LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"), made as of the 1st day of
September, 1998, by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, residing at ▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Landlord'), and RECORD
TOWN, INC. and TRANS WORLD ENTERTAINMENT CORP., New York
corporations having their principal offices at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (jointly and severally referred to herein as
"Tenant").
WlTNESSETH:
WHEREAS, the Landlord and Tenant entered into a Lease Agreement,
dated April 1, 1985 (the "Original Lease"), for an office building
and distribution center (the "Existing Warehouse"), covering
approximately 80,000 square feet at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇; and
WHEREAS, the Tenant and the Landlord entered into a lease dated as
of November 1, 1989 (the "Warehouse Lease") for a 77,135 square foot
addition to the distribution center (the "New Warehouse"), located
partially on premises demised by the Original Lease and extending on
to a contiguous parcel owned by the Landlord, which New Warehouse is
more fully shown on Exhibit "A" attached hereto; and WHEREAS, the
Landlord has constructed, to the Tenant's requirements and
specifications 19,100 square feet of additional office space located
partially on premises demised by the original lease and extending to
the parcel formerly known as ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, which additional
office space are more fully shown on Exhibit "B" attached hereto;
and WHEREAS, the Landlord and Tenant desire to provide for a
separate and distinct Lease and financial obligation running from
Tenant to Landlord for the additional office space and
parking area conterminous with the obligations existing under the
Original Lease and the Warehouse Lease. NOW THEREFORE, in
consideration of the mutual promises contained herein and other good
and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Landlord and Tenant agree as follows:
SECTION 1.
DEMISED PREMISES
1.1 The Landlord hereby leases to the Tenant and
the Tenant hereby takes from the Landlord, for the term and upon the
terms, covenants and conditions set forth in this Lease, the
following: (i) the additional office spaces and (ii) that certain
parcel of land with an area approximately 3.58 acres formerly
identified as ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in the City of Albany, Albany
County, New York as more fully described in Exhibit "B", together
with that portion of the land demised by the Original Lease that
lies beneath the additional office space (all of the real property
demised for use of the additional office space is together referred
to herein as the "Land"), as shown on Exhibit "C" (a perimeter
survey map) together with all rights, privileges, easements and
appurtenances belonging hereto. The Land and the additional office
space are hereinafter referred to as the "Demised Premises".
SECTION 2.
TERM
2.1 The term of this lease shall commence
September 1, 1998 (the "Commencement Date") and expire on December
31, 2015, unless earlier terminated pursuant to the provisions
contained herein. The Lease is intended to be coterminous with the
Original Lease.
SECTION 3.
RENT
3.1 Tenant covenants and agrees to pay the Landlord by way of
rental for the Demised Premises, in lawful money of the United
States, without any prior demand and without any setoff or deduction
whatsoever, the sum of Three Hundred Fifteen Thousand and no/100
($315,000.00) Dollars per year (the "Base Minimum Rent"), payable in
equal monthly installments of Twenty Six Thousand Two Hundred Fifty
and no/100 ($26,250.00) Dollars each on the first day of each and
every month during the term of this Lease, subject to the increases
set forth in Section 3.3 below. 3.2 (a) It is intended that the
Base Minimum Rent shall be and continue to be, payable in all events
throughout the term hereof, and shall be an absolutely net return to
the Landlord for the term of this Lease, free of any loss, cost
expense or charges with respect to the Demised Premises, including
without limitation by reason of enumeration, maintenance, repairs,
cost of replacement of buildings and charges and other such
impositions now or hereafter imposed upon or related to the Demised
Premises herein. (b) SUCH RENT HEREUNDER IS ABSOLUTE AND
UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY ABATEMENT,
RECOUPMENT, DIMINUTION, REDUCTION OR SETOFF WHATSOEVER. THE TENANT
UNDERSTANDS AND AGREES THAT THE RENT PAYMENTS UNDER THIS LEASE, BUT
NOT THE OBLIGATIONS HEREUNDER, WILL BE ASSIGNED TO THE LANDLORD'S
DESIGNATED LENDER (WHICH LENDERS, MORTGAGEES, HOLDERS OF TRUST DEED,
AND THEIR SUCCESSORS AND ASSIGNS ARE REFERRED TO HEREIN AS THE
"LENDER").
3.3 Commencing and effective as of January 1, 2000 and every two
years thereafter, the Base Minimum Rent shall be increased (but not
decreased) to reflect the increase, if any, in the annual cost of
living during the preceding two year period. The Base Minimum Rent
shall be amended and revised effective as of each such January 1 to
become the product of the then-current Base Minimum Rent and a
fraction (which shall not be less than 1.0), the numerator of which
is the "CPI-All Urban Consumer, (1982-84=100), U.S. City Average,
All Items", as published by the Bureau of Labor Statistics of the
U.S. Department of Labor (referred to herein as the "Price Index")
reported for the immediately-preceding December, and the denominator
of which is the Price Index in the month of December two years
earlier. The retroactive rental increase, if any, shall be payable
by Tenant within 10 days after publication of the Price Index, and
all future payments of Base Minimum Rent shall be based upon the
revised Base Minimum Rent unt il further adjustment. 3.4 The
Landlord and Tenant hereby stipulate that, for all intents and
purposes, the Base Minimum Rent shall be accrued on a cash basis as
payable pursuant to the terms of this Lease.
SECTION 4.
USE
4.1 The Tenant may use and occupy the Demised Premises for office
and warehouse distribution purposes only, in a manner consistent
with the zoning existing on the Commencement Date or as thereafter
modified, and for no other purpose whatsoever.
SECTION 5.
REAL PROPERTY TAXES
5.1 Tenant agrees to pay before they become delinquent, any and
all real estate taxes, payments in lieu of taxes and special
assessments, water and sewer rents, and any other governmental
charges, general and special, ordinary or extraordinary
(collectively referred to herein as the "Real Property Taxes"), that
are lawfully levied or assessed against the Demised Premises.
Tenant does hereby indemnify, defend and hold the Landlord harmless
from and against any and all damages and costs (including reasonable
attorneys' fees ) caused by or resulting from Tenant's failure to
pay on a timely basis any Real Property Taxes. 5.2 Landlord or
Tenant may request and take whatever steps are required to obtain a
separate tax ▇▇▇▇ for the Demised Premises and, if so obtained, the
Tenant shall pay said tax ▇▇▇▇ in a timely manner. In the event the
taxing authority refuses to allow a separate tax ▇▇▇▇ for the
Demised Premises, then a method of computation provided by the local
assessor's office showing how it arrived at the tax computation for
Tenant's improvements and the land shall be satisfactory and binding
upon Landlord and Tenant. 5.3 If by law any such Real Property
Taxes may be paid in installments, Tenant shall pay each such
installment on or before the date upon which such installment may be
paid before delinquency, and Tenant shall exhibit to Landlord for
examination for all such taxes within 30 days after the last day
upon which the same may be so paid. 5.4 In the event Tenant fails
to pay any such Real Property Taxes before delinquency, and if such
default shall continue for an additional period of thirty (30) days
after Landlord shall have given Tenant notice in writing of the
existence thereof, then in such event, Landlord may
pay such taxes, together with all interest and penalties thereon or
in connection therewith, and the amount so paid shall be deemed to
be additional rent then due and payable by Tenant to Landlord. The
amount of any payment made by Landlord shall accrue interest at the
rate of two (2%) percent in excess of the prime lending rate charged
by any Lender. 5.5 Anything contained herein to the contrary
notwithstanding, Landlord agrees that Tenant shall have the right to
contest the amount or legality of any Real Property Taxes which it
is obligated to pay, and the right to make application for the
reduction thereof or of any assessment upon which the same may be
based, but this shall not be deemed or construed in any way as
releasing or discharging Tenant's covenant to pay such taxes.
Landlord shall, at the request of Tenant, join in any such
proceedings or application; provided, however, that Tenant agrees to
indemnify Landlord against all liabilities, damages, costs and
expenses, including counsel fees, in connection therewith, and all
such proceedings and applications shall be without cost or expense
or liability to Landlord. If Tenant shall contest the amount or
legality of any such imposition, or make application for the
reduction thereof, or of any assessment which the same may be based,
the time within which Tenant shall be required to pay the same shall
be extended until such contest or application shall have been
finally determined (including all appeals with respect thereto), but
only if such legal proceedings or such action as Tenant may and does
take in connection therewith shall operate to prevent or stay the
collection of the impositions contested and the sale of the Demised
Premises, or any part thereof, to satisfy the same. Tenant agrees
that it will prosecute any such contest or application with due
diligence and that it will, within thirty (30) days after final
determination thereof (including all appeals with respect thereto),
pay the amount of such taxes which may have been the subject of such
contest
or application as so determined, together with any interest and
penalties, costs and charges which may be payable in connection
therewith; provided, however, that if at any time payment of the
whole or any part of the amount so contested shall be necessary in
order to prevent sale or forfeiture of the Demised Premises or any
part thereof or interest therein because of the non-payment of such
imposition, then Tenant shall be obligated at all times to protect
the title and interest of Landlord in the Demised Premises,
including all buildings, improvements and equipment thereon, against
all forfeiture or loss resulting from the non-payment of any taxes
or any penalties, costs or charges in connection therewith. 5.6
Nothing herein contained shall require Tenant to pay municipal,
state or federal income, excess profits, revenue or excise taxes
assessed against or imposed upon Landlord, or municipal, state or
federal capital levy, capital stock, estate, succession,
inheritance, devolution, transfer or gift taxes of Landlord, or
corporation franchise taxes imposed upon any corporate owner of the
fee (or undivided interest(s) in the fee) of the Demised Premises,
or any other taxes of a similar nature which are or may become
payable by Landlord or which may be imposed against Landlord, the
income or profits of Landlord, by reason of any law now in force or
hereinafter enacted, except that the Tenant shall reimburse the
Landlord for any tax, excise, surcharge or assessment upon or
against the Base Minimum Rent. 5.7 As respects the year in which
the term of this Lease expires or terminates, Tenant shall not be
liable for taxes in respect of the improvements and/or the land
comprising the Demised Premises which are applicable to the
fractional period subsequent to termination, and if Tenant shall
have previously paid any such taxes for which it is not so liable,
Landlord shall refund the excess to Tenant.
SECTION 6.
INSURANCE
6.1 Tenant agrees to maintain on any buildings and improvements
now or hereafter erected on the Demised Premises fire insurance with
extended coverage in an amount not less than ninety percent (90%) of
the replacement cost of the buildings and improvements with the
exception of site work, footings and foundations. Said policy or
policies shall name Landlord as an additionally named insured with a
certificate of said policy being furnished Landlord at the time of
occupancy by Tenant of the Demised Premises. Said Policy shall have
endorsed thereon the standard New York mortgagee clause naming
Landlord's mortgagee. In the event Tenant fails to pay the premiums
as they become due for said fire and extended coverage (said
policies to contain a clause whereby the same may not be canceled
until fifteen (15) days have elapsed after Landlord has been given
notice of Tenant's failure to pay said premium), Landlord may pay
said premium or premiums. In the event Landlord pays for said
premiums, the amount so paid shall b e charged to Tenant as
additional rent and shall be due and payable to Landlord at the next
monthly rent payment date after receiving notice from Landlord that
it has paid such premium. 6.2 Tenant shall carry, at its own
expense, public liability insurance with coverage of at least
$3,000,000/$5,000,000 and $500,000 property damage insurance for the
benefit of both Landlord and Tenant, provided from insurance
companies rated at least "A" by Best. A certificate of insurance
for the above policies shall contain an endorsement by the insurance
company agreeing to give the Landlord fifteen (15) days written
notice before canceling the coverage for any reason. Should the
Tenant fail to pay the premium on said policies, Landlord may pay
the same and charge the cost thereof to the Tenant as additional
rent on the next rental
payment date. Landlord may request higher limits from time to time
as is reasonably consistent with industry practices, but that
requested increases of at least the cumulative rate of increase in
the Price Index shall, if requested by Landlord, be deemed to be
reasonable. 6.3 All insurance required by this Lease may be
provided under Tenant's blanket policies from time to time in
effect.
SECTION 7.
REPAIRS, ALTERATIONS AND TITLE TO IMPROVEMENTS
7.1 Tenant may not make any alterations, additions and
improvements to the Demised Premises without Landlord's consent,
which consent shall not be unreasonably withheld. The Tenant shall
take good care of the Demised Premises and shall make all necessary
structural and non-structural repairs to the exterior and interior
thereof, and to the fixtures and equipment therein, including all
plumbing, heating, air conditioning and electrical fixtures, and
sewer laterals connecting the Demised Premises to any services.
Upon the expiration or other termination of this Lease, the Tenant
shall surrender the Demised Premises to the Landlord broom clean and
in good condition, ordinary wear and tear, and loss of casualty or
condemnation excepted.
7.2 All improvements, alterations or additions made by the Tenant
shall remain the property of the Tenant during the term of this
Lease, but shall become the property of the Landlord upon
termination of this Lease, at no expense to the Landlord, an shall
remain upon and be surrendered with the Demised Premises, as part
thereof, at the expiration or termination of this Lease.
7.3 Work performed by Tenant under the provisions of this Lease
which is covered by insurance shall entitle Tenant to the insurance
proceeds as a reimbursement for such work.
SECTION 8.
PARKING LOT MAINTENANCE
8.1 Tenant covenants and agrees to keep the Demised Premises
clean, both inside and out, at its own expense, and to keep the
walks and parking areas within the Demised Premises free from
rubbish, snow and ice at its own expense. Tenant covenants and
agrees to keep the entranceways, parking areas and interior roadways
in good order and repair and to replace or repair any and all
defects thereto, at its sole expense, including the cleaning and
restriping of the parking area and driveways, snow removal, the
maintaining and repairing of all landscaped and planted areas, and
the maintaining, repairing and replacing of parking lot lighting
facilities. Tenant shall contract and pay for the cost of garbage
and trash removal, so that there shall be no accumulation of trash
or garbage.
SECTION 9.
ASSIGNMENT AND SUBLETTING
9.1 The Tenant may not assign this Lease or sublet, or permit the
Demised Premises or any part thereof, to be used by others, without
the prior written consent of the Landlord, which consent shall not
be reasonably withheld or delayed.
SECTION 10.
UTILITIES AND EASEMENTS
10.1 All light, heat, power, gas, water and sewer charges shall be
paid for by the Tenant when due and payable.
SECTION 11.
MECHANICS LIENS
11.1 Tenant shall indemnify and save harmless the Landlord against
all loss, liability, costs, attorneys fees, damages or interest
charges as a result of any Mechanic's Lien or any other lien filed
against the Demised Premises as a result of any act or omission or
as a result of any repairs, improvements, alterations or additions
made by the Tenant or its agents or employees. The Tenant shall,
within thirty (30) days of the filing of any such Lien and notice
given to the Tenant, remove, pay or cancel said Lien or secure the
payment of any such Lien or Liens by bond or other acceptable
security. The landlord, at its option, after thirty (30) days
notice to the Tenant may pay the said Lien or at its discretion,
without inquiring into the validity thereof, and the Tenant shall
forthwith reimburse the Landlord for the total expense incurred by
the Landlord in discharging or bonding the said Lien as additional
rent hereunder. Tenant shall have the right, at all times and at
its own expense, to contract and defend , on behalf of the Tenant or
Landlord, an action involving the cancellation, validity or removal
of such Lien or Liens.
SECTION 12.
LIABILITY
12.1 The Landlord and the Landlord's agent and employees shall not
be liable for, and the Tenant waives, any and all claims for damages
to persons and property sustained by the Tenant or the Tenant's
agents, employees, assigns, licensees, concessionaires, invitees or
any person claiming through said parties resulting from any accident
or occurrence in or upon the Demised Premises, except for the
negligence of the Landlord or the Landlord's agents and employees.
Said waiver shall include, but not be limited to, claims for damage
to person or
property resulting from any equipment or appurtenance out of repair,
defective electrical, heating, air conditioning, plumbing, sewer,
water system or installations or from the operation of said
equipment or installation, or damage by broken glass, ice, water,
snow, gas entering the Demised Premises, or for the acts, omissions
or negligence of trespassers. In no event shall the Tenant have,
and Tenant expressly waives, any cause of action against the
Landlord.
SECTION 13.
COMPLIANCE WITH LAWS
13.1 Tenant shall comply with all valid requirements of the Fire
Underwriters or any duly constituted public authority, and with the
requirements of any Federal, State, County or local law or ordinance
applicable to the use and occupancy of the Demised Premises and any
repairs or work performed on the Demised Premises by the Tenant, and
Tenant agrees to indemnify the Landlord and save Landlord harmless
from and against any penalty, damage or charge imposed for any
violation by the Tenant and its successors, assigns, sublessees,
licensees, agents and employees. 13.2 Landlord shall join in or
consent to any and all reasonable applications and petitions to any
governmental or other public agency that Tenant may, from time to
time, make in connection with the Demised Premises, provided only
that Tenant shall save Landlord harmless from all costs incurred in
connection therewith.
SECTION 14.
LANDLORD'S RIGHT TO ENTRY
14.1 Landlord and his authorized agents shall have the right to
enter the premises during normal working hours for the purpose of
inspecting the general condition and state of
repair of the Demised Premises and to show the Demised Premises to
any prospective purchaser, but only upon three (3) days prior
written notice to Tenant. 14.2 During the final ninety (90) day
period of the Lease term, Landlord and its authorized agents shall
have the fight to erect on or about the Demised Premises a customary
sign advertising the Demised Premises for lease or for sale. During
said 90-day period, Landlord and its authorized agents shall have
the right to enter the Demised Premises during normal working hours
for the showing of the Demised Premises to prospective tenants or
purchasers.
SECTION 15.
MORTGAGE SUBORDINATION
15.1 Tenant agrees within ten (10) days after request therefor by
Landlord, to execute in recordable form and deliver to Landlord a
statement, in writing, certifying (a) that this Lease is in full
force and effect, (b) the date of commencement of the term of this
Lease, (c) that rent is paid currently without any offset or defense
thereto, (d)the amount of rent, if any, paid in advance, (e) whether
this Lease has been modified and, if so, identifying the
modifications, and (f) that there are no uncured defaults by
Landlord or stating those claimed by Tenant, provided that, in fact,
such facts are accurate and ascertainable. 15.2 In the event any
proceedings are brought for the foreclosure of, or in the event of
the conveyance by deed in lieu of foreclosure of, or in the event of
exercise of the power of sale under, any mortgage made by Landlord
covering the Demised Premises, or in the event Landlord sells,
conveys or otherwise transfers its interest in the Demised Premises,
Tenant hereby attorns to such assignee or transferee and covenants
and agrees to execute an instrument in writing reasonably
satisfactory to the new owner whereby Tenant attorns such successor
in interest
and recognizes such successor as the Landlord under this Lease.
15.3 Tenant agrees that this Lease and Tenant's rights thereunder
are subject and subordinate to any mortgage or mortgages now on or
that may hereafter be placed upon the Demised Premises and to any
and all advances to be made thereunder, and to the interest thereon,
and all renewals, replacements and extensions thereof, provided that
any Lender named in said mortgages shall agree to recognize the
interest of Tenant under this Lease in the event of foreclosure, if
Tenant is not then in default pursuant to a non-disturbance
agreement in form and substance acceptable to the Lender. Further,
Tenant agrees that if Landlord defaults in its performance of any of
the covenants under the Lease and if such default is not cured by
the Landlord, then Landlord's Lender shall be entitled to an
additional thirty-day cure period. Tenant also agrees that any
mortgagee may elect, at mortgagee's sole and exclusive option, to
have this Lease constitute a prior lien to its mortgage, and in the
event of such election and upon not ification by such mortgagee to
Tenant to that effect, this Lease shall be deemed prior in lien to
such mortgage, whether this Lease is dated prior to or subsequent to
the date of said mortgage. Tenant agrees that, upon the request of
Landlord, or any mortgagee, Tenant shall execute whatever
instruments may be required to carry out the intent of this Section.
SECTION 16.
DEFAULT
16.1 The occurrence of any one or more of the following events
(herein sometimes called "defaults") shall, with the giving of
notice or the passage of time, if applicable, constitute an Event or
Default under this Lease:
(a) If default shall be made in the due and punctual payments of
any rent or additional rent payable under this Lease or the Original
Lease or any part thereof when and as the same shall become due and
payable, and such default shall continue for a period of ten (10)
days, without notice, from the date when due; or (b) If default
shall be made by Tenant in the performance or compliance with any of
the agreements, terms, covenants or conditions in this Lease, other
than those contained in Subsection 16.1 (a) for a period of thirty
(30) days after written notice from Landlord to Tenant specifying
the items in default, or in the case of a default of a covenant
which cannot with due diligence be cured within said thirty (30) day
period, Tenant fails to proceed within said thirty (30) day period
to cure the same with due diligence, it being intended in connection
with a default not susceptible of being cured with due diligence
within said thirty (30) day period that the time of Tenant within
which to cure the same shall be extended for such period as
necessary to complete the same with all due diligence; or (c)
Immediately upon Tenant's filing of a voluntary petition in
bankruptcy or adjudication as a bankrupt or insolvent, or filing any
petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar
relief under the present or future applicable, federal, state or
other statute of law, or seeking or consenting to or acquiescence in
the appointment of any bankruptcy or insolvency trustee, receiver or
liquidator of Tenant or of all or any substantial part of its
properties or of the Premises; or
(d) If within sixty (60) days after the commencement of any
proceeding against Tenant seeking any reorganization, arrangement,
composition, readjustment, liquidation,
dissolution or similar relief under the present or any future
federal bankruptcy act or any other present or future federal,
state or other bankruptcy or insolvency statute of law, such
proceeding shall not have been dismissed within twenty (20) days
after notice from Landlord to Tenant of an intention to terminate
this Lease for failure to remove the condition in question or if,
within one hundred twenty (120) days after the appointment, without
the consent or aquiescence of Tenant, of any trustee, receiver or
liquidator of Tenant or of all or substantially all of its
properties or of the Premises such appointment shall not have been
vacated or stayed on appeal or otherwise, of if, within one hundred
twenty (120) days after notice (to be given not before the
expiration of said one hundred twenty (120) day period) from
Landlord to Tenant of an intention to terminate this Lease for
failure to remove the condition in question. Then and in any such
event Landlord at any time thereafter may give written notice to
Tenant specifying such event of default or events of default and
stating that this Lease and the term hereby demised shall expire
and terminate on the date specified in such notice, which shall be
at least ten (10) days after the giving of such notice, and upon
the term hereby demised and all rights of Tenant under this Lease
shall expire and terminate, and Tenant shall remain liable as
hereinafter provided; or (e) Immediately upon the occurrence of any
default under Article Eight of the Original Lease, with the giving
of notice or the passage of time, as applicable. 16.2 (a) If any
one or more Events of Default set forth in Section 16.1 occurs, the
Landlord may, at its option, do any one or more of the following:
(i) Either with or without terminating this Lease, at Landlord's
option, proceed by appropriate court action or actions, either at
law or in equity, to enforce performance by the Tenant of applicable
terms and covenants of this Lease and to recover from the Tenant
any and all damages and expenses, including reasonable attorneys'
fees; and notwithstanding any termination the Tenant nevertheless
covenants and agrees to pay and be liable for, on the days
originally fixed herein for the payment therefor, the several
installments of rent, accrued damages and all other charges as a
continuing obligation of Tenant; or
(ii) By written notice to the Tenant terminate this Lease as of
the earliest date permitted by law, and accelerate and declare
immediately payable and due all monies owed or to be paid by the
Tenant during the remaining term of this Lease, including all
amounts in arrears, and Landlord shall have the right, to the extent
permitted by applicable statutes (A) to recover all monies so
declared due and payable, except that future payments shall be
discounted at the lower of 9% per annum or the then prevailing prime
interest rate charged by principal New York City banks; (B) to
terminate Tenant's right to possession of the Demised Premises and,
without being deemed guilty of any manner of trespass, to retake
immediate possession thereof; (C) to recover all costs and expenses,
including, but not limited to, reasonable attorneys' fees and the
costs of repairs and alterations, which Landlord shall have incurred
or may incur by reason of the Event of Default or on account of
Landlord's enforcement of its remedies here under and (D) to pursue
any other remedy permitted at law or in equity; or (iii) Without
further demand or notice, to cure any Event of Default and to charge
the Tenant, as additional rent, for the cost of effecting such cure,
including but not limited to attorneys' fees and interest on the
amount so advanced at the prime interest rate of principal New York
City banks plus 2 percentage points; provided, however, that in no
event shall the Landlord have an obligation to cure any such Event
of Default.
(b) In the event of a termination made pursuant to Subsection
16.2(a)(ii) only, the Landlord agrees to use reasonable efforts to
mitigate his damages and, conditioned on Tenant's good faith efforts
to so pay the damages due to the Landlord, to: (i) If Landlord is
successful at reletting the Demised Premises, to reimburse the
Tenant (up to the maximum amount of damages actually paid hereunder)
5 years value of Re-Lease Proceeds as such proceeds are actually
collected. "Re-Lease Proceeds" shall mean the monthly or other
scheduled rental payments received under a re-lease to a third
party, less all costs incurred by the Landlord in marketing the
Demised Premises since the effective date of the applicable Event of
Default (which may include concessions of free rent and alteration
and repair of the Demised Premises), less all applicable
commissions, less a 5% administration fee on account of and payable
to the Landlord, and, in any case, subject and subordinate to the
rights of the Lender; or (ii) If Landlord, at its sole and exclusive
option, elects to sell the Demised Premises within two years after
the effective date of the Event of Default, it agrees to reimburse
the Tenant (up to the maximum amount of damages actually paid
hereunder) 20% of the amount by which the aggregate net sales
proceeds (after deducting marketing expenses, sales commissions and
repair and alteration of the Demised Premises) of the Existing
Warehouse and the Demised Premises exceeds $10 million, subject and
subordinate to the rights of the Lender. In no event shall
Landlord's efforts to mitigate damages delay Tenant's payment in
full of all damages or otherwise offset or reduce any amounts
payable under Subsection 16.1 (a)(ii). (c) Landlord shall at all
times retain the discretion of which successor tenants, for what
term, and at what rental, it shall obtain in re-leasing the Demised
Premises.
16.3 Upon such expiration or termination of this Lease, Tenant
shall quit and peacefully surrender the Demised Premises to
Landlord, and Landlord, upon or at any such expiration or
termination, may without further notice enter upon and re-enter the
Demised Premises and possess and repossess itself thereof, by force,
summary proceedings, ejectment or otherwise, and may dispossess
Tenant and remove Tenant and all other persons and property from the
Demised Premises and may have, hold and enjoy the Demised Premises
and the fight to receive all rental income of and from the same.
16.4 In case of any such termination, the rents and all other
charges required to be paid up to the time of such termination,
re-entry or dispossess, shall be paid by Tenant and Tenant shall
also pay to Landlord all reasonable expenses which Landlord may then
or thereafter incur for legal expenses, repair and alteration of the
Demised Premises, attorney's fees, brokerage commissions and all
other reasonable costs paid or incurred by Landlord for restoring
the premises to good order and condition. Landlord may, at any time
and from time to time, relet the Demised Premises, in whole or in
part, for any rental then obtainable either in its own name or as
agent of Tenant, for a term or terms which, at Landlord's option,
may be for the remainder of the then current term of this Lease or
for any longer or shorter period. 16.5 Each right and remedy
provided for in this Lease shall be cumulative and shall be in
addition to every other right or remedy provided for this Lease or
now or hereafter existing at law or in equity or by statute or
otherwise, and the exercise or beginning of the rights or remedies
provided for in this Lease or now or hereafter existing at law or in
equity or by statute or otherwise shall not preclude the
simultaneous or later exercise by the party in question of any or
all other rights or remedies provided for in this Lease or now or
hereafter existing at law or in
equity or by statute or otherwise.
16.6 Tenant waives any and all rights of redemption or re-entry or
repossession under present or future laws, including specifically,
but without limitation Section 761 of the New York Real Property
Actions and Proceedings Law, including any amendments hereafter, to
restore the operation of this Lease.
SECTION 17.
EMINENT DOMAIN
17.1 If the whole or any part of the Demised Premises shall be
taken or condemned by any competent authority for any public use or
purpose then the term hereby granted shall cease from the time when
possession of the part so taken shall be required for such public
purpose and without apportionment of award, the Tenant hereby
assigns to the Landlord all right and claim to any such award and
the current rent. Tenant shall have the right to claim and recover
from the condemning authority, but not from the Landlord, such
compensation as may be separately awarded or recoverable by the
Tenant in Tenant's own right for its equipment, improvements and
relocation expenses.
SECTION 18.
VACATION OF PREMISES
18.1 The Tenant shall and will, on the 1st day of the term hereof,
and upon any earlier termination of this Lease, or upon re-entry by
the Landlord upon the Demised Premises pursuant to Section 16
hereof, surrender and deliver up the Demised Premises into the
possession and use of the Landlord without fraud or delay in good
order, condition and repair, reasonable wear and tear and damage by
fire or other casualty excepted. SECTION 19.
INVALIDITY OF PARTICULAR PROVISIONS
19.1 If any term or provision of this Lease or the application
thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances
other than those as to which is held invalid or unenforceable, shall
not be affected thereby, and each term and provision of this Lease
shall be valid and enforceable to the fullest extent permitted by
law.
SECTION 20.
NOTICES
20.1 All notices, demands and requests required under this Lease
shall be in writing. All such notices, demands and requests shall
be deemed to have been properly given if sent by United States
Registered or Certified Mail, postage prepaid, addressed to the
Landlord at:
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and to the Tenant at:
TRANS WORLD ENTERTAINMENT CORP.
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Attn: Vice President-Finance
or such other persons and addresses as the Landlord and the Tenant
may from time to time designate by written notice addressed to one
another. Notices, demands and requests which shall be served by
Registered or Certified Mai1 upon the Landlord or the Tenant, in the
manner aforesaid, shall be deemed sufficiently served or given for
all purposes hereunder at the time
such notice, demand or request shall be mailed United Stated
Registered or Certified Mail as aforesaid in any Post Office or
Branch Office regularly maintained by the United States Government.
SECTION 21.
QUIET ENJOYMENT
21.1 The Tenant, upon paying the rent, additional rent and charges
herein provided for and observing and keeping all covenants and
conditions of this Lease on its part to be kept, shall quietly have
and enjoy the Demised Premises during the term of this Lease without
hindrance or molestation by anyone claiming by, through, or under
Landlord. 21.2 Landlord covenants and represents that the office
was constructed in a good and workmanlike manner and agrees to
warrant the same for a period of two (2) years from the date of this
Lease. In addition, the Landlord hereby assigns to Tenant all
contractors' and suppliers' warranties in connection with the
construction of the office and the installation of equipment and
fixtures. Landlord's warranty under this Section 21.2 is personal
to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and may not be assigned by him in any manner
whatsoever without Tenant's prior written consent. Further, Tenant
agrees that any Lender assuming Landlord's rights under this Lease
by way of assignment, foreclosure, or otherwise, shall be exculpated
from any liability whatsoever from this and any other
representation, covenant or warranty, express or implied, by
operation of law or otherwise.
SECTION 22.
MISCELLANEOUS PROVISIONS
22.1 Recordation. The Landlord and Tenant agree to execute a
Memorandum of Lease in compliance with Section 29I-C of the Real
Property Law of the State of New York for the purpose of recording
this Lease in the Albany County Clerk's Office. This Lease may not
be recorded by either party.
22.2 Captions. The captions of this Lease are for convenience and
reference and in no way define, limit or describe the scope or
intent of this Lease, nor in any way affect this Lease.
22.3 New York Laws to Govern Construction and Enforcement. This
Lease shall be construed and enforced in accordance with the laws of
the State of New York.
22.4 Entire Agreement. Upon the execution and delivery hereof,
this instrument shall constitute the entire agreement between the
Landlord and the Tenant for the Demised Premises. This Lease cannot
be changed orally, but only by an agreement in writing and signed by
the party against whom enforcement of any waiver, change,
modification or discharge is sought.
22.5 Successors and Assigns. The covenants and agreements herein
contained shall bind and inure to the benefit of the Landlord, its
successors and assigns, and the Tenant, its successors and assigns,
except as otherwise provided herein.
IN WITNESS WHEREOF, the Landlord and Tenant have each executed this
Lease Agreement as of the day and year first above written.
WITNESS:
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WITNESS: TRANS WORLD ENTERTAINMENT CORP.
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WITNESS: RECORD TOWN, INC.
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