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IMPORT ▇▇▇▇▇ ASSOCIATES
Landlord,
and
THE ▇▇▇▇▇▇ ▇▇▇ COMPANIES, INC.
Tenant
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LEASE
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Premises:
in
▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
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TABLE OF CONTENTS
ARTICLES PAGE
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1 - DEFINITIONS..............................................................1
2 - DEMISE AND TERM..........................................................6
3 - RENT.....................................................................6
4 - USE OF DEMISED PREMISES .................................................7
5 - PREPARATION OF DEMISED PREMISES..........................................7
6 - TAX AND OPERATING EXPENSE PAYMENTS.......................................8
7 - COMMON AREAS............................................................11
8 - SECURITY................................................................12
9 - SUBORDINATION...........................................................13
10 - QUIET ENJOYMENT.........................................................15
11 - ASSIGNMENT, SUBLETTING AND MORTGAGING...................................16
12 - COMPLIANCE WITH LAWS....................................................18
13 - INSURANCE AND INDEMNITY.................................................19
14 - RULES AND REGULATIONS...................................................22
15 - ALTERATIONS AND SIGNS...................................................22
16 - LANDLORD'S AND TENANT'S PROPERTY........................................23
17 - REPAIRS AND MAINTENANCE.................................................24
18 - UTILITY CHARGES.........................................................26
19 - ACCESS, CHANGES AND NAME................................................27
20 - MECHANICS' LIENS AND OTHER LIENS........................................28
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PAGE
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21 - NON-LIABILITY AND INDEMNIFICATION.......................................28
22 - DAMAGE OR DESTRUCTION...................................................29
23 - EMINENT DOMAIN..........................................................31
24 - SURRENDER...............................................................32
25 - CONDITIONS OF LIMITATION................................................33
26 - RE-ENTRY BY LANDLORD....................................................34
27 - DAMAGES.................................................................35
28 - AFFIRMATIVE WAIVERS.....................................................37
29 - NO WAIVERS..............................................................38
30 - CURING TENANT'S DEFAULTS................................................38
31 - BROKER..................................................................39
32 - NOTICES.................................................................39
33 - ESTOPPEL CERTIFICATES...................................................39
34 - ARBITRATION.............................................................40
35 - MEMORANDUM OF LEASE.....................................................40
36 - MISCELLANEOUS...........................................................40
EXHIBITS
Exhibit A - Demised Premises
Exhibit B - Description of Land
Exhibit C - Work letter
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PAGE
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Exhibit D - Rules and Regulations
Exhibit E - Permitted Encumbrances
Exhibit F - Lease Modification
Exhibit G - Parking Spaces
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LEASE, dated August 20, 1996 between IMPORT ▇▇▇▇▇ ASSOCIATES, a New
Jersey Limited Partnership, having an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇- 3688 ("Landlord"), and THE ▇▇▇▇▇▇ ▇▇▇ COMPANIES, INC., a Delaware
corporation, debtor-in-possession, having an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ("Tenant").
ARTICLE 1 - DEFINITIONS
1.01. As used in this Lease (including in all Exhibits and any
Riders attached hereto, all of which shall be deemed to be part of this Lease)
the following words and phrases shall have the meanings indicated:
A. Advance Rent: $122,039.16.
B. Additional Charges: All amounts that become payable by Tenant
to Landlord hereunder other than the Fixed Rent and Percentage Rent.
C. Architect: ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or as Landlord may designate.
D. Broker: None.
E. Building: The buildings referred to on Exhibit A as Building A
and Building B located on the Land and collectively known as ▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇.
F. Building Fraction: The fraction expressed as a percentage
(i.e. 3.89%), the numerator of which is the Floor Space of the Building
(approximately 401,678 square feet) and the denominator of which is the
aggregate Floor Space of the buildings in the Development (i.e. approximately
10,337,983 square feet). If the aggregate Floor Space of the Building or the
buildings in the Development shall be changed due to any construction or
alteration, the denominator of the Building Fraction shall be increased or
decreased to reflect such change.
G. Calendar Year: Any twelve-month period commencing on a January
1.
H. Commencement Date: The date upon which both (a) the Assumption
Approval is obtained and (b) the Demised Premises shall have been turned over to
Tenant (notwithstanding that Landlord's Work may not be completed or may be
ongoing as of such date).
I. Common Areas: All areas, spaces and improvements in the
Building and on the Land which Landlord makes available from time to time for
the common use and benefit of the tenants and occupants of the Building and
which are not exclusively available for use by a single tenant or occupant,
including, without limitation, parking areas, roads, walkways, sidewalks,
landscaped and planted areas, community rooms, if any, the managing agent's
office, if any, and public rest rooms, if any.
J. Demised Premises: The area outlined in red on the plan
attached hereto as Exhibit A. The Demised Premises contains or will contain
approximately 292,894 square feet of Floor Space on the first (1st) and second
(2nd) floor of the Building, 119,470 square feet of which is located in Building
A and 173,424 square feet of which is located in Building B, subject to
adjustment upon verification by the Architect.
K. Development: All land and improvements owned by Landlord or
its parents, subsidiaries, or affiliates, now existing or hereafter constructed,
located south of Route 3, east of the Hackensack River, west of County Avenue
and north of Castle Road.
L. Development Common Areas: The roads and bridges that from time
to time service and provide access to the Development for the common use of the
tenants, invitees, occupants of the Development, that are maintained by Landlord
or its related entities.
M. Expiration Date: The date that is the day before the tenth
(10th) anniversary of the Fixed Rent Commencement Date if the Fixed Rent
Commencement Date is the first day of a month, or the tenth (10th) anniversary
of the last day of the month in which the Fixed Rent Commencement Date occurs if
the Fixed Rent Commencement Date is not the first day of a month. However, if
the Term is extended by Tenant's effective exercise of Tenant's right, if any,
to extend the Term, the "Expiration Date" shall be changed to the last day of
the latest extended period as to which Tenant shall have effectively exercised
its right to extend the Term. For the purposes of this definition, the earlier
termination of this Lease shall not affect the "Expiration Date."
N. Fixed Rent: Commencing on the Fixed Rent Commencement Date
through the date which is the day before the fifth (5th) anniversary of the
Fixed Rent Commencement Date, an amount at the annual rate of Five and 00/100
Dollars ($5.00) multiplied by the number of square feet of Floor Space of the
Demised Premises; and from the fifth (5th) anniversary of the Fixed Rent
Commencement Date of this Lease through the Expiration Date, an amount at the
annual rate of Five and 75/100 ($5.75) Dollars multiplied by the number of
square feet of Floor Space of the Demised Premises. It is intended that the
Fixed Rent shall be an absolutely net return to Landlord throughout the Term,
free of any expense, charge or other deduction whatsoever, with respect to the
Demised Premises, the Building, the Land and/or the ownership, leasing,
operation, management, maintenance, repair, rebuilding, use or occupation
thereof, or any portion thereof, with respect to any interest of Landlord
therein, except as may otherwise expressly be provided in this Lease.
O. Fixed Rent Commencement Date: The Fixed Rent Commencement Date
shall have the meaning set forth in Paragraph R3 of the Rider to this Lease.
P. Floor Space: Any reference to Floor Space of a demised
premises shall mean the floor area stated in square feet bounded by the exterior
faces of the exterior walls, or by the exterior or Common Areas face of any wall
between the premises in question and any portion of
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the Common Areas, or by the center line of any wall between the premises in
question and space leased or available to be leased to a tenant or occupant,
plus a pro rata portion of the floor area of the Common Areas in the Building;
and any reference to Floor Space of the Building shall mean the aggregate Floor
Space of the demised premises leased or which Landlord has available to be
leased in the Building, measured in the same manner. There will be no reduction
of Floor Space measurements for setbacks for store fronts or service entrances,
and Floor Space of any premises with a setback for a store front shall be
measured to the line of such premises as if such premises had no setback. Any
reference to the Floor Space is intended to refer to the Floor Space of the
entire area in question irrespective of the Person(s) who may be the owner(s) of
all or any part thereof.
Q. Guarantor: None.
R. Insurance Requirements: Rules, regulations, orders and other
requirements of the applicable board of underwriters and/or the applicable fire
insurance rating organization and/or any other similar body performing the same
or similar functions and having jurisdiction or cognizance over the Land and
Building, whether now or hereafter in force.
S. Land: The Land consisting of Tract A and Tract B upon which
the Building and Common Areas are located, as more particularly described on
Exhibit B.
T. Landlord's Work: The materials and work to be furnished,
installed and performed by Landlord at its expense in accordance with the
provisions of Exhibit C.
U. Legal Requirements: Laws and ordinances of all federal, state,
city, town, county, borough and village governments, and rules, regulations,
orders and directives of all departments, subdivisions, bureaus, agencies or
offices thereof, and of any other governmental, public or quasi-public
authorities having jurisdiction over the Land and Building, whether now or
hereafter in force, including, but not limited to, those pertaining to
environmental matters.
V. Mortgage: A mortgage and/or a deed of trust.
W. Mortgagee: A holder of a mortgage or a beneficiary of a deed
of trust.
X. Operating Expenses: The sum of the following: (1) the cost and
expense incurred (whether or not within the contemplation of the parties) for
the repair, replacement, maintenance, policing, insurance and operation of the
Building and Land, and (2) the Building Fraction of the sum of (a) the cost and
expense incurred for the repair, replacement, maintenance, policing, insurance
and operation of the Development Common Areas; and (b) the Real Estate Taxes, if
any, attributable to the Development Common Areas. The "Operating Expenses"
shall, include, without limitation, the following: (i) the cost for rent,
casualty, liability, boiler and fidelity insurance, (ii) if an independent
managing agent is employed by Landlord, the fees payable to such agent (provided
the same are competitive with the fees payable to independent managing agents of
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comparable facilities), (iii) costs and expenses incurred for legal, accounting
and other professional services (including, but not limited to, costs and
expenses for in-house or outside counsel, each at rates not to exceed the
reasonable and customary charges for any such services as would be imposed in an
arms length third party agreement for such services, plus (iv) if Landlord is
itself managing the Building and has not employed an independent third party for
such management, fifteen percent (15%) of the resulting total of all of the
foregoing items making up "Operating Expenses" for Landlord's home office
administration and overhead cost and expense. All items included in Operating
Expenses shall be determined in accordance with generally accepted accounting
principles consistently applied.
Y. Intentionally omitted.
Z. Permitted Uses: Warehousing and distribution of non-hazardous
materials and ancillary offices, and a warehouse outlet store incidental to the
operation of the warehouse portion of the Demised Premises in an area not to
exceed the lesser of (i) 8,000 square feet of Floor Space or (ii) the size
permitted by applicable zoning requirements.
AA. Person: A natural person or persons, a partnership, a
corporation, or any other form of business or legal association or entity.
BB. Ready for Occupancy: The condition of the Demised Premises
when the Demised Premises are delivered to Tenant (notwithstanding that
Landlord's Work may be ongoing or incomplete at such time). The Landlord's Work
shall be deemed substantially completed notwithstanding the fact that minor or
insubstantial details of construction, mechanical adjustment or decoration
remain to be performed, the noncompletion of which does not materially interfere
with Tenant's use of the Demised Premises.
CC. Real Estate Taxes: The real estate taxes, assessments and
special assessments imposed upon the Building and Land by any federal, state,
municipal or other governments or governmental bodies or authorities, and any
expenses incurred by Landlord in contesting such taxes or assessments and/or the
assessed value of the Building and Land, which expenses shall be allocated to
the period of time to which such expenses relate. If at any time during the Term
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, the whole or any part
of such real estate taxes, assessments and special assessments now imposed on
real estate there shall be levied, assessed or imposed (a) a tax, assessment,
levy, imposition, license fee or charge wholly or partially as a capital levy or
otherwise on the rents received therefrom, or (b) any other such additional or
substitute tax, assessment, levy, imposition or charge, then all such taxes,
assessments, levies, impositions, fees or charges or the part thereof so
measured or based shall be deemed to be included within the term "Real Estate
Taxes" for the purposes hereof, provided, however, that absent an alteration in
the method of taxation as set forth above, "Real Estate Taxes" shall not be
deemed to include Landlord's gross receipts taxes, personal and corporate income
taxes, inheritance and estate taxes, and other business taxes and assessments,
franchise, gift and transfer taxes.
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DD. Rent: The Fixed Rent, the Percentage Rent and the Additional
Charges.
EE. Rules and Regulations: The reasonable rules and regulations
that may be promulgated by Landlord from time to time, which may be reasonably
changed by Landlord from time to time. The Rules and Regulations now in effect
are attached hereto as Exhibit D.
FF. Security Deposit: Such amount as Tenant has deposited or
hereinafter deposits with Landlord as security under this Lease. Tenant has
deposited the sum of $1,000,000.00 in the form of a Letter of Credit with
Landlord as security hereunder as of the date hereof.
GG. Successor Landlord: As defined in Section 9.03.
HH. Superior Lease: Any lease to which this Lease is, at the time
referred to, subject and subordinate.
II. Superior Lessor: The lessor of a Superior Lease or its
successor in interest, at the time referred to.
JJ. Superior Mortgage: Any Mortgage to which this Lease is, at the
time referred to, subject and subordinate.
KK. Superior Mortgagee: The Mortgagee of a Superior Mortgage at
the time referred to.
LL. Tenant's Fraction: The Tenant's Fraction shall mean the
fraction, the numerator of which shall be the Floor Space of the Demised
Premises and the denominator of which shall be the Floor Space of the Building
(i.e. 292,894/401,678 or 72.92%). If the size of the Demised Premises or the
Building shall be changed from the initial size thereof, due to any taking, any
construction or alteration work or otherwise, the Tenant's Fraction shall be
changed to the fraction, the numerator of which shall be the Floor Space of the
Demised Premises and the denominator of which shall be the Floor Space of the
Building. In the event Landlord reasonably determines that Tenant's utilization
of any item of Operating Expenses exceeds the fraction referred to above,
Tenant's Fraction with respect to such item shall, at Landlord's option, mean
the percentage of any such item (but not less than the fraction referred to
above) which Landlord reasonably estimates as Tenant's proportionate share
thereof.
MM. Tenant's Property: As defined in Section 16.02.
NN. Tenant's Work: The facilities, materials and work which may be
undertaken by or for the account of Tenant (other than the Landlord's Work) to
equip, decorate and furnish the Demised Premises for Tenant's occupancy.
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OO. Term: The period commencing on the Commencement Date and
ending at 11:59 p.m. of the Expiration Date, but in any event the Term shall end
on the date when this Lease is earlier terminated.
PP. Unavoidable Delays: A delay arising from or as a result of a
strike, lockout, or labor difficulty, explosion, sabotage, accident, riot or
civil commotion, act of war, fire or other catastrophe, Legal Requirement or an
act of the other party and any cause beyond the reasonable control of that
party, provided that the party asserting such Unavoidable Delay has exercised
its best efforts to minimize such delay.
ARTICLE 2 - DEMISE AND TERM
2.01. Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the Demised Premises, for the Term. This Lease is subject to (a) the
matters set forth on Exhibit E annexed hereto, and (b) easements now or
hereafter created by Landlord in, under, over, across and upon the Land for
sewer, water, electric, gas and other utility lines and services now or
hereafter installed; provided, however, Landlord represents covenants and
warrants to Tenant that the Demised Premises may be used and occupied for the
purposes set forth herein; and that the foregoing shall in no manner interfere
with Tenant's use and quiet enjoyment of the Demised Premises. Promptly
following the Commencement Date, the parties hereto shall enter into an
agreement in form and substance satisfactory to Landlord setting forth the
Commencement Date.
ARTICLE 3 - RENT
3.01. Commencing on the Fixed Rent Commencement Date, Tenant shall
pay the Fixed Rent in equal monthly installments in advance on the first day of
each and every calendar month during the Term (except that Tenant shall pay,
upon the execution and delivery of this Lease by Tenant, the Advance Rent, to be
applied against the first installment or installments of Fixed Rent becoming due
under this Lease). If the Commencement Date occurs on a day other than the first
day of a calendar month, the Fixed Rent for the partial calendar month at the
commencement of the Term shall be prorated.
3.02. The Rent shall be paid in lawful money of the United States to
Landlord at its office, or such other place, or Landlord's agent, as Landlord
shall designate by notice to Tenant. Tenant shall pay the Rent promptly when due
without notice or demand therefor and without any abatement, deduction or setoff
for any reason whatsoever, except as may be expressly provided in this Lease. If
Tenant makes any payment to Landlord by check, same shall be by check of Tenant
and Landlord shall not be required to accept the check of any other Person, and
any check received by Landlord shall be deemed received subject to collection.
If any check is mailed by Tenant, Tenant shall post such check in sufficient
time prior to the date when payment is due so that such check will be received
by Landlord on or before the date when payment is due. Tenant shall assume the
risk of lateness or failure of delivery of the mails, and no lateness or failure
of the
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mails will excuse Tenant from its obligation to have made the payment in
question when required under this Lease.
3.03. No payment by Tenant or receipt or acceptance 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 letter
accompanying any check or payment be deemed 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 remedy in this Lease or at law
provided.
3.04. If Tenant is in arrears in payment of Rent, Tenant waives
Tenant's right, if any, to designate the items to which any payments made by
Tenant are to be credited, and Landlord may apply any payments made by Tenant to
such items as Landlord sees fit, irrespective of and notwithstanding any
designation or request by Tenant as to the items to which any such payments
shall be credited.
3.05. In the event that any installment of Rent due hereunder shall
remain unpaid for five (5) days or more after its due date, a "Late Charge"
equal to four percent (4%) or the maximum rate permitted by law, whichever is
less ("Late Payment Rate") for Rent so overdue may be charged by Landlord for
each month or part thereof that the same remains overdue. Any such Late Charges
if not previously paid shall, at the option of the Landlord, be added to and
become part of the next succeeding Rent payment to be made hereunder.
ARTICLE 4 - USE OF DEMISED PREMISES
4.01. Tenant shall use and occupy the Demised Premises for the
Permitted Uses, and Tenant shall not use or permit or suffer the use of the
Demised Premises or any part thereof for any other purpose.
4.02. If any governmental license or permit, including a certificate
of occupancy or certificate of continued occupancy (a "Certificate of
Occupancy") shall be required for the proper and lawful conduct of Tenant's
business in the Demised Premises or any part thereof, Tenant 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. Tenant shall not at any time use or occupy, or
suffer or permit anyone to use or occupy the Demised Premises, or do or permit
anything to be done in the Demised Premises, in any manner which (a) violates
the Certificate of Occupancy for the Demised Premises or for the Building; (b)
causes or is liable to cause injury to the Building or any equipment, facilities
or systems therein; (c) constitutes a violation of the Legal Requirements or
Insurance Requirements; (d) impairs or tends to impair the character, reputation
or appearance of the Building; (e) impairs or tends to impair the proper and
economic maintenance, operation and repair of the Building and/or its equipment,
facilities or systems; or (f) annoys or inconveniences or tends to annoy or
inconvenience other tenants or occupants of the Building.
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ARTICLE 5 - PREPARATION OF DEMISED PREMISES
5.01. The Demised Premises shall be completed and prepared for
Tenant's occupancy in the manner described in, and subject to the provisions of,
Exhibit C. Tenant shall occupy the Demised Premises promptly after the same are
delivered to Tenant by Landlord giving to Tenant a notice of such effect. Except
as expressly provided to the contrary in this Lease, the taking of possession by
Tenant of the Demised Premises shall be conclusive evidence as against Tenant
that the Demised Premises and the Building were in good and satisfactory
condition at the time such possession was taken. Except as expressly provided to
the contrary in this Lease, Tenant is leasing the Demised Premises "as is" on
the date hereof, subject to reasonable wear and tear and the rights of the
present occupant(s) of the Demised Premises to remove its or their trade
fixtures and other property from the Demised Premises.
5.01.(b) Tenant shall, upon request of Landlord, provide Landlord with
Tenant's plans and specifications for the Tenant's initial alterations and fit
up of the Demised Premises.
5.02. If the substantial completion of Landlord's Work shall be
delayed due to (a) any act or omission of Tenant or any of its employees, agents
or contractors (including, without limitation, [I] any delays due to changes in
or additions to the Landlord's Work, or [ii] any delays by Tenant in the
submission of plans, drawings, specifications or other information or in
approving any working drawings or estimates or in giving any authorizations or
approvals), or (b) any additional time needed for the completion of the
Landlord's Work by the inclusion in the Landlord's Work of any items specified
by Tenant that require long lead time for delivery or installation, then the
Demised Premises shall be deemed Ready for Occupancy on the date when they would
have been ready but for such delay(s). The Demised Premises shall be
conclusively presumed to be in satisfactory condition on the Commencement Date
except for the minor or insubstantial details of which Tenant gives Landlord
notice within thirty (30) days after the Commencement Date specifying such
details with reasonable particularity.
5.03. If Landlord is unable to give possession of the Demised
Premises on the Commencement Date because of the holding-over or retention of
possession by any tenant, undertenant or occupant, Landlord shall not be subject
to any liability for failure to give possession, the validity of this Lease
shall not be impaired under such circumstances, and the Term shall not be
extended, but the Rent shall be abated if Tenant is not responsible for the
inability to obtain possession.
5.04. Landlord reserves the right, at any time and from time to
time, to increase, reduce or change the number, type, size, location, elevation,
nature and use of any of the Common Areas and the Building and any other
buildings and other improvements on the Land and in the Development, including,
without limitation, the right to move and/or remove same, provided that any
modifications to the Common Areas or the Building shall not unreasonably block
or interfere
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with Tenant's means of ingress or egress to and from the Demised Premises, or
materially and adversely interfere with Tenant's use of the Demised Premises for
the Permitted Uses.
ARTICLE 6 - TAX AND OPERATING EXPENSE PAYMENTS
6.01. Commencing on the Fixed Rent Commencement Date, Tenant shall
pay to Landlord, as hereinafter provided, Tenant's Fraction of the Real Estate
Taxes. Tenant's Fraction of the Real Estate Taxes shall be the Real Estate Taxes
in respect of the Building for the period in question, multiplied by the
Tenant's Fraction, plus the Real Estate Taxes in respect of the Land for the
period in question, multiplied by the Tenant's Fraction. If any portion of the
Building shall be exempt from all or any part of the Real Estate Taxes, then for
the period of time when such exemption is in effect, the Floor Space on such
exempt portion shall be excluded when making the above computations in respect
of the part of the Real Estate Taxes for which such portion shall be exempt.
Landlord shall estimate the annual amount of Tenant's Fraction of the Real
Estate Taxes (which estimate may be changed by Landlord at any time and from
time to time), and Tenant shall pay to Landlord 1/12th of the amount so
estimated on the first day of each month in advance. Tenant shall also pay to
Landlord on demand from time to time the amount which, together with said
monthly installments, will be sufficient in Landlord's estimation to pay
Tenant's Fraction of any Real Estate Taxes thirty (30) days prior to the date
when such Real Estate Taxes shall first become due. When the amount of any item
comprising Real Estate Taxes is finally determined for a real estate fiscal tax
year, Landlord shall submit to Tenant a statement in reasonable detail of the
same, and the figures used for computing Tenant's Fraction of the same, and if
Tenant's Fraction so stated is more or less than the amount theretofore paid by
Tenant for such item based on Landlord's estimate, Tenant shall pay to Landlord
the deficiency within ten (10) days after submission of such statement, or
Landlord shall, at its sole election, either refund to Tenant the excess or
apply same to future installments of Real Estate Taxes due hereunder. Any Real
Estate Taxes for a real estate fiscal tax year, a part of which is included
within the Term and a part of which is not so included, shall be apportioned on
the basis of the number of days in the real estate fiscal tax year included in
the Term, and the real estate fiscal tax year for any improvement assessment
will be deemed to be the one-year period commencing on the date when such
assessment is due, except that if any improvement assessment is payable in
installments, the real estate fiscal tax year for each installment will be
deemed to be the one-year period commencing on the date when such installment is
due. The above computations shall be made by Landlord in accordance with
generally accepted accounting principles, and the Floor Space referred to will
be based upon the average of the Floor Space in existence on the first day of
each month during the period in question. In addition to the foregoing, Tenant
shall be responsible for any increase in Real Estate Taxes attributable to
assessments for improvements installed by or for the account of Tenant at the
Demised Premises. If the Demised Premises are not separately assessed, the
amount of any such increase shall be determined by reference to the records of
the tax assessor.
6.02. Real Estate Taxes, whether or not a lien upon the Demised
Premises shall be apportioned between Landlord and Tenant at the beginning and
end of the Term; it being intended
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that Tenant shall pay only that portion of the Real Estate Taxes as is allocable
to the Demised Premises for the Term.
6.03. Commencing on the Commencement Date, Tenant shall pay to
Landlord, as hereinafter provided, Tenant's Fraction of the Operating Expenses.
Tenant's Fraction of the Operating Expenses shall be the Operating Expenses for
the period in question, multiplied by Tenant's Fraction. Landlord shall estimate
Tenant's annual Fraction of the Operating Expenses (which estimate may be
reasonably changed by Landlord from time to time), and Tenant shall pay to
Landlord 1/12th of the amount so estimated on the first day of each month in
advance. If at any time Landlord changes its estimate of Tenant's Fraction of
the Operating Expenses for the then current Calendar Year or partial Calendar
Year, Landlord shall give notice to Tenant of such change and within ten (10)
days after such notice Landlord and Tenant shall adjust for any overpayment or
underpayment during the prior months of the then current Calendar Year or
partial Calendar Year. After the end of each Calendar Year, including any
partial Calendar Year at the beginning of the Term, and after the end of the
Term, Landlord shall submit to Tenant a statement in reasonable detail stating
Tenant's Fraction of the Operating Expenses for such Calendar Year, or partial
Calendar Year in the event the Term shall begin on a date other than a January
1st and/or end on a date other than a December 31st, as the case may be, and
stating the Operating Expenses for the period in question and the figures used
for computing Tenant's Fraction, and if Tenant's Fraction so stated for such
period is more or less than the amount paid for such period, Tenant shall pay to
Landlord the deficiency within ten (10) days after submission of such statement,
or Landlord shall, at its sole election, either refund to Tenant the excess or
apply same to future installments of Operating Expenses due hereunder. All
computations shall be made in accordance with generally accepted accounting
principles.
6.04. Each such statement given by Landlord pursuant to Section 6.01
or Section 6.03 shall be conclusive and binding upon Tenant unless within 30
days after the receipt of such statement Tenant shall notify Landlord that it
disputes the correctness of the statement, specifying the particular respects in
which the statement is claimed to be incorrect. If such dispute is not settled
by agreement, either party may submit the dispute to arbitration as provided in
Article 34. Pending the determination of such dispute by agreement or
arbitration as aforesaid, Tenant shall, within ten (10) days after receipt of
such statement, pay the Additional Charges in accordance with Landlord's
statement, without prejudice to Tenant's position. If the dispute shall be
determined in Tenant's favor, Landlord shall forthwith pay to Tenant the amount
of Tenant's overpayment resulting from compliance with Landlord's statement.
6.05. Provided Tenant shall not then be in default hereunder beyond
any applicable notice or cure periods, Tenant may file and pursue a Real Estate
Tax appeal upon Landlord's consent thereto, which consent shall not be
unreasonably withheld; provided, however, that, Landlord shall have the right,
but not the obligation, to have its counsel join in any such Real Estate Tax
appeal as co-counsel. If Tenant desires to protest Real Estate Taxes, Tenant
shall have the right to proceed with such protest at Tenant's sole cost and
expense. If Tenant cannot proceed in its own name, Landlord shall permit Tenant
to proceed in Landlord's name and Landlord shall
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execute all documents required thereby and promptly return the same to Tenant.
Furthermore, Tenant may request that Landlord file and prosecute a Real Estate
Tax appeal on Tenant's behalf, at Tenant's expense. If Landlord declines to file
or prosecute such Real Estate Tax appeal, Landlord shall provide to Tenant its
reasons for declining and Tenant shall be free to file and prosecute such Real
Estate Tax appeal for its own account, subject to the terms and provisions of
this Section 6.05. If either party shall prosecute a Real Estate Tax Appeal, the
other party will cooperate and furnish any pertinent information in its files
reasonably required by the prosecuting party. In the event any Real Estate Tax
appeal is filed by Tenant: (i) Tenant shall provide Landlord with written notice
of Tenant's intention to file such tax appeal not less than thirty (30) days
prior to the filing of same and Tenant shall provide Landlord with copies of all
filings and all appraisal reports and discovery obtained in connection
therewith, (ii) Landlord reserves the right, but not the obligation, to
prosecute such appeal itself and in such event may require Tenant to withdraw
any appeal filed by Tenant in the event Landlord files an appeal with respect to
the subject matter of Tenant's appeal, or at Landlord's option, Landlord shall
have the right at any time, but not the obligation, to prosecute such appeal
itself, (iii) any such appeal (other than an appeal prosecuted by Landlord under
(ii) above) shall be at Tenant's sole cost and expense, (iv) Tenant shall
indemnify Landlord against the cost thereof and against all liability for
damages, interest, penalties and expenses (including experts' and attorneys'
fees and expenses), resulting from or incurred in connection with any Real
Estate Tax appeal commenced pursuant to this paragraph, including but not
limited to any increase in Real Estate Taxes resulting therefrom, and (v) Tenant
shall keep Landlord advised as to the status of any such proceedings filed by
Tenant. If any cash payment refund is received as a result of such proceedings
the party herein paying the costs of such proceeding shall be entitled to
reimbursement from such cash payment of its reasonable costs incurred as a
result of pursuing such proceeding (the "Cost Reimbursement"). In the event that
Landlord receives a refund or credit for Real Estate Taxes from any taxing
authority for any period in respect to which Tenant paid such Real Estate Taxes,
Landlord shall promptly notify Tenant thereof and, provided that Tenant shall
not then be in default hereunder beyond any applicable notice and/or cure
period, refund to Tenant, Tenant's Fraction of the net amount of such refund or
credit, after deducting and paying over to the party entitled to the same the
Reimbursement Costs. In the event Tenant obtains directly from any taxing
authority any refund in connection with any such tax appeal, such refund shall
be paid over to Landlord and Landlord shall refund to Tenant, Tenant's Fraction
of the net amount of such refund or credit, after deducting and paying over to
the party entitled to the same the Reimbursement Costs. Any abatement of Real
Estate Taxes shall be reflected in the tax bills and calculations submitted by
Landlord to Tenant, and thus passed on to Tenant proportionately.
ARTICLE 7 - COMMON AREAS
7.01. Except as may be otherwise expressly provided in this Lease,
Landlord will operate, manage, equip, light, repair and maintain, or cause to be
operated, managed, equipped, lighted, repaired and maintained, the Common Areas
for their intended purposes. Landlord reserves the right, at any time and from
time to time, to construct within the Common Areas kiosks, fountains, aquariums,
planters, pools and sculptures, and to install vending machines,
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telephone booths, benches and the like, provided same shall not unreasonably
block or interfere with Tenant's means of ingress or egress to and from the
Demised Premises.
7.02. Tenant and its subtenants and concessionaires, and their
respective 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 such right, but subject to the Rules and
Regulations, to use the Common Areas. Landlord reserves the right, at any time
and from time to time, to close temporarily all or any portions of the Common
Areas when in Landlord's reasonable judgment any such closing is necessary or
desirable (a) to make repairs or changes or to effect construction, (b) to
prevent the acquisition of public rights in such areas, (c) to discourage
unauthorized parking, or (d) to protect or preserve natural persons or property.
Landlord may do such other acts in and to the Common Areas as in its judgment
may be desirable to improve or maintain same.
7.03. Tenant agrees that it, any subtenant or licensee and their
respective officers, employees, contractors and agents will park their
automobiles and other vehicles only where and as permitted by Landlord. Tenant
will, if and when so requested by Landlord, furnish Landlord with the license
numbers of any vehicles of Tenant, any subtenant or licensee and their
respective officers, employees and agents. See Rider Paragraph R5.
ARTICLE 8 - SECURITY
8.01. (a) In the event Tenant deposits with Landlord any Security
Deposit, the same shall be held as security for the full and faithful payment
and performance by Tenant of Tenant's obligations under this Lease. If Tenant
defaults in the full and prompt payment and performance of any of its
obligations under this Lease, including, without limitation, the payment of
Rent, Landlord may use, apply or retain the whole or any part of the Security
Deposit to the extent required for the payment of any Rent or any other sums as
to which Tenant is in default or for any sum which Landlord may expend or may be
required to expend by reason of Tenant's default in respect of any of Tenant's
obligations under this Lease, including, without limitation, any damages or
deficiency in the reletting of the Demised Premises, whether such damages or
deficiency accrue before or after summary proceedings or other re-entry by
Landlord. If Landlord shall so use, apply or retain the whole or any part of the
security, Tenant shall upon demand immediately deposit with Landlord a sum equal
to the amount so used, applied and retained, as security as aforesaid. If Tenant
shall fully and faithfully pay and perform all of Tenant's obligations under
this Lease, the Security Deposit or any balance thereof to which Tenant is
entitled shall be returned or paid over to Tenant after the date on which this
Lease shall expire or sooner end or terminate, and after delivery to Landlord of
entire possession of the Demised Premises. In the event of any sale or leasing
of the Land, Landlord shall have the right to transfer the security to which
Tenant is entitled to the vendee or lessee and Landlord shall thereupon be
released by Tenant from all liability for the return or payment thereof; and
Tenant shall look solely to the new landlord for the return or payment of the
same; and the provisions hereof shall apply to every transfer or assignment made
of the same to a new landlord. Tenant shall not assign or encumber or attempt
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to assign or encumber the monies deposited herein as security, and neither
Landlord nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance.
8.01. (b) Tenant shall provide to Landlord an irrevocable
transferable Letter of Credit in the amount of the Security Deposit in form and
substance satisfactory to Landlord and issued by a financial institution
approved by Landlord. Landlord shall have the right, upon written notice to
Tenant (except that for Tenant's non-payment of Rent or for Tenant's failure to
comply with Article 8.03, no such notice shall be required) and regardless of
the exercise of any other remedy the Landlord may have by reason of a default,
to draw upon said Letter of Credit to apply same to any default of Tenant or for
any purpose authorized by Section 8.01(a) of this Lease and if Landlord does so,
Tenant shall, upon demand, additionally fund the Letter of Credit with the
amount so drawn so that Landlord shall have the full deposit on hand at all
times during the Term of the Lease and for a period of thirty (30) days'
thereafter. In the event of a sale of the Building or a lease of the Building
subject to this Lease, Landlord shall have the right to transfer the security to
the vendee or lessee.
8.02. The Letter of Credit shall expire not earlier than thirty (30)
days after the Expiration Date of this Lease. Upon Landlord's prior consent, the
Letter of Credit may be of the type which is automatically renewed on an annual
basis. In the alternative, such Letter of Credit may be of a duration of one (1)
year, provided Tenant provides a replacement Letter of Credit on or before the
date which is forty-five (45) days prior to the expiration date of such Letter
of Credit ("Annual Renewal Date"). In any event, Tenant shall maintain the
Letter of Credit and its renewals in full force and effect during the entire
Term of this Lease (including any renewals, replacements or extensions) and for
a period of thirty (30) days thereafter. The Letter of Credit will contain a
provision requiring the issuer thereof to give the beneficiary (Landlord) thirty
(30) days' advance written notice of its intention not to renew the Letter of
Credit on the next Annual Renewal Date.
8.03. In the event Tenant shall fail to deliver to Landlord a
substitute irrevocable Letter of Credit, in the amount stated above, on or
before thirty (30) days prior to the next Annual Renewal Date, Landlord shall be
permitted, upon two (2) days written notice to Tenant, to draw upon the Letter
of Credit and treat the proceeds thereof as a cash Security Deposit and apply
same to any default of Tenant or for any purpose authorized by Section 8.01(a)
of this Lease. In the event of a draw upon the Letter of Credit pursuant to this
Section 8.03, Landlord shall have the right, but not the obligation, to demand
that Tenant replace the cash Security Deposit with a Letter of Credit meeting
the requirements of this Article upon not less than thirty (30) days prior
written notice, and Landlord may treat a failure by Tenant to furnish such
Letter of Credit as a default under this Lease.
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ARTICLE 9 - SUBORDINATION
9.01. Subject to the provisions of Section 9.05 of this Lease, this
Lease, and all rights of Tenant hereunder, are and shall be subject and
subordinate to all ground leases and underlying leases of the Land and/or the
Building now or hereafter existing and to all Mortgages which may now or
hereafter affect the Land and/or building and/or any of such leases, whether or
not such Mortgages or leases shall also cover other lands and/or buildings, to
each and every advance made or hereafter to be made under such Mortgages, and to
all renewals, modifications, replacements and extensions of such leases and such
Mortgages and spreaders and consolidations of such Mortgages. The provisions of
this Section 9.01 shall be self-operative and no further instrument of
subordination shall be required. In confirmation of such subordination, Tenant
shall promptly execute, acknowledge and deliver any instrument that Landlord,
the lessor under any such lease or the Mortgagee of any such Mortgage or any of
their respective successors in interest may reasonably request to evidence such
subordination; and if Tenant fails to execute, acknowledge or deliver any such
instruments within 10 days after request therefor, Tenant hereby irrevocably
constitutes and appoints Landlord as Tenant's attorney-in-fact, coupled with an
interest, to execute and deliver any such instruments for and on behalf of
Tenant.
9.02. If any act or omission of Landlord would give Tenant the
right, immediately or after lapse of a period of time, to cancel or terminate
this Lease, or to claim a partial or total eviction, Tenant shall not exercise
such right (a) until it has given written notice of such act or omission to
Landlord and each Superior Mortgagee and each Superior Lessor whose name and
address shall previously have been furnished to Tenant, and (b) until a
reasonable period for remedying such act or omission shall have elapsed
following the giving of such notice and following the time when such Superior
Mortgagee or Superior Lessor shall have become entitled under such Superior
Mortgage or Superior Lease, as the case may be, to remedy the same (which
reasonable period shall in no event be less than the period to which Landlord
would be entitled under this Lease or otherwise, after similar notice, to effect
such remedy), provided such Superior Mortgagee or Superior Lessor shall with due
diligence give Tenant notice of intention to, and commence and continue to,
remedy such act or omission.
9.03. If any Superior Lessor or Superior Mortgagee shall succeed to
the rights of Landlord under this Lease, whether through possession or
foreclosure action or delivery of a new lease or deed, then at the request of
such party so succeeding to Landlord's rights ("Successor Landlord") and upon
such Successor Landlord's written agreement to accept Tenant's attornment,
Tenant shall attorn to and recognize such Successor Landlord as Tenant's
landlord under this Lease and shall promptly execute and deliver any instrument
that such Successor Landlord may reasonably request to evidence such attornment.
Upon such attornment this Lease shall continue in full force and effect as a
direct lease between the Successor Landlord and Tenant upon all of the terms,
conditions and covenants as are set forth in this Lease except that the
Successor Landlord(s) shall not (a) be liable for any previous act or omission
of Landlord under this Lease; (b) be subject to any offset, not expressly
provided for in this Lease, which theretofore shall have accrued to Tenant
against Landlord; (c) be liable for the return of any Security Deposit, in whole
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or in part, to the extent that same is not paid over to the Successor Landlord;
or (d) be bound by any previous modification of this Lease or by any previous
prepayment of more than one month's Fixed Rent or Additional Charges, unless
such modification or prepayment shall have been expressly approved in writing by
the Superior Lessor of the Superior Lease or the Mortgagee of the Superior
Mortgage through or by reason of which the Successor Landlord shall have
succeeded to the rights of Landlord under this Lease.
9.04. If any then present or prospective Superior Mortgagee shall
require any modification(s) of this Lease, Tenant shall promptly execute and
deliver to Landlord such instruments effecting such modification(s) as Landlord
shall request, provided that such modification(s) do not adversely affect in any
material respect any of Tenant's rights or obligations under this Lease.
9.05. Landlord will request that all Superior Mortgagees and
Superior Lessors (unless such Superior Lease provides for automatic
non-disturbance) under Superior Mortgages or Superior Leases in existence as of
the date of this Lease enter into a subordination, non-disturbance and
attornment agreement (a "SNA") with Tenant on such Superior Mortgagee's standard
form. In the event Landlord does not obtain such SNAs from such Superior
Mortgagees by the date which is the later to occur of sixty (60) days after the
date hereof or ten (10) days after the Assumption Approval (the "SNA Date"),
Tenant shall have the right to terminate this Lease upon thirty (30) days
written notice to Landlord given not later than the SNA Date (provided that such
termination notice shall be nullified if Landlord obtains such SNA within said
thirty (30) days. Subordination of this Lease pursuant to Section 9.01 with
respect to any Superior Lease or Superior Mortgage entered into after the date
of this Lease shall be conditioned upon the Superior Lessor or Superior
Mortgagee thereunder entering into a SNA with Tenant (a SNA on such Superior
Mortgagee's or Superior Lessor's standard form shall be considered reasonably
acceptable for purposes hereof).
9.06. Tenant acknowledges that the portion of the Land upon which
Tract A is located is subject to a long term ground lease pursuant to which
Landlord leases said portion of the Land. In the event said ground lease is
terminated this Lease shall become a direct lease with the fee owner with
respect to such portion of the Land. In the event that the ground lease is
terminated and the fee owner of Tract A and the fee owner of Tract B are
different: (a) Tenant shall, upon request of either fee owner, consent to a pro
rata division of the Fixed Rent and Percentage Rent between the fee owner of
Tract A and the fee owner of Tract B; (b) any Additional Charges, such as Real
Estate Taxes and Operating expenses shall be allocated respectively to Tract A
and Tract B to the extent such Additional charges relate specifically to such
parcels; (c) any Additional Charges which are not separately allocated shall be
paid jointly to the fee owners of Tract A and Tract B. In the event that the
ground lease is terminated and the fee owner of Tract A and the fee owner of
Tract B are different and fail to jointly direct Tenant with respect to any
consent required of Landlord under this Lease, or if there is a conflict with
respect to such direction, the direction of the fee owner of Tract A, shall be
controlling.
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ARTICLE 10 - QUIET ENJOYMENT
10.01. So long as Tenant pays all of the Rent and performs all of
Tenant's other obligations hereunder, Tenant shall peaceably and quietly have,
hold and enjoy the Demised Premises without hindrance, ejection or molestation
by Landlord or any person lawfully claiming through or under Landlord, subject,
nevertheless, to the provisions of this Lease and to Superior Leases and
Superior Mortgages.
ARTICLE 11 - ASSIGNMENT, SUBLETTING AND MORTGAGING
11.01. Tenant shall not, whether voluntarily, involuntarily, or by
operation of law or otherwise, (a) assign or otherwise transfer this Lease, or
offer or advertise to do so, (b) sublet the Demised Premises or any part
thereof, or offer or advertise to do so, or allow the same to be used, occupied
or utilized by anyone other than Tenant, or (c) mortgage, pledge, encumber or
otherwise hypothecate this Lease in any manner whatsoever, without in each
instance obtaining the prior written consent of Landlord.
11.02. If at any time (a) the original Tenant named herein, (b) the
then Tenant, (c) any Guarantor, or (d) any Person owning a majority of the
voting stock of, or directly or indirectly controlling, the then Tenant shall be
a corporation or partnership, any transfer of voting stock or partnership
interest resulting in the person(s) who shall have owned a majority of such
corporation's shares of voting stock or the general partners' interest in such
partnership, as the case may be, immediately before such transfer, ceasing to
own a majority of such shares of voting stock or general partner's interest, as
the case may be, except as the result of transfers by inheritance, shall be
deemed to be an assignment of this Lease as to which Landlord's consent shall
have been required, and in any such event Tenant shall notify Landlord. The
provisions of this Section 11.02 shall not be applicable to any corporation all
the outstanding voting stock of which is listed on a national securities
exchange (as defined in the Securities Exchange Act of 1934, as amended) or is
traded in the over-the-counter market with quotations reported by the National
Association of Securities Dealers through its automated system for reporting
quotations and shall not apply to transactions with a corporation into or with
which the then Tenant is merged or consolidated or to which substantially all of
the then Tenant's assets are transferred or to any corporation which controls or
is controlled by the then Tenant or is under common control with the then
Tenant, provided that in any of such events (i) the successor to Tenant has a
net worth computed in accordance with generally accepted accounting principles
at least equal to Fifty Million Dollars ($50,000,000), and (ii) proof
satisfactory to Landlord of such net worth shall have been delivered to Landlord
at least 10 days prior to the effective date of any such transaction. For the
purposes of this Section, the words "voting stock" shall refer to shares of
stock regularly entitled to vote for the election of directors of the
corporation. Landlord shall have the right at any time and from time to time
during the Term to inspect the stock record books of the corporation to which
the provisions of this Section 11.02 apply, and Tenant will produce the same on
request of Landlord.
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11.03. If this Lease is assigned, whether or not in violation of this
Lease, Landlord may collect rent from the assignee. If the Demised Premises or
any part thereof are sublet or used or occupied by anybody other than Tenant,
whether or not in violation of this Lease, Landlord may, after default by
Tenant, and expiration of Tenant's time to cure such default, collect rent from
the subtenant or occupant. In either event, Landlord may apply the net amount
collected to the Rent, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of Section 11.01 or
Section 11.02, or the acceptance of the assignee, subtenant or occupant as
tenant, or a release of Tenant from the performance by Tenant of Tenant's
obligations under this Lease. The consent by Landlord to any assignment,
mortgaging, subletting or use or occupancy by others shall not in any way be
considered to relieve Tenant from obtaining the express written consent of
Landlord to any other or further assignment, mortgaging or subletting or use or
occupancy by others not expressly permitted by this Article 11. References in
this Lease to use or occupancy by others (that is, anyone other than Tenant)
shall not be construed as limited to subtenants and those claiming under or
through subtenants but shall be construed as including also licensees and others
claiming under or through Tenant, immediately or remotely.
11.04. Any permitted assignment or transfer, whether made with
Landlord's consent pursuant to Section 11.01 or without Landlord's consent if
permitted by Section 11.02, shall be made only if, and shall not be effective
until, the assignee shall execute, acknowledge and deliver to Landlord an
agreement in form and substance satisfactory to Landlord whereby the assignee
shall assume Tenant's obligations under this Lease and whereby the assignee
shall agree that all of the provisions in this Article 11 shall, notwithstanding
such assignment or transfer, continue to be binding upon it in respect to all
future assignments and transfers. Notwithstanding any assignment or transfer,
whether or not in violation of the provisions of this Lease, and notwithstanding
the acceptance of Rent by Landlord from an assignee, transferee, or any other
party, the original Tenant and any other person(s) who at any time was or were
Tenant shall remain fully liable for the payment of the Rent and for Tenant's
other obligations under this Lease.
11.05. The liability of the original named Tenant and any other
Person(s) who at any time are or become responsible for Tenant's obligations
under this Lease shall not be discharged, released or impaired by any agreement
or stipulation made by Landlord extending the time of, or modifying any of the
terms or obligations under this Lease, or by any waiver or failure of Landlord
to enforce, any of this Lease.
11.06. The listing of any name other than that of Tenant, whether on
the doors of the Demised Premises or the Building directory, or otherwise, shall
not operate to vest any right or interest in this Lease or in the Demised
Premises, nor shall it be deemed to be the consent of Landlord to any assignment
or transfer of this Lease or to any sublease of the Demised Premises or to the
use or occupancy thereof by others. Notwithstanding anything contained in this
Lease to the contrary, Landlord shall have the absolute right to withhold its
consent to an assignment or subletting to a Person who is otherwise a tenant or
occupant, or is in discussions with Landlord or Landlord's affiliated entities
in connection with becoming a tenant or occupant of the Building, or of a
building owned or managed by Landlord or its affiliated entities.
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11.07. Without limiting any of the provisions of Article 27, if
pursuant to the Federal Bankruptcy Code (or any similar law hereafter enacted
having the same general purpose), Tenant is permitted to assign this Lease
notwithstanding the restrictions contained in this Lease, adequate assurance of
future performance by an assignee expressly permitted under such Code shall be
deemed to mean the deposit of cash security in an amount equal to the sum of one
(1) year's Fixed Rent plus an amount equal to the Additional Charges for the
Calendar Year preceding the year in which such assignment is intended to become
effective, which deposit shall be held by Landlord for the balance of the Term,
without interest, as security for the full performance of all of Tenant's
obligations under this Lease, to be held and applied in the manner specified for
security in Article 8.
11.08. If Tenant shall propose to assign or in any manner transfer
this Lease or any interest therein, or sublet the Demised Premises or any part
or parts thereof, or grant any concession or license or otherwise permit
occupancy of all or any part of the Demised Premises by any person, Tenant shall
give notice thereof to Landlord, together with a copy of the proposed instrument
that is to accomplish same and such financial and other information pertaining
to the proposed assignee, transferee, subtenant, concessionaire or licensee as
Landlord shall require. Notwithstanding anything contained in this Lease to the
contrary, Landlord shall not be obligated to entertain or consider any request
by Tenant to consent to any proposed assignment of this Lease or sublet of all
or any part of the Demised Premises, unless each request by Tenant is
accompanied by a non-refundable fee payable to Landlord in the amount of One
Thousand Dollars ($1,000.00) to cover Landlord's administrative, legal, and
other costs and expenses incurred in processing each of Tenant's requests.
Neither Tenant's payment nor Landlord's acceptance of the foregoing fee shall be
construed to impose any obligation whatsoever upon Landlord to consent to
Tenant's request.
ARTICLE 12 - COMPLIANCE WITH LAWS
12.01. Tenant shall comply with all Legal Requirements which shall,
in respect of the Demised Premises or the use and occupation thereof, or the
abatement of any nuisance in, on or about the Demised Premises, impose any
violation, order or duty on Landlord or Tenant; and Tenant shall pay all the
costs, expenses, fines, penalties and damages which may be imposed upon Landlord
or any Superior Lessor by reason of or arising out of Tenant's failure to fully
and promptly comply with and observe the provisions of this Section 12.01.
However, Tenant need not comply with any such law or requirement of any public
authority so long as Tenant shall be contesting the validity thereof, or the
applicability thereof to the Demised Premises, in accordance with Section 12.02.
12.02. Tenant may contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
Premises, of any Legal Requirement, provided that (a) Landlord shall not be
subject to criminal penalty or to prosecution for a crime, and neither the
Demised Premises nor any part thereof shall be subject to being condemned or
vacated, by
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reason of non-compliance or otherwise by reason of such contest; (b) before the
commencement of such contest, Tenant shall furnish to Landlord either (i) the
bond of a surety company satisfactory to Landlord, which bond shall be, as to
its provisions and form, satisfactory to Landlord, and shall be in an amount at
least equal to 100% of the cost of such compliance (as estimated by a reputable
contractor designated by Landlord) and shall indemnify Landlord against the cost
thereof and against all liability for damages, interest, penalties and expenses
(including reasonable attorneys' fees and expenses), resulting from or incurred
in connection with such contest or non-compliance, or (ii) other security in
place of such bond satisfactory to Landlord; (c) such non-compliance or contest
shall not constitute or result in any violation of any Superior Lease or
Superior Mortgage, or if any such Superior Lease and/or Superior Mortgage shall
permit such non-compliance or contest on condition of the taking of action or
furnishing of security by Landlord, such action shall be taken and such security
shall be furnished at the expense of Tenant; and (d) Tenant shall keep Landlord
advised as to the status of such proceedings. Without limiting the application
of the above, Landlord shall be deemed subject to prosecution for a crime if
Landlord, or its managing agent, or any officer, director, partner, shareholder
or employee of Landlord or its managing agent, as an individual, is charged with
a crime of any kind or degree whatsoever, whether by service of a summons or
otherwise, unless such charge is withdrawn before Landlord or its managing
agent, or such officer, director, partner, shareholder or employee of Landlord
or its managing agent (as the case may be) is required to plead or answer
thereto. Notwithstanding anything contained in this Lease to the contrary,
Tenant shall not file any Real Estate Tax Appeal with respect to the Land,
Building or the Demised Premises.
ARTICLE 13 - INSURANCE AND INDEMNITY
13.01. Landlord shall maintain or cause to be maintained All Risk
insurance in respect of the Building and other improvements on the Land normally
covered by such insurance (except for the property Tenant is required to cover
with insurance under Section 13.02 and similar property of other tenants and
occupants of the Building or buildings and other improvements which are on land
neither owned by nor leased to Landlord) for the benefit of Landlord, any
Superior Lessors, any Superior Mortgagees and any other parties Landlord may at
any time and from time to time designate, as their interests may appear, but not
for the benefit of Tenant, and shall maintain rent insurance as required by any
Superior Lessor or any Superior Mortgagee. The All Risk insurance will be in the
amounts required by any Superior Lessor or any Superior Mortgagee but not less
than the amount sufficient to avoid the effect of the co-insurance provisions of
the applicable policy or policies. Landlord may also maintain any other forms
and types of insurance which Landlord shall deem reasonable in respect of the
Building and Land. Landlord shall have the right to provide any insurance
maintained or caused to be maintained by it under blanket policies.
13.02. Tenant shall maintain the following insurance: (a)
comprehensive general public liability insurance in respect of the Demised
Premises and the conduct and operation of business therein, having not less than
a $5,000,000.00 combined single limit per occurrence for bodily injury or death
to any one person and for bodily injury or death to any number of persons in any
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one occurrence, and for property damage, including water damage and sprinkler
leakage legal liability (coverage to include but not be limited to (i) premises
operation, completed operations, broad form contractual liability and product
liability, (ii) comprehensive automobile, truck and vehicle liability insurance
covering all owned, hired and non-owned vehicles used by the contractor(s) in
connection with their work and any loading of such vehicles, with limits as
stated above and (iii) worker's compensation, employers liability and
occupational disease insurance as required by statutes, but in any event not
less than $500,000.00 for Coverage B covering all damages and injuries arising
from each accident or occupational disease) (b) steam boiler, air conditioning
and machinery insurance, protecting Landlord and Tenant, with limits of not less
than $500,000, if there is a boiler or pressure object or other similar
equipment in the Demised Premises, and (c) All Risk insurance in respect of
Tenant's stock in trade, fixtures, furniture, furnishings, removable floor
coverings, equipment, signs and all other property of Tenant in the Demised
Premises in any amounts required by any Superior Lessor or any Superior
Mortgagee but not less than eighty percent (80%) of the full insurable value of
the property covered and not less than the amount sufficient to avoid the effect
of the co-insurance provisions of the applicable policy or policies, and (d)
such other insurance as is required for compliance with the Insurance
Requirements. Landlord may at any time and from time to time require that the
limits for the comprehensive general public liability insurance to be maintained
by Tenant be increased to the limits that new tenants in the Building are
required by Landlord to maintain. Tenant shall deliver to Landlord and any
additional named insured(s) certificates for such fully paid-for policies upon
execution hereof. Upon request of Landlord, Tenant shall furnish Landlord with
copies of all such insurance policies. Tenant shall procure and pay for renewals
of such insurance from time to time before the expiration thereof, and Tenant
shall deliver to Landlord and any additional insured(s) certificates therefor at
least thirty (30) days before the expiration of any existing policy. All such
policies shall be issued by companies of recognized responsibility, having a
Bests Key Rating Guide of not less than A, Class VII, licensed to do business in
New Jersey, and all such policies shall contain a provision whereby the same
cannot be canceled unless Landlord and any additional insured(s) are given at
least thirty (30) days' prior written notice of such cancellation. The
certificates of insurance to be delivered to Landlord by Tenant shall name
Landlord as an additional insured and, at Landlord's request, shall also name
any Superior Lessors or Superior Mortgagees as additional insureds, and the
following phrase must be typed on the certificate of insurance: "▇▇▇▇▇ Mountain
Industries, Inc., and its respective subsidiaries, affiliates, associates, joint
ventures, and partnerships, are hereby named as additional insureds as their
interests may appear (and if Landlord has so requested, Tenant shall include any
Superior Lessors and Superior Mortgagees as additional insured(s)). It is
intended for this insurance to be primary and non-contributing." Tenant shall
give Landlord at least thirty (30) days' prior written notice that any such
policy is being canceled or replaced.
13.03. Tenant shall not do, permit or suffer to be done any act,
matter, thing or failure to act in respect of the Demised Premises or use or
occupy the Demised Premises or conduct or operate Tenant's business in any
manner objectionable to any insurance company or companies whereby the fire
insurance or any other insurance then in effect in respect of the Land and
Building or any part thereof shall become void or suspended or whereby any
premiums in respect of
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insurance maintained by Landlord shall be higher than those which would normally
have been in effect for the occupancy contemplated under the Permitted Uses. In
case of a breach of the provisions of this Section 13.03, in addition to all
other rights and remedies of Landlord hereunder, Tenant shall (a) indemnify
Landlord and the Superior Lessors and hold Landlord and the Superior Lessors
harmless from and against any loss which would have been covered by insurance
which shall have become void or suspended because of such breach by Tenant and
(b) pay to Landlord any and all increases of premiums on any insurance,
including, without limitation, rent insurance, resulting from any such breach.
13.04. Tenant shall indemnify and hold harmless Landlord and all
Superior Lessors and its and their respective partners, joint venturers,
directors, officers, agents, servants and employees from and against any and all
claims arising from or in connection with (a) the conduct or management of the
Demised Premises or of any business therein, or any work or thing whatsoever
done, or any condition created (other than by Landlord) in the Demised Premises
during the Term or during the period of time, if any, prior to the Commencement
Date that Tenant may have been given access to the Demised Premises; (b) any
act, omission or negligence of Tenant or any of its subtenants or licensees or
its or their partners, joint venturers, directors, officers, agents, employees
or contractors; (c) any accident, injury or damage whatever (unless caused
solely by Landlord's negligence) occurring in the Demised Premises; and (d) any
breach or default by Tenant in the full and prompt payment and performance of
Tenant's obligations under this Lease; together with all costs, expenses and
liabilities incurred in or in connection with each such claim or action or
proceeding brought thereon, including, without limitation, all attorneys' fees
and expenses. In case any action or proceeding is brought against Landlord
and/or any Superior Lessor and/or its or their partners, joint venturers,
directors, officers, agents and/or employees in connection with conduct or
management of the Demised Premises or by reason of any claim referred to above,
Tenant, upon notice from Landlord or such Superior Lessor, shall, at Tenant's
cost and expense, resist and defend such action or proceeding by counsel
reasonably satisfactory to Landlord.
13.05. Neither Landlord nor any Superior Lessor shall be liable or
responsible for, and Tenant hereby releases Landlord and each Superior Lessor
from, all liability and responsibility to Tenant and any person claiming by,
through or under Tenant, by way of subrogation or otherwise, for any injury,
loss or damage to any person or property in or around the Demised Premises or to
Tenant's business irrespective of the cause of such injury, loss or damage, and
Tenant shall require its insurers to include in all of Tenant's insurance
policies which could give rise to a right of subrogation against Landlord or any
Superior Lessor a clause or endorsement whereby the insurer waives any rights of
subrogation against Landlord and such Superior Lessors or permits the insured,
prior to any loss, to agree with a third party to waive any claim it may have
against said third party without invalidating the coverage under the insurance
policy.
ARTICLE 14 - RULES AND REGULATIONS
14.01. Tenant and its employees and agents shall faithfully observe
and comply with the Rules and Regulations and such reasonable changes therein
(whether by modification, elimination
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or addition) as Landlord at any time or times hereafter may make and communicate
to Tenant, which in Landlord's judgment, shall be necessary for the reputation,
safety, care or appearance of the Land and Building, or the preservation of good
order therein, or the operation or maintenance of the Building or its equipment
and fixtures, or the Common Areas, and which do not unreasonably affect the
conduct of Tenant's business in the Demised Premises; provided, however, that in
case of any conflict or inconsistency between the provisions of this Lease and
any of the Rules and Regulations, the provisions of this Lease shall control.
Nothing in this Lease contained shall be construed to impose upon Landlord any
duty or obligation to enforce the Rules and Regulations against any other tenant
or any employees or agents of any other tenant, and Landlord shall not be liable
to Tenant for violation of the Rules and Regulations by any other tenant or its
employees, agents, invitees or licensees.
ARTICLE 15 - ALTERATIONS AND SIGNS
15.01. Tenant shall not make any alterations or additions to the
Demised Premises, or make any holes or cuts in the walls, ceilings, roofs, or
floors thereof, or change the exterior color or architectural treatment of the
Demised Premises, without on each occasion first obtaining the consent of
Landlord. Tenant shall submit to Landlord plans and specifications for such work
at the time Landlord's consent is sought. Notwithstanding the foregoing,
Landlord's consent shall not be required, however notice to the Landlord
(together with a copy of the plans and specifications) shall be required, for
alterations that are non-structural in nature and do not involve or affect the
mechanical systems of the Demised Premises or Building and have a cost of less
than $75,000.00, provided such notice shall include reasonably sufficient
details of the alteration(s). Tenant shall pay to Landlord upon demand the
reasonable cost and expense of Landlord in (a) reviewing said plans and
specifications and (b) inspecting the alterations to determine whether the same
are being performed in accordance with the approved plans and specifications and
all Legal Requirements and Insurance Requirements, including, without
limitation, the fees of any architect or engineer employed by Landlord for such
purpose. Before proceeding with any permitted alteration which will cost more
than $50,000 (exclusive of the costs of decorating work and items constituting
Tenant's Property), as estimated by a reputable contractor designated by
Landlord, Tenant shall obtain and deliver to Landlord either (i) a performance
bond and a labor and materials payment bond (issued by a corporate surety
licensed to do business in New Jersey), each in an amount equal to 100% of such
estimated cost and in form satisfactory to Landlord, or (ii) such other security
as shall be satisfactory to Landlord. Tenant shall fully and promptly comply
with and observe the Rules and Regulations then in force in respect of the
making of alterations. Any review or approval by Landlord of any plans and/or
specifications with respect to any alterations is solely for Landlord's benefit,
and without any representation or warranty whatsoever to Tenant in respect of
the adequacy, correctness or efficiency thereof or otherwise.
15.02. Tenant shall obtain all necessary governmental permits and
certificates for the commencement and prosecution of permitted alterations and
for final approval thereof upon completion, and shall cause alterations to be
performed in compliance therewith and with all applicable Legal Requirements and
Insurance Requirements. Alterations shall be diligently
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performed in a good and workmanlike manner, using new materials and equipment at
least equal in quality and class to the better of (a) the original installations
of the Building, or (b) the then standards for the Building established by
Landlord. Alterations shall be performed by contractors first approved by
Landlord (such approval not to be unreasonably withheld); provided, however,
that any alterations in or to the mechanical, electrical, sanitary, heating,
ventilating, air conditioning or other systems of the Building shall be
performed only by the contractor(s) designated by Landlord. Alterations shall be
made in such manner as not to unreasonably interfere with or delay and as not to
impose any additional expense upon Landlord in the construction, maintenance,
repair or operation of the Building; and if any such additional expense shall be
incurred by Landlord as a result of Tenant's making of any alterations, Tenant
shall pay any such additional expense upon demand. Throughout the making of
alterations, Tenant shall carry, or cause to be carried, worker's compensation
insurance in statutory limits and general liability insurance, with completed
operation endorsement, for any occurrence in or about the Building, under which
Landlord and its managing agent and any Superior Lessor whose name and address
shall previously have been furnished to Tenant shall be named as parties
insured, in such limits as Landlord may reasonably require, with insurers
reasonably satisfactory to Landlord. Tenant shall furnish Landlord with
reasonably satisfactory evidence that such insurance is in effect at or before
the commencement of alterations and, on request, at reasonable intervals
thereafter during the making of alterations.
15.03. Tenant shall not place any signs on the roof, exterior walls
or grounds of the Demised Premises without first obtaining Landlord's written
consent thereto. Landlord shall not unreasonably withhold or delay its consent
the installation of a sign on the exterior wall of the Demised Premises, setting
forth Tenant's name and logo, identifying the Tenant's occupancy of the Demised
Premises. Tenant shall not place the sign of any third party on the Demised
Premises or the Building. Tenant shall, at Tenant's sole cost and expense, be
responsible for the maintenance of said sign. At Landlord's request, upon
termination or expiration of this Lease, Tenant shall, at Tenant's sole cost and
expense, remove such sign and repair any damage to the Building resulting
therefrom. In placing any signs on or about the Demised Premises, Tenant shall,
at its expense, comply with all applicable Legal Requirements and obtain all
required permits and/or licenses.
ARTICLE 16 - LANDLORD'S AND TENANT'S PROPERTY
16.01. All fixtures, equipment, improvements and appurtenances
attached to or built into the Demised Premises at the commencement of or during
the Term, whether or not by or at the expense of Tenant, shall be and remain a
part of the Demised Premises, shall be deemed to be the property of Landlord and
shall not be removed by Tenant, except as provided in Section 16.02, provided
however that Landlord's consent shall not be required for the removal of the
pre-existing pipe rack and conveyor system in connection with the initial
installation of Tenant's Work. Further, any carpeting or other personal property
in the Demised Premises on the Commencement Date, unless installed and paid for
by Tenant, shall be and shall remain Landlord's property and shall not be
removed by Tenant.
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16.02. All movable partitions, business and trade fixtures, machinery
and equipment, communications equipment and office equipment, whether or not
attached to or built into the Demised Premises, which are installed in the
Demised Premises by or for the account of Tenant without expense to Landlord and
can be removed without structural damage to the Building and all furniture,
furnishings, and other movable personal property owned by Tenant and located in
the Demised Premises (collectively, "Tenant's Property") shall be and shall
remain the property of Tenant and may be removed by Tenant at any time during
the Term; provided that if any of the Tenant's Property is removed, Tenant shall
repair or pay the cost of repairing any damage to the Demised Premises, the
Building or the Common Areas resulting from the installation and/or removal
thereof. Any equipment or other property for which Landlord shall have granted
any allowance or credit to Tenant shall not be deemed to have been installed by
or for the account of Tenant without expense to Landlord, shall not be
considered as the Tenant's Property and shall be deemed the property of
Landlord.
16.03. At or before the Expiration Date or the date of any earlier
termination of this Lease, or within fifteen (15) days after such an earlier
termination date, Tenant shall remove from the Demised Premises all of the
Tenant's Property (except such items thereof as Landlord shall have expressly
permitted to remain, which property shall become the property of Landlord if not
removed), and Tenant shall repair any damage to the Demised Premises, the
Building and the Common Areas resulting from any installation and/or removal of
the Tenant's Property. Any items of the Tenant's Property which shall remain in
the Demised Premises after the Expiration Date or after a period of fifteen (15)
days following an earlier termination date, may, at the option of Landlord, be
deemed to have been abandoned, and in such case such items may be retained by
Landlord as its property or disposed of by Landlord, without accountability, in
such manner as Landlord shall determine at Tenant's expense.
ARTICLE 17 - REPAIRS AND MAINTENANCE
17.01. Tenant shall, throughout the Term, take good care of the
Demised Premises, the fixtures and appurtenances therein, and shall not do,
suffer, or permit any waste with respect thereto. Tenant shall keep and maintain
the Demised Premises including without limitation all building equipment,
windows, doors, loading bay doors and shelters, plumbing and electrical systems,
heating, ventilating and air conditioning ("HVAC") systems (whether located in
the interior of the Demised Premises or on the exterior of the Building) in a
clean and orderly condition. Tenant shall, at Landlord's option, keep and
maintain in a clean and orderly condition all HVAC systems and any other
mechanical or other systems exclusively serving the Demised Premises which are
located in whole or in part outside of the Demised Premises (it being understood
and agreed that if Landlord shall elect to keep and maintain said systems, then
the cost of same shall be included in Operating Expenses). Tenant shall keep and
maintain all exterior components of any windows, doors, loading bay doors and
shelters serving the Demised Premises in a clean and orderly condition. The
phrase "keep and maintain" as used herein includes repairs,
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replacement and/or restoration as appropriate. Tenant shall not permit or suffer
any over-loading of the floors of the Demised Premises. Tenant shall be
responsible for all repairs, interior and exterior, structural and
nonstructural, ordinary and extraordinary, in and to the Demised Premises, and
the Building (including the facilities and systems thereof) and the Common Areas
the need for which arises out of (a) the performance or existence of the
Tenant's Work or alterations, (b) the installation, use or operation of the
Tenant's Property in the Demised Premises, (c) the moving of the Tenant's
Property in or out of the Building, or (d) the act, omission, misuse or neglect
of Tenant or any of its subtenants or its or their employees, agents,
contractors or invitees. Upon request by Landlord, Tenant shall furnish Landlord
with true and complete copies of maintenance contracts and with copies of all
invoices for work performed, confirming Tenant's compliance with its obligations
under this Article. In the event Tenant fails to furnish such copies, Landlord
shall have the right, at Tenant's cost and expense, to conduct such inspections
or surveys as may be required to determine whether or not Tenant is in
compliance with this Article and to have any work required of Tenant performed
at Tenant's cost and expense. Tenant shall promptly replace all scratched,
damaged or broken doors and glass in and about the Demised Premises and shall be
responsible for all repairs, maintenance and replacement of wall and floor
coverings in the Demised Premises and for the repair and maintenance of all
sanitary and electrical fixtures and equipment therein. The Tenant shall also
arrange for its own cleaning services and rubbish removal, subject to the right
of Landlord, at Landlord's option to perform such services and include the cost
of such services in Operating Expenses. Tenant shall promptly make all repairs
in or to the Demised Premises for which Tenant is responsible, and any repairs
required to be made by Tenant to the mechanical, electrical, sanitary, heating,
ventilating, air-conditioning or other systems of the Building shall be
performed only by contractor(s) designated by Landlord. Any other repairs in or
to the Building and the facilities and systems thereof for which Tenant is
responsible shall be performed by Landlord at Tenant's expense; but Landlord
may, at its option, before commencing any such work or at any time thereafter,
require Tenant to furnish to Landlord such security, in form (including, without
limitation, a bond issued by a corporate surety licensed to do business in New
Jersey) and amount, as Landlord shall deem necessary to assure the payment for
such work by Tenant.
17.02. Landlord shall make all structural repairs and replacements,
including, specifically, the roof and roof membrane (except as hereinabove
provided in Section 17.01) and the cost thereof shall be included in Operating
Expenses, for which Tenant shall pay Tenant's Fraction. Landlord shall keep and
maintain the Common Areas and shall procure landscaping and snow removal
services for the Building and the cost thereof shall be included in Operating
Expenses, for which Tenant shall pay Tenant's Fraction.
17.03. Tenant shall not permit or suffer the overloading of the
floors of the Demised Premises beyond a total combined load of 250 pounds per
square foot, or such lesser amount as may be applicable to any mezzanine or
second floor area.
17.04. Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant, nor shall Tenant's covenants and obligations
under this Lease be reduced or
-25-
abated in any manner whatsoever, by reason of any inconvenience, annoyance,
interruption or injury to business arising from Landlord's doing any repairs,
maintenance, or changes which Landlord is required or permitted by this Lease,
or required by Law, to make in or to any portion of the Building.
ARTICLE 18 - UTILITY CHARGES
18.01. Tenant shall pay all charges for gas, water, sewer,
electricity, heat or other utility or service supplied to the Demised Premises
as measured by meters relating to Tenant's use, and any cost of repair,
maintenance, replacement, and reading of any meters measuring Tenant's
consumption thereof. If any utilities or services are not separately metered or
assessed or are only partially separately metered or assessed and are used in
common with other tenants or occupants of the Building, Tenant shall pay to
Landlord on demand Tenant's proportionate share of such charges for utilities
and/or services, which shall be such charges multiplied by a fraction the
numerator of which shall be the Floor Space in the Demised Premises and the
denominator of which shall be the Floor Space of all tenants and occupants of
the Building using such utilities and/or services. In the event Landlord
determines that Tenant's utilization of any such service exceeds the fraction
referred to above, Tenant's proportionate share with respect to such service
shall, at Landlord's option, mean the percentage of any such service (but not
less than the fraction referred to above) which Landlord reasonably estimates as
Tenant's utilization thereof. Tenant expressly agrees that Landlord shall not be
responsible for the failure of supply to Tenant of any of the aforesaid, or any
other utility service. Landlord shall not be responsible for any public or
private telephone service to be installed in the space, particularly conduit, if
required.
18.02. Tenant's use of electric energy in the Demised Premises shall
not at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Demised Premises. In order to insure that
such capacity is not exceeded and to avert possible adverse effect upon the
Building's electric service, Tenant shall not, without Landlord's prior consent
in each instance (which shall not be unreasonably withheld), connect any
fixtures, appliances or equipment to the Building's electric distribution system
or make any alteration or addition to the electric system of the Demised
Premises existing on the Commencement Date. Should Landlord grant such consent,
all additional risers or other equipment required therefor shall be provided by
Landlord and the cost thereof shall be paid by Tenant to Landlord on demand.
ARTICLE 19 - ACCESS, CHANGES AND NAME
19.01. Except for the space within the inside surfaces of all walls,
hung ceilings, floors, windows and doors bounding the Demised Premises, all of
the Building, including, without limitation, exterior Building walls, core
corridor walls and doors and any core corridor entrance, any terraces or roofs
adjacent to the Demised Premises, and any space in or adjacent to the Demised
Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or
other utilities, sinks or other Building facilities and the use thereof, as well
as access thereto through the Demised Premises for the purpose of operating,
maintenance, decoration and repair, are reserved
-26-
to Landlord. Landlord also reserves the right, to install, erect, use and
maintain pipes, ducts and conduits in and through the Demised Premises, provided
such are properly enclosed.
19.02. Landlord and its agents shall have the right to enter and/or
pass through the Demised Premises at any time or times (a) to examine the
Demised Premises and to show then to actual and prospective Superior Lessors,
Superior Mortgagees, or prospective purchasers of the Building, and (b) to make
such repairs, alterations, additions and improvements in or to the Demised
Premises and/or in or to the Building or its facilities and equipment as
Landlord is required or desires to make. Landlord shall be allowed to take all
materials into and upon the Demised Premises that may be required in connection
therewith, without any liability to Tenant and without any reduction of Tenant's
obligations hereunder. During the period of eighteen (18) months prior to the
Expiration Date, Landlord and its agents may exhibit the Demised Premises to
prospective tenants.
19.03. If at any time any windows of the Demised Premises are
temporarily darkened or obstructed by reason of any repairs, improvements,
maintenance and/or cleaning in or about the Building, or if any part of the
Building or the Common Areas, other than the Demised Premises, is temporarily or
permanently closed or inoperable, the same shall not be deemed a constructive
eviction and shall not result in any reduction or diminution of Tenant's
obligations under this Lease.
19.04. If, during the last month of the Term, Tenant has removed all
or substantially all of the Tenant's Property from the Demised Premises,
Landlord may, without notice to Tenant, immediately enter the Demised Premises
and alter, renovate and decorate the same, without liability to Tenant and
without reducing or otherwise affecting Tenant's obligations hereunder.
19.05. Landlord reserves the right, at any time and from time to
time, to make such changes, alterations, additions and improvements in or to the
Building and the fixtures and equipment thereof as Landlord shall deem necessary
or desirable.
19.06. Landlord may adopt any name for the Building. Landlord
reserves the right to change the name and/or address of the Building at any
time. Landlord agrees that, provided Tenant is not in default of its obligations
under this Lease, and further provided Tenant has not assigned this Lease or
sublet more than twenty-five percent (25%) of the Demised Premises and is in
occupancy of not less than fifty percent (50%) of the Building, Landlord shall
not name the Building after another tenant of the Building.
ARTICLE 20 - MECHANICS' LIENS AND OTHER LIENS
20.01. Nothing contained in this Lease shall be construed to imply
any consent of Landlord to subject Landlord's interest or estate to any
liability under any mechanic's, construction or other lien law. If any lien or
any Notice of Intention (to file a lien), Lis Pendens, or Notice of Unpaid
Balance and Right to File Lien is filed against the Land, the Building, or any
part thereof,
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or the Demised Premises, or any part thereof, for any work, labor, services or
materials claimed to have been performed or furnished for or on behalf of
Tenant, or anyone holding any part of the Demised Premises through or under
Tenant, Tenant shall cause the same to be canceled and discharged of record by
payment, bond or order of a court of competent jurisdiction within fifteen (15)
days after notice by Landlord to Tenant.
ARTICLE 21 - NON-LIABILITY AND INDEMNIFICATION
21.01. Neither Landlord nor any partner, joint venturer, director,
officer, agent, servant or employee of Landlord shall be liable to Tenant for
any loss, injury or damage to Tenant or to any other Person, or to its or their
property, irrespective of the cause of such injury, damage or loss, unless
caused by or resulting from the negligence of Landlord, its agents, servants or
employees in the operation or maintenance of the Land or Building without
contributory negligence on the part of Tenant or any of its subtenants or
licensees or its or their employees, agents or contractors. Further, neither
Landlord nor any partner, joint venturer, director, officer, agent, servant or
employee of Landlord shall be liable (a) for any such damage caused by other
tenants or Persons in, upon or about the Land or Building, or caused by
operations in construction of any private, public or quasi-public work; or (b)
even if negligent, for consequential damages arising out of any loss of use of
the Demised Premises or any equipment or facilities therein by Tenant or any
Person claiming through or under Tenant.
21.02. Tenant shall indemnify and hold harmless Landlord and all
Superior Lessors and its and their respective partners, joint venturers,
directors, officers, agents, servants and employees from and against any and all
claims arising from or in connection with (a) the conduct or management of the
Demised Premises or of any business therein, or any work or thing whatsoever
done, or any condition created (other than by Landlord) in the Demised Premises
during the Term or during the period of time, if any, prior to the Commencement
Date that Tenant may have been given access to the Demised Premises; (b) any
act, omission or negligence of Tenant or any of its subtenants or licensees or
its or their partners, joint venturers, directors, officers, agents, employees
or contractors; (c) any accident, injury or damage whatever (unless caused
solely by Landlord's negligence) occurring in the Demised Premises; and (d) any
breach or default by Tenant in the full and prompt payment and performance of
Tenant's obligations under this Lease; together with all costs, expenses and
liabilities incurred in or in connection with each such claim or action or
proceeding brought thereon, including, without limitation, all attorneys' fees
and expenses. In case of any action or proceeding is brought against Landlord
and/or any Superior Lessor and/or its or their partners, joint venturers,
directors, officers, agents and/or employees by reason of any such claim,
Tenant, upon notice from Landlord or such Superior Lessor, shall resist and
defend such action or proceeding (by counsel reasonably satisfactory to
Landlord).
21.03. Notwithstanding any provision to the contrary, Tenant shall
look solely to the estate and property of Landlord in and to the Land and
Building (or the proceeds received by Landlord on a sale of such estate and
property but not the proceeds of any financing or refinancing thereof) in the
event of any claim against Landlord arising out of or in connection with this
Lease,
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the relationship of Landlord and Tenant or Tenant's use of the Demised Premises
or the Common Areas, and Tenant agrees that the liability of Landlord arising
out of or in connection with this Lease, the relationship of Landlord and Tenant
or Tenant's use of the Demised Premises or the Common Areas shall be limited to
such estate and property of Landlord (or sale proceeds). No other properties or
assets of Landlord or any partner, joint venturer, director, officer, agent,
servant or employee of Landlord shall be subject to levy, execution or other
enforcement procedures for the satisfaction of any judgement (or other judicial
process) or for the satisfaction of any other remedy of Tenant arising out of,
or in connection with, this Lease, the relationship of Landlord and Tenant or
Tenant's use of the Demised Premises or the Common Areas and if Tenant shall
acquire a lien on or interest in any other properties or assets by judgment or
otherwise, Tenant shall promptly release such lien on or interest in such other
properties and assets by executing, acknowledging and delivering to Landlord an
instrument to that effect prepared by Landlord's attorneys.
ARTICLE 22 - DAMAGE OR DESTRUCTION
22.01. If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other casualty (and if this Lease shall
not be terminated as in this Article 22 hereinafter provided), Landlord shall
repair the damage and restore and rebuild the Building and/or the Demised
Premises (except for the Tenant's Property) with reasonable dispatch after
notice to it of the damage or destruction and the collection of the insurance
proceeds attributable to such damage.
22.02. Subject to the provisions of Section 22.05, if all or part of
the Demised Premises shall be damaged or destroyed or rendered completely or
partially untenantable on account of fire or other casualty, the Rent shall be
abated or reduced, as the case may be, in the proportion that the untenantable
area of the Demised Premises bears to the total area of the Demised Premises (to
the extent of rent insurance proceeds received by the Landlord, provided however
that the aforementioned limitation shall be conditioned upon Landlord obtaining
and maintaining rent insurance covering a period of not less than twelve (12)
months rent) for the period from the date of the damage or destruction to (a)
the date the damage to the Demised Premises shall be substantially repaired, or
(b) if the Building and not the Demised Premises is so damaged or destroyed, the
date on which the Demised Premises shall be made tenantable; provided, however,
should Tenant reoccupy a portion of the Demised Premises during the period the
repair or restoration work is taking place and prior to the date that the
Demised Premises are substantially repaired or made tenantable the Rent
allocable to such reoccupied portion, based upon the proportion which the area
of the reoccupied portion of the Demised Premises bears to the total area of the
Demised Premises, shall be payable by Tenant from the date of such occupancy.
22.03. If (a) the Building or the Demised Premises shall be totally
damaged or destroyed by fire or other casualty, or (b) the Building shall be so
damaged or destroyed by fire or other casualty (whether or not the Demised
Premises are damaged or destroyed) that its repair or restoration requires the
expenditure, as estimated by a reputable contractor or architect designated
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by Landlord, of more than twenty percent (20%) (or ten percent [10%] if such
casualty occurs during the last two [2] years of the Term) of the full insurable
value of the Building immediately prior to the casualty, or (c) the Building
shall be damaged or destroyed by fire or other casualty (whether or not the
Demised Premises are damaged or destroyed) and either the loss shall not be
covered by Landlord's insurance or the net insurance proceeds (after deducting
all expenses in connection with obtaining such proceeds) shall, in the
estimation of a reputable contractor or architect designated by Landlord be
insufficient to pay for the repair or restoration work, then in either such case
Landlord may terminate this Lease by giving Tenant notice to such effect within
ninety (90) days after the date of the fire or other casualty.
22.04. Tenant shall not be entitled to terminate this Lease and no
damages, compensation or claim shall be payable by Landlord for inconvenience,
loss of business or annoyance arising from any repair or restoration of any
portion of the Demised Premises or of the Building pursuant to this Article 22.
Landlord shall use its best efforts to make such repair or restoration promptly
and in such manner as not unreasonably to interfere with Tenant's use and
occupancy of the Demised Premises, but Landlord shall not be required to do such
repair or restoration work except during Landlord's business hours on business
days.
22.05. Notwithstanding any of the foregoing provisions of this
Article 22, if by reason of some act or omission on the part of Tenant or any of
its subtenants or its or their partners, directors, officers, servants,
employees, agents or contractors, either (a) Landlord or any Superior Lessor or
any Superior Mortgagee shall be unable to collect all of the insurance proceeds
(including, without limitation, rent insurance proceeds) applicable to damage or
destruction of the Demised Premises or the Building by fire or other casualty,
or (b) the Demised Premises or the Building shall be damaged or destroyed or
rendered completely or partially untenantable on account of fire or other
casualty, then, without prejudice to any other remedies which may be available
against Tenant, there shall be no abatement or reduction of the Rent. Further,
nothing contained in this Article 22 shall relieve Tenant from any liability
that may exist as a result of any damage or destruction by fire or other
casualty.
22.06. Landlord will not carry insurance of any kind on the Tenant's
Property, and, except as provided by law or by reason of Landlord's breach of
any of its obligations hereunder, shall not be obligated to repair any damage to
or replace the Tenant's Property.
22.07. The provisions of this Article 22 shall be deemed an express
agreement governing any case of damage or destruction of the Demised Premises
and/or Building by fire or other casualty, and any law providing for such a
contingency in the absence of an express agreement, now or hereafter in force,
shall have no application in such case.
ARTICLE 23 - EMINENT DOMAIN
23.01. If the whole of the Demised Premises shall be taken by any
public or quasi-public authority under the power of condemnation, eminent domain
or expropriation, or in the event of
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conveyance of the whole of the Demised Premises in lieu thereof, this Lease
shall terminate as of the day possession shall be taken by such authority. If
25% or less of the Floor Space of the Demised Premises shall be so taken or
conveyed, this Lease shall terminate only in respect of the part so taken or
conveyed as of the day possession shall be taken by such authority. If more than
25% of the Floor Space of the Demised Premises shall be so taken or conveyed,
this Lease shall terminate only in respect of the part so taken or conveyed as
of the day possession shall be taken by such authority, but either party shall
have the right to terminate this Lease upon notice given to the other party
within 30 days after such taking possession. If more than 25% of the Floor Space
of the Building shall be so taken or conveyed, Landlord may, by notice to
Tenant, terminate this Lease as of the day possession shall be taken. If so much
of the parking facilities shall be so taken or conveyed that the number of
parking spaces necessary, in Landlord's judgment, for the continued operation of
the Building shall not be available, Landlord shall, by notice to Tenant,
terminate this Lease as of the day possession shall be taken. If this Lease
shall continue in effect as to any portion of the Demised Premises not so taken
or conveyed, the Rent shall be computed as of the day possession shall be taken
on the basis of the remaining Floor Space of the Demised Premises. Except as
specifically provided herein, in the event of any such taking or conveyance
there shall be no reduction in Rent. If this Lease shall continue in effect,
Landlord shall, at its expense, but shall be obligated only to the extent of the
net award or other compensation (after deducting all expenses in connection with
obtaining same) available to Landlord for the improvements taken or conveyed
(excluding any award or other compensation for land or for the unexpired portion
of the term of any Superior Lease), make all necessary alterations so as to
constitute the remaining Building a complete architectural and tenantable unit,
except for the Tenant's Property, and Tenant shall make all alterations or
replacements to the Tenant's Property and decorations in the Demised Premises.
All awards and compensation for any taking or conveyance, whether for the whole
or a part of the Land or Building, the Demised Premised or otherwise, shall be
the property of Landlord, and Tenant hereby assigns to Landlord all of Tenant's
right, title and interest in and to any and all such awards and compensation,
including, without limitation, any award or compensation for the value of the
unexpired portion of the Term. Tenant shall be entitled to claim, prove and
receive in the condemnation proceeding such award or compensation as may be
allowed for the Tenant's Property and for loss of business, good will, and
depreciation or injury to and cost of removal of the Tenant's Property, but only
if such award or compensation shall be made by the condemning authority in
addition to, and shall not result in a reduction of, the award or compensation
made by it to Landlord.
23.02. If the temporary use or occupancy of all or any part of the
Demised Premises shall be taken during the Term, Tenant shall be entitled,
except as hereinafter set forth, to receive that portion of the award or payment
for such taking which represents compensation for the use and occupancy of the
Demised Premises, for the taking of the Tenant's Property and for moving
expenses, and Landlord shall be entitled to receive that portion which
represents reimbursement for the cost of restoration of the Demised Premises.
This Lease shall be and remain unaffected by such taking and Tenant shall
continue to be responsible for all of its obligations hereunder insofar as such
obligations are not affected by such taking and shall continue to pay the Rent
in full when due. If the period of temporary use or occupancy shall extend
beyond the Expiration Date, that
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part of the award or payment which represents compensation for the use and
occupancy of the Demised Premises (or a part thereof) shall be divided between
Landlord and Tenant so that Tenant shall receive (except as otherwise provided
below) so much thereof as represents compensation for the period up to and
including the Expiration Date and Landlord shall receive so much thereof as
represents compensation for the period after the Expiration Date. All monies to
be paid to Tenant as, or as part of, an award or payment for temporary use and
occupancy for a period beyond the date to which the Rent has been paid shall be
received, held and applied by the first Superior Mortgagee (or if there is no
Superior Mortgagee, by Landlord as a trust fund) for payment of the Rent
becoming due hereunder.
ARTICLE 24 - SURRENDER
24.01. On the Expiration Date, or upon any earlier termination of
this Lease, or upon any re-entry by Landlord upon the Demised Premises, Tenant
shall quit and surrender the Demised Premises to Landlord "broom-clean" and in
good order, condition and repair, except for ordinary wear and tear and such
damage or destruction as Landlord is required to repair or restore under this
Lease, and Tenant shall remove all of Tenant's Property therefrom except as
otherwise expressly provided in this Lease.
24.02. If Tenant remains in possession of the Demised Premises after
the expiration of the Term, Tenant shall be deemed to be occupying the Demised
Premises as a tenant from month to month at the sufferance of Landlord subject
to all of the provisions of this Lease, except that the monthly Fixed Rent shall
be twice the Fixed Rent in effect during the last month of the Term, plus 1/12th
of the average annual Percentage Rent for the immediately preceding three full
Calendar Years (or for the entire Term if less than three full Calendar Years).
24.03. No act or thing done by Landlord or its agents shall be deemed
an acceptance of a surrender of the Demised Premises, and no agreement to accept
such surrender shall be valid unless in writing and signed by Landlord.
ARTICLE 25 - CONDITIONS OF LIMITATION
25.01. This Lease is subject to the limitation that whenever Tenant
or any Guarantor (a) shall make an assignment for the benefit of creditors, or
(b) shall commence a voluntary case or have entered against it an order for
relief under any chapter of the Federal Bankruptcy Code (Title 11 of the United
States Code) or any similar order or decree under any federal or state law, now
in existence, or hereafter enacted having the same general purpose, and such
order or decree shall have not been stayed or vacated within 30 days after
entry, or (c) shall cause, suffer, permit or consent to the appointment of a
receiver, trustee, administrator, conservator, sequestrator, liquidator or
similar official in any federal, state or foreign judicial or nonjudicial
proceeding, to hold, administer and/or liquidate all or substantially all of its
assets, and such appointment shall not have been revoked, terminated, stayed or
vacated and such official discharged of his duties within 30 days of his
appointment, then Landlord, at any time after the occurrence of any such event,
may
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give Tenant a notice of intention to end the Term at the expiration of five (5)
days from the date of service of such notice of intention, and upon the
expiration of said five (5) day period, whether or not the Term shall
theretofore have commenced, this Lease shall terminate with the same effect as
if that day were the expiration date of this Lease, but Tenant shall remain
liable for damages as provided in Article 27.
25.02. This Lease is subject to the further limitations that: (a) if
Tenant shall default in the payment of any Rent and such default remains uncured
for five (5) days after written notice from Landlord, or (b) if Tenant shall,
whether by action or inaction, be in default of any of its obligations under
this Lease (other than a default in the payment of Rent) and such default shall
continue and not be remedied within thirty (30) days after Landlord shall have
given to Tenant a notice specifying the same, or, in the case of a default which
cannot with due diligence be cured within a period of fifteen (15) days and the
continuance of which for the period required for cure will not subject Landlord
or any Superior Lessor to prosecution for a crime (as more particularly
described in the last sentence of Section 12.02) or termination of any Superior
Lease or foreclosure of any Superior Mortgage, if Tenant shall not, (i) within
said thirty (30) day period advise Landlord of Tenant's intention to take all
steps necessary to remedy such default, (ii) duly commence within said thirty
(30) day period, and thereafter diligently prosecute to completion all steps
necessary to remedy the default, and (iii) complete such remedy within a
reasonable time after the date of said notice by Landlord, or (c) if any event
shall occur or any contingency shall arise whereby this Lease would, by
operation of law or otherwise, devolve upon or pass to any person, firm or
corporation other than Tenant, except as expressly permitted by Article 11, or
(d) if Tenant shall vacate or abandon the Demised Premises, or (e) if there
shall be any default by Tenant (or any person which, directly or indirectly,
controls, is controlled by, or is under common control with Tenant) under any
other lease with Landlord (or any person which, directly or indirectly,
controls, is controlled by, or is under common control with Landlord) which
shall not be remedied within the applicable grace period, if any, provided
therefor under such other lease, then in any of said cases Landlord may give to
Tenant a notice of intention to end the Term at the expiration of five (5) days
from the date of the service of such notice of intention, and upon the
expiration of said five (5) days, whether or not the Term shall theretofore have
commenced, this Lease shall terminate with the same effect as if that day were
the expiration date of this Lease, but Tenant shall remain liable for damages as
provided in Article 27.
ARTICLE 26 - RE-ENTRY BY LANDLORD
26.01. If Tenant shall default in the payment of any Rent, or if this
Lease shall terminate as provided in Article 25, Landlord or Landlord's agents
and employees may immediately or at any time thereafter re-enter the Demised
Premises, or any part thereof, either by summary dispossess proceedings or by
any suitable action or proceeding at law without being liable to indictment,
prosecution or damages therefor, and may repossess the same, and may remove any
Person therefrom, to the end that Landlord may have, hold and enjoy the Demised
Premises. The word "re-enter," as used herein, is not restricted to its
technical legal meaning. If this Lease is terminated under the provisions of
Article 25, or if Landlord shall re-enter the Demised Premises
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under the provisions of this Article 26, or in the event of the termination of
this Lease, or of re-entry, by or under any summary dispossess or other
proceedings or action or any provision of law by reason of default hereunder on
the part of Tenant, Tenant shall thereupon pay to Landlord the Rent payable up
to the time of such termination of this Lease, or of such recovery of possession
of the Demised Premises by Landlord, as the case may be, and shall also pay to
Landlord damages as provided in Article 27.
26.02. In the event of a breach or threatened breach by Tenant of any
of its obligations under this Lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies to which
Landlord may lawfully be entitled at any time and Landlord may invoke any remedy
allowed at law or in equity as if specific remedies were not provided for
herein.
26.03. If this Lease shall terminate under the provisions of Article
25, or if Landlord shall re-enter the Demised Premises under the provisions of
this Article 26, or in the event of the termination of this Lease, or of
re-entry, by or under any summary dispossess or other proceeding or action or
any provision of law by reason of default hereunder on the part of Tenant,
Landlord shall be entitled to retain 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 from Tenant at the time of such
termination or re-entry or, at Landlord's option, against any damages payable by
Tenant under Article 27 or pursuant to law.
ARTICLE 27 - DAMAGES
27.01. If this Lease is terminated under the provisions of Article 25
or if Landlord shall re-enter the Demised Premises under the provisions of
Article 26, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Tenant shall pay as
Additional Charges to Landlord, at the election of Landlord, either or any
combination of:
A. a sum which at the time of such termination of this Lease or at the
time of any such re-entry by Landlord, as the case may be, represents
the then value of the excess, if any, of (I) the aggregate amount of
the Rent which would have been payable by Tenant (conclusively
presuming the average monthly Percentage Rent and Additional Charges to
be the same as were the average monthly Percentage Rent and Additional
Charges payable for the year, or if less than three hundred sixty five
(365) days have then elapsed since the Commencement Date, the partial
year, immediately preceding such termination or re-entry) for the
period commencing with such earlier termination of this Lease or the
date of any such re-entry, as the case may be, and ending with the
Expiration Date, over (ii) the aggregate rental value of the Demised
Premises for the same period; or
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B. sums equal to the Fixed Rent, Percentage Rent (in the same monthly
amount as the average monthly Percentage Rent payable for the year, or
if less than three hundred sixty five (365) days have then elapsed
since the Commencement Date, the partial year, immediately preceding
such termination or re-entry) and the Additional Charges which would
have been payable by Tenant had this Lease not so terminated, or had
Landlord not so re-entered the Demised Premises, payable upon the due
dates therefor specified herein following such termination or such
re-entry and until the Expiration Date, provided, however, that if
Landlord shall relet the Demised Premises during said period, Landlord
shall credit Tenant with the net rents received by Landlord from such
reletting, such net rents to be determined by first deducting from the
gross rents as and when received by Landlord from such reletting the
expenses incurred or paid by Landlord in terminating this Lease or in
re-entering the Demised Premises and in securing possession thereof, as
well as the expenses of reletting, including, without limitation,
altering and preparing the Demised Premises for new tenants, brokers'
commissions, legal fees, and all other expenses properly chargeable
against the Demised Premises and the rental therefrom, it being
understood that any such reletting may be for a period shorter or
longer than the period ending on the Expiration Date; but in no event
shall Tenant be entitled to receive any excess of such net rents over
the sums payable by Tenant to Landlord hereunder, nor shall Tenant be
entitled in any such for the collection of damages pursuant to this
subdivision (b) to a credit in respect of any rents from a reletting,
except to the extent that such net rents are actually received by
Landlord. If the Demised Premises or any part thereof should be relet
in combination with other space, then proper apportionment on a square
foot basis shall be made of the rent received from such reletting and
of the expenses of reletting; or
C. a sum which at the time of such termination of this Lease or at the
time of any such re-entry by Landlord, as the case may be, represents
the aggregate amount of the Rent which would have been payable by
Tenant (conclusively presuming the average monthly Additional Charges
to be the same as were the average monthly Additional Charges payable
for the year, or if less than 365 days have then elapsed since the
Commencement Date, the partial year, immediately preceding such
termination or re-entry) for the period commencing with such earlier
termination of this Lease or the date of any such re-entry, as the case
may be, and ending with the Expiration Date; provided, however, that if
Landlord shall relet the Demised Premises during said period, Landlord
shall credit Tenant with the net rents received by Landlord from such
reletting, such net rents to be determined by first deducting from the
gross rents as and when received by Landlord from such reletting the
expenses incurred or paid by Landlord in terminating this Lease or in
re-entering the Demised Premises and in securing possession thereof, as
well as the expenses of reletting, including, without limitation,
altering and preparing the Demised Premises for new tenants, brokers'
commissions, legal fees, and all other expenses properly chargeable
against the Demised Premises and the rental therefrom, it being
understood that any such reletting may be for a period shorter or
longer than the period ending on the Expiration Date; but in no event
shall Landlord have to account to Tenant for any rents in excess of
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the total damages recovered by Landlord hereunder, nor shall Tenant be
entitled in any suit for the collection of damages pursuant to this
subdivision (c) to a credit in respect of any rents from a reletting,
except to the extent that such net rents are actually received by
Landlord. If the Demised Premises or any part thereof should be relet
in combination with other space, then proper apportionment on a square
foot basis shall be made of the rent received from such reletting and
of the expenses of reletting.
If the Demised Premises or any part thereof should be relet by Landlord before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such reletting shall, prima facie, be the fair and
reasonable rental value for the Demised Premises, or part thereof, so relet
during the term of the reletting. Landlord shall not be liable in any way
whatsoever for its failure to relet the Demised Premises or any part thereof, or
if the Demised Premises or any part thereof are relet, for its failure to
collect the rent under such reletting, and no such failure to relet or failure
to collect rent shall release or affect Tenant's liability for damages or
otherwise under this Lease.
27.02. Suit or suits for the recovery of such damages or, any
installments thereof, may be brought by Landlord at any time and from time to
time at its election, and nothing contained herein shall be deemed to require
Landlord to postpone suit until the date when the Term would have expired if it
had not been so terminated under the provisions of Article 25, or under any
provision of law, or had Landlord not re-entered the Demised Premises. Nothing
herein contained shall be construed to limit or preclude 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. Nothing herein contained shall be
construed to limit or prejudice the right of Landlord to prove for and obtain as
damages by reason of the termination of this Lease or re-entry of the Demised
Premises for the default of Tenant under this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time, whether or
not such amount be greater than, equal to, or less than any of the sums referred
to in Section 27.01.
27.03. In addition, if this Lease is terminated under the provisions
of Article 25, or if Landlord shall re-enter the Demised Premises under the
provisions of Article 26, Tenant covenants that: (a) the Demised Premises then
shall be in the same condition as that in which Tenant has agreed to surrender
the same to Landlord at the Expiration Date; (b) Tenant shall have performed
prior to any such termination any obligation of Tenant contained in this Lease
for the making of any alteration or for restoring or rebuilding the Demised
Premises or the Building, or any part thereof; and (c) for the breach of any
covenant of Tenant set forth above in this Section 27.03, Landlord shall be
entitled immediately, without notice or other action by Landlord, to recover,
and Tenant shall pay, as and for liquidated damages therefor, the cost of
performing such covenant (as estimated by an independent contractor selected by
Landlord).
27.04. In addition to any other remedies Landlord may have under this
Lease, and without reducing or adversely affecting any of Landlord's rights and
remedies under this Article 27, if any
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Rent or damages payable hereunder by Tenant to Landlord are not paid upon demand
therefor, the same shall bear interest at the Late Payment Rate or the maximum
rate permitted by law, whichever is less, from the due date thereof until paid,
and the amounts of such interest shall be Additional Charges hereunder.
27.05. In the event of Tenant's default under this Lease and
Landlord's re-entry and recovery or possession of the Demised Premises, Landlord
shall use commercially reasonable efforts to mitigate Landlord's damages by
reletting of the Demised Premises. The net proceeds of any such reletting
received by Landlord shall be credited against Tenant's then-outstanding
obligations under this Lease. As used herein, "net proceeds" shall mean the full
amount of rent and other similar charges paid to Landlord by all succeeding
tenants of all or any portion of the Demised Premises less Landlord's actual
expenses of reletting the Demised Premises (including, but not limited to
expenses or work done to the Demised Premises in connection with such reletting,
broker's fees and attorneys' fees). Nothing contained herein shall require
Landlord to relet the Demised Premises prior to or with any preference over the
leasing of any other similar premises of Landlord or any affiliate of Landlord,
nor shall any rental of such other premises reduce the damages which Landlord
would be entitled to recover from Tenant.
ARTICLE 28 - AFFIRMATIVE WAIVERS
28.01. Tenant, on behalf of itself and any and all persons claiming
through or under Tenant, does hereby waive and surrender all right and privilege
which it, they or any of them might have under or by reason of any present or
future law, to redeem the Demised Premises or to have a continuance of this
Lease after being dispossessed or ejected from the Demised Premises by process
of law or under the terms of this Lease or after the termination of this Lease
as provided in this Lease.
28.02. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, and Tenant's use or occupancy of the
Demised Premises and use of the Common Area, including, without limitation, any
claim of injury or damage, and any emergency and other statutory remedy with
respect thereto. Tenant shall not interpose any counterclaim of any kind in any
action or proceeding commenced by Landlord to recover possession of the Demised
Premises.
ARTICLE 29 - NO WAIVERS
29.01. The failure of either party to insist in any one or more
instances upon the strict performance of any one or more of the obligations of
this Lease, or to exercise any election herein contained, shall not be construed
as a waiver or relinquishment for the future of the performance of such one or
more obligations of this Lease or of the right to exercise such election, but
the same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission. The receipt by Landlord of Fixed Rent,
Percentage Rent or Additional Charges with
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knowledge of breach by Tenant of any obligation of this Lease shall not be
deemed a waiver of such breach.
ARTICLE 30 - CURING TENANT'S DEFAULTS
30.01. If Tenant shall default in the performance of any of Tenant's
obligations under this Lease, Landlord, without thereby waiving such default,
may (but shall not be obligated to) perform the same for the account and at the
expense of Tenant, without notice in a case of emergency, and in any other case
only if such default continues after the expiration of fifteen (15) days from
the date Landlord gives Tenant notice of the default. Bills for any expenses
incurred by Landlord in connection with any such performance by it for the
account of Tenant, and bills for all costs, expenses and disbursements of every
kind and nature whatsoever, including reasonable attorneys' fees and expenses,
involved in collecting or endeavoring to collect the Rent or any part thereof or
enforcing or endeavoring to enforce any rights against Tenant or Tenant's
obligations hereunder, under or in connection with this Lease or pursuant to
law, including any such cost, expense and disbursement involved in instituting
and prosecuting summary proceedings or in recovering possession of the Demised
Premises after default by Tenant or upon the expiration of the Term or sooner
termination of this Lease, and interest on all sums advanced by Landlord under
this Article at the Late Payment Rate or the maximum rate permitted by law,
whichever is less, may be sent by Landlord to Tenant monthly, or immediately, at
Landlord's option, and such amounts shall be due and payable in accordance with
the terms of such bills.
ARTICLE 31 - BROKER
31.01. Landlord and Tenant represent that no broker was instrumental
in bringing about or consummating this Lease and that Landlord and Tenant had no
conversations or negotiations with any broker concerning the leasing of the
Demised Premises to the Tenant. Landlord and Tenant agree to indemnify and hold
each other harmless against and from any claims for any brokerage commissions
and all costs, expenses and liabilities in connection therewith, including,
without limitation, attorneys' fees and expenses, arising out of any
conversations or negotiations had by such party with any broker claiming to have
dealt through the indemnifying party.
ARTICLE 32 - NOTICES
32.01. Any notice, statement, demand, consent, approval or other
communication required or permitted to be given, rendered or made by either
party to the other, pursuant to this Lease or pursuant to any applicable Legal
Requirement, shall be in writing and shall be deemed to have been properly
given, rendered or made only if hand delivered or sent by United States
registered or certified mail, return receipt requested, addressed to the other
party at the address hereinabove set forth (except that after the Fixed Rent
Commencement Date, Tenant's address, unless Tenant shall give notice to the
contrary, shall be the Building) as to Landlord, to the attention of General
Counsel with a concurrent notice to the attention of Controller, and shall be
deemed to have been given, rendered or made on the second day after the day so
mailed, unless mailed outside the State
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of New Jersey, in which case it shall be deemed to have been given, rendered or
made on the third business day after the day so mailed. Either party may, by
notice as aforesaid, designate a different address or addresses for notices,
statements, demands, consents, approvals or other communications intended for
it. In addition, upon and to the extent requested by Landlord, copies of notices
shall be sent to the Superior Mortgagee.
ARTICLE 33 - ESTOPPEL CERTIFICATES
33.01. Each party shall, at any time and from time to time, as
requested by the other party, upon not less than ten (10) days' prior notice,
execute and deliver to the requesting party a statement certifying that this
Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications), certifying the dates to which the Fixed Rent and Additional
Charges have been paid, stating whether or not, to the best knowledge of the
party giving the statement, the requesting party is in default in performance of
any of its obligations under this Lease, and, if so, specifying each such
default of which the party giving the statement shall have knowledge, and
stating whether or not, to the best knowledge of the party giving the statement,
any event has occurred which with the giving of notice or passage of time, or
both, would constitute such a default of the requesting party, and, if so,
specifying each such event; any such statement delivered pursuant hereto shall
be deemed a representation and warranty to be relied upon by the party
requesting the certificate and by others with whom such party may be dealing,
regardless of independent investigation. Tenant also shall include in any such
statement such other information concerning this Lease as Landlord may
reasonably request.
ARTICLE 34 - ARBITRATION
34.01. Landlord may at any time request arbitration, and Tenant may
at any time when not in default in the payment of any Rent request arbitration,
of any matter in dispute but only where arbitration is expressly provided for in
this Lease. The party requesting arbitration shall do so by giving notice to
that effect to the other party, specifying in said notice the nature of the
dispute, and said dispute shall be determined in Newark, New Jersey, by a single
arbitrator, in accordance with the rules then obtaining of the American
Arbitration Association (or any organization which is the successor thereto).
The award in such arbitration may be enforced on the application of either party
by the order or judgment of a court of competent jurisdiction. The fees and
expenses of any arbitration shall be borne by the parties equally, but each
party shall bear the expense of its own attorneys and experts and the additional
expenses of presenting its own proof. If Tenant gives notice requesting
arbitration as provided in this Article, Tenant shall simultaneously serve a
duplicate of the notice on each Superior Mortgagee and Superior Lessor whose
name and address shall previously have been furnished to Tenant, and such
Superior Mortgagees and Superior Lessor shall have the right to participate in
such arbitration.
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ARTICLE 35 - MEMORANDUM OF LEASE
35.01. Tenant shall not record this Lease. However, at the request of
Landlord, Tenant shall promptly execute, acknowledge and deliver to Landlord a
memorandum of lease in respect of this Lease sufficient for recording. Such
memorandum shall not be deemed to change or otherwise affect any of the
obligations or provisions of this Lease. Whichever party records such memorandum
of Lease shall pay all recording costs and expenses, including any taxes that
are due upon such recording.
ARTICLE 36 - MISCELLANEOUS
36.01. Tenant expressly acknowledges and agrees that Landlord has not
made and is not making, and Tenant, in executing and delivering this Lease, is
not relying upon, any warranties, representations, promises or statements,
except to the extent that the same are expressly set forth in this Lease or in
any other written agreement(s) which may be made between the parties
concurrently with the execution and delivery of this Lease. All understandings
and agreements heretofore had between the parties are merged in this Lease and
any other written agreement(s) made concurrently herewith, which alone fully and
completely express the agreement of the parties and which are entered into after
full investigation. Neither party has relied upon any statement or
representation not embodied in this Lease or in any other written agreement(s)
made concurrently herewith. The submission of this Lease to Tenant does not
constitute by Landlord a reservation of, or an option to Tenant for, the Demised
Premises, or an offer to lease on the terms set forth herein and this Lease
shall become effective as a lease agreement only upon execution and delivery
thereof by Landlord and Tenant.
36.02. No agreement shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this Lease, in whole
or in part, unless such agreement is in writing, refers expressly to this Lease
and is signed by the party against whom enforcement of the change, modification,
waiver, release, discharge, termination or effectuation of abandonment is
sought.
36.03. If Tenant shall at any time request Landlord to sublet or let
the Demised Premises for Tenant's account, Landlord or its agent is authorized
to receive keys for such purposes without releasing Tenant from any of its
obligations under this Lease, and Tenant hereby releases Landlord of any
liability for loss or damage to any of the Tenant's Property in connection with
such subletting or letting.
36.04. Except as otherwise expressly provided in this Lease, the
obligations under this Lease shall bind and benefit the successors and assigns
of the parties hereto with the same effect as if mentioned in each instance
where a party is named or referred to; provided, however, that (a) no violation
of the provisions of Article 11 shall operate to vest any rights in any
successor or assignee of Tenant and (b) the provisions of this Section 39.04
shall not be construed as modifying the conditions of limitation contained in
Article 25.
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36.05. Except for Tenant's obligations to pay Rent, the time for
Landlord or Tenant, as the case may be, to perform any of its respective
obligations hereunder shall be extended if and to the extent that the
performance thereof shall be prevented due to any Unavoidable Delay. Except as
expressly provided to the contrary, the obligations of Tenant hereunder shall
not be affected, impaired or excused, nor shall Landlord have any liability
whatsoever to Tenant, (a) because Landlord is unable to fulfill, or is delayed
in fulfilling, any of its obligations under this Lease due to any of the matters
set forth in the first sentence of this Section 36.05, or (b) because of any
failure or defect in the supply, quality or character of electricity, water or
any other utility or service furnished to the Demised Premises for any reason
beyond Landlord's reasonable control.
36.06. Any liability for payments hereunder (including, without
limitation, Additional Charges) shall survive the expiration of the Term or
earlier termination of this Lease.
36.07. If Tenant shall request Landlord's consent and Landlord shall
fail or refuse to give such consent, Tenant shall not be entitled to any damages
for any withholding by Landlord of its consent; Tenant's sole remedy shall be an
action for specific performance or injunction, and such remedy shall be
available only in those cases where Landlord has expressly agreed in writing not
to unreasonably withhold or delay its consent or where as a matter of law
Landlord may not unreasonably withhold its consent.
36.08. If an excavation shall be made upon land adjacent to or under
the Building, or shall be authorized to be made, Tenant shall afford to the
Person causing or authorized to cause such excavation, license to enter the
Demised Premises for the purpose of performing such work as said Person shall
reasonably deem necessary or desirable to preserve and protect the Building from
injury or damage and to support the same by proper foundations, without any
claim for damages or liability against Landlord and without reducing or
otherwise affecting Tenant's obligations under this Lease.
36.09. Tenant shall not exercise its rights under Article 15 or any
other provision of this Lease in a manner which would violate Landlord's union
contracts or create any work stoppage, picketing, labor disruption or dispute or
any interference with the business of Landlord or any tenant or occupant of the
Building.
36.10. Tenant shall give prompt notice to Landlord of (a) any
occurrence in or about the Demised Premises for which Landlord might be liable,
(b) any fire or other casualty in the Demised Premises, (c) any damage to or
defect in the Demised Premises, including the fixtures and equipment thereof,
for the repair of which Landlord might be responsible, and (d) any damage to or
defect in any part of the Building's sanitary, electrical, heating, ventilating,
air-conditioning, elevator or other systems located in or passing through the
Demised Premises or any part thereof.
36.11. This Lease shall be governed by and construed in accordance
with the laws of the State of New Jersey. Tenant hereby irrevocably agrees that
any legal action or proceeding arising
-41-
out of or relating to this Lease may be brought in the Courts of the State of
New Jersey, or the Federal District Court for the District of New Jersey, as
Landlord may elect. By execution and delivery of this Lease, Tenant hereby
irrevocably accepts and submits generally and unconditionally for itself and
with respect to its properties, to the jurisdiction of any such court in any
such action or proceeding, and hereby waives in the case of any such action or
proceeding brought in the courts of the State of New Jersey, or Federal District
Court for the District of New Jersey, any defenses based on jurisdiction, venue
or forum non conveniens. If any provision of this Lease shall be invalid or
unenforceable, the remainder of this Lease shall not be affected and shall be
enforced to the extent permitted by law. The table of contents, captions,
headings and titles in this Lease are solely for convenience of reference and
shall not affect its interpretation. This Lease shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this Lease to be drafted. If any words or phrases in this Lease shall
have been stricken out or otherwise eliminated, whether or not any other words
or phrases have been added, this Lease shall be construed as if the words or
phrases so stricken out or otherwise eliminated were never included in this
Lease and no implication or inference shall be drawn from the fact that said
words or phrases were so stricken out or otherwise eliminated. Each covenant,
agreement, obligation or other provision of this Lease on Tenant's part to be
performed, shall be deemed and construed as a separate and independent covenant
of Tenant, not dependent on any other provision of this Lease. All terms and
words used in this Lease, regardless of the number or gender in which they are
used, shall be deemed to include any other number and any other gender as the
context may require. In the event Landlord permits Tenant to examine Landlord's
books and records with respect to any Additional Charge imposed under this
Lease, such examination shall be conducted at Tenant's sole cost and expense and
shall be conditioned upon Tenant retaining an independent accounting firm for
such purposes which shall not be compensated on any type of contingent fee basis
with respect to such examination. Wherever in this Lease or by law Landlord is
authorized to charge or recover costs and expenses for legal services or
attorneys' fees, same shall include, without limitation, the costs and expenses
for in-house or staff legal counsel or outside counsel at rates not to exceed
the reasonable and customary charges for any such services as would be imposed
in an arms length third party agreement for such services.
36.12. Within thirty (30) days of each anniversary date of this
Lease, Tenant shall annually furnish to Landlord a copy of its then current
audited financial statement which shall be employed by Landlord for purposes of
financing the Premises and not distributed otherwise without prior authorization
of Tenant. Any material adverse change of Tenant's financial condition shall be
furnished to Landlord in writing forthwith and without request by Landlord for
same.
36.13. At least ninety (90) days prior to Tenant's termination of
this Lease, and any extensions thereof, Tenant agrees to seek a determination
from the New Jersey Department of Environmental Protection ("NJDEP") in the form
of a Letter of Non-applicability ("LNA"), that the New Jersey Industrial Site
Recovery Act, N.J.S.A. 13:1K-6 et seq. ("ISRA"), is inapplicable to the Tenant's
cessation of operations and termination of this Lease. Tenant represents,
warrants, and covenants that any information contained in any application for an
LNA submitted pursuant
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to this subsection will be true and complete. Tenant represents that the
Standard Industrial Classification (SIC) number applicable to Tenant's
operations would not subject this transaction to the requirements of ISRA.
(ii) In the event that an LNA is denied by NJDEP, notice of such
denial will be given to Landlord within two (2) business days of Tenant's
receipt of NJDEP's denial of the LNA. Tenant shall satisfy its obligations under
ISRA prior to its lease termination date: (1) by securing an approval of the
Tenant's Negative Declaration; or (2) by securing an approval of the Tenant's
Remedial Action Workplan, and completing the implementation of such Plan, and
obtaining from NJDEP a "No Further Action" letter. Tenant shall bear sole
responsibility for any investigation and cleanup costs, fees, penalties, or
damages associated with ISRA compliance. In the event that Tenant is unable to
complete the its ISRA compliance obligations by the date of its lease
termination, Landlord shall continue to provide Tenant with reasonable access to
the Demised Premises, provided that any work undertaken by Tenant shall be
performed in such a manner as to minimize interference with Landlord's or any
other tenant's use of the Demised Premises. However, Landlord reserves its
rights to deem Tenant a holdover tenant in the event that Tenant's ISRA
compliance unreasonably restricts the Landlord's use of the Demised Premises.
(iii) Tenant shall provide Landlord with copies of all
correspondence, documents and reports, including sampling results submitted to
or received from any governmental agency or third party in connection with
Tenant's compliance with ISRA.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the day and year first above written.
Landlord:
IMPORT ▇▇▇▇▇ ASSOCIATES
BY: ▇▇▇▇▇ MOUNTAIN INDUSTRIES, INC.
BY: _______________________________
[Corporate Seal] ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President
Tenant:
THE ▇▇▇▇▇▇ ▇▇▇ COMPANIES, INC.
DEBTOR-IN-POSSESSION
[Corporate Seal]
BY: _______________________________
Name:
Title:
-43-
LEASE MODIFICATION AGREEMENT
THIS LEASE MODIFICATION AGREEMENT, made this 20th day of August 1996 by
and between ▇▇▇▇▇ MOUNTAIN METROPOLITAN, a New Jersey partnership, having an
office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to
as "Landlord") and THE ▇▇▇▇▇▇ ▇▇▇ COMPANIES, INC., debtor-in-possession, a
Delaware corporation having an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "Tenant").
WITNESSETH:
WHEREAS, by Agreement of Lease dated June 16, 1980, as amended
September 12, 1986, May 22, 1989, and March 22, 1992 (collectively the "Lease")
Landlord leased to Tenant and Tenant hired from Landlord certain premises
located at ▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ (hereinafter the "Demised
Premises"); and
WHEREAS, Landlord and Tenant wish to modify the Lease to reflect an
extension of the Term thereof on the terms and conditions more particularly set
forth herein and amend the Lease accordingly;
NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. The Lease is hereby extended on the same terms and conditions as set
forth therein from July 1, 1996 through March 31, 1997 (the "Expiration Date").
2. Provided Tenant shall obtain an Order from the United States
Bankruptcy Court satisfactory to Landlord (the "Assumption Approval"), approving
the execution and assumption of that certain Lease between Import ▇▇▇▇▇
Associates and Tenant dated as of even date herewith for premises located at ▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ (the "77 Metro Way Lease"), Landlord and Tenant
shall each have the right, upon prior written notice to the other to terminate
this Lease, as more particularly provided in paragraph 3 hereof.
3. In the event either Landlord or Tenant elects to terminate this
Lease pursuant to paragraph 2 hereof, such termination shall be effective on the
date Tenant vacates and surrenders the Demised Premises in accordance with
Article 19 hereof, including but not limited to the removal by Tenant, at its
sole cost and expense, of Tenant's racking system, but in no event later than
the Expiration Date. In the event of such termination by Landlord or Tenant,
pursuant to paragraph 2 hereof, the Fixed Rent from and after the later to occur
of (I) January 31, 1997, and (ii) the date on which Tenant shall have commenced
the payment of Fixed Rent pursuant to the ▇▇ ▇▇▇▇▇ ▇▇▇ Lease, shall be reduced
to One ($1.00) Dollar per month; provided, however that if Landlord notifies
Tenant that Landlord has signed a lease with a new tenant for the Demised
Premises (or any part thereof) and that Landlord requires possession of the
Demised Premises for rental to such tenant or to prepare same for such rental,
on a certain date (which date shall be at least twenty (20) days after the date
on which such notice is given), and Tenant fails to vacate and surrender the
Demised Premises on or before said date, then from the date specified in said
notice until Tenant vacates and surrenders the Demised Premises, the Fixed Rent
with respect to the Demised Premises shall be restored to the full rate of Fixed
Rent applicable prior to the commencement of such period or reduced Fixed Rent.
In the event Tenant fails to surrender the Demised Premises at the Expiration
Date, or upon termination of this Lease pursuant to paragraph 2 hereof, Tenant
shall be deemed a holdover and Landlord shall be entitled to any and all
remedies available in law, in equity or by contract with respect to such
holdover.
4. Except as provided herein, all of the terms and conditions of the
Lease, as amended above, are in full force and effect and are confirmed as if
fully set forth herein.
IN WITNESS WHEREOF, the parties hereto have caused this Lease
Modification Agreement to be duly executed as of the day and year first above
written.
ATTEST: IMPORT ▇▇▇▇▇ ASSOCIATES
BY: ▇▇▇▇▇ MOUNTAIN METROPOLITAN
BY: ▇▇▇▇▇ MOUNTAIN INDUSTRIES, INC.
("LANDLORD")
____________________ By: ______________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President
ATTEST: THE ▇▇▇▇▇▇ ▇▇▇ COMPANIES, INC.
("TENANT")
___________________ By: ______________________________________
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RIDER TO LEASE DATED AUGUST 20, 1996, BETWEEN IMPORT ▇▇▇▇▇ ASSOCIATES, AS
LANDLORD AND THE ▇▇▇▇▇▇ ▇▇▇ COMPANIES, INC., DEBTOR-IN-POSSESSION, AS TENANT.
----------------------------------------------------------------
R1. If any of the provisions of this Rider shall conflict with any
of the provisions, printed or typewritten, of this Lease, such conflict shall
resolve in every instance in favor of the provisions of this Rider.
R2. Tenant shall have the right, subject to compliance by Tenant
with all Legal Requirements, to operate a warehouse outlet store in a portion of
the Demised Premises containing not more than 8,000 square feet of Floor Space
(hereinafter referred to as the "Retail Premises"). In the event Tenant operates
such outlet store, Tenant shall pay to Landlord, in addition to the Fixed Rent,
a "Percentage Rent" (as hereinafter provided):
a. Percentage Rent: The amount for any period computed in
accordance with the provisions of Paragraph f. hereof.
b. Percentage Rent Rate: Five percent (5%).
c. Calendar Quarter: Any three-month period commencing on either a
January 1, an April 1, a July 1 or an October 1.
▇. ▇▇▇▇▇ Sales: The dollar aggregate of: (a) the actual sales price
of all goods and merchandise sold, leased or licensed and the
charges for all services performed by Tenant or otherwise in
connection with all business conducted at or from the Retail
Premises, whether made for cash, by check, credit or otherwise,
without reserve or deduction for inability or failure to collect
the same, including, without limitation, sales and services (I)
where the orders therefor originate at or are accepted at or
from the Retail Premises, whether delivery or performance
thereof is made at or from the Retail Premises or any other
place, it being understood that all sales made and orders
received at or from the Retail Premises shall be deemed to have
been made and completed therein even though the orders are
fulfilled elsewhere or the payments of account are transferred
to some other office for collection, (ii) where the orders
therefor result from solicitation off the Retail Premises but
which are conducted by personnel operating from or reporting to
or under the control or supervision of any person at the Retail
Premises, (iii) pursuant to mail, telegraph, telephone or other
similar orders received or billed at or from the Retail
Premises, and (iv) by means of mechanical or other vending
devices, and (b) all monies or other things of value received by
Tenant from its operations at the Retail Premises (which are not
excluded from Gross Sales by the next succeeding sentence)
including all finance charges, cost of gift or merchandise
certificates and all deposits not refunded to customers. Gross
Sales shall not include (x) the exchange of merchandise between
stores of Tenant where such exchange is made solely for the
convenient operation of Tenant's business and neither for the
purpose of depriving Landlord of the benefits of a sale which
-i-
would otherwise be made at or from the Retail Premises nor for
the purpose of consummating a sale which has been theretofore
made at or from the Retail Premises, (y) sales of trade fixtures
which are not part of Tenant's stock in trade and not sold in
the regular course of Tenant's business, or (z) the amount of
any city, county, state or federal sales tax, luxury tax or
excise tax on sales if the tax is added to the selling price and
separately stated and actually paid to the taxing authority by
Tenant; provided, however, no franchise or capital stock tax and
no income or similar tax based upon income, profits or Gross
Sales shall be deducted from Gross Sales in any event
whatsoever. Cash or credit refunds made upon transactions
included within the Gross Sales, but not exceeding the selling
price of merchandise returned by the purchaser and accepted by
Tenant, shall be deducted from the Gross Sales for the period
when such refunds are made. Each charge or sale upon installment
or credit or layaway, so called, shall be treated as a sale for
the full price in the month during which such charge or sale
shall be made, irrespective of the time when Tenant shall
receive payment from its customer. Each lease or rental or
license of merchandise to customers shall be treated as a sale
in the month in which the lease, rental or license is made for a
price equal to the total rent of license fee payable. For
purposes of this paragraph the word "Tenant" shall include any
of Tenant's subtenants, concessionaires and licensees.
e. Breakpoint: An amount at an annual rate of Three Hundred Fifty
and 00/100 Dollars ($350.00)multiplied by the number of square
feet of Floor Space of the retail store located within the
Demised Premises; and in the event the Tenant exercises its
right to extend the Term, the Breakpoint shall be increased in
the same proportion as Fixed Rent applicable to such Extended
Period is increased. If the Fixed Rent is not increased for such
Extended Period, the Breakpoint shall remain the same as the
Breakpoint in effect immediately preceding such Extended Period.
If for any reason the Fixed Rent is reduced or abated, the
Breakpoint shall be reduced in the same proportion as the Fixed
Rent is reduced or abated.
f. Within fifteen (15) days after the end of each calendar month
during the Term, Tenant shall submit to Landlord a statement
certified by Tenant (by an authorized officer if Tenant is a
corporation or by a partner if Tenant is a partnership) stating
the Gross Sales (including an itemization of all claimed
deductions therefrom) for such month. Within fifteen (15) days
after the end of each Calendar Quarter, Tenant shall pay to
Landlord as Percentage Rent the amount, if any, by which the
aggregate Gross Sales for the Calendar Year in which such
Calendar Quarter occurs up to the end of such Calendar Quarter
exceeds the Breakpoint for such period, or a pro-rata portion
thereof for a partial Calendar Quarter, if applicable,
multiplied by the Percentage Rent Rate. Within ninety (90) days
after the end of each Calendar Year, including any partial
Calendar Year at the beginning of the Term, and after the end of
the Term, Tenant shall submit to Landlord a statement certified
by an independent certified public accountant stating the Gross
Sales (including an itemization of all claimed deductions
therefrom) and the Percentage Rent for such Calendar Year, or
partial
-ii-
Calendar Year if the Term shall begin on a date other than a
January 1st and/or end on a date other than a December 31st, as
the case may be, and if the Percentage Rent so stated for such
period is more or less than the Percentage Rent paid for such
period, Tenant shall pay to Landlord the deficiency, or Landlord
shall refund to Tenant the excess, within twenty (20) days after
submission of such statement of Gross Sales. For at least
thirty-six (36) months after the expiration of each Calendar
Year, including any partial Calendar Year at the beginning of
the Term, and after the end of the Term, Tenant shall keep and
maintain (and shall cause all subtenants, concessionaires and
licensees to keep and maintain) in the Retail Premises or the
main office of Tenant full and accurate books of account and
records from which the Gross Sales can be determined. The books
and records maintained shall include, but shall not be limited
to (i) cash register tapes showing continuous grand total (from
a sealed cash register), (ii) original source documents, (iii)
sequentially numbered receipts, (iv) federal, state & local tax
returns, (v) receipts from daily bank deposits, (vi) computer
printouts and (vii) bank statements. Landlord shall have the
right from time to time during such thirty-six (36) month period
to inspect and audit all such books and records relating to
Gross Sales, and Tenant, each subtenant, concessionaire and
licensee will produce the same on request of Landlord. If any
such inspection and audit discloses that the Gross Sales were
understated, Tenant shall forthwith pay to Landlord any
additional Percentage Rent shown to be payable, and if the Gross
sales for any Calendar Year or partial Calendar Year were
understated by more than One Thousand Dollars ($1,000.00),
Tenant shall also pay the cost of Landlord's inspection and
audit. Landlord does not in any way, or for any purpose, become
a partner or joint venturer with Tenant hereunder. The
provisions of this Lease relating to Percentage Rent are
included solely for the purpose of providing a method whereby
rentals are to be measured and ascertained.
R3. The Tenant shall (except with respect to the Advance Rent)
commence the payment of the Fixed Rent and Real Estate Taxes on the earlier to
occur of January 1, 1997 or the date Tenant first occupies the Demised Premises
other than for the performance of Tenant's Work (such date being refered to in
this Lease as the "Fixed Rent Commencement Date").
R4. Tenant agrees that Tenant shall obtain an Order from the United
States Bankruptcy Court satisfactory to Landlord, approving the execution of
this Lease and the assumption hereof by Tenant (herein the "Assumption
Approval"). In the event final unappealable Assumption Approval is not obtained
by the date which is forty-five (45) days from the date hereof, Landlord shall
have the right, upon written notice to Tenant, to terminate this Lease whereupon
this Lease and the extension of the ▇▇ ▇▇▇▇▇ ▇▇▇ Lease shall be deemed null and
void and of no force and effect.
R5. Tenant shall have the right to during the Term hereof to use the
parking spaces marked in blue on the attached Exhibit G.
R6. Provided Tenant shall have obtained the Assumption Approval,
Landlord shall, within thirty (30) days after receipt of written request
therefor from Tenant given no earlier than the later
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to occur of the Commencement Date and the date the Assumption Approval becomes
final and unappealable, advance to Tenant up to the sum of One Hundred Thousand
and 00/100 Dollars ($100,000.00) (the "Construction Allowance") for construction
and installation of Tenant's Work so long as (i) Tenant shall not then be in
default under this Lease beyond any applicable periods of notice and grace, (ii)
Tenant provides to Landlord invoices and paid receipts in form and substance
reasonably satisfactory to Landlord for the Tenant's Work for which Tenant is
requesting the Construction Allowance, (iii) there are no liens as a result of
the Tenant's Work, (iv) Tenant has submitted lien waivers and contractors'
affidavits to Landlord, (v) Tenant has obtained all permits, including occupancy
certificate(s), if required, for all Tenant's Work performed by Tenant, and (vi)
Tenant has accepted possession of the Demised Premises and has paid all Rent
then due.
R7. Notwithstanding anything contained to the contrary in Article 11
hereof, Landlord and Tenant agree as follows:
(a) Tenant has advised Landlord that this Lease may be assigned by
The ▇▇▇▇▇▇ ▇▇▇ Companies, Inc. to an entity which shall have succeeded to
ownership and control of all or substantially all of the assets of ▇▇▇▇▇▇ ▇▇▇'▇
Sassco fashion division (said resulting entity hereinafter referred to as
"Sassco") pursuant to the bankruptcy reorganization plan of The ▇▇▇▇▇▇ ▇▇▇
Companies, Inc. or otherwise pursuant to Bankruptcy court order. Landlord's
consent shall be given for such assignment to Sassco (such assignment referred
to in this Lease sometimes as the "Sassco Assignment"); PROVIDED, HOWEVER, that
(i) such assignment shall be subject to Bankruptcy Court approval and Landlord
shall be provided with evidence of receipt of the same; (ii) Sassco assumes all
of the obligations to be performed by Tenant pursuant to this Lease; (iii)
Landlord receives a copy of the proposed instrument that is to accomplish the
same and an original of the executed agreement within ten (10) days of such
transfer; and (iv) the transferee shall use the Demised Premises only for the
purpose stated in the Permitted Uses. Landlord's consent to the Sassco
Assignment shall not be deemed to be a consent to any further assignment,
subletting, or transfer and shall require in each instance the prior written
consent of Landlord pursuant to this Lease.
(b) Notwithstanding anything contained in Article 11 to the
contrary, Tenant may assign this Lease or sublet all or any portion of the
Demised Premises to an Affiliate. For purposes of this Article, an "Affiliate"
shall mean any Person owning or controlling Tenant, or under common ownership or
control with or by Tenant. For purposes hereof, "ownership or control" shall
mean the legal or beneficial ownership of fifty-one percent (51%) or more of the
voting stock of any corporation, or, if not a corporation, fifty-one percent
(51%) of the partnership interest or other form of ownership. The terms and
provisions of this subparagraph (b) of this Paragraph R7 shall be personal to
the original named Tenant and Sassco.
(c) Notwithstanding anything contained in Article 11 to the
contrary, Landlord agrees that it shall not unreasonably withhold or delay its
consent to an assignment and/or subletting. Landlord's agreement not to
unreasonably withhold its consent to a subletting and/or assignment shall be
personal to the original named Tenant hereunder and to Sassco. Landlord agrees
not to unreasonably withhold its consent to the subletting of the Demised
Premises or an assignment of this Lease. In determining reasonableness, Landlord
may take into consideration all relevant factors surrounding
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the proposed sublease and assignment, including, without limitation, the
following: (i) The business reputation of the proposed assignee or subtenant and
its officers or directors in relation to the other tenants or occupants of the
Building or Development; (ii) the nature of the business and the proposed use of
the Demised Premises by the proposed assignee or subtenant in relation to the
other tenants or occupants of the Building or Development; (iii) whether the
proposed assignee or subtenant (or if any subsidiary, affiliate or parent of a
tenant) is then a tenant of (or in discussions with Landlord for) other space in
the Building or Development, or any other property owned or managed by Landlord
or its affiliates; (iv) the financial condition of the proposed assignee or
subtenant; (v) restrictions, if any, contained in leases or other agreements
affecting the Building and the Development; (vi) the effect that the proposed
assignee's or subtenant's occupancy or use of the Demised Premises would have
upon the operation and maintenance of the Building and the Development; (vii)
the extent to which the proposed assignee or subtenant and Tenant provide
Landlord with assurances reasonably satisfactory to Landlord as to the
satisfaction of Tenant's obligations hereunder. In any event, at no time shall
there be more than two (2) subtenants of the Demised Premises permitted.
In the event the Demised Premises are sublet or this Lease is assigned,
Tenant shall pay to Landlord as an Additional Charge the following amounts, if
any, less the actual reasonable expense incurred by Tenant in connection with
such assignment or subletting, as substantiated by Tenant, in writing, to
Landlord's reasonable satisfaction, including, without limitation, a reasonable
brokerage fee and reasonable legal fees, as the case may be: (i) in the case of
an assignment, an amount equal to fifty percent (50%) of all sums and other
consideration paid to Tenant by the assignee for or by reason of such
assignment, and (ii) in the case of a sublease, fifty percent (50%) of any
rents, additional charge or other consideration paid under the sublease to
Tenant by the subtenant which is in excess of the Fixed Rent and Additional
Charges accruing during the term of the sublease in respect of the subleased
space (at the rate per square foot payable by Tenant hereunder) pursuant to the
terms hereof.
R8. On the Commencement Date the roof shall be free of leaks and the
mechanical systems and the electrical systems of the Building such as HVAC and
lighting (but not the electrical systems serving machinery or equipment such as
the conveyor system) of the Demised Premises shall be in working order.
R9. Provided Tenant is not in default of its obligations under this
Lease, Landlord shall consent to a reduction of the Security Deposit in the
amount of $500,000 on the date (herein referred to as the "Reduction Date")
which is thirty (30) days after the earlier to occur of (i) the date on which
Tenant's plan of bankruptcy reorganization receives final unappealable approval
of the U.S. Bankruptcy Court and Tenant is discharged therefrom with the Lease
having been assumed and affirmed, or (ii) the Sassco Assignment is accomplished
(and approved by Landlord) pursuant to and in accordance with the requirements
of paragraph R7(a) hereof (provided that at the time of the Sassco Assignment,
Sassco has a net worth of at least Fifty Million Dollars ($50,000,000),
resulting in a total Security Deposit of $500,000.00 in the form of a Letter of
Credit meeting the requirements of Article 8 of this Lease. Provided Tenant is
not in default of its obligations under this Lease and the Sassco net worth
shall not have been reduced below the amount set forth above, Landlord shall
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consent to a further reduction of the Security Deposit in the amount of
$255,921.67 on the date which is one year after the Reduction Date, resulting in
a total Security Deposit of $244,078.33 in the form of a Letter of Credit
meeting the requirements of Article 8 of this Lease. In no event however shall
the Letter of Credit contain a provision for its automatic reduction.
R10. Landlord and Tenant agree that Tenant and Landlord's affiliate,
▇▇▇▇▇ Mountain Metropolitan ("HMM") shall enter into a modification of the Lease
between HMM and Tenant, dated June 16, 1980 and amended September 12, 1986, May
22, 1989 and March 22, 1992 for the premises known as ▇▇ ▇▇▇▇▇ ▇▇▇ (the "52
Metro Way Lease"), shall be extended on the same terms and conditions as set
forth in the amendment annexed hereto as Exhibit F.
("Landlord")
IMPORT ▇▇▇▇▇ ASSOCIATES
BY: ▇▇▇▇▇ MOUNTAIN INDUSTRIES, INC.
By: _______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President
("Tenant")
THE ▇▇▇▇▇▇ ▇▇▇ COMPANIES, INC.
DEBTOR-IN-POSSESSION
By: _______________________________
Name:
Title:
The undersigned hereby joins in the execution hereof with
respect to the provisions of R10 of this Rider:
▇▇▇▇▇ MOUNTAIN METROPOLITAN ASSOCIATES
BY: ▇▇▇▇▇ MOUNTAIN INDUSTRIES, INC.
By: _______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President
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