for the 1993
Tax Year on the Real Property, as finally determined after all applicable
appeals have been taken or the time to appeal has expired, exceeded Eight
Hundred Ninety-Two Thousand Dollars ($892,000) multiplied by Tenant's
Proportionate Share. The Base Tax Guarantee amount is $173,832.97.
(b) "Building Equipment" shall mean all machinery, apparatus, equipment,
personal property, fixtures and systems of every kind and nature whatsoever now
or hereafter attached to or used in connection with the operation or maintenance
of the Building, including all electrical, heating, mechanical, sanitary,
sprinkler, utility, power, plumbing, cleaning, fire prevention, refrigeration,
ventilating, air cooling, air conditioning, elevator and escalator systems,
apparatus and equipment and any and all renewals and replacements thereof,
excluding, however, (i) Tenant's Property, (ii) property of any other tenant,
(iii) property of contractors servicing the Building and (iv) water, gas, steam
and electricity and other similar equipment owned by any public utility company
or any governmental agency or body.
(c) [Not Used]
(d) "Capital Expenditure" shall mean an expenditure appropriate to maintain the
Building substantially as it exists on the Commencement Date as a Class A
industrial building, or appropriate to upgrade the Building in accordance with
technological advances in order to maintain the status of the Building as a
Class A industrial building, (i) which constitutes a capital cost under
generally accepted accounting principles, (ii) which is not required to remedy
damage to the Building or Real Property caused by Tenant (other than ordinary
wear and tear), and (iii) which has a per occurrence cost in excess of $25,000.
(e) "Consumer Price Index" shall mean the U.S. Department of Labor revised
Consumer Price Index for wage earners and clerical workers, U.S. city average,
all items figure, (1982-84 = 100) published by the Bureau of Labor Statistics.
(f) "Expiration Date" shall have the meaning set forth in Section 2.3 with
respect to the Primary Term and shall mean the last day of the Term with respect
to any renewal term.
(g) "Force Majeure" shall mean any and all causes beyond a party's reasonable
control (other than lack of funds), including delays proximately caused by other
tenants; Legal Requirements and other forms of governmental restriction,
regulation or control (including energy and water conservation measures); labor
dispute; accident; mechanical breakdown; shortages of, or inability to obtain
labor, fuel, steam, water, electricity or materials through ordinary sources;
acts of God; war; sabotage; embargo; enemy action; civil commotion; fire or
other casualty or insurance settlement processes, provided the affected party
diligently pursues available remedies against the party causing the delay and
acts reasonably in connection with any insurance settlement processes.
(h) "Improvements" shall mean improvements, alterations, additions,
installations, substitutions or decorations in or to the Premises made by or on
behalf of Tenant or any person claiming through or under Tenant.
(i) "Indemnify" shall mean to defend, indemnify and save harmless the
indemnified party against all claims, fines, penalties, liabilities, losses,
damages, costs and expenses (including reasonable attorney's fees, reasonable
expert witness fees and other reasonable costs of defense) resulting from the
matter which is the subject of the indemnification.
(j) "Insurance Requirements" shall mean all requirements of any insurance policy
covering or applicable to all or any part of the Real Property or the use
thereof, all requirements of the issuer of any such policy and all orders,
rules, regulations, recommendations and other requirements of the applicable
Board of Fire Underwriters or the Insurance Service Office or any other body
exercising the same or similar functions and having jurisdiction of all or any
part of the Real Property.
(k) "Interest Rate" shall mean a rate per annum equal to the lesser of (i) three
(3) percentage points above the rate publicly announced from time to time by
JPMorgan Chase Bank as its "base rate" or (ii) the maximum rate of interest
chargeable under applicable law, if any, with respect to the applicable payment
hereunder.
(l) "Landlord's Statement" shall mean a statement furnished by Landlord to
Tenant containing a computation of or information relating to any Additional
Rent due pursuant to the provisions of this Lease, and containing back up data
reasonably sufficient to verify the computation of Additional Rent.
(m) "Legal Requirements" shall mean laws, statutes and ordinances (including
building codes and zoning regulations and ordinances) and the orders, rules,
regulations, directives and requirements of all federal, state, county, city and
local departments, bureaus, boards, agencies, offices, commissions and other
subdivisions thereof, or of any official thereof, or any other governmental,
public or quasi-public authority, whether now or hereafter in force, which may
be or become applicable to the Real Property or any part thereof or the
sidewalks, curbs or areas adjacent thereto.
(n) "Major Building Systems" shall mean (i) the electrical system in the
Building up to the point of entry into the Premises, and any portion of the
electrical system within the Premises that services areas of the Building or the
Real Property other than or in addition to the Premises, (ii) any of the boilers
in the boiler room, (iii) the plumbing system up to the point of entry into the
Premises, and any portion of the plumbing system within the Premises that
services areas of the Building or the Real Property other than or in addition to
the Premises, (iv) the Building sprinkler system (except for sprinkler heads
inside the Premises), (v) the 300,000 gallon water tank outside the Building and
the pump station for such tank; and (vi) the heating, ventilating and air
conditioning system up to the point of entry into the Premises, and any portion
of the heating, ventilating and air conditioning system within the Premises that
services areas of the Building or the Real Property other than or in addition to
the Premises.
(o) [Not Used]
(p) "Operating Expenses" shall mean the following: all reasonable and customary
costs and expenses (and taxes thereon) paid by or on behalf of Landlord (net of
rebates, discounts, credits, or direct reimbursements actually received by
Landlord) in respect of the operation, cleaning, repair, safety, and maintenance
of the Real Property, and the sidewalks, curbs and lawns, parking areas of the
Real Property, and in respect of the services provided to Tenant and other
tenants of the Building chargeable to the operation of the Building which are
consistent with those of class A industrial buildings, including (i) salaries,
wages and bonuses paid to, and the cost of any hospitalization, medical,
surgical, union and general welfare benefits (including group life insurance),
any pension, retirement or life insurance plan and other benefits or similar
expenses relating to, employees of Landlord engaged in the operation, cleaning,
repair, safety, or maintenance of the Real Property or in providing services to
Tenant and other tenants of the Building (however, only to the extent said
employees' time is devoted to the Building or the Real Property); (ii) social
security, unemployment and other payroll taxes, the cost of providing disability
and workers' compensation coverage imposed by any law or regulation, union
contract or otherwise in respect of said employees; (iii) the cost of gas,
water, and other fuel and utilities not the obligation of any particular tenant
excluding any costs payable by Tenant under Article 14; (iv) the cost of
casualty, rent, liability, boiler, fidelity, plate glass and any other insurance
appropriate for the Real Property which is consistent with insurance normally
maintained for Class A industrial buildings; (v) the cost of repairs,
maintenance and painting; (vi) the cost or rental of all building and cleaning
supplies, tools, materials and equipment; (vii) the cost of supplies, work
clothes and dry cleaning; (viii) management fees consistent with those charged
for comparable Class A industrial buildings, or if no managing agent is employed
by Landlord, a sum in lieu thereof payable to Landlord equal to $0.10 per square
feet, plus annual increases in the Consumer Price Index; (ix) charges of
independent contractors performing work included within this definition of
Operating Expenses; (x) telephone and stationery; (xi) legal, accounting and
other professional fees and disbursements incurred in connection with the
operation and management of the Real Property(except to the extent chargeable
against recoveries of Taxes pursuant to Article 6 of this Lease); (xii)
decorations; (xiii) depreciation of hand tools and other movable equipment used
in the operation, cleaning, repair, safety, or maintenance of the Real Property
provided the original cost of such equipment did not constitute an Operating
Expense and provided that such equipment is not used solely for work to be
performed pursuant to this Lease by Landlord at its sole expense; and (xiv)
exterior landscaping, yard maintenance and snow removal.
Notwithstanding the preceding paragraph, "Operating Expenses" shall not
include (i) any tenant work performed for, alteration of space leased to, or
other services provided solely to, other tenants or occupants of the Building,
whether such work, alteration or service is performed for the initial occupancy
by such tenant or occupant or thereafter, provided this exclusion shall not
prevent Landlord from charging Tenant its appropriate share of expenses for
Common Areas; (ii) costs of negotiation or enforcement of leases or costs
relating to disputes with other tenants or occupants of the Building; (iii)
interest and amortization of indebtedness or any costs of financing or
refinancing, depreciation or ground rent; (iv) compensation paid to officers or
executives of Landlord; (v) leasing commissions and advertising and promotional
expenses; (vi) repairs or other work occasioned by fire, windstorm, or other
casualty or by the exercise of eminent domain to the extent covered by insurance
(or which Landlord was required by this Lease to cover by insurance) or by
compensation from the condemning authority; (vii) Landlord's cost of electricity
and other services that are sold to any other tenant and for which Landlord is
entitled to be reimbursed by such other tenant and which is not a part of the
operating costs of the Building which are shared by all tenants proportionately;
(viii) expenses in connection with services or other benefits of a type which
are not provided to Tenant and which Tenant is not entitled to receive under
this Lease but which are provided to another tenant or occupant of the Building;
(ix) costs incurred due to Landlord's negligence or willful misconduct or due to
violation by Landlord of the terms and conditions of any lease; (x) overhead and
profit increments paid to subsidiaries or affiliates of Landlord for services on
or to the Building to the extent that the costs of such services exceed the
competitive cost of such services were they not so rendered by a subsidiary or
affiliate; (xi) general overhead of Landlord; (xii) any items and services for
which Tenant separately reimburses Landlord; (xiii) any fines or penalties (or
the cost of contesting any fines or penalties) incurred due to violations by
Landlord of any governmental rule or authority (except violations of any
governmental rule or authority with which Tenant and not Landlord is obligated
to comply hereunder); (xiv) any costs or expenses for which Landlord receives
reimbursement from insurance carriers, condemners or other third parties (except
for tenant reimbursements of their share of Operating Expenses), to the extent
of the reimbursement received by the Landlord; (xv) any costs directly
associated with the maintenance and operation of the guardhouse, including the
personnel stationed therein; (xvi) intentionally deleted; and (xvii) any
increases in insurance costs attributable to a use or occupancy of any portion
of the Building other than by Tenant.
(q) "Operation Year" shall mean each calendar year commencing in 2003 that
includes any part of the term.
(r) "Qualified Architect" shall mean any architect or engineer listed on Exhibit
B, or any competent New York licensed architect or engineer selected by Tenant,
with Landlord's approval not to be unreasonably withheld, delayed, or
conditioned.
(s) "Permitted Sublease" shall mean a sublease (i) for a term which does not
exceed five (5) years (ii) which terminates one or more years prior to the
expiration of the current term of this Lease, (iii) which has a minimum of
100,000 square feet, and (iv) which does not grant any renewal options to the
sublessee.
(t) "Real Property" shall mean the Building and the Land and all easements, air
rights, development rights and other appurtenances thereto.
(u) "Structural Improvements" shall mean the roof, structural steel,
load-bearing walls and columns, foundations and the exterior of the Building.
(v) "Tax Year" shall mean the calendar year of the Village of Montebello, Town
of Ramapo, and County of Rockland, and the fiscal tax year for the Ramapo School
District ending in the particular calendar year in which the Tax Year for the
Village of Montebello, Town of Ramapo and County of Rockland end.
(w) "Taxes" shall mean all real estate taxes and assessments (special and
otherwise), sewer rents, rates and charges, county taxes, transit taxes and any
other governmental charge of any nature, whether general or special, ordinary or
extraordinary, foreseen or unforeseen, which may be levied or assessed upon or
with respect to all or any part of the Real Property by any taxing authority
including, without limitation, (i) assessments made upon or with respect to any
"air" and "development" rights now or hereafter appurtenant to or affecting the
Real Property, (excluding air or development rights acquired from other property
owners), (ii) any fee, tax or charge imposed by any governmental authority for
any space within the boundaries of the Real Property or the Building. If at any
time the methods of taxation prevailing on the date hereof shall be altered so
that in lieu of or as an addition to or as a substitute for all or any part of
the Taxes now levied, assessed or imposed on or with respect to all or any part
of the Real Property there shall be levied, assessed or imposed (i) a tax,
assessment, levy, imposition or charge based on the rents or profits received
therefrom, whether wholly or partially as a capital levy or otherwise, (ii) a
tax, assessment, levy, imposition or charge measured by or based in whole or in
part upon all or any part of the Real Property or the ownership or operation
thereof, (iii) a license fee measured by the rent payable by Tenant to Landlord
or (iv) any other tax, assessment, levy, imposition, charge and license fee
however described, then all such taxes, assessments, levies, impositions,
charges and license fees, or the part thereof so measured or based, shall be
deemed to be Taxes. The term "Taxes", however, shall not include any net income,
franchise or "value added" tax, imposed or constituting a lien upon Landlord or
all or any part of the Real Property, except to the extent substituted for the
then Taxes, or any increases in Taxes attributable to improvements by or for
other tenants, or additions or improvements constructed by Landlord (except to
the extent such additions or improvements constructed by Landlord constitute a
replacement of an improvement existing in the Building or on the Real Property
as of the Commencement Date).
(x) "Tenant's Property" shall mean all business machines, computers, equipment,
furniture, fixtures, improvements, additions and other property affixed to or
otherwise located in the Premises (i) which were installed at the sole expense
of Tenant or a permitted subtenant of Tenant, (ii) which may be removed without
material damage to the Premises (or Tenant, at its cost, is obligated under the
Lease to remove and repair such damage if it occurs), and (iii) which are not
replacements of any property of Landlord, whether any such replacement is made
at Tenant's expense or otherwise.
(y) "Tenant's Proportionate Share" shall mean 57.3% based on Tenant's occupancy
of 511,566 out of 892,943 rentable square feet. If the Building's rentable
square footage increases or decreases, then Tenant's Proportionate Share shall
be readjusted accordingly. Tenant's Proportionate Share shall not be adjusted as
a consequence of including the Loading Area and Tenant's Parking Area in the
Premises.
(z) "Term" shall mean the Primary Term, unless this Lease shall be sooner
terminated pursuant to the provisions hereof.
(aa) "Untenantable", when used with respect to all or any portion of the
Premises, shall mean a condition resulting in Tenant being actually unable to
conduct its business on all or such portion of the Premises.
Section 1.2. List of Defined Terms.
In addition, the following terms whenever used in this Lease and in the
exhibits to the Lease shall have the meanings set forth in the following
sections:
Term Section
Additional Insureds 8.3
Additional Rent 3.1
Building 2.1
Building Electricity Costs 13.1(a)
Commencement Date 2.3
Common Areas 21.3
Consideration 17.6
Control 17.1(b)
Environmental Requirements 9.2(b)
Events of Default 22.1
Fixed Rent 3.1
Fixtures 10.2
▇▇▇ Approval 37.8(a)
Land 2.1
Landlord 37.2
Landlord's Broker 32.1
Landlord's Notice 15.2(a)
Loading Area 38.1(a)
Minor Improvements 10.1
Negotiation Notice 39.1(a)
Net Rent 23.4(c)
Non-Structural Improvements 10.1
Overcharge 6.5
Permitted Use 5.1
Primary Term 2.3
Phase 1 2.2
Phase 2 2.2
Premises 2.1
RIDA 37.8 (a)
Right of First Offer 39.1 (a)
Sale Notice 39.1 (a)
Successor Corporation 17.4 (b)
Successor Landlord 18.3 (a)
Superior Interest 18.1 (a)
Superior Lease 18.1 (a)
Superior Lessor 18.1 (a)
Superior Mortgage 18. a (a)
Superior Mortgagee 18.1 (a)
Take-Back Space 17.5 (b)
Tenant 37.5
Tenant's Broker 32.1
Tenant's Improvements 4.2
Tenant's Offer 39.2
Tenant's Parking Area 38.1 (a)
Tenant's Tax Payment 6.1 (a)
Tenant's Operating Expense Payment 6.2(a)
Tenant's Tax Payment 6.1(a)
Tenant's Projected Share 6.2(b)
Tenant's Utility Payment 14.2
Termination Notice 22.1(g)
Transferee 37.2
ARTICLE 2. DEMISED PREMISES; TERM
Section 2.1. Premises.
Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the premises hereinafter described ("Premises") in the building known
as ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, and also known as ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Building") erected on the land ("Land") located in the Village of Montebello,
County of Rockland, State of New York, and more particularly set forth in
Exhibit D, for the term hereinafter stated, for the rents hereinafter reserved,
and upon and subject to the terms of this Lease.
Section 2.2. Intentionally Omitted.
Section 2.3. Commencement Date.
The term of this Lease (the "Primary Term") shall commence on
June 28, 2003 ("Commencement Date") and shall end at 12:00 midnight local
time on March 31, 2023 (the "Expiration Date"). It is acknowledged and agreed
between Landlord and Tenant that the Primary Term consists of the remaining
portion of the existing initial term of the Original Lease, three (3) renewal
terms of five (5) years each pursuant to the Original Lease, plus one (1)
additional year thereafter.
ARTICLE 3. RENT AND RENT ABATEMENT
Section 3.1. Fixed and Additional Rent.
Tenant shall pay to Landlord, without notice or demand (except to the
extent that Tenant is entitled to receive notice in another provision of this
Lease), in lawful money of the United States of America, at the office of
Landlord designated in Article 36 or at such other place as Landlord may
designate, the following:
(i) annual fixed rent ("Fixed Rent") as set forth on Exhibit F payable in
equal monthly installments in advance on the first day of each and
every month, and
(ii) additional rent ("Additional Rent") consisting of all other sums of
money that shall become due from and be payable by Tenant hereunder.
Tenant covenants to pay the Fixed Rent and Additional Rent when due and to
observe and perform Tenant's obligations hereunder in a timely manner. If Tenant
shall fail to pay any installment of Fixed Rent for a period of ten (10) days
after written notice that such sum has not been paid when due, or shall fail to
pay any amount of Additional Rent for a period of fifteen (15) days after
written notice that such amount has not been paid when due, Tenant shall pay
interest thereon at the Interest Rate, from the date when such installment or
amount shall have been due to the date of the payment thereof, and such interest
shall be deemed to be Additional Rent. Landlord shall only be obligated to give
Tenant such written notice that Fixed Rent or Additional Rent has not been paid
when due two (2) times in any one period of twelve (12) months. There shall be
no abatement of, deduction from, counterclaim or setoff against Fixed Rent or
Additional Rent.
Section 3.2. Intentionally Omitted.
Section 3.3. Rent Reductions for Legal Requirements.
If any of the rents payable hereunder shall be or become uncollectible,
reduced or required to be refunded because of any Legal Requirement, Tenant
shall enter into such agreements and take such other actions (without additional
expense or liability to Tenant whether to Landlord or third parties) as Landlord
may legally request and as may be legally permissible to permit Landlord, during
the continuance of such Legal Requirement, to collect the maximum rents as may
be legally collectible (and not in excess of the amounts reserved therefor under
this Lease). Upon the termination of such Legal Requirement, (a) the rents shall
become and thereafter be payable in accordance with the amounts reserved herein
and (b) Tenant shall pay to Landlord upon demand, to the extent legally
permissible, an amount equal to (i) the rents which would have been paid
pursuant to this Lease but for such Legal Requirement less (ii) the rents and
payments in lieu of rent paid by Tenant during the period in which such Legal
Requirement was in effect. If Tenant in good faith disputes whether Landlord's
request to Tenant complies with Legal Requirements, and the parties are unable
to resolve the matter, then it shall be resolved by a legal opinion from a
reputable New York law firm mutually acceptable to Landlord and Tenant. Landlord
and Tenant shall share equally the fees of such law firm.
Section 3.4. Occupancy Taxes
Tenant shall pay to Landlord upon demand any occupancy tax or tax in
lieu thereof not included in Taxes payable as a result of Tenant's occupancy of
the Premises, if the same shall become payable by Landlord in the first instance
or is at any time required to be paid by Landlord.
ARTICLE 4. COMPLETION AND OCCUPANCY OF THE PREMISES
Section 4.1. Condition of Premises.
Landlord shall deliver the Premises in "AS IS" condition without any
obligation to perform any work for Tenant in the Premises.
Section 4.2. Tenant's Improvements.
Tenant has previously constructed Improvements for its fit-up of the
Premises and may construct future Improvements (collectively, "Tenant's
Improvements"), provided it complies with Landlord's reasonable requirements in
connection with such construction.
ARTICLE 5. USE
Section 5.1. Use.
(a) The Premises shall be used and occupied only for (i) the storage,
distribution, processing, packing, shipping, ticketing and tagging of clothing
and other apparel, (ii) computer processing services, (iii) ancillary office use
in connection with Tenant's business and, except as prohibited in Section 5.2,
(iv) a warehouse retail outlet, and (v) other warehouse and ancillary office
uses and for no other purposes (the "Permitted Use"). Landlord represents and
warrants that Landlord's present use is permitted under the applicable zoning
code, that it has not received any notice of violation relating to its use of
the Real Property that is outstanding at the date of this Lease.
(b) Intentionally Omitted.
Section 5.2. Restrictions on Use.
Tenant shall not use, occupy or permit the Premises or any part thereof
to be used in any manner, or permit anything to be brought into or kept therein,
which would, (a) violate any Legal Requirement, (b) cause or be likely to cause
injury or damage to the Real Property or any part thereof or to any Building
Equipment, (c) constitute a public or private nuisance, (d) emit or discharge
noise, fumes, vapors or odors into the Building or the Building Equipment which
are likely to disturb other occupants of the Building, (e) adversely affect,
impair or interfere with to any significant extent the proper and economical
furnishing of any of the Building services, including the furnishing of
electrical energy, cleaning, heating, ventilating and air conditioning, or the
servicing of all or any part of the Building or Building Equipment, (f) impair
or interfere with to any significant extent the use and enjoyment of any other
area of the Building by, or cause to any significant extent discomfort,
annoyance or inconvenience to, Landlord or any other tenant, (g) adversely
affect the appearance, character or reputation of the Building, or (h) cause
Tenant to default in any of its other obligations under this Lease.
Section 5.3. Tenant's Licenses and Permits.
Tenant shall be responsible for obtaining at its own cost any
governmental license or permit required for the proper and lawful conduct of
Tenant's business in the Premises which is not Landlord's obligation to obtain
under other provisions of this Lease. If failure to secure such license or
permit would adversely affect Landlord or the Building to any significant
extent, then Tenant, at its expense, shall duly procure and thereafter maintain
such license or permit and submit the same to Landlord for inspection. Tenant
shall at all times comply with the terms and conditions of each such license or
permit. In no event shall Tenant's failure to procure or maintain such license
or permit relieve Tenant from its obligations hereunder.
Section 5.4. Floor Loads.
Tenant shall not place a load upon any floor that exceeds either the
floor load per square foot that such floor was designed to carry or which is
allowed by any Legal Requirement.
ARTICLE 6. REAL ESTATE TAXES AND OPERATING EXPENSES
Section 6.1. Tenant's Tax Payment.
(a) Tenant shall pay to Landlord for the Tax Year or portion thereof commencing
at the Commencement Date and each Tax Year (or portion thereof) occurring during
the Term (i) Tenant's Proportionate Share of Taxes for the Tax Year (or portion
thereof) less (ii) the Base Tax Guarantee ("Tenant's Tax Payment"), plus all
Taxes specifically assessed by an assessing authority on any improvements or
additions to the Premises constructed by or on behalf of Tenant.
(b) Landlord shall furnish Tenant Landlord's Statement of Tenant's Tax Payment
for the Tax Year together with a copy of the relevant tax bills. Tenant shall
pay to Landlord Tenant's Tax Payment thirty (30) days prior to the last date the
Taxes are payable. If and to the extent Landlord is entitled to pay the Taxes to
which Tenant's Tax Payment relates in installments, Tenant shall be entitled to
pay Tenant's Tax Payment to Landlord in similar installments, each such
installment of Tenant's Tax Payment to be paid at least thirty (30) days prior
to the last day on which such installment of Taxes is payable without penalty.
(c) If there shall be any increase or decrease, including decreases by reason of
certiorari proceedings, in Taxes for any Tax Year for which Tenant is
responsible for Tenant's Tax Payment, during or after such Tax Year, Landlord
shall furnish to Tenant a revised Landlord's Statement for such Tax Year (which
shall be accompanied by a copy of the relevant tax bills), and Tenant's Tax
Payment for such Tax Year shall be accordingly adjusted. Within fifteen (15)
days after such Landlord's Statement is furnished to Tenant, Tenant shall pay
any additional Tenant's Tax Payment or shall receive credit for any overpayment
in Tenant's Tax Payment shown by such revised Landlord's Statement against
subsequent installments of Tenant's Tax Payment.
(d) For purposes of this Article 6, the amount of any decrease in Taxes for any
Tax Year shall be reduced by the sum of (i) all costs and expenses, including
reasonable counsel fees, incurred by Landlord in connection with such decrease
and (ii) all such costs and expenses incurred by Landlord in connection with
efforts to reduce Taxes for any other Tax Years provided Tenant was obligated to
pay Taxes under this Lease for such prior Tax Years (whether or not any
reduction was actually obtained) not theretofore recovered through tax refunds
for such other Tax Years or otherwise. Nothing herein contained shall obligate
Landlord to bring any application or proceeding seeking a reduction in Taxes or
assessed valuation.
(e) The benefit of any discount for the early payment or prepayment of Taxes
shall accrue solely to the benefit of Landlord and such discount shall not be
subtracted from Taxes except to the extent Tenant shall have provided prior to
the date of such early payment or prepayment the funds for Tenant's
Proportionate Share thereof in which case Tenant shall benefit from the
discount.
(f) Intentionally Omitted.
Section 6.2. Tenant's Right to Contest Taxes.
(a) If Landlord does not elect to contest the Taxes, Tenant shall have the right
to contest the amount or validity, in whole or in part, of any Taxes, or to seek
a reduction in the valuation of the Real Property as assessed for real estate
tax purposes by appropriate proceedings diligently conducted in good faith, but
only after payment of such Taxes unless such payment would operate as a bar to
such contest, in which event Tenant may postpone or defer payment of such Taxes
provided that (i) neither the Real Property nor any part thereof would, by
reason of such postponement or deferment, be in imminent danger of being
forfeited or lost, (ii) Tenant shall have obtained the prior consent to such
postponement or deferment of any Superior Mortgagee, if such consent is required
to be obtained by Landlord under any Superior Mortgage, and (iii) Tenant shall
have provided Landlord or any Superior Mortgagee, if requested, with such
security for the payment of such contested Taxes as Landlord or any Superior
Mortgagee shall deem reasonably adequate. If, at any time during the continuance
of such proceeding, Landlord shall deem the amount so deposited insufficient,
Tenant shall, upon demand, make an additional deposit of such additional amount
as Landlord may reasonably request.
(b) Upon the final termination of any such proceeding, Tenant shall pay the
unpaid or deferred amount of such contested Taxes or part thereof as finally
determined in such proceeding, together with any costs, fees, interest,
penalties or other liabilities in connection therewith, less any amount then
held by Landlord or any Superior Mortgagee on account thereof which Tenant
directs be applied towards such payment.
(c) Landlord shall not be required to join in any proceeding referred to in this
Section 6.2 unless required by law, in which event Landlord shall, upon written
request by Tenant, join in such proceedings or permit the same to be brought in
its name, upon compliance by Tenant with such requirements as Landlord may
reasonably impose. Tenant covenants that Landlord shall not suffer or sustain
any costs or expenses (including, but not limited to, reasonable counsel fees)
or any liability in connection with any such proceeding. Landlord shall have the
right at Landlord's expense to participate in any such proceeding commenced by
Tenant.
(d) Unless Tenant secures the consent in writing of all other tenants in the
Building to prosecute such tax appeal, Tenant will Indemnify such other tenants
if Tenant's tax appeal results in a higher assessed valuation of the Real
Property.
Section 6.3. Operating Expense Payment.
(a) Commencing on the Commencement Date and continuing for each Operation Year
(or portion thereof) occurring during the Term, Tenant shall pay to Landlord as
Additional Rent for such Operation Year a sum ("Tenant's Operating Expense
Payment") equal to Tenant's Proportionate Share of the Operating Expenses. (b)
Commencing on the Commencement Date, and continuing for each Operation Year (or
portion thereof) occurring during the Term, Tenant shall pay to Landlord on
account of Tenant's Operating Expense Payment for the then current Operation
Year an estimated amount of Tenant's Operating Expense Payment for the current
Operation Year ("Tenant's Projected Share") payable in monthly installments.
Tenant's Projected Share for the period from the Commencement Date to December
31, 2003 shall be based on Landlord's reasonable estimate of Tenant's projected
2003 Operating Expenses, which Landlord has furnished to Tenant. Tenant's
Projected Share for 2004 and each following Operation Year during the Term shall
be an amount equal to 105% of Tenant's Operating Expense Payment, if any, for
the prior Operation Year. Tenant's obligation to pay Tenant's Projected Share
shall accrue as of the first day of the relevant Operation Year and Tenant's
Projected Share shall be payable in twelve (12) equal monthly installments, in
advance, on the first day of each month during such Operation Year; provided,
however, that (i) until the first day of the month following the month in which
Landlord's Statement regarding Tenant's Operating Expense Payment for the
preceding Operation Year is furnished to Tenant, Tenant shall pay to Landlord on
the first day of each month an amount equal to one-twelfth (1/12) of Tenant's
Projected Share of Operating Expenses for the preceding Operation Year and (ii)
within fifteen (15) days after such Landlord's Statement is furnished to Tenant,
Tenant shall pay any deficiency in Tenant's Projected Share of Operating
Expenses or, if there shall have been an overpayment, Landlord shall credit the
amount thereof against the next succeeding months' installments of Tenant's
Projected Share of Operating Expenses, or refund such amount within thirty (30)
days if the Term shall have expired.
(c) After the end of each Operation Year commencing with the 2003 Operation Year
and each Operation Year thereafter, Landlord shall furnish to Tenant a
Landlord's Statement setting forth Tenant's Operating Expense Payment for such
Operation Year. If such Landlord's Statement indicates that Tenant's Projected
Share exceeded Tenant's Operating Expense Payment for such Operation Year,
Landlord shall credit the amount of such excess against the succeeding
installments of Tenant's Projected Share, or refund such amount within thirty
(30) days if the Term shall have expired. If such Landlord's Statement shall
indicate that Tenant's Operating Expense Payment exceeded Tenant's Projected
Share for such Operation Year, Tenant shall pay the amount of such excess to
Landlord within fifteen (15) days after receipt of Landlord's Statement.
Section 6.4. Expiration Date.
(a) If the Expiration Date shall occur on a date other than a December 31st any
Additional Rent for the Operation Year or Tax Year in which the Expiration Date
shall occur shall be appropriately prorated.
(b) Nothing in this Article 6 shall be construed so as to result in a decrease
in the amount of Fixed Rent payable hereunder or to permit Tenant to apply the
amount of any over-paid or prepaid Additional Rent hereunder against any rent
other than subsequently accruing installments of Additional Rent; provided,
however, that if, as of the Expiration Date, there shall be unused credits for
overpaid or prepaid Additional Rent pursuant to this Article 6, so long as
Tenant is not in default, such credits may be applied to offset any other
amounts due and payable by Tenant and the balance of such credits, if any, shall
be refunded to Tenant by Landlord, within thirty (30) days after the Expiration
Date.
Section 6.5. Landlord's Statement.
Landlord's failure to render a Landlord's Statement for any Tax Year or
Operation Year under Article 6 shall not prejudice Landlord's right to
thereafter render a Landlord's Statement with respect thereto or with respect to
any subsequent Tax Year or Operation Year, provided if Landlord does not render
a Landlord's Statement within six (6) months after the expiration of a Tax or
Operation Year, as the case may be, Tenant may give Landlord written notice of
such failure and if Landlord does not submit the Landlord's Statement within
thirty (30) days after such notice, Landlord shall, subject to Force Majeure,
forfeit the right to submit such statement for the applicable Operation or Tax
Year. Each Landlord's Statement shall be conclusive and binding upon Tenant
unless within six (6) months after receipt thereof, Tenant shall notify Landlord
that it disputes the correctness of Landlord's Statement, specifying the
particular respects in which the same is claimed to be incorrect, and shall pay
Additional Rent in accordance with the applicable Landlord's Statement, without
prejudice to Tenant's position. If Landlord fails to render a Landlord's
Statement within six (6) months after the expiration of a Tax or Operation Year,
as the case may be, and Tenant disputes the estimated amount of Additional Rent
paid pursuant to the preceding provisions of this Article 6 in respect of such
Tax or Operation Year, Tenant shall notify Landlord that it disputes such amount
within six (6) months after the last date that Landlord was entitled to render a
Landlord's Statement with respect to such Tax or Operation Year, specifying the
particular respects in which it is claimed that Tenant's payments are incorrect.
If such dispute shall not be resolved within seven (7) months after the giving
of such Landlord's Statement, or if Landlord does not give a Landlord's
Statement, seven (7) months after the expiration of the period for Landlord to
render such Statement, Tenant shall submit the dispute to arbitration pursuant
to Article 7 hereof. After timely notification to Landlord from Tenant, and upon
prompt written request from Tenant, Landlord shall permit Tenant or Tenant's
accounting firm a period of sixty (60) days in which to inspect and audit the
books and records of Landlord which are or could be relevant to the accuracy of
said Landlord's Statement or the amounts charged Tenant for the Operation Year.
Such inspection shall be conducted at Landlord's office where the records are
kept in New York, New Jersey or Connecticut, and shall be at such time or times
during business hours as Landlord shall reasonably designate. Tenant shall keep
confidential any information obtained from the books and records of Landlord.
Section 6.6. Refund to Tenant.
If any payment made by Tenant pursuant to the preceding provisions of
this Article 6 is more than ten percent (10%) greater than the amount Tenant
should have paid (the "Overcharge"), Landlord in addition to refunding Tenant
the Overcharge within twenty (20) days after the determination of the Overcharge
shall pay Tenant interest on the Overcharge at the Interest Rate.
ARTICLE 7. LIMITED ARBITRATION
Section 7.1. Limited Arbitration.
(a) Landlord and Tenant agree that any dispute between the parties shall be
resolved by the courts of the State of New York, and not by
arbitration. Notwithstanding the preceding sentence, the parties have
expressly in this Lease agreed to have disputes regarding Landlord's
Statements in Section 6.5 resolved by arbitration if the parties cannot
agree on their resolution.
(b) If arbitration of the issues set forth in Section 7.1(a) applies, then
the Landlord and Tenant agree to submit the disputed matter to
arbitration pursuant to the rules of the American Arbitration
Association as follows except in no event shall any arbitrator award
any punitive damages:
(i) Either party may submit to the other a demand for arbitration in
accordance with the rules of the American Arbitration Association.
(ii) The arbitration shall be conducted with each party naming an arbitrator
within twenty (20) days after a demand for arbitration has been served
and the two arbitrators so selected, shall name a third arbitrator
within the ten (10) day period following the selection of the two
arbitrators and the agreement of both arbitrators selected to serve.
(iii) In the event the two arbitrators are unable to agree upon a third
arbitrator, either party shall have the right to apply to an
appropriate court of jurisdiction of the State where the Premises are
located for the selection of the third arbitrator.
(iv) The arbitration shall be conducted in the City of New York under the
rules of the American Arbitration Association and each party shall pay
the cost of its own arbitrator and shall share equally the cost of the
third arbitrator.
ARTICLE 8. INSURANCE
Section 8.1. Tenant Not to Affect Insurance.
Tenant shall not do or suffer or permit anything to be done in or about
the Premises or the Building which would result in the cancellation of, or the
assertion of any defense by the insurer to any claim under, any policy of
insurance maintained by or for the benefit of Landlord. Upon notice from
Landlord that Tenant has done or suffered or permitted anything to be done in or
about the Premises or the Building which has resulted or will result in the
cancellation of, or the assertion of any defense by the insurer to any claim
under, any policy of insurance maintained by or for the benefit of Landlord,
then Tenant, within twenty (20) days of receipt of such notice (or such shorter
period as may be required to prevent cancellation under any applicable insurance
policy), shall either (i) eliminate the cause of such cancellation or assertion
of defense or (ii) provide a substitute insurance policy containing comparable
coverage from a company reasonably acceptable to Landlord. Notwithstanding the
foregoing, if Tenant has not received a copy of the provision of the insurance
policy that Tenant is accused of violating at least thirty (30) days before
receipt of Landlord's notice of violation, then Tenant shall have thirty (30)
days to elect option (i) or (ii) as specified in the preceding sentence. The
cost of any such substitute insurance policy shall be paid by Landlord and shall
constitute an Operating Expense (provided that if the cost of such substitute
insurance policy exceeds the cost of the policy that is replaced, then such
excess cost shall not be included as an Operating Expense and Tenant shall pay
such excess directly to Landlord on demand). If Tenant fails to eliminate such
cause of cancellation or assertion of defense, and fails to provide such
substitute insurance policy, then Tenant shall Indemnify Landlord against
liability which would have been covered by such insurance to the extent such
liability is not covered by Tenant's insurance under Section 8.3. Nothing in
this Section 8.1 shall limit whatever mitigation requirements are imposed upon
Landlord by applicable law.
Section 8.2. Increase in Insurance Rates
If, by reason of any change in use of the Premises by Tenant, or for
any other reason caused by Tenant, the rate of fire or other type of insurance
(including rent insurance) maintained by Landlord on the Real Property or the
Building Equipment or other property of Landlord shall increase over the prior
rate then in effect, Tenant shall reimburse Landlord, on demand, for that part
of the premiums for such insurance paid by Landlord because of such
circumstance.
Section 8.3. Tenant Liability Insurance.
Tenant shall, at Tenant's cost, obtain and maintain during the Term and
any other period during which Tenant shall have access to or possession of the
Premises (a) comprehensive liability insurance in limits of not less than
$10,000,000 for injury or death arising out of any one occurrence or single
coverage limit for damage to property in respect of any one occurrence, or in
any increased amounts customarily required for similar type buildings protecting
(i) as named insured, Tenant and (ii) as additional named insureds, Landlord and
Landlord's agents and affiliates, the name and address of which have been
furnished to Tenant (collectively, the "Additional Insureds") against any and
all claims for personal injury, death or property damage occurring in, upon,
adjacent to or in connection with the use of the Premises or any part thereof
and (b) insurance against loss or damage by fire and such other risks and
hazards as are insurable under then available standard forms of fire insurance
policies with extended coverage, covering Tenant's Property for ninety percent
(90%) of the full insurable value thereof, protecting Tenant as named insured.
Tenant shall have the right to self insure the insurance specified in Section
8.3(b) (but not Sec. 8.3(a)), provided it maintains a net worth of not less than
Fifty Million and 00/100 Dollars ($50,000,000). The aforesaid public liability
insurance policy shall include a broad form contractual liability endorsement
protecting Tenant against loss arising out of liabilities assumed by Tenant
hereunder by indemnity or otherwise. While constructing any Improvements, Tenant
shall also carry or cause to be carried insurance as required in Article 10. All
insurance to be carried by Tenant shall be written in form and substance
reasonably satisfactory to Landlord by an insurance company of recognized
responsibility permitted to do business in the State of New York. If Tenant
fails to procure or maintain such insurance and to pay all premiums and charges
therefor within ten (10) days after notice from Landlord, Landlord may do so
(but shall not be obligated), whereupon Tenant shall reimburse Landlord upon
demand. All such insurance policies shall contain endorsements providing that
(x) such policies may not be materially changed, amended, cancelled or allowed
to lapse except upon twenty (20) days prior notice to Landlord and the
Additional Insureds, (y) no act or omission of Tenant shall affect or limit the
obligations of the insurer with respect to any other named or additional named
insured and (z) Tenant shall be solely responsible for the payment of all
premiums under such policies and Landlord shall have no obligation for the
payment thereof. On the Commencement Date, certified copies of the original
insurance policies or appropriate certificates shall be deposited with Landlord
and the Additional Insureds. Any endorsements to any such policies shall also be
so deposited promptly upon issuance thereof and each renewal or replacement of a
policy shall be so deposited at least fifteen (15) days prior to the expiration
of such policy.
Section 8.4. Tenant Not to Carry Concurrent Insurance.
Tenant shall not carry separate or additional insurance, concurrent in
form or contributing in the event of any loss or damage with any insurance
required to be obtained by Tenant under this Lease. Tenant may carry any
insurance coverage required of it hereunder pursuant to blanket policies of
insurance so long as the coverage afforded Landlord and the Additional Insureds
thereunder shall not be less than the coverage which would be provided by direct
policies.
Section 8.5. Waiver of Subrogation.
(a) Landlord and Tenant represent that as of the date of this Lease, it has
included in its respective policies insuring against loss, damage or destruction
by fire or other insured casualty a waiver of the insurer's right of subrogation
against the other party (and, in the case of Tenant's policies, against the
Additional Insureds) or, an express agreement that such policy shall not be
invalidated if the insured waives or has waived before the casualty the right of
recovery against any party responsible for a covered casualty. Landlord and
Tenant each agrees to use diligent efforts to continue to have such a waiver or
express agreement in its policies insuring against loss, damage or destruction
by fire or other insured casualty. If such waiver or agreement shall cease to be
obtainable without additional charge or at all, the insured party shall so
notify the other party promptly after notice thereof. If the other party shall
agree in writing to pay the insurer's additional charge therefor, such waiver,
agreement or permission shall (if obtainable) be included in the policy.
(b) As long as Landlord's fire insurance policies include the waiver of
subrogation or agreement referred to in Section 8.5,(a.) Landlord, to the extent
that such insurance is in force and collectible, hereby waives, for itself and
those claiming through or under it, any right of recovery against Tenant, any
other permitted occupant or subtenant of the Premises, and any of their
employees, agents or contractors, for any loss occasioned by fire or other
insured casualty. If at any time any of Landlord's such policies shall not
include such or similar provisions, (i) the waiver set forth in the foregoing
sentence shall, upon notice given by Landlord to Tenant, be of no further force
or effect from and after the giving of such notice (or, if the insurer shall not
grant such waiver for all of the required parties, such waiver shall be of no
force or effect only with respect to the required parties not included in such
waiver), and (ii) Landlord upon written request from Tenant, and Tenant's paying
any extra charge, shall name Tenant as an additional insured under Landlord's
fire policy insuring the Building.
(c) As long as Tenant's fire insurance policies include the waiver of
subrogation or agreement referred to in Section 8.5(a), Tenant, to the extent
that such insurance is in force and collectible, hereby waives (and agrees to
cause all other occupants of the Premises to execute and deliver to Landlord
instruments waiving), for itself and those claiming through or under it, any
right of recovery against Landlord, the Additional Insureds and any of their
employees, agents or contractors, for any loss occasioned by fire or other
insured casualty. If at any time any of Tenant's such policies shall not include
such or similar provisions, (i) the waiver set forth in the foregoing sentence
shall, upon notice given by Tenant to Landlord, be of no further force or effect
from and after the giving of such notice (or, if such insurer shall not grant
such waiver for all of the required parties, such waiver shall be of no force or
effect only with respect to the required parties not included in such waiver),
and (ii) Tenant upon written request from Landlord, and Landlord paying any
extra charge, shall name Landlord as an additional insured under Tenant's fire
policy insuring Tenant's Property.
Section 8.6. Landlord All Risk insurance.
(a) Landlord shall carry, throughout the Term: (i) "all risk" coverage for the
Real Property equal to one hundred (100%) replacement value; (ii) rent insurance
for the Fixed Rent and Additional Rent payable under this Lease for a period
selected by Landlord not to exceed twenty-four (24) months; and (ii) public
liability and property damage insurance in amounts reasonably determined by
Landlord from time to time. The costs of all insurance to be carried by Landlord
pursuant to this Section 8.6 shall be included in Operating Expenses for the
purposes of Article 6 hereof.
(b) Landlord's "all risk" insurance must be provided by insurance companies of
recognized responsibility permitted to write insurance in the State of New York.
Certificates of such insurance must be provided to Tenant upon the Commencement
Date and no later than twenty (20) days prior to expiration of the then current
policy. The policy or certificates shall provide that the insurer will notify
Tenant at least twenty (20) days prior to cancellation, material modification or
expiration of any such policies. Tenant shall have the right to review the
policies (except for such portions which Landlord deems confidential) at
reasonable times upon reasonable notice at locations reasonably designated by
Landlord.
Section 8.7. Tenant's Charges for All Risk Insurance.
(a) Promptly upon Tenant's request, Landlord shall furnish Tenant with a rating
of the Building for fire insurance purposes and the applicable premium for 2003
based on Tenant's particular use. Such rating shall be performed by a national
rating service selected by Landlord, such as Factory Mutual, ISO or similar
organization. Tenant shall furnish any information about its particular use
reasonably requested by such rating organization, and permit such agency to have
access to the Premises.
(b) Within sixty (60) days after Tenant receives the information specified in
Section 8.7(a), Tenant, if it elects, may furnish to Landlord proof of
availability of comparable insurance at a lower rate from an insurance company
meeting all the requirements of Section 8.6. Provided the insurance coverage and
insurance company are acceptable to Landlord's mortgagee, in its sole
discretion, and the insurance company has a Best or comparable rating at least
equal to Landlord's insurance company, then Landlord shall have the option to
select the insurance offered by Tenant, or select its own insurance. If Landlord
selects its own insurance, Landlord will not charge the Tenant more than if
Landlord had selected the insurance offered by Tenant.
(c) Tenant shall have the right to make the election described in Section 8.7(b)
from time to time during the term of this Lease, provided Tenant must offer such
comparable insurance by the later of (i) at least ninety (90) days before the
expiration of Landlord's current insurance policy (which Landlord will furnish
upon request) or (ii) within one-half of the time between when Tenant first
learns of the increase in the premium under Landlord's current policy and the
date when the current policy expires. Landlord will in no event be obligated to
cancel any insurance policy before its expiration. Landlord shall advise Tenant
of any proposed increase in the premium charged under Landlord's current
insurance within five (5) days after Landlord learns of such increase in order
to permit Tenant to comply with the time limitations set forth in the preceding
sentence.
(d) Notwithstanding anything in this Lease to the contrary, Tenant shall pay as
part of Operating Expenses its Proportionate Share of the fire insurance premium
determined in accordance with Section 8.7, even though Landlord's actual cost
for such insurance for the Building may be greater or lesser than such amount.
Section 8.8. Parties Liability for Fire Unaffected.
Except to the extent expressly provided in Section 8.5, nothing
contained in this Lease shall relieve either party of any liability to the other
or to its insurance carriers which such party may have under law or the terms of
this Lease in connection with any damage to the Building by fire or other
casualty.
ARTICLE 9. COMPLIANCE WITH LAWS
Section 9.1. Tenant's Compliance with Laws.
Tenant, at its expense, shall subject to Force Majeure, diligently
comply with all Legal Requirements affecting or related to Tenant's use of the
Premises and Tenant's operations in the Premises (including Tenant Improvements)
provided that Tenant shall have no obligation (other than Tenant's obligation to
contribute to the cost of Capital Expenditures under Section 11.3) to make any
Capital Expenditure in order to comply with Legal Requirements unless such
compliance is required as a consequence of Tenant's particular manner of use of
or operations at the Premises. Tenant shall give Landlord prompt notice of any
notice it receives of any alleged violation of any Legal Requirement. Tenant
shall pay all costs, expenses, fines, penalties and damages which may be imposed
upon Landlord by reason of or arising out of Tenant's failure fully and promptly
to comply with the provisions of this Section 9.1.
Section 9.2. Tenant's Right to Contest Legal Requirements.
Tenant shall have the right, at its sole cost and expense, to challenge
any Legal Requirements to which Tenant is subject by appropriate proceedings
conducted diligently and in good faith, provided (i) neither the Real Property,
nor the Premises, or any part thereof, shall be subject to any threat of damage
or loss, by reason thereof, (ii) Tenant shall have obtained the prior consent to
such contest from any Superior Mortgagee, if such consent is required to be
obtained by Landlord under any Superior Mortgage, (iii) Tenant shall have
provided Landlord, or the Superior Mortgagee with such security, including a
surety bond, as Landlord shall reasonably require, (iv) Landlord shall not be
subject to any civil or criminal fines or prosecutions, or threat of legal
proceedings by any third parties arising out of Tenant's non-compliance with
such Legal Requirements, (v) Landlord shall not be subject to any cost or
expense, including attorneys' fees, by virtue of Tenant's noncompliance with
such Legal Requirements, and (vi) Tenant Indemnifies Landlord against any cost
or expense which Landlord incurs as a result of Tenant's contest of such Legal
Requirements.
Section 9.3. Landlord's Compliance with Legal Requirements.
(a) Landlord shall, at its cost, and not as an Operating Expense, comply with
all Legal Requirements affecting the Premises existing as of the Commencement
Date. Without limiting the generality of the foregoing, Landlord shall, at its
cost, and not as an Operating Expense, cause the existing office space in the
Premises to comply with the requirements of the Americans with Disabilities Act
existing as of the Commencement Date. Within twenty (20) days after Tenant has
knowledge that Landlord has not complied with any Legal Requirements existing as
of the Commencement Date which affects the Premises, Tenant shall give Landlord
written notice thereof. Subject to Force Majeure, Landlord shall proceed
diligently to remedy such noncompliance.
(b) Landlord shall, at its cost, comply with Legal Requirements during the Term
which affect the Premises and which do not relate to Tenant's particular manner
of use or operations at the Premises. To the extent such compliance results in
Landlord having to incur Capital Expenditures, Landlord shall ▇▇▇▇ Tenant for
Tenant's Proportionate Share of such Capital Expenditures, plus interest at the
Interest Rate, amortized equally over a period of ten (10) years, provided
Tenant shall not be responsible for any unpaid portion after the Expiration
Date. Tenant shall pay such amounts to Landlord as Additional Rent within twenty
(20) days after receipt of Landlord's statement setting forth Tenant's
Proportionate Share. Capital Expenditures by Landlord described in this Section
9.3(b) shall not constitute Operating Expenses.
Section 9.4. Tenant's Compliance with Environmental Laws.
(a) Tenant, at its expense (subject to Sections 9.1, 9.3(b), 9.5 and 9.6), shall
comply with all federal, state, county and local environmental laws and
regulations and any other environmentally related Legal Requirements affecting
or related to Tenant's use of and operations at the Premises and Tenant shall
give Landlord prompt notice of any lack of compliance with any of the foregoing
and of any notice it receives of the alleged violation of any such environmental
laws or regulations. Tenant shall pay all costs, expenses, fines, penalties and
damages, including reasonable attorneys' fees, which may be imposed upon
Landlord by reason of or arising out of Tenant's failure fully and promptly to
comply with the provisions of this Section 9.4(a).
(b) Tenant will be solely responsible for and will Indemnify Landlord, its
agents and employees to the extent any claims arise out of or in connection with
the storage, management, treatment, use, release or disposal of toxic or
hazardous materials in, on, from or about the Premises or the Real Property by
Tenant, its employees, agents, representatives or contractors or which arise out
of or in connection with any removal, cleanup and restoration work and related
materials performed by or on behalf of Tenant necessary to return the Premises
or the Real Property including, without limitation, the groundwater, soil, and
soil vapor to the condition existing prior to the appearance of Tenant's toxic
or hazardous materials on the Premises, to the extent required (i) by applicable
laws, regulations, policies, standards, or guidelines of any regulatory
authority having jurisdiction over the Premises or the Real Property for
environmental matters ("Environmental Requirements"), or (ii) to eliminate any
health or environmental hazard to any person, the Premises or the Real Property.
Section 9.5. Landlord's Compliance with Environmental Laws.
(a) Landlord shall, at its cost, and not as an Operating Expense, comply with
any Environmental Requirements affecting the Premises existing as of the
Commencement Date and shall eliminate any health or environmental hazard to any
person, the Premises or the Real Property existing as of the Commencement Date,
and shall not, during the Term, violate any Environmental Requirements which
affect the Premises or the Real Property. Within twenty (20) days after Tenant
has knowledge that Landlord has not complied with the foregoing obligations,
Tenant shall give Landlord written notice thereof. Landlord shall proceed
diligently to remedy such noncompliance or correct such violation. Landlord
shall pay all costs, expenses, fines, penalties and damages, including
reasonable attorneys' fees, which may be imposed upon Tenant by reason of or
arising out of Landlord's failure fully and promptly to comply with the
provisions of this Section 9.5(a).
(b) Landlord will be solely responsible for and will Indemnify Tenant, its
agents and employees, to the extent any claims arise out of or in connection
with the storage, management, treatment, use, release or disposal of toxic or
hazardous materials in, on, from or about the Premises or the Real Property by
Landlord or its affiliates or their respective employees, agents,
representatives or contractors or which arise out of or in connection with any
removal, clean-up or restoration work or related materials performed by or on
behalf of Landlord necessary to return the Premises or the Real Property,
including, without limitation, the ground water, soil, and soil vapor to the
condition existing prior to the appearance of such toxic or hazardous materials
in the Premises or the Real Property, to the extent required (i) by
Environmental Requirements or (ii) to eliminate any health or environmental
hazard to any person, the Premises or the Real Property.
(c) Landlord at its cost, and not as an operating Expense, shall remove all
underground storage tanks, if any, from the Real Property. Such removal will be
performed in accordance with all applicable Legal and Environmental
Requirements.
Section 9.6. Additional Environmental Provisions.
(a) Landlord shall include a provision in all other leases in the Building
(except for leases with affiliates of Landlord) providing in substance that such
tenant shall be responsible in connection with environmental matters in
substantially the same manner and extent as Tenant is responsible under Section
9.4 (or, at Landlord's option, such tenant shall have greater responsibilities
than Tenant in connection with environmental matters). Upon written notice from
Tenant, Landlord shall use diligent efforts to enforce such provision against
such tenant (consistent with the provisions of that tenant's lease) if the
violation thereof causes significant harm to Tenant or to the Premises.
(b) If it should be necessary to undertake any removal, clean-up, restoration or
remediation work in order for the Real Property to comply with Environmental
Requirements, and the need to comply does not result from any actions or
omissions of Landlord or Tenant or their affiliates, or their respective
employees, agents, representatives or contractors, or the need to comply results
from the actions or omissions of any other tenant or occupant in the Building
(other than Landlord and its affiliates), or their respective employees, agents,
representatives or contractors, and such entities fail to assume the financial
responsibility to comply with Environmental Requirements, then Landlord shall
assume the financial responsibility for compliance with such Environmental
Requirements (including reasonable legal fees). Landlord shall ▇▇▇▇ Tenant for
Tenant's Proportionate Share of such expenditures, plus interest at the Interest
Rate amortized equally over a period of seven and one-half (7 1/2) years,
provided Tenant shall not be responsible for any unpaid portion after the
Expiration Date. Subject to Section 9.6(c), Tenant shall pay such amounts to
Landlord as Additional Rent within twenty (20) days after receipt of Landlord's
Statement setting forth Tenant's Proportionate Share.
(c) At such time as Tenant has paid Six Million and 00/100 Dollars
($6,000,000.00), plus applicable interest at the Interest Rate under Section
9.6(b), Tenant may give Landlord written notice advising Landlord that it will
terminate the Lease because it is unwilling to pay any further amounts under
Section 9.6(c). If within thirty (30) days after such notice, Landlord does not
advise Tenant that it will assume Tenant's share in excess of Six Million and
00/100 Dollars plus interest at the Interest Rate, then this Lease shall
automatically terminate.
ARTICLE 10. IMPROVEMENTS
Section 10.1. Consent Requirement for Improvements.
Tenant shall make no Structural Improvements in or to the Premises
without Landlord's prior written consent which consent may be withheld in
Landlord's sole and absolute discretion. Tenant may make all other Improvements
("Non Structural Improvements") in or to the Premises, and Improvements under
the Work Agreement, with Landlord's consent, which consent shall not be
unreasonably withheld, delayed or conditioned and Improvements costing less than
Seventy-Five Thousand and 00/100 Dollars ($75,000.00) and mere decorations
("Minor Improvements") without Landlord's consent. All Improvements shall be
made subject to, and Tenant shall be bound by and observe, all the terms of this
Article, including the following conditions unless waived or consented to by
Landlord in writing:
(a) The Improvements shall not result in a violation of or require a change in
any certificate of occupancy applicable to the Building. (b) The outside
appearance of the Building or any part thereof shall not be affected in any way,
the character, usefulness or rentability of the Building or any part thereof
shall not be materially adversely affected and such Improvements shall not
involve any structural changes or weaken or impair (temporarily or permanently)
the structure or materially lessen the value or usable area of the Premises or
the Building upon completion of the Improvements.
(c) No part of the Building outside of the Premises shall be physically altered,
and there shall be no material interference or disturbance of other tenants.
(d) The proper and economical functioning of any Building Equipment shall not be
materially adversely affected.
(e) All Improvements shall be made at Tenant's sole expense.
(f) On or before the date of termination of this Lease, Tenant shall, at
Landlord's option, remove the Improvements and restore the Premises to their
condition prior to the making of any Improvements by Tenant, reasonable wear and
tear and damage by casualty excepted. If Tenant requests in writing at the time
it submits plans to Landlord under Section 10.1(g) or under the Work Agreement
Landlord will advise Tenant, at the time it approves such plans (assuming they
are approved), or if no plans are required to be submitted to Landlord within
ten (10) days after Tenant notifies Landlord of such proposed Improvements,
whether Tenant will be obligated to remove such Improvements at or before the
termination of this Lease as set forth in this Section 10.1(f). Tenant shall
have no obligation to remove the improvements to the Premises or restore the
portion of the Premises containing such improvements to the condition existing
prior to the construction of such improvements.
(g) Before proceeding with any Improvements (other than Minor Improvements) ,
Tenant shall submit to Landlord three (3) copies of detailed final plans and
specifications therefor, for Landlord's review and prior consent which will not
be unreasonably withheld, delayed or conditioned with respect to Non-Structural
Improvements. Any Improvements for which consent has been received shall be
performed strictly in accordance with approved plans and specifications, and no
amendments or additions thereto shall be made without the prior consent of
Landlord, not to be unreasonably withheld, delayed or conditioned.
(h) Tenant shall not install any materials, fixtures or articles or make any
other Improvements (other than such as would constitute Tenant's Property) which
are subject to liens, conditional sales contracts, chattel mortgages or security
interests.
(i) No Improvements other than Minor Improvements, shall be undertaken except
under the supervision of a licensed architect or licensed professional engineer
reasonably satisfactory to Landlord.
(j) Upon completion of any Improvements (other than mere decorations) Tenant
shall deliver to Landlord three (3) copies of "as-built" plans for such
Improvements.
Section 10.2. Tenant Completion of Improvements.
(a) Tenant agrees that all Improvements shall at all times comply with all Legal
Requirements and shall be made at such times and in such manner as will not
materially interfere with Landlord or other tenants. Tenant, at its expense,
shall (i) obtain all necessary municipal and other governmental permits,
authorizations, approvals and certificates for the commencement and prosecution
of such Improvements and for final approval thereof upon completion, (ii)
deliver three (3) copies thereof to Landlord and (iii) cause all Improvements to
be performed in a good and workmanlike manner, using new materials and equipment
equal in quality to the original installations of the Building.
(b) Tenant agrees that, subject to Force Majeure, all Improvements shall be
promptly commenced and completed and shall be performed so as not to materially
interfere with or delay the occupancy by Landlord or any other tenant or impose
any additional expense upon Landlord in the construction, maintenance, cleaning,
repair, safety, management, security or operation of the Building or the
Building Equipment, and if any such additional expense shall be incurred by
Landlord as a result of Tenant's making of any Improvements, Tenant shall pay
such additional expense promptly upon demand.
(c) Throughout the making of all Improvements (other than mere decorations),
Tenant, at its expense, shall carry or cause to be carried (i) workmen's
compensation insurance in statutory limits covering all persons employed in
connection with such Improvements, (ii) all-risk property insurance, completed
value form, covering all physical loss (including any loss of or damage to
supplies, machinery and equipment) in connection with the making of such
Improvements, and (iii) comprehensive liability insurance, with completed
operations endorsement, covering any occurrence in or about the Real Property in
connection with such Improvements, which comprehensive liability insurance
policy shall satisfy the requirements of Section 8.3. Tenant shall furnish
Landlord with satisfactory evidence that such insurance is in effect before the
commencement of its Improvements and, on request, at reasonable intervals
thereafter.
Section 10.3. Notices of Violation.
Subject to Sections 9.2 and 9.3 and Force Majeure, Tenant, at its
expense, shall promptly procure the cancellation or discharge of all notices of
violation arising from or otherwise connected with the Improvements issued by
any public authority having or asserting jurisdiction, except to the extent such
noncompliance is due to Landlord's violation of an express provision of this
Lease.
Section 10.4. Mechanics' Liens.
(a) Tenant shall promptly pay, subject to retainage and bona fide disputes with
contractors, the cost of Improvements as work thereon progresses. Neither
Landlord nor Landlord's agents shall be liable for any labor or materials
furnished to Tenant upon credit.
(b) Tenant shall Indemnify Landlord against liability for any and all mechanics'
and other liens filed in connection with Improvements, including the liens of
any conditional sales of, or chattel mortgages, title retention agreements,
security agreements or financing statements upon any materials or fixtures
installed in and constituting part of the Premises. Tenant, at its expense,
shall procure the discharge of any such lien by payment, bonding or otherwise,
within thirty (30) days after the filing thereof against any part of the Real
Property (unless Tenant is advised a shorter period of time is applicable to
Landlord, under the terms of any Superior Mortgage). If Tenant shall fail to
cause any such lien to be discharged within the period aforesaid, then, in
addition to any other right or remedy, Landlord may discharge the same either by
paying the amount claimed to be due or by deposit or bonding proceedings, in
which event Landlord shall be entitled, if it elects, to compel the prosecution
of an action for the foreclosure of such lien and to pay the amount of the
judgment in favor of the lien or with interest, costs and allowances. Any amount
so paid by Landlord, and all costs and expenses incurred by Landlord in
connection therewith, shall be payable by Tenant upon demand.
Section 10.5. Landlord Approval of Contractors.
Tenant shall submit for Landlord's prior approval not to be
unreasonably withheld, delayed or conditioned, any general contractors for any
Improvements for which Landlord's prior consent is required pursuant to this
Article. Landlord may exclude from the Building any person attempting to act as
contractor in violation hereof.
Section 10.6. Labor Disputes.
Landlord and Tenant shall cooperate with each other to avoid creating
any difficulty, strike or jurisdictional dispute with other contractors,
mechanics or laborers engaged by Tenant or Landlord or others, or which would
disturb the construction, maintenance, cleaning, repair, management, security,
operation or occupancy of the Building or any part thereof by Landlord, Tenant
or any other tenant.
Section 10.7. Tenant's Fixtures.
Except for items constituting Tenant's Property, all fixtures,
equipment, Improvements and appurtenances attached to or built into the Premises
at the commencement of or during the Term, whether or not at the expense of
Tenant (collectively "Fixtures"), shall be and remain a part of the Premises,
shall be deemed the property of Landlord as of the date such Fixtures are
completed, attached to or built into the Premises and shall not be removed by
Tenant, except as expressly provided in this Lease. No Improvements shall
involve the removal of any Fixtures without Landlord's prior consent, which
consent shall not be unreasonably withheld, delayed or conditioned if they shall
be promptly replaced, at Tenant's expense and free of superior title, liens,
security interests and claims, with like property, of at least equal quality and
value.
Section 10.8. Consent Not Waiver of Landlord's Rights.
Landlord's review of and consent to plans or specifications or consent
to the making of Improvements in the Premises shall not be deemed to be an
agreement by Landlord that the contemplated Improvements comply with any Legal
Requirements or Insurance Requirements or the certificate of occupancy for the
Building nor shall same be deemed a waiver by Landlord of compliance by Tenant
with any of the terms of this Lease.
ARTICLE 11. REPAIRS
Section 11.1. Tenant Repairs.
Subject to Sections 11.2 and 11.3, Tenant, at its sole expense, shall
(i) take good care of the Premises, any Building Equipment which serves only the
Premises and Fixtures therein, and Tenant's Property, (ii) promptly make all
repairs and replacements, interior or exterior, ordinary or extraordinary,
structural and non-structural, foreseen or unforeseen, as and when needed to
preserve the Premises and such Building Equipment, Fixtures and Tenant's
Property and any of the parking lots serving only the Premises, in good working
order and condition, (iii) all maintenance and make all necessary repairs and
replacement to the HVAC (except if it services part of the Building in addition
to the Premises) and any security systems or devices which may be installed in
the Premises by or on behalf of Tenant or any other permitted occupant of the
Premises, and (iv) promptly replace scratched, damaged or broken doors and glass
in and about the Premises and shall be responsible for all repairs and
maintenance of wall and floor coverings in the Premises. All repairs and
replacements made by or on behalf of Tenant or any person claiming through or
under Tenant shall be made in conformity with the provisions of Sections 10.2(a)
(b) (c) (i) and (iii), 10.3 and 10.4, and shall be at least equal in quality and
class to the original work or installation.
Section 11.2. Landlord Repairs.
Except to the extent such repairs and replacements are caused by the
negligence or willful acts of Tenant, its employees, agents or representatives,
or breach by Tenant of its obligations hereunder, including its repair and
maintenance obligations, Landlord shall make, at its expense and not as an
Operating Expense, all the repairs and replacements necessary to keep in good
order and repair, the roof, the structural steel and the foundation of the
Building.
Section 11.3. Capital Expenditures.
Except to the extent such repairs and replacements are caused by the
negligence or willful acts of Tenant, its employees, agents or representatives,
or breach by Tenant of its obligations hereunder, including its repair and
maintenance obligations, Landlord shall be responsible for the repair or
replacement of Major Building Systems or any component thereof which constitutes
a Capital Expenditure. If Landlord incurs such cost, Landlord shall ▇▇▇▇ Tenant
for Tenant's Proportionate Share of such Capital Expenditure, plus interest at
the Interest Rate, amortized equally over a period of ten (10) years, provided
Tenant shall not be responsible for any unpaid portion after the Expiration
Date. Tenant shall pay such amounts to Landlord as Additional Rent within twenty
(20) days after receipt of Landlord's Statement setting forth Tenant's
Proportionate Share. Capital Expenditures described in this Section 11 shall not
constitute Operating Expenses.
Section 11.4. Subject to Casualty and Condemnation.
The obligations of the parties under Article 11 are subject to the
provisions of Articles 15 and 16.
ARTICLE 12. NET LEASE
Section 12.1. Net Lease.
Except as otherwise provided herein, this Lease is a net lease and the
parties hereto intend the Fixed Rent to be absolutely net to Landlord and, any
present or future law to the contrary notwithstanding, shall not terminate, nor
shall Tenant be entitled to any abatement, reduction, setoff, counterclaim,
defense or deduction with respect to any Fixed Rent, Additional Rent or other
sum payable hereunder. Except as otherwise expressly provided herein, the
parties intend that the obligations of Tenant under this Lease shall be separate
and independent covenants and agreements and shall continue unaffected unless
such obligations shall have been modified or terminated pursuant to an express
provision of this Lease.
ARTICLE 13. BUILDING ELECTRICITY COSTS
Section 13.1. Electricity Costs.
Commencing on the Commencement Date and continuing during the remainder
of the Term, Tenant shall pay to the applicable utility company all amounts for
Tenant's consumption of electricity at the Premises as registered on a direct
meter presently installed to measure Tenant's consumption of electricity.
Section 13.2. Intentionally Omitted.
ARTICLE 14. TENANT'S UTILITIES
Section 14.1. Heating.
Commencing on the Commencement Date and continuing throughout the Term,
Tenant shall pay to Landlord monthly Tenant's Proportionate Share of any and all
costs and expenses associated with heating the Premises.
Section 14.2. Water and Sewer Payments.
Beginning on the Commencement Date and continuing throughout the Term,
Tenant shall pay to Landlord monthly Tenant's Proportionate Share of water and
sewer service at the Premises which is not separately metered or submetered for
Tenant's Premises ("Tenant's Utility Payment").
Section 14.3. Added Utility Usage.
If Tenant or any other tenant uses a disproportionate amount of water
or sewer service. such tenant shall pay for such additional usage.
Section 14.4. Landlord's Services.
Subject to Force Majeure, Landlord shall supply to Tenant, on a 24 hour
basis, if needed, heat, water, electricity and sewer service at levels
substantially consistent with such services supplied to Tenant as of the
Commencement Date and normally supplied to class A industrial buildings having
comparable tenants.
ARTICLE 15. DAMAGE TO OR DESTRUCTION OF THE PREMISES
Section 15.1. Reconstruction of Premises.
(a) If the Premises or any part thereof shall be damaged by fire or other
casualty, Tenant shall give prompt written notice thereof to Landlord. If the
Premises or any part thereof shall be damaged or rendered Untenantable by fire
or other insured casualty and Tenant gives notice thereof to Landlord and this
Lease is not terminated pursuant to any provision of this Article, Landlord
shall proceed with reasonable diligence to collect the insurance proceeds
attributable to such damage, if any, and to repair such damage to the Premises,
excluding Tenant's Improvements or Tenant's Property. Except as provided in
Section 15.5, the Fixed Rent and Additional Rent shall be abated based on the
proportion which the square footage of the Premises rendered Untenantable bears
to the total square footage of the Premises from the date of the damage to the
date that the Premises shall no longer be Untenantable. Such period shall
include a reasonable time for Tenant, exercising due diligence, to construct its
Tenant's Improvements and its material handling equipment. Landlord shall
reasonably cooperate with Tenant to facilitate Tenant's installation of Tenant's
Improvements and Tenant's Property. If Tenant reoccupies a portion of the
Premises during the period of repair for the conduct of its business, the Fixed
Rent and Additional Rent allocable to such reoccupied portion, based upon the
proportion which the reoccupied portion of the Premises bears to the total area
of the Premises, shall be payable by Tenant from the date of such occupancy.
(b) In the event of any damage or destruction to any part of the Premises,
Tenant shall cooperate fully with Landlord with respect to Landlord's efforts to
collect any insurance proceeds that may be payable to Landlord under Landlord's
insurance policies on account of such damage or destruction. In furtherance
thereof, Tenant shall not demolish or otherwise alter the portion of the
Premises affected by such damage or destruction (other than as may be required
by Legal Requirements, emergency conditions or as part of Tenant's efforts to
prevent further damage) without Landlord's consent. If Landlord refuses to
consent to Tenant's request to demolish or alter any part of the Premises, and
such refusal results in additional portions of the Premises being rendered
untenantable for the conduct of Tenant's business, the abatement of Fixed and
Additional Rent shall extend to such additional Premises until they are rendered
tenantable for the conduct of Tenant's business.
Section 15.2. Termination of Lease.
(a) In the event of any fire or other casualty to the Premises, Landlord shall,
within ninety (90) days of such fire or other casualty, provide Tenant with a
written notice (the "Landlord's Notice") setting forth a Qualified Architect's
projected reconstruction time for the Premises. If the Qualified Architect
determines that the Landlord will not be able to reconstruct the Premises
(excluding the Tenant's Improvements) within eighteen (18) months from the
occurrence of such casualty (or within six (6) months during the last two (2)
years of the Term) (unless Tenant elects to exercise its option to extend the
Lease), Landlord and Tenant shall each have the option to terminate this Lease.
If Landlord elects to terminate this Lease, it shall notify Tenant as part of
Landlord's Notice. If Tenant elects to terminate this Lease, it shall notify
Landlord within thirty (30) days of receipt of Landlord's Notice. In the event
the Lease is not terminated by either Landlord or Tenant as hereinabove
permitted, Landlord shall, subject to Force Majeure, commence and proceed with
diligence to restore the Premises, except for Tenant's Improvements and Tenant's
Property.
(b) If Landlord, except for Force Majeure, is unable to rebuild and restore the
Premises to the condition that existed prior to the casualty (except for Tenant
Improvements) within thirty (30) days after the greater of: (a) the expiration
of the restoration time accompanying Landlord's Notice or (b) eighteen (18)
months, (or six (6) months during the last two (2) years of the Term (unless
Tenant elects to exercise its option to extend the Term)), then this Lease and
the Term hereof may at the election of Tenant be terminated by notice in writing
from Tenant to Landlord, which notice shall be effective thirty (30) days after
the giving of such notice if the Premises have not been restored by that date.
If the Premises have been restored within said thirty (30) day period from the
date the notice is given, the Lease shall continue in full force and effect.
(c) If Landlord is unable to rebuild and restore the Premises to the condition
that existed prior to the casualty (except for Tenant Improvements) within
forty-five (45) days after the expiration of the restoration time accompanying
Landlord's Notice, and such restoration time is eighteen (18) months or less,
then the rent abatement to which Tenant is entitled pursuant to Section 15.1
shall be increased (i) to 150% of the amount thereof commencing on the 46th day
following expiration of the restoration time accompanying Landlord's Notice and
ending on the 90th day following the expiration of such restoration time (or
such earlier date upon which the abatement period described in Section 15.1
shall expire), and (ii) if the abatement period described in Section 15.1 has
not expired by the 90th day following the expiration of the restoration time
accompanying Landlord's Notice, to 200% of the amount thereof commencing on the
91st day following the expiration of such restoration time and continuing until
the expiration of the abatement period described in Section 15.1. Tenant's right
to rent abatement under this Section 15.2(c) shall be subject to Force Majeure
and may only be used by Tenant to reduce Fixed Rent and Additional Rent payable
under this Lease.
(d) If Landlord is obligated to or elects to restore the Premises as herein
provided, Landlord shall be obligated to restore the Premises to substantially
their former condition as of the Commencement Date in accordance with all Legal
Requirements.
Section 15.3. Tenant's Property and Tenant's Improvements.
As long as Tenant's fire insurance policies include the waiver of
subrogation or agreement referred to in Section 8.5(a), Landlord shall not be
liable for any inconvenience or annoyance to Tenant or injury to the business of
Tenant or to Tenant's Property or Tenant's Improvements occasioned by damage by
fire or other casualty or the repair thereof, but Landlord shall use reasonable
efforts to minimize disruption to Tenant's operations. Landlord will not carry
insurance of any kind on Tenant's Property or Tenant's Improvements, and
Landlord shall not be obligated to repair any damage thereto or replace the
same, and Tenant releases Landlord from any damages to Tenant or Tenant's
Property or Tenant's Improvements resulting from fire or other casualty no
matter how caused.
Section 15.4. No Release of Tenant.
Except as expressly provided in Section 8.5, nothing herein contained
shall relieve Tenant from any liability to Landlord or to its insurers in
connection with any damage to the Premises or the Building by fire or other
casualty if Tenant shall be legally liable in such respect. Except as provided
in this Section 15.4 or a provision expressly designated to cover matters of
termination of this Lease or periods after such termination, or a provision that
expressly survives this Lease, termination of this Lease under Article 15 shall
relieve all parties from liability to each other under the Lease.
Section 15.5. Tenant Effect on Insurance.
Notwithstanding any of the foregoing provisions of this Article, if,
Tenant, or any of its employees, agents, licensees or contractors, causes
Landlord or the Additional Insureds to be unable to collect all of the insurance
proceeds (including rent insurance proceeds) applicable to damage or destruction
of the Premises or the Building by fire or other casualty under Landlord's
insurance coverages, then, without prejudice to any other remedy which may be
available against Tenant, the abatement of rent provided for in this Article
shall not be effective to the extent of the uncollectible insurance proceeds.
ARTICLE 16. EMINENT DOMAIN
Section 16.1. Total Condemnation.
If the whole or substantially the whole of the Premises shall be
acquired or condemned by eminent domain for any public or quasi-public use or
purpose, this Lease shall terminate as of the date of the vesting or acquisition
of title in the condemning authority with the same effect as if said date were
the Expiration Date. If only a part of the Premises shall be so acquired or
condemned then, except as otherwise provided in this Article, this Lease shall
continue in force and effect but, from the date of the vesting of title, the
Fixed Rent shall be an amount which bears the same ratio to the Fixed Rent
payable immediately prior to such condemnation as the square footage of the
untaken portion of the Premises available for Tenant's use bears to the square
footage of the entire Premises immediately before the taking. Any Additional
Rent payable shall be adjusted to reflect the diminution of the Premises. If
there is any disagreement on the square footage, before and after the taking, it
shall be determined by the Qualified Architect. Pending such determination,
Tenant shall pay to Landlord rent as reasonably estimated by Landlord, subject
to prompt adjustment after such determination. For purposes of this Article 16,
the terms "condemnation" "taken" "sold" or "acquisition" as used herein shall
include any agreement in lieu of or in anticipation of the exercise of the power
of eminent domain between Landlord and any governmental authority authorized to
exercise the power of eminent domain.
Section 16.2. Termination of Lease.
If less than the whole or substantially the whole of the Premises but
greater than twenty percent (20%) of the rentable square footage of the Premises
is taken or sold, Tenant may terminate this Lease by giving written notice
thereof to Landlord in which event this Lease shall terminate as of the date
when physical possession of such portion of the Building is taken by the
condemning authority. If twenty percent (20%) or more of the Tenant's Parking
Area (unless Landlord provides alternative parking spaces in reasonable
proximity to the Building) is thus taken or sold, Tenant may terminate this
Lease by giving written notice thereof to Landlord in which event this Lease
shall terminate as of the date when physical possession of such portion of
Tenant's Parking Area is taken by the condemning authority. Tenant must give
such notice within thirty (30) days after it has received from Landlord written
notice of the taking or sale. In the event that notice of termination is given
by Tenant, this Lease shall terminate as of the date when physical possession of
such portion of the Building or Parking Area is taken with the same effect as if
that date were the Expiration Date. In the event of any termination of this
lease pursuant to the provisions of this Article 16, the Basic Rent and
Additional Rent shall be apportioned as of the date of termination and any
prepaid rent for any period after such date shall be promptly refunded by
Landlord to Tenant.
Section 16.3. Restoration of the Premises.
If a part of the Premises shall be so acquired or condemned, other than
under Section 16.5, and this Lease shall not be terminated pursuant to the
provisions of this Article 16, Landlord, at its expense, shall with due
diligence restore that part of the Premises not so acquired or condemned to a
self-contained rental unit as speedily as practical to substantially its former
condition, provided Landlord shall have no responsibility to restore Tenant's
Property.
Section 16.4. Condemnation Award.
In the event of any such acquisition or condemnation of all or any part
of the Premises, Landlord shall be entitled to receive the entire compensation
or award therefor. Tenant shall have no claim against Landlord or the condemning
authority for the value of any unexpired portion of the Term or for Tenant's
leasehold interest and Tenant hereby expressly assigns to Landlord all of its
right, title and interest in and to any such award, and also agrees to execute
any and all further documents that may be required to facilitate the collection
thereof by Landlord. Nothing contained in this Section 16.4 shall be deemed to
prevent Tenant from making a separate claim in any condemnation proceeding for
any moving expenses or for the value of any of Tenant's Property which would be
removable at the end of the Term, provided such award shall be made by the
condemnation court in addition to, and shall not result in a reduction of, the
award made by it for the Real Property and the Building Equipment so taken.
Section 16.5. Temporary Taking.
If the temporary use or occupancy of all or any part of the Premises
shall be condemned or taken for any public or quasi-public use or purpose during
the Term, this Lease and the Term shall be and remain unaffected by such
condemnation or taking and Tenant shall continue to be responsible for all of
its obligations hereunder (except to the extent prevented from so doing by
reason of such condemnation or taking). In such event, however, Tenant shall be
entitled to appear, claim, prove and receive the entire award unless the period
of temporary use or occupancy extends beyond the Expiration Date, in which event
Landlord shall be entitled to appear, claim, prove and receive that portion of
the award attributable to the restoration of the Premises, and the balance of
such award shall be apportioned between Landlord and Tenant as of the Expiration
Date. At the termination of such temporary use or occupancy prior to the
Expiration Date, Tenant, at its own expense, shall restore the Premises as
nearly as possible to their condition prior to the condemnation or taking.
ARTICLE 17. ASSIGNMENT, MORTGAGING AND SUBLETTING
Section 17.1. Landlord Consent Required.
(a) Neither this Lease nor all or any part of the leasehold interest created
hereby nor any interest of Tenant in any sublease shall, by operation of law or
otherwise, be assigned, mortgaged, pledged, encumbered or otherwise transferred
by Tenant or Tenant's legal representatives or successors in interest and
neither the Premises nor any part thereof shall be sublet or be used or occupied
for any purpose by anyone other than Tenant, without the prior consent of
Landlord in each instance, which consent shall be at Landlord's sole discretion,
except as otherwise provided in this Article. No permitted subtenant shall
assign, encumber, modify or extend its sublease or further sublet all or any
portion of its sublet space, or otherwise permit any portion of the sublet space
to be used or occupied by others without the prior consent of Landlord in each
instance, which consent shall be at Landlord's sole discretion, and each
proposed sublease shall contain appropriate prohibitions in furtherance of the
foregoing. Any assignment, sublease, mortgage, pledge, encumbrance or transfer
in contravention of this Article 17 shall be void.
(b) For purposes of this Article 17, the following events shall be deemed an
assignment of this Lease or a sublease, as appropriate: (i) the issuance of
equity interests in Tenant or any subtenant (whether stock or partnership
interest or otherwise) to any person or group of related persons, in a single
transaction or a series of related or unrelated transactions, such that,
following such issuance, such person or group shall have control of Tenant or
such subtenant; or (ii) a transfer of control of Tenant or any subtenant in a
single transaction or a series of related or unrelated transactions, except that
the transfer of the outstanding capital stock of any corporate Tenant or
subtenant (by persons or parties other than "insiders" within the meaning of the
Securities Exchange Act of 1934, as amended) through the "over-the-counter"
market or any recognized national securities exchange shall not be included in
the determination of whether control has been transferred. "Control" shall mean
ownership of more than fifty percent (50%) of all of the voting stock of such
corporation or more than fifty percent (50%) of all of the legal and equitable
interest in any other business entity. No transaction described in this Section
17.1(b) shall be deemed an assignment or sublease if after such transaction,
Tenant shall have total assets, including this Lease, of Fifty Million and
00/100 Dollars ($50,000,000) or more computed in accordance with generally
accepted accounting principles.
(c) Anything herein to the contrary notwithstanding, Tenant shall be free to
create security interests in Tenant's material handling equipment and Tenant's
Property with the consent of Landlord, not to be unreasonably withheld, delayed
or conditioned.
Section 17.2. Tenant Not Released.
If this Lease is assigned, whether or not in violation of the terms of
this Lease, Landlord may collect rent from the assignee. If the Premises or any
part thereof is sublet or is used or occupied by anybody other than Tenant,
Landlord may, after an Event of Default by Tenant, collect rent from such
subtenant or occupant. In either event, Landlord may apply the next amount
collected to the rents herein reserved. The consent by Landlord to an
assignment, transfer, encumbering or subletting pursuant to any provision of
this Lease shall not relieve Tenant or any assignee or subtenant from obtaining
the express prior consent of Landlord to any other or further assignment,
transfer, encumbering or subletting. Neither any assignment of this Lease nor
any subletting, occupancy or use of the Premises or any part thereof by any
person other than Tenant, nor any collection of rent by Landlord from any person
other than Tenant, nor any application of any such rent as provided in this
Article shall be deemed a waiver of any of the provisions of Section 17.1, or
relieve, impair, release or discharge Tenant of its obligation fully to perform
the terms of this Lease on Tenant's part to be performed, and Tenant shall
remain fully and primarily liable hereunder.
Section 17.3. Assignment and Sublease to Affiliates.
Tenant may, without Landlord's prior consent but subject to Section
17.2, assign or transfer its entire interest in this Lease to any affiliate of
Tenant and/or permit any affiliate of Tenant to sublet all or part of the
Premises for any of the purposes permitted to Tenant, provided (a) an Event of
Default by Tenant shall not have occurred (unless Landlord in its sole
discretion accepts Tenant's cure of such Event of Default), (b) Landlord is
given at least ten (10) days prior notice of such sublease, and (c) Landlord is
furnished a duly executed copy of the assignment or sublease within ten (10)
days after its execution.
Section 17.4. Transfer to Successor Corporation.
(a) Tenant may, without Landlord's prior consent, but upon prior notice to
Landlord, assign or transfer its entire interest in this Lease and the leasehold
estate hereby created to a Successor Corporation (as hereinafter defined);
provided an Event of Default by Tenant shall not have occurred.
(b) A "Successor Corporation" shall mean (i) a corporation into which or with
which Tenant is merged or consolidated, provided that by operation of law or by
effective provisions contained in the instruments of merger or consolidation,
the liabilities of the participating corporations are assumed by the corporation
surviving such merger or consolidation, (ii) a corporation acquiring this Lease
and the estate hereby granted together with the goodwill and all or
substantially all of the other property and assets of Tenant and assuming all or
substantially all of the liabilities of Tenant or (iii) any corporate successor
to a successor corporation by either of the methods described in clauses (i) and
(ii) above; provided, however, that the corporation surviving such merger or
created by such consolidation or acquiring such assets and assuming such
liabilities, as the case may be shall have, immediately following such merger,
consolidation or asset acquisition, a net worth, as determined in accordance
with generally accepted accounting principles and certified to Landlord by an
independent certified public accountant of Fifty Million and 00/100 Dollars
($50,000,000.00), or the net worth of Tenant immediately prior to such merger,
consolidation or asset acquisition, whichever is less.
(c) No assignment made pursuant to this Section shall be valid unless, within
ten (10) days after the execution thereof, Tenant shall deliver to Landlord a
duplicate original instrument of assignment and assumption, duly executed by
Tenant and by the assignee and in form and substance satisfactory to Landlord,
wherein such assignee shall assume performance of all terms of this Lease on
Tenant's part to be performed.
Section 17.5. Landlord Take Back and Consent Rights.
(a) Other than as set forth under Sections 17.3 and 17.4, if Tenant desires to
sublet all or any part of the Premises or to assign all or part of its interest
in this Lease, Tenant shall give notice thereof to Landlord, which notice shall
include the portion of the Premises the Tenant desires to sublease or assign,
and the date when such sublease or assignment would commence, which date shall
be no earlier than nine (9) months after Tenant's notice under this Section
17.5(a), provided that Tenant need only give three (3) months notice in the case
of a Permitted Sublease.
(b) The notice referred to in Section 17.5(a) shall be deemed an offer from
Tenant whereby Landlord may, at its option, terminate this Lease with respect to
the space specified in the notice (the "Take-Back Space"). Landlord may exercise
its option by giving notice thereof to Tenant at any time within thirty (30)
days after receipt of the notice submitted by Tenant pursuant to Section 17.5(a)
above. Section 17.5(b) shall not apply to a Permitted Sublease.
(c) If Landlord exercises its option to terminate this Lease with respect to the
Take-Back Space in the circumstances set forth in Section 17.5(b) above, then
(i) this Lease shall end and expire with respect to the TakeBack Space on the
date that the proposed sublease or assignment was to commence; (ii) from and
after such date, the rents hereunder shall be adjusted, on a proportionate
rentable area basis, to reflect the elimination of the Take Back Space from the
Premises; (iii) Landlord shall retain all sums arising from the leasing of the
Take-Back Space; (iv) Tenant, at Landlord's expense, shall, if needed, provide
and permit reasonable means of ingress to and egress from the Take-Back Space
through the remainder of the Premises; and (v) Landlord shall incur the costs
reasonably required to physically separate the Take-Back Space from the
remainder of the Premises and in complying with all Legal Requirements and
Insurance Requirements in connection therewith (and Tenant shall afford Landlord
and its agents reasonable access to the Premises for the purpose of making such
repairs and alterations). Upon request of either party, Landlord and Tenant
shall execute and deliver a supplementary agreement appropriately modifying this
Lease to reflect the surrender of the Take-Back Space.
(d) If Landlord shall not exercise the option provided in Section 17.5(b),
Landlord shall not with respect to such space, and shall not with respect to a
Permitted Sublease, unreasonably withhold, delay or condition its consent to
such proposed subleasing or assignment. Landlord shall not be deemed to have
unreasonably withheld its consent to a sublease of part or all of the Premises
or an assignment of this Lease if its consent is withheld because (i) Tenant is
then in default hereunder; (ii) the prospective tenant's use poses an
unreasonable risk of adverse environmental conditions which could require a
clean-up or might negatively affect the operations of any other tenant or
occupant in the Building; (iii) the portion of the Premises which Tenant
proposes to sublease, including the means of ingress and egress thereto or the
proposed use thereof, or the remaining portion of the Premises, or the proposed
use thereof, will violate any town, county, state or federal law, ordinance or
regulation, or would so divide the space as to make operation of the Building to
any significant extent more difficult or inefficient; (iv) the proposed use of
the Premises by the subtenant or assignee does not conform with the use set
forth in Article 5 hereof; (v) the subtenant or assignee is of a character or is
engaged in a business which would be deleterious to the reputation of the
Building or of the Landlord; (vi) the subtenant or assignee is not sufficiently
financially responsible to perform its obligations under the proposed sublease
or assignment; or (vii) the sublease or assignment is for less than the entirety
of Sections A and B or Sections C, D and E plus the Boiler Room, as shown on the
floor plan set forth as Exhibit E, other than for a Permitted Sublease; or (
provided, however, that the foregoing are merely examples of reasons for which
Landlord may withhold its consent and shall not be deemed exclusive of any
permitted reasons for reasonably withholding consent, whether similar or
dissimilar to the foregoing examples.
Section 17.6. Sharing of Profits on Take Back.
If Landlord shall consent to any assignment or subletting by Tenant
under Section 17.5, including consenting to a Permitted Sublease, then Tenant
shall pay to Landlord the following amounts: (a) in the case of an assignment,
an amount equal to one third of all Consideration (in excess of any rent
received by Tenant after such assignment) received by Tenant from its assignee
for the assignment; and (b) in the case of a subletting, one third of any rents
or other Consideration paid under the sublease in excess of the rents payable
for the subleased space (on a proportionate rentable area basis) hereunder for
the same period. The term "Consideration" shall include any sums paid for the
purchase or rental of Tenant's Property in excess of the fair market value
thereof. Brokerage commissions, advertising costs, reasonable legal costs,
tenant improvements and all other reasonable and appropriate costs incurred by
Tenant in connection with such assignment or subletting shall be deducted from
such payments to Landlord to the extent actually paid and to the extent not paid
to affiliates of Tenant. The provisions of this Section 17.6 shall not apply to
an assignment or subletting pursuant to the provisions of Section 17.1(b), 17.3
or 17.4.
Section 17.7. Assignment/Subletting Requirements.
(a) Tenant shall give Landlord at least twenty (20) days advance notice of any
intended advertisement or other offering (including by listing with a broker) of
all or any part of the Premises, whether for assignment or subletting.
(b) Tenant shall not propose to assign this Lease or sublet all or any part of
the Premises (i) to a person entitled, directly or indirectly, to diplomatic or
sovereign immunity or not subject to service of process in New York State or to
the jurisdiction of the state and federal courts located in New York State, or
(ii) to a person who is then negotiating with Landlord for the rental of any
space in the Building.
(c) No subletting shall be for a term ending later than the day prior to the
Expiration Date and any portion of a proposed term of any sublease or any
renewal or extension thereof which purports to extend beyond such date, or the
date of sooner termination of the Term, is hereby deemed to be a nullity.
(d) Tenant shall, within ten (10) days after the commencement of the term of a
permitted sublease, give Landlord notice of such commencement, or in the case of
permitted assignment, notice of the effectiveness of such assignment.
(e) If Landlord consents to a proposed sublease or assignment and the same is
not executed within one hundred eighty (180) days after the giving of such
consent, then Tenant shall again comply with all of the provisions and
conditions of this Article before assigning this Lease or subletting all or any
part of the Premises.
Section 17.8. Landlord's Rights on Subleases.
If Landlord shall recover or come into possession of the Premises
before the Expiration Date, Landlord shall have the right to take over any
sublease made by Tenant and to succeed to all rights of Tenant thereunder, and
Tenant hereby assigns (effective as of the date of Landlord's succession to
Tenant's estate in the Premises) such subleases as Landlord may elect to take
over. Every subletting hereunder shall be subject to the condition that, from
and after the termination of this Lease or re-entry by Landlord hereunder or
other succession by Landlord to Tenant's estate in the Premises the subtenant
shall waive any right to surrender possession or to terminate the sublease
(except for specific surrender or termination rights granted in the sublease)
and, at Landlord's election, shall be bound to Landlord for the balance of the
term thereof and shall attorn to and recognize Landlord, as its landlord, under
all of the then executory terms of such sublease, except that Landlord shall not
(a) be liable for any previous act, omission or negligence of Tenant under such
sublease, (b) be subject to any counterclaim, defense or offset not expressly
provided for in such sublease theretofore accruing to such subtenant against
Tenant, (c) be bound by any previous modification or amendment of such sublease
made without Landlord's consent not to be unreasonably withheld, delayed or
conditioned, or by any previous prepayment of more than one month's rent and
additional rent unless paid as provided in the sublease, or (d) be obligated to
perform any repairs or other work in the subleased space or the Building beyond
Landlord's obligations under this Lease, and each subtenant shall execute and
deliver such instruments as Landlord may reasonably request to evidence and
confirm such attornment. Each subtenant or licensee of Tenant, upon and as a
condition of occupying or using the Premises or any part thereof, shall be bound
by the provisions set forth in Section 8.5.
Section 17.9. Bankruptcy Assumption.
(a) If Tenant by its trustee in bankruptcy assumes this Lease and proposes to
assign the same pursuant to the provisions of the Bankruptcy Code to any person
or entity who shall have made a bona fide offer to accept an assignment of this
Lease on terms acceptable to the Tenant, then notice of such proposed assignment
shall be given to Landlord by Tenant no later than twenty (20) days after
receipt of such offer by Tenant, but in any event no later than ten (10) days
prior to the date that Tenant shall make application to a court of competent
jurisdiction for authority and approval to enter into such assignment and
assumption and subject to any contrary direction of the Bankruptcy Court. Such
notice shall set forth (a) the name and address of such person, (b) all of the
terms and conditions of such offer, and (c) adequate assurance of future
performance by such person under the Lease, including, without limitation, the
assurance referred to in Section 365(b)(3) of the Bankruptcy Code. Landlord
shall have the prior right and option, to be exercised by notice to Tenant given
at any time prior to the effective date of such proposed assignment, to accept
an assignment of this Lease upon the same terms and conditions and for the same
consideration, if any, as the bona fide offer made by such person, less any
brokerage commissions which would otherwise be payable by Tenant out of the
consideration to be paid by such person in connection with the assignment of
this Lease. Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed without further act or deed to
have assumed all of the obligations arising under this Lease from and after the
date of such assignment. Any such assignee shall execute and deliver to Landlord
upon demand an instrument confirming such assumption. If this Lease is assigned
to any person or entity pursuant to the provisions of the Bankruptcy Code, any
and all monies or other consideration payable or otherwise to be delivered in
connection with such assignment shall be paid or delivered to Landlord, shall be
and remain the exclusive property of Landlord and shall not constitute property
of Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code.
Any and all monies or other consideration constituting Landlord's property under
the preceding sentence not paid, or delivered to Landlord shall be held in trust
for the benefit of Landlord and shall be promptly paid to or turned over to
Landlord. The provisions of this Section 17.9(a) are subject to any contrary
direction of the Bankruptcy Court.
(b) The term "adequate assurance of future performance" as used in this Lease
shall mean (in addition to the assurances called for in said Section 365(b)(3)
and subject to any contrary direction of the Bankruptcy Court that any proposed
assignee shall, among other things, (a) deposit with Landlord on the assumption
of this Lease an amount equal to the then Fixed Rent and Additional Rent as
security for the faithful performance and observance by such assignee of the
terms and obligations of this Lease, which sum shall be held in accordance with
the provisions of Article 36 hereof, (b) furnish Landlord with financial
statements of such assignee for the prior three (3) fiscal years, as finally
determined after an audit and certified as correct by a certified public
accountant, which financial statements shall show a net worth at least equal to
five (5) times the then Fixed Rent plus Additional Rent payable in the year such
statements shall be furnished, (c) grant to Landlord a security interest in such
property of the proposed assignee as Landlord shall deem necessary to secure
such assignee's future performance under this Lease, and (d) provide such other
information or take such action as Landlord, in its reasonable judgment, shall
determine is necessary to provide adequate assurance of the performance by such
assignee of its obligations under the Lease.
ARTICLE 18. SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE
Section 18.1. Subordination.
(a) This Lease and Tenant's interests hereunder are, subject to Section 18.5,
subject and subordinate to: (i) all future ground leases, operating leases,
superior leases, sale-leasebacks or master leases by Landlord, overriding leases
and underlying leases and grants of term of the Land and the Building or any
portion thereof (the "Superior Lease" and the lessor of which is hereinafter
referred to as the "Superior Lessor"); (ii) all mortgages, deeds of trust, and
building loan agreements which may hereafter affect all or any portion of the
Land, the Building or the Superior Lease (the "Superior Mortgage", the holder of
which is hereinafter referred to as a "Superior Mortgagee", whether or not the
Superior Mortgage shall also cover other lands or buildings or leases; (iii)
each advance made under the Superior Mortgage; and (iv) all renewals,
modifications, replacements, substitutions and extensions of the Superior Lease
and the Superior Mortgage (either or both of which is hereinafter referred to as
"Superior Interest"). Subject to Section 18.5, the provisions of this subsection
shall be self-operative and no further instrument of subordination shall be
required.
(b) Subject to Section 18.5, Tenant shall promptly execute and deliver, at its
expense, any instrument, in recordable form if requested, that Landlord, any
Superior Lessor or any Superior Mortgagee may reasonably request, from time to
time, to evidence and confirm such subordination.
(c) Any Superior Mortgagee may elect that this Lease shall have priority over
such Superior Mortgage and, upon notification by such Superior Mortgagee to
Tenant, this Lease shall be deemed to have priority over such Superior Mortgage,
whether this Lease is dated prior to or subsequent to the date of such Superior
Mortgage.
(d) If, in connection with obtaining, continuing or renewing financing for which
the Building, Land or the interest of the lessee under the Superior Lease
represents collateral, in whole or in part, the Superior Mortgagee or proposed
Superior Mortgagee shall request reasonable modifications of this Lease as a
condition of such financing, Tenant shall not withhold its consent if in
Tenant's sole good faith judgment such modifications do not materially and
adversely increase the obligations or diminish the rights of Tenant under this
Lease.
(e) Landlord represents and warrants there is no Superior Interest affecting the
Land or the Building as of the date of this Lease.
Section 18.2. Tenant not to Violate Mortgage.
Tenant shall not knowingly do or permit anything to be done in
violation of this Lease which would constitute a default under a Superior
Mortgage or a Superior Lease or cause a Superior Lease to be terminated or
forfeited by virtue of any rights of termination or forfeiture reserved or
vested in any Superior Lessor.
Section 18.3. Attornment to Successor Landlords.
(a) If at any time any Superior Lessor, Superior Mortgagee or any other person
or the successors or assigns of any of the foregoing (such Superior Lessor,
Superior Mortgagee and any such other person or successor or assign being
referred to as "Successor Landlord") shall succeed to the rights of Landlord
under this Lease, Tenant shall attorn to and recognize any such Successor
Landlord as Tenant's landlord under this Lease upon the then executory terms of
this Lease. The provisions of this subsection shall inure to the benefit of any
such Successor Landlord, shall apply notwithstanding that, as a matter of law,
this Lease may terminate upon the termination of the Superior Lease, shall be
self-operative upon any such request, and no further instrument shall be
required to give effect to said provisions.
(b) Upon the request of any such Successor Landlord, Tenant shall execute and
deliver, from time to time, instruments reasonably satisfactory to any such
Successor Landlord, in recordable form if requested, to evidence and confirm the
foregoing provisions of this Section, acknowledging such attornment and setting
forth the terms and conditions of Tenant's tenancy.
(c) Upon such attornment as provided in the foregoing provisions of this
Section, this Lease shall continue in full force and effect as a direct lease
between such Successor Landlord and Tenant upon all of the then executory terms
of this Lease except that such Successor Landlord shall not be: (i) liable for
any act or omission or negligence of any prior Landlord; (ii) subject to any
counterclaim, defense or offset which theretofore shall have accrued to Tenant
against any prior Landlord; (iii) bound by the payment of any Fixed Rent or
Additional Rent for more than one month in advance; (iv) bound by any waiver or
forbearance on the part of any prior Landlord which is materially adverse to the
interest of Landlord under this Lease, or by any previous modification or
amendment of this Lease unless such waiver, forbearance or modification or
amendment shall have been approved in writing by the Successor Landlord or the
Superior Mortgagee through or by reason of which the Successor Landlord shall
have succeeded to the rights of Landlord under this Lease, provided this Section
18.3(c)(iv) is not enforceable in favor of a Superior Interest of which Tenant
has not received notice; (v) obligated to repair the Premises or the Building or
any part thereof, in the event of total or substantially total damage occurring
prior to the Successor Landlord assuming ownership, beyond such repair as may be
reasonably accomplished from the net proceeds of insurance actually made
available to the Successor Landlord, or which should have been available if
Landlord had maintained the insurance which it was obligated to maintain under
this Lease; or (vi) obligated to repair the Premises or the Building or any part
thereof, in the event of partial condemnation occurring prior to the Successor
Landlord assuming ownership, beyond such repair as may be reasonably
accomplished from the net proceeds of any award actually made available to
Successor Landlord as damages for the part of the Premises or the Building not
taken. Nothing contained in this Section shall be construed to impair any right
otherwise exercisable by any such Successor Landlord.
Section 18.4. Notice of Default to Superior Interest.
If any act or omission by Landlord shall give Tenant the right,
immediately or after the lapse of time, to cancel or terminate this Lease or to
claim a partial or total eviction, Tenant shall not exercise any such right
until (a) it shall have given written notice of such act or omission to each
Superior Mortgagee and each Superior Lessor whose name and address shall have
been previously furnished to Tenant, and (b) a reasonable period for remedying
such act or omission shall have elapsed following such notice, not to exceed
thirty (30) days in the case of a default by Landlord in the payment of money or
sixty (60) days in all other defaults by Landlord, which period shall commence
upon the expiration of the period to which Landlord would be entitled under this
Lease to effect such remedy, provided such Superior Mortgagee or Superior Lessor
shall, with reasonable diligence, give Tenant notice of its intention to remedy
such act or omission and shall commence and continue to act upon such intention.
Section 18.5. Non-Disturbance Agreement.
Tenant's agreement to subordinate to any Superior Interest contained in
this Article is subject to the granting of a non-disturbance agreement to Tenant
providing that so long as this Lease is in full force and effect (a) Tenant's
possession of the Premises and all its other rights under the Lease shall not be
disturbed as a result of any termination of the Superior Lease or the
foreclosure of the Superior Mortgage, (b) Tenant shall not be joined (except if
required by law) as a party defendant in any action to terminate the Superior
Lease or foreclose the Superior Mortgage, and (c) this Lease shall continue as a
direct lease between Successor Landlord and Tenant, upon all of the terms of
this Lease, except such as are not then applicable or pertinent to the remainder
of the Term of this Lease; provided that the Successor Landlord shall not be (i)
liable for any act or omission or negligence of any prior Landlord; (ii) subject
to any counterclaim, defense or offset which theretofore shall have accrued to
Tenant against any prior Landlord; (iii) bound by the advance payment of any
Fixed Rent or Additional Rent for more than one (1) month or other appropriate
period, as the case may be, which Tenant might have paid to a prior Landlord;
(iv) bound by any waiver or forbearance on the part of any prior Landlord which
is materially adverse to the interest of Landlord under this Lease, or by any
previous modification or amendment of this Lease unless such waiver,
forbearance, modification or amendment shall have been approved in writing by
the Superior Lessor or the Superior Mortgagee through or by reason of which the
Successor Landlord shall have succeeded to the rights of Landlord under this
Lease, provided that this Section 18.5(c)(iv) shall not be enforceable in favor
of a Superior Interest of which Tenant has not received notice; (v) obligated to
repair the Premises or the Building or any part thereof, in the event of total
or substantially total damage occurring prior to the Successor Landlord assuming
ownership, beyond such repair as may be reasonably accomplished from the net
proceeds of insurance actually made available to the Successor Landlord or which
should have been available if Landlord had maintained the insurance which it was
obligated to maintain under this Lease; or (vi) obligated to repair the Premises
or the Building or any part thereof, in the event of partial condemnation
occurring prior to the Successor Landlord assuming ownership, beyond such repair
as may be reasonably accomplished from the net proceeds of any award actually
made available to Landlord as damages for the part of the Premises or the
Building not taken and which condemnation occurred prior to the Successor
Landlord assuming ownership. The provisions of Section 18.1 and this Section
18.5 shall not apply to any Superior Mortgage, the Superior Mortgagee of which
shall have elected that this Lease shall have priority over such Superior
Mortgage.
Section 18.6. No Existing Mortgages.
As a material inducement to Tenant to enter into this Lease, Landlord
represents and warrants to Tenant that, there presently exists no mortgage, deed
of trust or other interest affecting the Real Property that would be superior to
the leasehold estate created by this Lease and the rights of Tenant hereunder,
except for Taxes not yet due and payable, and tax liens, mechanics' liens,
judgments and similar encumbrances, if any, which Landlord shall promptly
discharge if the same pose any risk to Tenant's enjoyment of its leasehold
estate.
ARTICLE 19. CURING DEFAULTS; ATTORNEY'S FEES AND EXPENSES
Section 19.1. Curing Tenant's Default
If Tenant shall default in the performance of any obligation of this
Lease on Tenant's part to be performed and Tenant shall fail to remedy such
default within thirty (30) days after notice by Landlord to Tenant of such
default, or if such default is of such a nature that it cannot be completely
remedied within said period of thirty (30) days, if Tenant shall not (i)
promptly upon the giving by Landlord of such notice, advise Landlord of Tenant's
intention to institute all steps reasonably necessary to remedy such situation,
(ii) promptly institute and thereafter diligently pursue all steps reasonably
necessary to remedy the same, and (iii) effect such remedy within one hundred
fifty (150) days after the date of the giving of said notice by Landlord and in
any event prior to such time as would subject Landlord or Landlord's agents to
civil or criminal liability or. prosecution for a crime, then Landlord, at its
option, may perform the Tenant's obligations (provided that no such advance
notice and opportunity to cure need be provided to Tenant in the event of an
emergency). Bills for any expenses incurred by Landlord in connection with any
such cure, as well as bills for any property, material, labor or services
provided, furnished or rendered in connection with the foregoing, including
reasonable attorneys' fees and disbursements, shall be paid by Tenant promptly
on demand, together with interest at the Interest Rate provided Landlord submits
the bills to Tenant within thirty (30) days after such costs are incurred. Any
notice by Landlord to Tenant under this Section 19.1 shall not be deemed a
notice of default by Tenant under Article 22 unless Landlord's notice so
specifies.
Section 19.2. Curing Landlord's Default.
If Landlord shall default in the performance of any obligation of this
Lease on Landlord's part to be performed and Landlord shall fail to remedy such
default within thirty (30) days after notice by Tenant to Landlord of such
default, or if such default is of such a nature that it cannot be completely
remedied within said period of thirty (30) days, if Landlord shall not (i)
promptly upon the giving by Tenant of such notice, advise Tenant of Landlord's
intention to institute all steps reasonably necessary to remedy such situation,
(ii) promptly institute and thereafter diligently pursue all steps reasonably
necessary to remedy the same, and (iii) effect such remedy within one hundred
fifty (150) days after the date of the giving of said notice by Tenant and in
any event prior to such time as would subject Tenant or Tenant's agents to civil
or criminal liability or prosecution for a crime, then Tenant, at its option,
may perform the Landlord's obligations (provided that no such advance notice and
opportunity to cure need be provided to Landlord in the event of an emergency).
Bills for any expenses incurred by Tenant in connection with any such cure, as
well as bills for any property, material, labor or services provided, furnished
or rendered in connection with the foregoing, including reasonable attorneys'
fees and disbursements, shall be paid by Landlord promptly on demand, together
with interest at the Interest Rate provided Tenant submits the bills to Landlord
within thirty (30) days after such costs are incurred.
Section 19.3. Attorneys' Fees.
In the event Landlord or Tenant institutes legal proceedings against
the other for breach of or interpretation of any of the terms, conditions or
covenants of this Lease, the party against whom a judgment is entered, shall pay
all reasonable costs and expenses relative thereto, including court costs and
reasonable attorneys' fees of the prevailing party.
ARTICLE 20. NON-LIABILITY AND INDEMNIFICATION
Section 20.1. Non-Liability.
Neither Landlord, nor any of its agents, employees, officers,
directors, shareholders, or affiliates shall be liable to Tenant or Tenant's
agents, employees, contractors, invitees or licensees or any other occupant of
the Premises, for any injury to Tenant or to any other person or for any damage
to, or loss (by theft or otherwise) of, any of Tenant's Property or of the
property of any other person, irrespective of the cause of such injury, damage
or loss unless proximately caused by the negligence or willful acts of Landlord
or Landlord's agents. As long as Tenant's fire insurance policies include the
waiver of subrogation or agreement referred to in Section 8.5(a), Landlord shall
not be liable, to the extent of Tenant's insurance coverage, for any loss or
damage to any person or property even if due to the negligence or willful acts
of Landlord or Landlord's agents.
Section 20.2. Release of Landlord.
Except if caused by Landlord's negligence or willful acts, no (a)
performance by Landlord, Tenant or others of any repairs, Improvements,
alterations, additions, installations, substitutions or decorations in or to the
Real Property, Building Equipment or Premises, (b) failure of Landlord or others
to make any such repairs or Improvements other than repairs Landlord is
obligated to make under this Lease, (c) damage to the Building Equipment,
Premises or Tenant's Property, (d) injury to any persons, caused by other
tenants or persons in the Building, or by operations in the construction of any
private, public or quasi-public work, or by any other cause, (e) latent defect
in the Building, Building Equipment or Premises, or (f) inconvenience or
annoyance to Tenant or injury to or interruption of Tenant's business by reason
of anything referred to in the foregoing subsections (a) through (e) shall
impose any liability on Landlord to Tenant. No representation, guaranty or
warranty is made that the communications or security systems, devices or
procedures of the Building will be effective to prevent injury to Tenant or any
other person or damage to or loss (by theft or otherwise) of any of Tenant's
Property or of the property of any other person and Landlord reserves the right
to make reasonable modifications at any time to any communications or security
systems or procedures serving the Building without liability to Tenant. Prior to
proceeding against Landlord in negligence or for breach of this Lease, with
respect to any damage or loss to Tenant's Property, or interruption to its
business, Tenant shall look first to the insurance which Tenant maintains or
should have maintained under this Lease. To the extent that Tenant self-insures
any such loss, such self insurance shall be deemed insurance for the purposes of
this Section 20.2. Nothing in this Section 20.2 shall relieve Landlord from
performing its obligations under this Lease.
Section 20.3. Tenant's Indemnity.
Tenant Indemnifies Landlord against (a) any default by Tenant hereunder
or (b) the use or occupancy or manner of use or occupancy of the Premises by
Tenant or any person claiming under Tenant, or (c) any acts, omissions or
negligence or willful misconduct of Tenant or any such person claiming under
Tenant, or the contractors, agents, employees, invitees, or licensees of Tenant
or any such person, in or about the Premises or the Real Property either prior
to, during or after the expiration of, the Term.
Section 20.4. Landlord's Indemnity.
Landlord Indemnifies Tenant in connection with or arising from (a) any
default by Landlord hereunder or (b) any negligence or willful misconduct of
Landlord or contractors, agents, employees, invitees, or licensees of Landlord,
in or about the Premises or the Real Property either prior to, during or after
the expiration of the Term.
Section 20.5. Consequential Damages Waiver.
Tenant and Landlord waive, to the full extent permitted by law, any
claim for consequential damages in connection with this Lease.
Section 20.6. Tenant's Payment Obligation.
Tenant shall pay to Landlord, within fifteen (15) days following
rendition of bills or statements therefor, all sums equal to the losses, costs,
liabilities, claims, damages, fines, penalties and expenses referred to in this
Article. Tenant's making of any payment under protest under this Section 20.6
shall not waive Tenant's right to seek to recover such payment from Landlord. If
Tenant is successful in recovering such payment, Tenant shall also be entitled
to receive interest on such payment at the Interest Rate and reasonable
attorneys fees.
ARTICLE 21. ACCESS; CHANGE IN FACILITIES; COMMON AREAS
Section 21.1. Land.
All parts (except surfaces facing the interior of the Premises) of all
walls and doors bounding the Premises, all stairs, landings, and roofs adjacent
to the Premises, all space in or adjacent to the Premises, if any, used for
shafts, stacks, stairways, conduits, air conditioning rooms, telephone rooms,
fan rooms, heating, ventilating, air conditioning, plumbing, electrical and
other mechanical facilities, service closets and other Building Equipment, and
the use thereof, as well as access thereto through the Premises for the purposes
of operation, decoration, cleaning, maintenance, safety, security, alteration
and repair, are hereby reserved to Landlord in connection with Landlord's
responsibilities for common facilities. Landlord reserves the right, at any
time, to make such changes in or to the Building and the Building Equipment,
including the entrances, doors, corridors, elevators, stairs, landings, toilets
and other public parts of the Building, as it may deem necessary or desirable,
provided any such change (a) shall not unreasonably deprive Tenant of access to
the Premises, or (b) shall not materially interfere with the use of the Premises
or the services furnished to the Premises or disrupt Tenant for an unreasonable
length of time. Landlord will not exercise any of its rights under Section 21.1
in a manner that will have a material adverse effect upon Tenant or the
Premises.
Section 21.2. Landlord's Access to Premises.
(a) Tenant shall permit Landlord with Tenant's consent, not to be unreasonably
withheld, to install, use and maintain pipes, ducts, wires and conduits within
or through the Premises, or through the walls, columns and ceilings therein,
provided that the installation work shall be performed at such times and by such
methods as shall not unreasonably interfere with Tenant's use and occupancy of
the Premises, or damage the appearance thereof, or materially affect the layout
of the Premises. Landlord, at its expense, shall promptly repair any damage
caused by any such installations, use or maintenance and restore the Premises
and Tenant's Property and Tenant's Improvements to the conditions existing prior
to Landlord's work.
(b) Landlord shall have the right to enter the Premises at all reasonable times,
whether or not during normal business hours but upon reasonable advance notice
to Tenant (except in an emergency in which case no notice shall be required, but
Tenant shall be notified as soon as practicable) for any of the purposes
specified in this Article and (a) to examine the Premises or to perform any
obligation of Landlord or to exercise any right reserved to Landlord in this
Lease; (b) to inspect any Improvements or the making thereof; (c) to exhibit the
Premises to others; (d) to make repairs or improvements, or to perform such
maintenance, including the maintenance of Building Equipment, as Landlord may
deem necessary or desirable; and (e) to take into and store upon the Premises
any materials that may be required for repairs, improvements or maintenance that
Tenant does not perform with Tenant's consent not to be unreasonably withheld or
delayed. Landlord agrees, however, that Landlord shall endeavor to perform all
repairs, improvements and maintenance in a manner which shall not unreasonably
interfere with Tenant's business and that Landlord shall diligently pursue the
same, but without obligation to employ overtime labor (unless Tenant's occupancy
would be materially adversely affected) and subject to Force Majeure. If Tenant,
its agents or employees shall not be present or shall not permit entry into the
Premises in the event of an emergency, Landlord may forcibly enter the Premises
without liability to Landlord.
Section 21.3. Common Areas.
Landlord shall make available such areas and facilities in and about
the Building (referred to in this Lease as "Common Areas"), including but not
limited to common corridors, stairs, landscaped and planted areas, and parking
areas, serving Tenant and other parts of the Building as Landlord shall deem
appropriate. Landlord shall operate, manage, equip, light, repair and maintain
the Common Areas for their intended purposes in such manner as Landlord shall in
its reasonable discretion determine, but consistent with those of a class A
industrial building and consistent with the Common Areas as they exist upon the
Commencement Date. Tenant agrees that Landlord may, at any time and from time to
time, increase, reduce or change the number, type, size, location, elevation,
nature and use of any of the Common Areas (provided the Common Areas remain
substantially consistent with the Common Areas existing on the Commencement
Date), make installations therein, and move and remove the same, but not in a
manner to adversely affect Tenant's operations, or Tenant's access to the
Premises.
Section 21.4. Tenant's Use of Common Areas
Tenant and its officers, employees, agents, customers and invitees
shall have the non-exclusive right, in common with Landlord and all others to
whom Landlord has granted or may hereafter grant rights, to use the Common Areas
for their intended purposes, subject to any reasonable rules and regulations
which Landlord may hereafter promulgate. Tenant further agrees, to abide by such
rules and regulations and to use its best efforts to cause its officers and
employees and its visitors and invitees to conform thereto. Landlord may at any
time temporarily close any Common Area to make repairs or changes or to prevent
the acquisition of public rights in such area, and may treat and act in the
Common Areas as in its judgment may be necessary or desirable.
Section 21.5. Non Liability of Landlord and Tenant.
The proper exercise of any right reserved to Landlord in this Article
shall be without liability of Landlord to Tenant.
ARTICLE 22. DEFAULT
Section 22.1. Tenant's Default.
The occurrence and continuance of the following shall be deemed events
of default ("Events of Default"):
(a) if Tenant shall file a voluntary petition in bankruptcy or insolvency, or
shall be adjudicated a bankrupt or insolvent, or shall file any petition or
answer seeking any reorganization, readjustment, liquidation, dissolution or
similar relief under the present or any future federal bankruptcy act or any
other present or future applicable federal, state or other statute or law
(foreign or domestic), or shall make an assignment for the benefit of creditors
or shall seek or consent to or acquiesce in the appointment of any trustee,
receiver or liquidator of Tenant or of all or any part of Tenant's property; or
(b) if, within ninety (90) days after the commencement against Tenant of any
proceeding of the nature referred to in subsection (a) above, whether by the
filing of a petition or otherwise, such proceeding shall not have been
dismissed, or if, within ninety (90) days after the appointment of any trustee,
receiver or liquidator of Tenant or of all or any part of Tenant's Property,
without the consent of Tenant, such appointment shall not have been vacated or
otherwise discharged, or if any execution or attachment shall be issued against
Tenant or any of Tenant's Property pursuant to which the Premises shall be taken
or occupied or attempted to be taken or occupied and not removed within ninety
(90) days; or
(c) if Tenant shall default in the payment when due of any installment of Fixed
Rent or in the payment when due of any Additional Rent, and such default shall
continue for a period of ten (10) days after notice by Landlord to Tenant of
such default; or
(d) if Tenant shall default in the performance of any obligation of this Lease
on Tenant's part to be performed (other than the payment of Fixed Rent and
Additional Rent) and Tenant shall fail to remedy such default within thirty (30)
days after notice by Landlord to Tenant of such default, or if such default is
of such a nature that it cannot be completely remedied within said period of
thirty (30) days if Tenant shall not (i) promptly upon the giving by Landlord of
such notice, advise Landlord of Tenant's intention to institute all steps
reasonably necessary to remedy such situation, (ii) promptly institute and
thereafter diligently pursue all steps reasonably necessary to remedy the same,
and (iii) effect such remedy within one hundred fifty (150) days after the date
of the giving of said notice by Landlord and in any event prior to such time as
would subject Landlord or Landlord's agents to civil or criminal liability or
prosecution for a crime; or
(e) if any event shall occur or any contingency shall arise whereby this Lease
or the estate hereby granted or the unexpired balance of the Term would, by
operation of law or otherwise, devolve upon or pass to any person other than
Tenant except as is expressly permitted under Article 17; or
(f) if the Premises or any substantial portion thereof shall be abandoned or
become vacant for a period of thirty (30) consecutive days, excluding Tenant's
moving in, casualty, eminent domain, vacancy due to Legal Requirements, or
Tenant's not occupying the Premises in the ordinary course of business.
Upon the occurrence of an Event of Default (unless Landlord in its sole
discretion accepts Tenant's cure of such Event of Default), Landlord may give to
Tenant notice (the "Termination Notice") of its intention to terminate this
Lease and to end the Term and the estate hereby granted at the expiration of
three (3) Business Days from the date of the giving of such notice, and, in the
event the Termination Notice is given, this Lease and the Term and estate hereby
granted (whether or not the Term shall have commenced) shall terminate upon the
expiration of said three (3) Business Days with the same effect as if that day
were the Expiration Date, but Tenant shall remain liable for damages as provided
in Article 23.
Section 22.2. Limit on Landlord Notices.
If Tenant shall have been given notices of default (i) in the timely
payment of Fixed Rent or Additional Rent for a total of three (3) times in any
period of twelve (12) months, then, notwithstanding that such defaults shall
have each been cured within the applicable period, as above provided, any
further similar default shall be deemed to be deliberate and Landlord thereafter
may serve the Termination Notice upon Tenant if Tenant does not pay the Fixed
Rent or Additional Rent within five (5) days after it is due without affording
Tenant an opportunity to cure such further default.
Section 22.3. Termination of Services.
If the Termination Notice provided for in Section 22.1 shall have been
given, then Landlord may without notice terminate all services after the third
business day referred to therein.
ARTICLE 23. RE-ENTRY BY LANDLORD; REMEDIES
Section 23.1. Re-Entry by Landlord.
If this Lease and the Term and estate hereby granted shall terminate
for default as provided in Article 22:
(a) Landlord and Landlord's agents may thereupon reenter the Premises or any
part thereof, without notice, either by summary proceedings or by any other
applicable action or proceeding or otherwise (without being liable to
indictment, prosecution or damages therefor), and may repossess the Premises and
dispossess Tenant and any other persons therefrom and remove any and all of its
or their property and effects from the Premises, without liability for damage
thereto, so that Landlord may have, hold and enjoy the Premises, but in no event
shall re-entry be deemed an acceptance of surrender of this Lease; and
(b) Landlord, at its option, may relet the whole or any part(s) of the Premises
from time to time, either in the name of Landlord or otherwise, to such
tenant(s), for such term(s) ending before, on or after the Expiration Date, at
such rental(s) and upon such other conditions, which may include concessions and
free rent periods, as Landlord in its sole discretion may determine. Landlord
shall have no obligation to relet the Premises or any part thereof and shall in
no event be liable for refusal or failure to relet the Premises or any part
thereof, or, in the event of any such reletting, for refusal or failure to
collect any rent upon any such reletting, and no such refusal or failure shall
operate to relieve Tenant of any liability under this Lease or otherwise to
affect any such liability. Landlord may make such repairs, improvements,
alterations, additions, decorations and other physical changes in and to the
Premises as Landlord, in its sole discretion, considers advisable or necessary
in connection with any such reletting or proposed reletting, without relieving
Tenant of any liability under this Lease or otherwise affecting any such
liability.
Section 23.2. Waiver of Redemption.
Tenant, on its own behalf and on behalf of persons claiming through or
under Tenant, including all creditors, does hereby expressly waive any and all
rights, as permitted by law, which Tenant and all such persons might have to (a)
redeem the Premises or any interest therein, (b) re-enter or repossess the
Premises, or (c) restore the operation of this Lease, after Tenant shall have
been dispossessed by a judgment or by a warrant of any court or judge or after
any re-entry by Landlord, or after any termination of this Lease.
Section 23.3. Landlord's Rights not Exclusive.
In the event of any default or threatened default by Tenant or any
person claiming through or under Tenant of any of the terms of this Lease,
Landlord shall be entitled to enjoin such default or threatened default and
shall have the right to invoke any right allowed at law or in equity, by statute
or otherwise, as if re-entry, summary proceedings or other specific remedies
were not provided for in this Lease.
Section 23.4. Landlord's Rights upon Termination.
If this Lease shall terminate as provided in Article 22 or by or under
any summary proceeding or any other action or proceeding, or if Landlord shall
re-enter the Premises, then, in any of said events:
(a) Tenant shall pay to Landlord all rent to the date upon which this Lease
shall have been terminated or to the date of re-entry by Landlord, as the case
may be.
(b) Landlord shall be entitled to credit all monies, if any, paid by Tenant to
Landlord, whether as advance rent, security or otherwise, but such monies shall
be credited by Landlord against any rent due at the time of such termination or
re-entry or, at Landlord's option, against any damages payable by Tenant.
(c) Tenant shall be liable for and shall pay to Landlord, as damages, any
deficiency between (i) the rent that would have been payable hereunder for the
period which otherwise would have constituted the unexpired portion of the Term
and (ii) the net amount, if any, of rents ("Net Rent") collected under any
reletting effected pursuant to the provisions of Section 23.1 for any part of
such period (first deducting from the rents collected under any such reletting
all of Landlord's expenses in connection with the termination of this Lease or
Landlord's re-entry, including all repossession costs, brokerage commissions,
legal expenses, alteration costs and other expenses of preparing the Premises
for such reletting). Such deficiency shall be paid in monthly installments by
Tenant on the days specified in this Lease for the payment of installments of
Fixed Rent. Landlord shall be entitled to recover from Tenant each monthly
deficiency as the same shall arise and no suit to collect the amount of the
deficiency for any month shall prejudice Landlord's right to collect the
deficiency for any prior or subsequent month by a similar proceeding or
otherwise. A suit or suits for the recovery of such deficiencies may be brought
by Landlord from time to time at its election.
(d) Whether or not Landlord shall have collected any monthly deficiencies as
provided in Section 23.4(c), Landlord shall be entitled to recover from Tenant,
and Tenant shall pay Landlord, on demand, as liquidated damages and not as a
penalty, a sum equal to the amount by which (i) the Fixed Rent and Additional
Rent payable hereunder for the period ending on the Expiration Date and
beginning on the latest of the date of termination of this Lease, the date of
re-entry by Landlord or the date through which monthly deficiencies shall have
been paid in full (conclusively presuming the Additional Rent to be the same as
payable for the 365 days immediately preceding such termination, reentry or
deficiency payment) exceeds (ii) an amount equal to the then fair and reasonable
rental value of the Premises for the same period, both amounts discounted to
present value at the Interest Rate less two percent (2%).
(e) In no event shall Tenant be entitled (i) to receive any excess of any Net
Rent under subsection (c) of this Section over the sums payable by Tenant to
Landlord hereunder or (ii) in any suit for the collection of damages pursuant to
this Section, to a credit in respect of any Net Rent from a reletting except to
the extent that such Net Rent is actually received by Landlord. Should the
Premises or any part thereof be relet in combination with other space, then
proper apportionment on a square foot area basis shall be made of the rent
received from such reletting and the expenses of reletting.
Section 23.5. Landlord's Damages.
Should this Lease be terminated as provided in Article 22 or by or
under any summary proceeding or any other action or proceeding, or if Landlord
shall re-enter the Premises, Landlord shall be entitled to recover, and Tenant
shall pay, as and for agreed damages therefor, the then cost of:
(a) restoring the Premises to the same condition as that in which Tenant has
agreed to surrender them to Landlord on the Expiration Date; and
(b) completing in accordance with this Lease any Improvements to the Premises or
for repairing any part thereof not encompassed within Section 23.5(a).
Section 23.6. Landlord's Rights Not Limited.
Nothing herein contained shall be construed as limiting or precluding
the recovery by Landlord against Tenant of any sums or damages to which, in
addition to the damages particularly provided above, Landlord may lawfully be
entitled by reason of any default hereunder on the part of Tenant.
Section 23.7. Landlord's Rights Cumulative.
Each right of Landlord provided for in this Lease shall be cumulative
and shall be in addition to every other right provided for in this Lease or now
or hereafter existing at law or in equity, by statute or otherwise, and the
exercise by Landlord of any one or more of such rights shall not preclude the
simultaneous or later exercise by Landlord of any other such right.
ARTICLE 24. SURRENDER
Section 24.1. Surrender.
On the Expiration Date or upon the sooner termination of this Lease or
upon any re-entry by Landlord, Tenant shall, at its expense, quit, surrender,
vacate and deliver the Premises to Landlord "broom clean" and in good order,
condition and repair, ordinary wear, tear and damage by fire or other casualty
excepted, together with all Improvements and Fixtures therein (except as
otherwise provided for in this Lease). Tenant shall, at its expense, remove from
the Real Property all of Tenant's Property and any personal property of persons
claiming through or under Tenant, and shall repair or pay the cost of repairing
all damage to the Premises and the Real Property occasioned by such removal. Any
Tenant's Property or other personal property which shall remain in the Premises
after the termination of this Lease shall be deemed to have been abandoned and
either may be retained by Landlord as its property or may be disposed of as
Landlord may see fit. If such property not so removed shall be sold, Landlord
may receive and retain the proceeds of such sale and apply the same, at its
option, against the expenses of the sale, moving and storage, arrears of rent
and any damages to which Landlord may be entitled. Any excess proceeds shall be
the property of Landlord. Any expense incurred by Landlord in removing or
disposing of such property shall be reimbursed to Landlord by Tenant as
Additional Rent on demand. If, during the last month of the Term, Tenant shall
have removed all or substantially all of Tenant's Property from the Premises and
subject to Tenant's consent, Landlord may immediately enter and alter, renovate
and redecorate the Premises, without abatement of rent or liability to Tenant,
provided Landlord releases Tenant from any further liability under the Lease. If
the Expiration Date or the date of sooner termination of this Lease shall fall
on a day which is not a business day, then Tenant's obligations under Section
24.1 shall be performed on or prior to the immediately preceding business day.
Section 24.2. Tenant's Failure to Surrender.
If the Premises shall not be surrendered upon the termination of this
Lease, Tenant shall Indemnify Landlord against liability resulting from delay by
Tenant in so surrendering the Premises, including any claims made by any
succeeding tenant or prospective tenant founded upon such delay, or any
interference or disruption of Landlord's business, or Landlord's ability to rent
the Premises.
Section 24.3. Tenant's Holdover.
If Tenant shall remain in possession of the Premises after the
termination of this Lease without the execution of a new lease, Tenant, at the
option of Landlord, subject to all of the other terms of this Lease insofar as
the same are applicable to a month-to-month tenancy shall be deemed to be
occupying the Premises as a tenant from month to month, at a monthly rental
equal to two times the monthly Fixed Rent last payable by Tenant hereunder, plus
all other Additional Rent payable hereunder. Nothing contained in this Section
shall (x) imply any right of Tenant to remain in the Premises after the
termination of this Lease without the execution of a new lease, (y) imply any
obligation of Landlord to grant a new lease or (z) be construed to limit any
remedy that Landlord may have against Tenant as a holdover tenant.
Section 24.4. Obligations Survive Termination.
Tenant's obligations under this Article 24 shall survive the
termination of this Lease.
ARTICLE 25. INABILITY TO PERFORM
Section 25.1. Inability to Perform.
This Lease and the obligations of Tenant to pay rent and perform all of
the terms of this Lease on the part of Tenant to be performed and the
obligations of Landlord to perform all of the terms of this Lease on the part of
Landlord to be performed shall in no way be affected because the other party is
unable or delayed in fulfilling any of its obligations under this Lease by
reason of Force Majeure. Landlord and Tenant shall in each instance exercise
reasonable diligence to effect performance when and as soon as possible.
ARTICLE 26. WAIVER OF COUNTERCLAIMS AND JURY TRIAL
Section 26.1. Waiver of Counterclaim and Jury Trial.
In the event Landlord commences any summary proceeding or action for
non-payment of rent, Tenant covenants and agrees not to interpose, by
consolidation of actions or otherwise, any counterclaim in any such proceeding
unless failure to do so would waive such counterclaim. To the extent permitted
by applicable law, Landlord and Tenant hereby waive trial by jury. The
provisions of this Article 26 shall survive the termination of this Lease.
ARTICLE 27. NO OTHER WAIVER
Section 27.1. No Waiver.
The failure of either party at any time to insist upon the strict
performance of any obligation of the other under this Lease, or to exercise any
right herein contained, shall not be construed as a waiver or relinquishment of
the performance of such obligation or of the right to exercise any such right in
the future.
Section 27.2. Landlord's Rights not Affected.
The following specific provisions of this Section shall not limit the
generality of the provisions of this Article:
(a) No agreement to accept a surrender of all or any part of the Premises or
this Lease shall be valid unless in writing and signed by Landlord. No delivery
of keys shall operate as a termination of this Lease or a surrender of the
Premises or this Lease.
(b) The receipt or acceptance by Landlord of rent with knowledge of the breach
by Tenant of any term of this Lease shall not be deemed a waiver of such breach.
(c) No payment by Tenant or receipt by Landlord of a lesser amount than the
correct rent shall be deemed to be other than a payment on account, nor shall
any endorsement or statement on any check or any accompanying letter be deemed
to effect or evidence an accord and satisfaction, and Landlord may accept such
check or payment without prejudice to Landlord's right to recover the balance or
pursue any other rights of Landlord.
(d) Neither any option granted to Tenant in this Lease to renew or extend the
Term, nor the exercise of any such option by Tenant, shall prevent Landlord from
exercising any option or right granted or reserved to Landlord to terminate this
Lease either during the original Term or during the renewed or extended term.
Any termination of this Lease shall serve to terminate any such renewal or
extension of the Term and any right of Tenant to any such renewal or extension,
whether or not Tenant shall have exercised any option to renew or extend the
Term. No option granted to Tenant to renew or extend the Term shall be deemed to
give Tenant any further option to renew or extend.
ARTICLE 28. QUIET ENJOYMENT; OPERATION OF BUILDING
Section 28.1. Quiet Enjoyment.
If, and so long as, Tenant pays the rent and keeps, observes and performs each
and every term, covenant and condition of this Lease on the part or on behalf of
Tenant to be kept, observed and performed, Tenant shall peaceably and quietly
enjoy the Premises throughout the Term without hindrance by Landlord or any
person lawfully claiming through or under Landlord, subject to the provisions of
this Lease. This covenant shall be construed as a covenant running with the Land
and not as a personal covenant or obligation of Landlord, except to the extent
of Landlord's interest in the Real Property and then subject to the terms of
Article 37.
Section 28.2. Landlord's Restrictions on Leasing
(a) Landlord shall not knowingly occupy or lease to others the Real Property in
a manner which would (i) violate any Legal Requirement that would cause harm to
Tenant, (ii) cause or be likely to cause injury or damage to the Premises, or
the Real Property or any part thereof, (iii) constitute a public or private
nuisance that would cause harm to Tenant, (iv) emit or discharge noise, fumes,
vapors or odors into the Premises which are likely to disturb Tenant, or (v)
adversely affect, impair or interfere with the proper and economical furnishing
of any of the Building services to Tenant. Absent bad faith, Landlord shall have
no liability to Tenant for any violation of this Section 28.2(a).
(b) Upon receiving written notice from Tenant that other tenants or occupants
are causing significant harm to Tenant as specified in Section 28.2(a)(i)
through (v), Landlord shall make diligent efforts, consistent with its leases
and other agreements with such tenants or occupants of the Building, to rectify
the situation. Section 28.3. Notice of Other Leases.
Landlord shall endeavor to notify Tenant of the name of the tenant and
its contemplated use at least five (5) days before any other leases for the
Building are signed. Tenant agrees to maintain the identity of the tenant as
confidential if requested, and to execute appropriate confidentiality agreements
in that regard. If the proposed tenant desires to keep its identity
confidential, Landlord shall be completely relieved of any obligation to Tenant
under this Section 28.3. Landlord shall have no liability to Tenant for any
unintentional violation of this Section 28.3.
ARTICLE 29. SIGNAGE
Section 29.1. Signage.
Provided Tenant complies with all applicable laws and ordinances, and
constructs such signs at its sole cost and expense, without any damage to the
Building or the Real Property, Tenant may install the identification signs on
Real Property at the locations and in the form set forth in Exhibit K.
ARTICLE 30. SHORING; NO DEDICATION
Section 30.1. Shoring.
If an excavation or other substructure work shall be undertaken or
authorized upon the Land, Tenant shall afford Landlord or the person causing
such excavation or other substructure work, license to enter upon the Premises
for the purpose of doing such work as Landlord or such person shall deem
necessary to protect any of the walls or structures of the Building or the Land
or surrounding land from injury or damage and to support the same by proper
foundations, pinning or underpinning. Except in case of emergency, Landlord
shall endeavor to have such entry accomplished during reasonable hours in the
presence of a representative of Tenant, provided such representative shall be
designated by Tenant promptly upon Landlord's request, and shall provide
reasonable advance notice to Tenant except in case of emergency.
Section 30.2. Landlord Right to Close Property.
Landlord shall have the right to erect any gate, chain other
obstruction or to close off any portion of the Real Property to the public at
any time to the extent necessary prevent a dedication thereof for public use.
ARTICLE 31. NOTICE OF ACCIDENTS
Section 31.1. Notice of Accidents.
Tenant shall give notice to Landlord, promptly after Tenant learns
thereof, of any accident, emergency, occurrence for which Landlord might be
liable, fire or other casualty and any damages to or defects in the Premises,
the Building or the Building Equipment for the repair of which Landlord might be
responsible or which constitutes Landlord's property. Such notice shall be given
by facsimile transmission, telegram or personal delivery to the address of
Landlord then in effect for notices.
ARTICLE 32. BROKERAGE
Section 32.1. Brokers.
(a) Each party represents that in the negotiation of this Lease it has dealt
with no brokers. Each party shall Indemnify the other against liability arising
out of any inaccuracy or alleged inaccuracy of the above representation.
(b) Intentionally Omitted.
ARTICLE 33. INTENTIONALLY OMITTED
Section 33.1. Intentionally Omitted.
ARTICLE 34. CONSENTS; APPROVALS
Section 34.1. Delay in Consent.
Wherever it is specifically provided in this Lease that a party's
consent shall not be unreasonably withheld, a response to a request for such
consent shall also not be unreasonably delayed or conditioned. If either
Landlord or Tenant considers that the other has unreasonably withheld, delayed
or conditioned such consent, it shall so notify the other party within ten (10)
days after receipt of notice of denial of the requested consent or, in case
notice of denial is not received, within twenty (20) days after making its
request for the consent.
Section 34.2. Landlord Right to Employ Professionals.
Whenever, pursuant to this Lease, Tenant seeks the review or approval
by Landlord of any matter, in connection with any activity planned or undertaken
by or on behalf of Tenant, (a) Landlord, at Landlord's sole discretion, shall be
entitled to engage such attorneys, accountants, architects, engineers and other
professional consultants in connection with such consideration, review, consent
or approval as would be customarily reasonable and appropriate, and (b) Tenant
shall reimburse Landlord for all reasonable expenses, including the reasonable
fees and disbursements of such attorneys and other professional consultants,
incurred by Landlord in connection with such consideration, review, consent or
approval, or in conducting inspections of the Premises or other portions of the
Real Property relating thereto. Such reimbursement shall be made by Tenant
within fifteen (15) days after notice from Landlord.
ARTICLE 35. NOTICES
Section 35.1. Notices.
Except as otherwise expressly provided in this Lease or pursuant to any
Legal Requirement, any bills, statements, notices, demands, requests, consents
or other communications given or required to be given under or in connection
with this Lease or pursuant to any Legal Requirement shall be effective only if
in writing and
(a) if to Tenant, then,
(i) sent by first class, registered or certified mail, return receipt requested,
postage prepaid, or reliable overnight delivery service addressed to:
The Dress Barn, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Att: Lease Administration
with a copy to:
Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Att: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
or to such other address as Tenant may designate for such purpose by like
notice,
(b) if to Landlord, sent by first class, registered or certified mail, return
receipt requested, postage prepaid, or reliable overnight delivery service
addressed to Landlord at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President and CFO, or to such other or further
address or addresses as Landlord may designate for such purpose by like notice;
or
(c) if to any other person, sent by first class, registered or certified mail,
return receipt requested and postage prepaid, or reliable overnight delivery
service, addressed to such person's last known principal address or to such
other address as such person may designate to Landlord and Tenant as its address
for such purpose by like notice.
Any such ▇▇▇▇, statement, notice, demand, request, consent or other
communication shall be deemed to have been rendered or given on the date
received (or refusal to receive).
ARTICLE 36. ESTOPPEL CERTIFICATE
Section 36.1. Tenant's Estoppel Certificate.
At any time and from time to time upon not less than fifteen (15) days'
prior notice by Landlord to Tenant, Tenant shall, without charge, execute,
acknowledge and deliver to Landlord a statement, certifying whether (i) this
Lease is unmodified and in full force and effect (or if there have been
modifications, whether the same is in full force and effect as modified and
stating the modifications), (ii) the Term has commenced and Fixed Rent and
Additional Rent have become payable hereunder and, if so, the dates to which
they have been paid, (iii) whether or not, to the knowledge of the signer of
such certificate, Landlord is in default in performance of any of the terms of
this lease and, if so, specifying each such default of which the signer may have
knowledge, (iv) Tenant has accepted possession of the Premises, (v) Tenant has
made any claim against Landlord under this Lease and, if so, the nature thereof
and the dollar amount, if any, of such claim, (vi) Tenant then claims any
offsets or defenses against enforcement of any of the terms of this Lease upon
the part of Tenant to be performed, and, if so, specifying the same, and (vii)
such further information with respect to the Lease or the Premises as Landlord
may reasonably request. Any such statement delivered pursuant hereto may be
relied upon by any prospective purchaser of the Real Property or any part
thereof or of the interest of Landlord in any part thereof, by any mortgagee or
prospective mortgagee thereof, by any lessor or prospective lessor thereof, by
any lessee or prospective lessee thereof, or by any prospective assignee of any
mortgage thereof.
Section 36.2. Landlord's Estoppel Certificate.
At any time and from time to time upon not less than fifteen (15) days'
prior notice by Tenant to Landlord, Landlord shall, without charge, execute,
acknowledge and deliver to Tenant a statement, certifying whether (i) this Lease
is unmodified and in full force and effect (or if there have been modifications,
whether the same is in full force and effect as modified and stating the
modifications), (ii) the Term has commenced and Fixed Rent and Additional Rent
have become payable hereunder and, if so, the dates to which they have been
paid, (iii) whether or not, to the knowledge of the signer of such certificate,
Tenant is in default in performance of any of the terms of this Lease and, if
so, specifying each such default of which the signer may have knowledge, (iv)
Tenant has accepted possession of the Premises, (v) Landlord has made any claim
against Tenant under this Lease and, if so, the nature thereof and the dollar
amount, if any, of such claim, (vi) Landlord then claims any offsets or defenses
against enforcement of any of the terms of this Lease upon the part of Landlord
to be performed, and, if so, specifying the same, and (vii) such further
information with respect to the Lease or the Premises as Tenant may reasonably
request. Any such statement delivered pursuant hereto may be relied upon by any
party designated by Tenant.
ARTICLE 37. PARTIES BOUND
Section 37.1. Parties Bound.
The terms of this Lease shall bind and benefit the successors and
assigns of the parties with the same effect as if mentioned in each instance
where a party is named or referred to, except that no violation of the
provisions of Article 17 shall operate to vest any right in any successor or
assignee of Tenant and that the provisions of this Article shall not be
construed as modifying the conditions of limitation contained in Article 17.
Section 37.2. Meaning of term "Landlord".
The term "Landlord" shall mean only the owner at the time in question
of the present Landlord's interest in the Real Property and in the event of a
sale or transfer of the Real Property (by operation of law or otherwise), the
grantor or transferor, as the case may be, shall be and hereby is (to the extent
of the interest or portion of the Real Property sold or transferred)
automatically and entirely released and discharged, from and after the date of
such sale or transfer, of all liability in respect of the performance of any of
the terms of this Lease on the part of Landlord thereafter to be performed,
provided that the purchaser or transferee (collectively, "Transferee") shall be
deemed to have assumed and agreed to perform, subject to the limitations of this
Article (and without further agreement between the then parties hereto, or among
such parties and the Transferee) and only during and in respect of the
Transferee's period of ownership of the Landlord's interest under this Lease,
all of the terms of this Lease on the part of Landlord to be performed during
such period of ownership, which terms shall be deemed to be "covenants running
with the land", it being intended that Landlord's obligations hereunder shall,
as limited by this Article, be binding on Landlord, its successors and assigns,
only during and in respect of their respective successive periods of ownership.
Section 37.3. Landlord Limitation of Liability.
Tenant shall look solely to Landlord's estate and interest in the Real
Property for the satisfaction of any right of Tenant for the collection of a
judgment or other judicial process requiring the payment of money by Landlord
and no other property or assets of Landlord, Landlord's agents, officers,
directors, employees, or affiliates shall be subject to levy, lien, execution,
attachment, or other enforcement procedure for the satisfaction of Tenant's
rights and remedies under or with respect to this Lease, the relationship of
Landlord and Tenant hereunder or under law, or Tenant's use and occupancy of the
Premises or any other liability of Landlord to Tenant in connection with this
Lease or the Real Property.
Section 37.4. Landlord Right to Use Agents.
Wherever Landlord has the right hereunder to do or refrain from doing
any act or thing, Landlord shall be entitled to exercise such right, or cause
the same to be exercised, by or through Landlord's agents and designees.
Section 37.5. Meaning of the Word "Tenant".
The term "Tenant" shall mean the Tenant herein named and any assignee
or other successor in interest of the Tenant herein named, which at the time in
question is the owner of Tenant's estate and interest granted by this Lease; but
the foregoing provisions of this subsection shall not be construed to permit any
assignment of this Lease or subletting of the Premises or to relieve Tenant
herein named or any assignee or other successor in interest of Tenant herein
named from the full and prompt responsibility to perform all of Tenant's
obligations hereunder.
Section 37.6. Rights Only Granted to Tenant.
Nothing contained in this Lease shall be deemed to confer upon any
tenant, or anyone claiming under or through any tenant, any right to insist
upon, or to enforce against Landlord or Tenant, the performance of Tenant's
obligations hereunder.
Section 37.7. Submission of Lease not an Offer.
The submission of this Lease to Tenant shall not constitute an offer
and shall not bind the parties hereto in any manner whatsoever until (a) Tenant
has duly executed and delivered duplicate counterparts to Landlord and (b)
Landlord has executed and delivered one fully-executed counterpart to Tenant.
Section 37.8. Intentionally Omitted.
ARTICLE 38. PARKING AND LOADING
Section 38.1. Tenant's Parking and Loading Areas.
(a) Tenant shall have sole and exclusive use of the loading area and the parking
area adjacent to the loading area (the "Loading Area") as shown on Exhibit M.
Tenant shall have sole and exclusive use of the 180 parking spaces on the ▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇ ▇▇▇▇) shown on Exhibit N. Unless
otherwise expressly excluded, use of the term Premises in this Lease shall
automatically be deemed to include the Loading Area and Tenant's Parking Area.
(b) Except as provided in Section 4.1, Tenant shall be solely responsible for
all maintenance, repair and replacement, including structural and
non-structural, of the Loading Area, except that Landlord shall be responsible
for snow removal from such areas which shall be an Operating Expense.
Section 38.2. Intentionally Omitted.
ARTICLE 39. INTENTIONALLY OMITTED
Section 39.1. Intentionally Omitted.
Section 39.2. Intentionally Omitted.
ARTICLE 40. MISCELLANEOUS
Section 40.1. Entire Agreement.
This Lease, and the exhibits attached, contain the entire agreement
between the parties and all prior negotiations and agreements are merged into
this Lease. This Lease may not be changed, modified, terminated or discharged,
in whole or in part, nor any of its provisions waived except by a written
instrument which (a) shall expressly refer to this Lease and (b) shall be
executed by the party against whom enforcement of the change, modification,
termination, discharge or waiver shall be sought.
Section 40.2. No Representations.
Neither Landlord nor Tenant nor any agents of Landlord or Tenant has
made, and Landlord and Tenant are not relying upon, any warranties,
representations, promises or statements, except to the extent that the same are
expressly set forth in this Lease, and no rights, easements or licenses are or
shall be acquired or granted by Tenant or Landlord by implication or otherwise,
unless expressly set forth in this Lease.
Section 40.3. Governing Law.
This lease shall be governed in all respects by the laws of the State
of New York.
Section 40.4. Tenant's Financial Information.
If, in connection with any sale, financing or master lease of the Real
Property or Building, Landlord shall so request, Tenant shall promptly furnish
to Landlord Tenant's most recent 10K and 10Q filings with the Securities and
Exchange Commission, and such other public information regarding the financial
condition of Tenant as Landlord may reasonably request.
Section 40.5. Use of "include".
The use of the word "include" or "including" shall be deemed to include
without specification the phrase "including without limitation."
Section 40.6. Severability.
If any provision of this Lease, or the application thereof to any
person or circumstance, shall, to any extent, be invalid or unenforceable, the
remainder of this Lease and the application of such provision to all other
persons and circumstances shall not be affected and shall be valid and
enforceable to the fullest extent of the law.
Section 40.7. Headings.
The Article headings in this Lease and the Table of Contents to this
Lease are inserted only as a matter of convenience or reference, and are not to
be given any effect in construing this Lease.
Section 40.8. Counterparts.
This Lease may be executed in several counterparts; but the
counterparts shall constitute but one and the same instrument.
ARTICLE 41. VACANT SPACE
Section 41.1. Vacant Space.
In the event that any space in the Building currently demised to Xerox
Corporation pursuant to that certain lease dated as of December 10, 2001,
between Landlord's predecessor-in-interest, Rockland Warehouse Center
Corporation, as landlord, and Xerox Corporation, as tenant, as amended by letter
dated August 15, 2002, a Lease Term Agreement dated as of June 24, 2002, and a
second Lease Term Agreement, dated as of February 20, 2003 (as further amended
from time to time, the "Xerox Lease") or Par Pharmaceutical, Inc. pursuant to
that certain lease dated as of July 17, 2002, between Landlord's
predecessor-in-interest, Rockland Warehouse Center Corporation, as landlord, and
Par Pharmaceutical, Inc., as tenant, as amended by letter dated August 28, 2002,
Amendment to Lease dated as of January 10, 2003, Lease Term Agreement dated as
of February 14, 2003, and second Amendment to Lease dated as of March 11, 2003
(as further amended from time to time, the "Par Lease") ceases to be subject to
the Xerox Lease or the Par Lease, as the case may be, for any reason (such space
that ceases to be subject to the Xerox Lease or the Par Lease hereinafter
referred to as "Vacant Space"), then the following provisions of this Section
41.1 shall be applicable with respect to such Vacant Space:
(a)......from and after the date that the Xerox Lease or the
Par Lease, as the case may be, ceases to be in effect with respect to such
Vacant Space (the "Vacancy Date"), the Premises demised pursuant to this Lease
shall be deemed to include such Vacant Space, and, except as otherwise provided
in clause (b) below, Tenant's rights and obligations with respect to such Vacant
Space shall be governed by the terms and conditions of this Lease;
(b)......the Fixed Rent and Additional Rent payable hereunder
by Tenant from and after the Vacancy Date with respect to such Vacant Space
shall be determined pursuant to the terms and conditions of the Xerox Lease or
Par Lease, as the case may be, in effect immediately prior to the Vacancy Date,
which terms and conditions are hereby incorporated herein by this reference for
such purpose.
Without limiting the generality of the foregoing provisions of clause (a) above,
it is agreed that if the Premises demised pursuant to this Lease are deemed to
include any Vacant Space pursuant to the provisions of this Section 41.1, then
Tenant shall have no obligation to use or improve such Vacant Space.
Tenant's obligations with respect to Vacant Space are strictly limited by the
terms of this Section 41.1 and in no event shall Tenant have any obligation,
liability or responsibility hereunder or otherwise with respect to any Vacant
Space that arises prior to the Vacancy Date related thereto.
IN WITNESS WHEREOF Landlord and Tenant have duly executed this Lease as
of the day and year first above written.
WITNESS ▇▇▇▇▇▇▇▇ REALTY LLC
Landlord
By: The Dress Barn, Inc., its
sole member
By: ________________________
________________________________ Title: _______________________
THE DRESS BARN, INC.
WITNESS Tenant
By: ________________________
________________________________ Title: _______________________
EXHIBIT A
Intentionally Omitted
EXHIBIT B
Qualified Architects
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Design Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Hellmuth Obata & Kassabaum PC
▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Associates
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Architects
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
EXHIBIT C
Intentionally Omitted
EXHIBIT D
The Land
EXHIBIT E
The Premises
EXHIBIT F
Fixed Rent
A. Tenant shall pay to Landlord the following Fixed Rent:
COMMENCING JUNE 24, 2003
THROUGH APRIL 30, 2005
Annual Payment: TWO MILLION THREE HUNDRED TWENTY-THREE THOUSAND SEVEN HUNDRED
EIGHTY-EIGHT AND 56/100 DOLLARS ($2,323,788.56)
Monthly Payment: ONE HUNDRED NINETY-THREE THOUSAND SIX HUNDRED FORTY-NINE AND
05/100 DOLLARS ($193,649.05)
COMMENCING MAY 1, 2005
THROUGH APRIL 30, 2007
Annual Payment: TWO MILLION SIX HUNDRED SEVENTY-TWO THOUSAND THREE HUNDRED
FIFTY-SIX AND 84/100 DOLLARS ($2,672,356.84)
Monthly Payment: TWO HUNDRED TWENTY-TWO THOUSAND SIX HUNDRED NINETY-SIX AND
40/100 DOLLARS ($222,696.40)
COMMENCING MAY 1, 2007
THROUGH APRIL 30, 2012
Annual Payment: Ninety percent (90%) of the Fair Market Value or fifteen percent
(15%) above the Fixed Rent paid during the period from May 1, 2005 through April
30, 2007, whichever is less, but not less than the Fixed Rent paid during the
period from May 1, 2006 through April 30, 2007, with the Fair Market Value to be
determined pursuant to Paragraph B of this Exhibit F.
COMMENCING MAY 1, 2012
THROUGH APRIL 30, 2017
Annual Payment: Ninety percent (90%) of the Fair Market Value or fifteen percent
(15%) above the Fixed Rent paid during the period from May 1, 2007 through April
30, 2012, whichever is less, but not less than the Fixed Rent paid during the
period from May 1, 2011 through April 30, 2012, with the Fair Market Value to be
determined pursuant to Paragraph B of this Exhibit F.
COMMENCING MAY 1, 2017
THROUGH APRIL 30, 2023
Annual Payment: Ninety-five percent (95%) of the Fair Market Value, but not less
than the Fixed Rent paid during the period from May 1, 2016 through April 30,
2017, with Fair Market Value to be determined pursuant to Paragraph B of this
Exhibit F.
B. (1) If Landlord and Tenant are unable to agree upon the Fair Market Value for
the leasing of the Premises one hundred twenty (120) days prior to the
commencement of each of the terms (i) May 1, 2007 through April 30, 2012, (ii)
May 1, 2012 through April 30, 2017, and (iii) May 1, 2017 through April 30,
2023, such Fair Market Value for each such term shall be determined as follows:
Within thirty (30) days after the expiration of such one hundred twenty (120)
day period, each party shall appoint an M.A.I. appraiser to determine such Fair
Market Value. If either party fails to appoint an appraiser, the other party's
appraisal shall be conclusive. Within thirty (30) days after its appointment,
each appraiser shall submit its appraisal. If the difference between the two
appraisals does not exceed five percent (5%) of the higher appraisal, then the
average of the appraisals shall be the Fair Market Value for the leasing of the
Premises for such term.
(2) If the difference between the two appraisals does exceed five
percent (5%) of the higher appraisal, then the two appraisers shall within ten
(10) days after the second appraisal was submitted appoint a third M.A.I.
appraiser to perform a third appraisal, which shall be performed within thirty
(30) days after such third appraiser's appointment. In the event that the third
appraisal is neither (i) more than one hundred five percent (105%) of the higher
of the two previous appraisals, nor (ii) less than ninety-five percent (95%) of
the lower of the two previous appraisals, then in such event the third appraisal
shall be the Fair Market Value for the leasing of the Premises for the term in
question. In the event that the third appraisal does not exceed one hundred five
percent (105%) of the higher of the two previous appraisals, then in such event
the Fair Market Value for the leasing of the Premises for such term shall be one
hundred five (105%) of the higher of the two previous appraisals. In the event
that the third appraisal is less than ninety-five percent (95%) of the lower of
the two appraisals, then in such event the Fair Market Value for the leasing of
the Premises for such term shall be ninety-five percent (95%) of the lower of
the two appraisals.
(3) In the event that the two appraisers first appointed fail to
appoint a third appraiser to perform a third appraisal as set forth above, the
average of the two appraisals shall become the Fair Market Value for the leasing
of the Premises for such term until such time as a third appraiser is appointed.
Landlord shall make a retroactive adjustment, upward or downward, once the third
appraisal is obtained.
C. The Fixed Rent, per annum, shall be the minimum amount of TWO MILLION SIX
HUNDRED EIGHT THOUSAND NINE HUNDRED EIGHTY-SIX AND 60/100 DOLLARS
($2,608,986.60) for the period commencing on the Commencement Date and ending on
the Expiration Date ($217,415.55 per month), calculated based upon a rental of
$5.10 per rentable square foot and Tenant's occupancy of the Premises comprising
511,566 rentable square feet.
Pursuant to Article 41 hereof, the referenced rental amounts in this Exhibit F
shall not apply to any rental payments due for Vacant Space under this Lease.
EXHIBIT G
Intentionally Omitted
EXHIBIT H
Intentionally Omitted
EXHIBIT I
Intentionally Omitted
EXHIBIT J
Intentionally Omitted
EXHIBIT K
Signage
EXHIBIT L
Intentionally Omitted
EXHIBIT M
Tenant's Loading Area
EXHIBIT N
Tenant's Parking Area
EXHIBIT O
Intentionally Omitted