REFERENCE PAGE
BUILDING: 0000 Xxxxxxxx Xxxx, Xxxxxxxx, XX
LANDLORD: 0000 Xxxxxx Xxxx Partnership
XXXXXXXX'S ADDRESS: c/o The Xxxxx Company
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
TENANT: AMBASSADOR EYEWEAR GROUP
TENANT'S ADDRESS: 0000 Xxxxxxxx Xxxx, Xxxxxxxx, XX
LEASE EXECUTION DATE: July 10, 1997
PREMISES: 64,040 s.f. outlined in red on
6.1304 acres outlined in green on
Exhibit "A"
USE: Office Distribution
PREMISES RENTABLE AREA: 64,040 s.f.
COMMENCEMENT DATE: August 1, 1997 See Addendum
TERMINATION DATE: December 31, 2002
TERM OF LEASE: Five (5) years and six (6) months
ANNUAL BASE RENT: (see note below) $236,948.00 ($3.70/s.f.)
REAL ESTATE TAXES: $ 51,872.40 ($.81/s.f.)
ESTIMATED BUILDING OPERATING EXPENSES:
Insurance $.09 /s.f.
------------
Landscaping and
Snow Removal ____________/s.f.
Maintenance ____________/s.f.
Common Area Electric ____________/s.f.
Water & Sewer ____________/s.f.
Other ____________/s.f.
Total/S.F. $.09 /s.f.
------------
TOTAL OPERATING EXPENSES: $5,763.60
ANNUAL TOTAL RENT: $294,584.00
MONTHLY INSTALLMENT OF RENT: $24,548.67
SECURITY DEPOSIT: $24,548.67 (one month's rent)
TENANT'S PROPORTIONATE SHARE: 100%
REAL ESTATE BROKER DUE COMMISSION: The Xxxxx Company and
Xxxxxx & Pancelli
SEE ADDENDUM ATTACHED HERETO.
The Reference Page information is incorporated into and made a part
of the Lease. In the event of any conflict between any Reference
Page information and the Lease, the Lease shall control. The Lease
includes Exhibits A through B all of which are made a part hereof.
NOTE: Effective as set forth in the Addendum, the Annual Base Rent shall
be Two Hundred Sixty-two Thousand Five Hundred Sixty-four Dollars
($262,564.00), or Four and 10/100 Dollars ($4.10) per square foot.
LANDLORD: TENANT:
0000 XXXXXX XXXX XXXXXXXXXXX AMBASSADOR EYEWEAR GROUP
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxx Xxxxxxx
------------------------- ----------------------------
Xxxxx Xxxxx Xxxxx Xxxxxxx
Title: Gen. Partner Title: President
---------------------- -------------------------
Dated: 10 July, 1997 Dated: 7/10/97
---------------------- -------------------------
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TABLE OF CONTENTS
ARTICLE PAGE
REFERENCE PAGE ................................................... ii
1 USE AND RESTRICTIONS ON USE ...................................... 1
2 TERM ............................................................. 1
3 RENT ............................................................. 1
4 REAL ESTATE TAXES ................................................ 2
5 SECURITY DEPOSIT ................................................. 2
6 ALTERATIONS ...................................................... 3
7 TENANT'S REPAIRS ................................................. 3
8 LANDLORD'S REPAIRS ............................................... 4
9 SIGNS ............................................................ 4
10 LIENS ............................................................ 4
11 ASSIGNMENT AND SUBLETTING ........................................ 5
12 INDEMNIFICATION .................................................. 5
13 INSURANCE ........................................................ 6
14 WAIVER OF SUBROGATION ............................................ 6
15 SERVICES AND UTILITIES ........................................... 6
16 HOLDING OVER ..................................................... 6
17 SUBORDINATION .................................................... 7
18 RULES AND REGULATIONS ............................................ 7
19 REENTRY BY LANDLORD .............................................. 7
20 DEFAULT .......................................................... 7
21 REMEDIES ......................................................... 8
22 QUIET ENJOYMENT .................................................. 9
23 DAMAGE BY FIRE, ETC. ............................................. 9
24 EMINENT DOMAIN ................................................... 11
25 SALE BY LANDLORD ................................................. 11
26 ESTOPPEL CERTIFICATE ............................................. 11
27 SURRENDER OF PREMISES ............................................ 11
28 NOTICES .......................................................... 12
29 TAXES PAYABLE BY TENANT .......................................... 12
30 DEFINED TERMS AND HEADINGS ....................................... 12
31 CONFESSION OF JUDGEMENT .......................................... 13
32 ENFORCEABILITY ................................................... 13
33 COMMISSIONS ...................................................... 13
34 TIME AND APPLICABLE LAW .......................................... 13
35 PARKING .......................................................... 13
36 SUCCESSORS AND ASSIGNS ........................................... 13
37 ENTIRE AGREEMENT ................................................. 13
38 EXAMINATION NOT OPTION ........................................... 14
39 RECORDATION ...................................................... 14
40 LIMITATION OF LANDLORD'S LIABILITY ............................... 14
EXHIBIT A -- PREMISES
EXHIBIT B -- LANDLORD'S AND TENANT'S ALTERATIONS
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LEASE
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the Premises set forth and described on the Reference Page. The Reference Page,
including all terms defined thereon, is hereby incorporated as part of this
Lease.
1. USE AND RESTRICTIONS ON USE.
The Premises shall be continuously used and occupied by Tenant, but only
for the purpose listed on the Reference Page and for such other lawful purposes
as may be incidental thereto, all to the extent permitted by applicable zoning
regulations. Tenant shall at its own cost and expense obtain any and all
licenses and permits necessary for any such use. Tenant shall comply with all
governmental laws, ordinances and regulations applicable to the use of the
Premises and its occupancy thereof, and shall promptly comply with all
governmental orders and directives for the correction, prevention and abatement
of any violations or nuisances in or upon, or connected with, the Premises, all
at Tenant's sole expense. If, as a result of any change in the governmental
laws, ordinances and regulations, the Premises must be altered to lawfully
accommodate Tenant's use and occupancy thereof, such alterations shall be made
only with the consent of Landlord, but the entire cost thereof shall be borne by
Tenant; provided, that, the necessity of Landlord's consent shall in no way
create any liability against Landlord for failure of Tenant to comply, or alter
the Premises to comply, with such laws, ordinances and regulations. Tenant shall
not permit any objectionable or unpleasant odors, smoke, dust, gas, noise or
vibrations to emanate from the Premises, nor take any other action which would
constitute a nuisance or permit any use which would adversely affect the
reputation of the Building. Without Landlord's prior written consent, Tenant
shall not receive, store or otherwise handle any product, material or
merchandise which is explosive or highly flammable. Tenant will not permit the
Premises to be used for any purpose (including, without limitation, the storage
of merchandise) in any manner which would render the insurance thereon void or
increase the insurance rate thereof, and Tenant shall immediately cease and
desist from such use, paying all cost and expense resulting from such improper
use.
2. TERM.
The term of this Lease shall be as indicated on the Reference Page (unless
sooner terminated as herein provided). Landlord shall deliver possession of
the Premises on the Commencement Date.
In the event Landlord shall permit Tenant to occupy the Premises prior to
the Commencement Date, such occupancy shall be subject to all the provisions of
this Lease. Said early possession shall not advance the Termination Date.
3. RENT.
Xxxxxx agrees to pay the Landlord the Annual Rent by paying the Monthly
Installment of Rent on or before the first day of each full calendar month
during the Term, except that the first month's rent shall be paid upon the
execution hereof. Rent for any period during the Term which is
less than one full month shall be a prorated portion of the Monthly Installment
of Rent based upon a 30 day month. Said rent shall be paid to Landlord, without
deduction or offset unless expressly permitted by this Lease and without notice
or demand at the Landlord's address, as set forth on the Reference Page, or to
such other person or at such other place as Landlord may from time to time
designate in writing.
Tenant recognizes that late payment of any rent or other sum due hereunder
will result in administrative expense to Landlord, the extent of which
additional expense is extremely
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difficult and economically impractical to ascertain. Subject to the terms of the
Addendum, Xxxxxx therefore agrees that if rent or any other sum is due and
payable pursuant to this Lease; and when such amount remaines due and unpaid
ten days after said amount is due, such amount shall be increased by a late
charge in an amount equal to $500.00. The amount of the late charge to be paid
by Tenant shall be reassessed and added to Xxxxxx's obligation for each
successive monthly period until paid. The provisions of this Article in no way
relieve Tenant of the obligation to pay rent or other payments on or before the
date on which they are due, nor do the terms of this Article in any way affect
Xxxxxxxx's remedies pursuant to Article 21 of this Lease in the event said rent
or other payment is unpaid after the date due.
No security or guarantee which may now or hereafter be furnished to
Landlord for the payment of rent or the performance of Tenant's other
obligations under this Lease shall in any way constitute a bar to the recovery
of the Premises or defense to any action in unlawful detainer or to any other
action which Landlord may bring for a breach of any of the terms, covenants or
conditions of this Lease.
4. REAL ESTATE TAXES.
Xxxxxx agrees to pay when due (with a copy of the receipt sent to
Landlord) all real estate taxes, assessments and governmental charges of any
kind and nature whatsoever (hereinafter collectively referred to as "Taxes")
lawfully levied against the Building, the real property on which it is situated
and the grounds, parking area, driveways and alleys around the Building. Taxes
shall include the following by way of illustration, but not limitation: real
estate taxes; any other such taxes, charges and assessments which are levied
with respect to the Building, and any improvements, fixtures and equipment and
all other property of Landlord, real or personal, located in the Building and
used in connection with the operation of the Building and the land upon which
they are situated including any payments to any ground lessor in reimbursement
of tax payments made by such lessor; fees or assessments for any governmental
services to the Building; service payments in lieu of taxes; dues or assessments
payable to any property owners association due to Landlord's ownership of the
Building; water and sewer charges; and any gross receipts tax and/or any tax
which shall be levied in addition to or in lieu of real estate, possessory
interest or personal property taxes. Any payment to be made pursuant to this
Article with respect to the real estate tax year in which the Lease commences or
terminates shall be prorated.
5. SECURITY DEPOSIT.
Tenant has deposited with Landlord the Security Deposit. Said sum shall be
held by Xxxxxxxx as security for the faithful performance by Tenant of all the
terms, covenants and conditions of this Lease to be kept and performed by Xxxxxx
and not as an advance rental deposit or as a measure of Landlord's damage in
case of Xxxxxx's default. If Tenant defaults with respect to any provision of
this Lease beyond any applicable cure period, Landlord may use any part of this
Security Deposit for the payment of any rent or any other sum in default, or for
the payment of any amount which Landlord may spend or become obligated to spend
by reason of Tenant's default, or to compensate Landlord for any other loss or
damage which Landlord may suffer by reason of Tenant's default. If any portion
is so used, Tenant shall within ten days after written demand thereto deposit
with Landlord an amount sufficient to restore the Security Deposit to its
original amount and Tenant's failure to do so shall be a material breach of this
Lease. Landlord shall not be required to keep this Security Deposit separate
from the general funds, and Tenant shall not be entitled to interest on such
deposit. If Tenant shall fully and faithfully perform every provision of this
Lease to be performed by it, the Security Deposit or any balance thereof shall
be returned to Tenant ten (10) days after termination of this Lease.
Tenant may, at its election, deposit with Landlord an irrevocable letter
of credit in favor of Landlord, said irrevocable letter of credit to be in a
form and drawn upon a commercial bank reasonably satisfactory to Landlord.
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6. ALTERATIONS.
Tenant shall not make or suffer to be made any alterations, additions, or
improvements, including, but not limited to, the attachment of any fixtures or
equipment in, on, or to the Premises or any part thereof or the making of any
improvements as required by Article 7 without the prior written consent of
Landlord, which will not be unreasonably withheld or delayed. Any alteration,
addition or improvement to be done by Tenant as part of Tenant's initial
occupancy shall be specified in Exhibit B. Any alteration, addition, or
improvement in, on, or to the Premises including carpeting, but excepting
movable furniture and personal property of Tenant removable without material
damage to the property or the Premises, shall be and remain the property of
Tenant during the Term but shall, unless Landlord elects otherwise, become a
part of the realty and belong to Landlord without compensation to Tenant upon
the expiration or sooner termination of the Term and title shall pass to
Landlord under this Lease as by a bill of sale. When applying for such consent,
Tenant shall, if requested by Landlord, furnish complete plans and
specifications for such alterations, additions and improvements. All
alterations, additions or improvements proposed by Tenant shall be constructed
in accordance with all governmental laws, ordinances, rules and regulations and
Tenant shall, prior to construction, provide such assurances to Landlord,
including but not limited to, waivers of lien, as Landlord shall require to
protect Landlord against any loss from any mechanic's, materialmen's or other
liens. Tenant shall pay in addition to any sums due pursuant to Article 4 above
any increase in real estate taxes attributable to any such alteration, addition,
or improvement for so long, during the Term, as such increase is ascertainable.
Subject to the terms of the Addendum, upon the expiration or sooner termination
of the Term as herein provided, Tenant shall upon demand by Landlord, at
Tenant's sole cost and expense, forthwith and with all due diligence remove any
such alterations, additions or improvements which are designated by Landlord to
be removed, and Tenant shall forthwith and with all due diligence, at its sole
cost and expense, repair and restore the Premises to their original condition,
reasonable wear and tear and loss by casualty covered by Article 23 excepted.
7. TENANT'S REPAIRS.
(A) Tenant shall at its own cost and expense keep and maintain all parts
of the Premises, the Building and the surrounding real estate for which Landlord
is not expressly responsible under the terms of the Lease, in good condition,
promptly making all necessary repairs and replacements, whether ordinary or
extraordinary, or structural or nonstructural, with materials and workmanship of
the same character, kind and quality as the original, including but not limited
to, windows, glass and plate glass, doors, skylights, any special office
entries, interior walls and finish work, floors and floor coverings, downspouts,
gutters, heating and air conditioning systems, electrical systems and fixtures,
sprinkler systems, dock boards, truck doors, dock bumpers, paving, plumbing work
and fixtures, termite and pest extermination, regular removal of trash and
debris, regular mowing of any grass, trimming, weed removal and general
landscape maintenance, including the rail spur areas. Tenant as part of its
obligations hereunder shall (i) keep the parking areas, driveways, alleys and
the whole of the property in a clean and sanitary condition, (ii) if the
Premises are served by a railroad switch or spur track and Tenant uses such
railroad, maintain (or reimburse the railroad company for maintaining) any
railway switch or spur track and related facilities serving the real estate of
which the Premises are a part (Tenant hereby agreeing to sign a joint
maintenance agreement with the railroad company servicing the property, if
requested by the Landlord or railroad company), and (iii) without injury to the
roof, other horizontal surfaces of the Building, downspouts, parking areas,
driveways and sidewalks, remove all snow and ice from same. Tenant will, as far
as possible, keep all such parts of the Premises, Building and the real estate
on which the Building is located from deterioration due to ordinary wear and
from falling temporarily out of repair, and upon termination of this Lease in
any way Tenant will yield up the Premises to Landlord in good condition and
repair, reasonable wear and tear, repairs that are not Tenant's responsibility,
and loss by fire or other casualty covered by insurance to be maintained by
Landlord; pursuant to Paragraph 23(A) hereof excepted (but not excepting any
damage to glass or loss not reimbursed by insurance because of the existence of
a deductible under the appropriate policy).
(B) Tenant shall not damage any demising wall or disturb the integrity and
support provided by any demising wall and shall, at its sole cost and expense,
promptly repair any damage or injury to any demising wall caused by Tenant or
its employees, agents or invitees.
(C) Tenant and its employees, customers and licensees shall have the
exclusive right to use parking areas.
5
(E) Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
reasonably approved by Landlord, (and a copy thereof shall be furnished to
Landlord), for servicing all heating and air conditioning systems and equipment
within the Premises. The service contract must include all services suggested by
the equipment manufacturer in the operation/maintenance manual and must become
effective within 30 days of the date Tenant takes possession of the Premises.
(F) Tenant shall, at its own cost and expense to the extent not covered
by the insurance to be maintained by Landlord under Article 23, repair any
damage to the Premises or the Building resulting from and/or caused in whole or
in part by the negligence or misconduct of Tenant, its agents, servants,
employees, patrons, customers, or any other person entering upon the property as
a result of Tenant's business activities or caused by Tenant's default
hereunder.
8. LANDLORD'S REPAIRS.
Landlord shall at its expense maintain in good repair, reasonable wear and
tear and any casualty covered by the provisions of Article 23 excepted, only the
foundation and the structural soundness of the exterior walls and of the roof of
the Building. Tenant shall immediately give Landlord written notice of any such
defect or need for repairs after which Landlord shall have a reasonable
opportunity to repair the same or cure such defect. Landlord's liability with
respect to any defects, repairs or maintenance for which Landlord is responsible
under any of the provisions of the Lease shall be limited to the cost of such
repairs or maintenance or the curing of such defect. The term "walls" as used
herein shall not include windows, glass or plate glass, doors, special store
fronts or office entries.
9. SIGNS.
Tenant may install any signs upon the Premises or the exterior of the
Building without Landlord's prior written consent subject to all laws and park
covenants (if any). If Landlord shall consent to any sign, upon termination of
the Lease Tenant shall remove said sign and restore the Premises and/or the
Building in accordance with the provisions of Article 6.
10. LIENS.
Tenant shall keep the Premises and Xxxxxx's leasehold interest in the
Premises free from any liens arising out of any work performed, materials
furnished, or obligations incurred by Tenant. In the event that Tenant shall
not, within 30 days following notice to Tenant of the imposition of any such
lien, cause the same to be bonded or released of record, Landlord shall have the
right to cause the same to be released by such means as it shall deem proper,
including payment of the claim giving rise to such lien. All such sums paid by
Xxxxxxxx and all expenses incurred by it in connec-
6
tion therewith shall be considered additional rent and shall be payable to it by
Tenant on demand with interest at the rate of 18% per annum or the highest rate
permitted by law, whichever is lower.
11. ASSIGNMENT AND SUBLETTING.
(A) Tenant shall not have the right to assign or pledge this Lease or to
sublet the whole or more than 50% of the Premises, whether voluntarily or by
operation of law, or permit the use or occupancy of the Premises by anyone other
than Tenant, or assign this Lease for security purposes, without the prior
written consent of Landlord, and such restrictions shall be binding upon any
assignee or subtenant to which Landlord has consented. In the event Tenant
desires to sublet the Premises, or any portion thereof, or assign this Lease,
Tenant shall give written notice thereof to Landlord at least 30 days but not
more than 180 days prior to the proposed commencement date of such subletting or
assignment, which notice shall set forth the name of the proposed subtenant or
assignee, the relevant terms of any sublease and copies of financial reports and
other relevant financial information of the proposed subtenant or assignee.
Notwithstanding any permitted assignment or subletting, Tenant shall at all
times remain directly and primarily responsible and liable for the payment of
the rent herein specified and for compliance with all of its other obligations
under this Lease. Upon the occurrence of an "event of default" (as hereinafter
defined), if the Premises or any part thereof are then sublet, Landlord, in
addition to any other remedies provided herein or by law, may collect directly
from such subtenant all rents due and becoming due to Tenant under such sublease
and apply such rent against any sums due to Landlord from Tenant hereunder. No
such collection directly from an assignee or subtenant shall be construed to
constitute a novation or a release of Tenant from the further performance of
Xxxxxx's obligations hereunder.
(C) Consent by Landlord to any assignment or subletting shall not include
consent to the assignment or transferring of any lease renewal option rights or
space option rights of the Premises, special privileges or extra services
granted to Tenant by this Lease, or addendum or amendment thereto or letter of
agreement (and such options, right, privileges or services shall terminate upon
such assignment), unless Landlord specifically grants in writing such options,
right, privileges or services to assignee or subtenant. Any sale, assignment,
mortgage, transfer of this Lease or subletting which does not comply with the
provisions of this Article shall be void.
(D) In the event that Tenant sells, sublets, assigns, or transfers this
Lease and at any time receives periodic rent and/or other consideration which
exceeds that which Tenant would at that time be obligated to pay to Landlord,
Tenant shall pay to Landlord 75% of the net increase in such rent as such rent
is received by Tenant and 75% of any other consideration received by Tenant from
such subtenant in connection with such sublease or in the case of an assignment
of this Lease by Tenant, Landlord shall receive 75% of any consideration paid to
Tenant by such assignee in connection with such assignment.*
(E) Should Landlord agree to authorize and execute an assignment or
sublease agreement, Tenant will pay to Landlord on demand a sum equal to all
of Landlord's costs, including reasonable attorney's fees, incurred in
connection with such assignment or transfer.
12. INDEMNIFICATION.
Landlord shall not be liable and Tenant hereby waives all claims against
Landlord for any damage to any property or any injury to any person in or about
the Premises or the Building by or from any cause whatsoever, (including without
limiting the foregoing, rain or water
* "Net" shall mean net of reasonable and customary brokerage, counsel fees
and costs of altering the premises for the new occupant.
7
leakage of any character from the roof, windows, walls, basement, pipes,
plumbing works or appliances, the Building not being in good condition or
repair, gas, fire, oil, electricity or theft); except that Landlord will
indemnify and hold Tenant harmless from such claims to the extent caused by the
negligent or willful act or omission of Landlord, or its agents, employees or
contractors. Tenant shall hold Landlord harmless from and defend Landlord
against any and all claims, liability or costs (including court costs and
reasonable attorney's fees) for any damage to any property or any injury to any
person occurring in, on or about the Premises or the Building when such injury
or damage shall be caused by or arise from, in part or in whole, (a) the act,
neglect, fault, or omission to meet the standards imposed by any duty with
respect to the injury or damage, by Tenant, its agents, servants, employees or
invitees; (b) the conduct or management of any work or thing whatsoever done by
the Tenant in or about the Premises or from transactions of the Tenant
concerning the Premises; or (c) any breach or default on the part of the Tenant
in the performance of any covenant or agreement on the part of the Tenant to be
performed pursuant to this Lease. The provisions of this Article shall survive
the termination of this Lease with respect to any claims or liability occurring
prior to such termination.
13. INSURANCE.
Tenant agrees to purchase at its own expense and to keep in force during
the term of this Lease a comprehensive public liability and property damage
insurance policy to protect against any liability to the public or to any
invitee of Tenant or Landlord incident to the use of or resulting from any
accident occurring in or upon the Premises with a comprehensive single limit of
not less than $1,000,000.00. Said policy or policies shall: (a) name Landlord as
an additional insured, (b) be issued by an insurance company which is acceptable
to Landlord; and (c) provide that said insurance shall not be cancelled unless
30 days prior written notice shall have been given to Landlord. Said policy or
policies or certificates thereof shall be delivered to Landlord by Tenant upon
the Commencement Date and upon each renewal of said insurance.
14. WAIVER OF SUBROGATION.
So long as their respective insurers so permit, Tenant and Landlord hereby
mutually waive their respective rights or recovery against each other for any
loss insured by fire, extended coverage or all risk insurance now or hereafter
existing for the benefit of the respective party. Each party shall obtain any
special endorsements required by their insurer to evidence compliance with the
aforementioned waiver.
15. SERVICES AND UTILITIES.
Landlord agrees to provide, at its cost, water (including sprinkler),
electricity and telephone service connections into the Premises; but Tenant
shall pay for all water, gas, heat, light, power, telephone, sewer, sprinkler
system charges and other utilities and services used on or from the Premises,
together with any taxes, penalties, and surcharges or the like pertaining
thereto and any maintenance charges for utilities. Tenant shall furnish all
electric light bulbs, tubes and ballasts. Any such charges paid by Xxxxxxxx and
assessed against Tenant shall be immediately payable to Landlord on demand and
shall be additional rent hereunder. Landlord shall in no event be liable for any
interruption or failure of utility services on or to the Premises for causes
beyond Landlord's control.
16. HOLDING OVER.
Tenant shall pay Landlord for each day Tenant retains possession of the
premises or part thereof after termination hereof by lapse of time or otherwise
150% of the amount of the Annual Rent for the last period prior to the date of
such termination prorated on a daily basis, and if Tenant holds over for 5 days
after notice, also pay all damages sustained by Landlord by reason of such
retention, and shall indemnify and hold Landlord harmless from any loss or
liability resulting from such holding over and delay in surrender. If Landlord
gives notice to Tenant of Landlord's election thereof, such holding over shall
constitute renewal of this Lease for a period from month to month at 150% of the
Annual Rent being paid to Landlord under this Lease immediately prior thereto,
but if the Landlord does not so elect, acceptance by Landlord of rent after such
termination shall not constitute a renewal; this provision shall not be deemed
to waive Landlord's right or re-entry or any other right hereunder or at law.
8
17. SUBORDINATION.
Without the necessity of any additional document being executed by Tenant
for the purpose of affecting a subordination, the Lease shall be subject and
subordinate at all times to ground or underlying leases and to the lien of any
mortgages or deeds of trust now or hereafter placed on, against or affecting the
Building, Landlord's interest or estate therein, or any ground or underlying
lease; provided, however, that if the lessor, mortgagee, trustee, or holder of
any such mortgage or deed of trust elects to have Xxxxxx's interest in this
Lease be superior to any such instrument, then by notice to Tenant this Lease
shall be deemed superior, whether this Lease was executed before or after said
instrument. Notwithstanding the foregoing, Tenant covenants and agrees to
execute and deliver upon demand such further instruments evidencing such
subordination or superiority of this Lease as may be reasonably required by
Landlord.
19. REENTRY BY LANDLORD.
Landlord reserves and shall at all times have the right upon reasonable
notice to reenter the Premises to inspect the same, to supply any service to be
provided by Landlord to Tenant hereunder, to show said Premises to prospective
purchasers, mortgagees or tenants during the last 6 months of the Term, and to
alter, improve, or repair the Premises and any portion of the Building, without
abatement of rent, and may for that purpose erect, use, and maintain
scaffolding, pipes, conduits, and other necessary structural work to be
performed, provided entrance to the Premises shall not be blocked thereby, and
further provide that the business of Tenant shall not be interfered with
unreasonably and Landlord repairs any damage. Tenant hereby waives any claim for
damages for any injury or inconvenience to or interference with Xxxxxx's
business, any loss of occupancy or quiet enjoyment of the Premises, and any
other loss occasioned thereby unless Landlord is negligent. For each of the
aforesaid purposes, Landlord shall at all times have and retain a key with which
to unlock all of the doors in the Premises, excluding Tenant's vaults and safes,
or special security areas (designed in advance), and Landlord shall have the
right to use any and all means which Landlord may deem proper to open said doors
in an emergency to obtain entry to any portion of the Premises.
20. DEFAULT.
The following events shall be deemed to be events of default under this
Lease:
(A) Subject to the Addendum, Tenant shall fail to pay when due any sum of
money becoming due to be paid to Landlord hereunder, whether such sum be any
installment of the rent herein reserved, any other amount treated as additional
rent hereunder, or any other payment or reimbursement to Landlord required
herein, whether or not treated as additional rent hereunder, and such failure
shall continue for a period of five days from the date such payment was due; or
(B) Subject to the Addendum, Tenant shall fail to comply with any term,
provision or covenant of this lease other than by failing to pay when or before
due any sum of money becoming due to be paid to Landlord hereunder, and shall
not cure such failure within 20 days (forthwith, if the default involves a
hazardous condition) after written notice thereof to Tenant; or
(D) Tenant shall fail to vacate the Premises immediately upon termination
of the Lease, by lapse of time or otherwise, or upon termination of Tenant's
right to possession only; or
(E) The leasehold interest of Tenant shall be levied upon under execution
or be attached by process of law or Tenant shall fail to contest diligently the
validity of any lien or claimed lien and give sufficient security to Landlord to
insure payment thereof or shall fail to satisfy any judgment rendered thereon
and have the same released, and such default shall continue
7
for ten days after written notice thereof to Tenant; or
(F) Tenant shall become insolvent, admit in writing its inability to pay
its debts generally as they become due, file a petition in bankruptcy or a
petition to take advantage of any insolvency statute, make an assignment for the
benefit of creditors, make a transfer in fraud of creditors, apply for or
consent to the appointment of a receiver of itself or of the whole or any
substantial part of its property, or file a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws, as now in
effect or hereafter amended, or any other applicable law or statute of the
United States or any state thereof; or
(G) A court of competent jurisdiction shall enter an order, judgment or
decree adjudicating Tenant a bankrupt, or appointing a receiver of Tenant, or of
the whole or any substantial part of its property, without the consent of
Tenant, or approving a petition filed against Tenant seeking reorganization or
arrangement of Tenant under the bankruptcy laws of the United States, as now in
effect or hereafter amended, or any state thereof, and such order, judgment or
decree shall not be vacated or set aside or stayed within 90 days from the date
of entry thereof.
21. REMEDIES.
Upon the occurrence of any of such events of default described in Article
20 or elsewhere in this Lease, Landlord shall have the option to pursue any one
or more of the following remedies without any notice or demand whatsoever:
(A) Landlord may, at its election on 5 days' notice to Tenant, terminate
this Lease or terminate Tenant's right to possession only, without terminating
the Lease;
(B) Upon any termination of this Lease, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of the Lease, Tenant shall surrender possession and vacate the
Premises immediately, and deliver possession thereof to Landlord, and Tenant
hereby grants to Landlord full and free right to enter into and upon the
Premises in such event with or without process of law and to repossess Landlord
of the Premises as of Landlord's former estate and to expel or remove Xxxxxx and
any others who may be occupying or within the Premises and to remove any and all
property therefrom, without being deemed in any manner guilty of trespass,
eviction or forcible entry or detainer, and without incurring any liability for
any damage resulting therefrom, Tenant hereby waiving any right to claim damage
for such reentry and expulsion, and without relinquishing Landlord's right to
rent or any other right given to Landlord hereunder or by operation of law;
(C) Upon any termination of this Lease, whether by lapse of time or
otherwise, Landlord shall be entitled to recover as damages, all rent, including
any amounts treated as additional rent hereunder, and other sums due and payable
by Tenant on the date of termination, plus the sum of (i) an amount equal to the
then present value of the rent, including any amounts treated as additional rent
hereunder, and other sums provided herein to be paid by Tenant for the residue
of the Term hereof, less the fair rental value of the Premises for such residue
(taking into account the time and expense necessary to obtain a replacement
tenant or tenants, including expenses hereinafter described in subparagraph (D)
relating to recovery of the Premises, preparation for reletting and for
reletting itself), (ii) the cost of performing any other covenants which would
have otherwise been performed by Tenant;
(D) (i) Upon any termination of Tenant's right to possession only without
termination of the Lease, Landlord may, at Landlord's option, enter into the
Premises, remove Xxxxxx's signs and other evidences of tenancy, and take and
hold possession thereof as provided in subparagraph (B) above, without such
entry and possession terminating the Lease or releasing Tenant, in whole or in
part, from any obligation, including Tenant's obligation to pay the rent,
including any amounts treated as additional rent, hereunder for the full Term.
(ii) Landlord shall use reasonable commercial efforts to relet the
Premises or any part thereof for such rent and upon such terms as Landlord in
its sole discretion shall determine (including the right to relet the Premises
for a greater or lesser term than that remaining under the Lease, the right to
relet the premises as a part of a larger area, and the right to change the
character or use made of the premises) and Landlord shall not be required to
accept any tenant offered by Tenant or to observe any instructions given by
Tenant about such reletting. In any such case, Landlord may make reasonable
repairs, alterations and additions in or to the premises, and redecorate the
same to the extent Landlord deems necessary, and Tenant shall, upon demand, pay
the reasonable cost thereof, together with Xxxxxxxx's reasonable expenses of
reletting including, without
8
limitation, any broker's commission incurred by Landlord. If the consideration
collected by Landlord upon any such reletting plus any sums previously collected
from Tenant are not sufficient to pay the full amount of all rent, including any
amounts treated as additional rent hereunder and other sums reserved in this
lease for the remaining term hereof, together with the costs of repairs,
alterations, additions, redecorating, and Xxxxxx's expenses of reletting and the
collection of rent accruing therefrom (including reasonable attorney's fees and
reasonable broker's commissions), Tenant shall pay to Landlord the amount of
such deficiency upon demand and Xxxxxx agrees that Landlord may file suit to
recover any sums falling due under this section from time to time.
(E) Landlord may, at Xxxxxxxx's option, enter into and upon the Premises,
if Tenant is not acting within a commercially reasonable time and after notice
to maintain, repair or replace anything for which Xxxxxx is responsible
hereunder and correct the same, without being deemed in any manner guilty of
trespass, eviction or forcible entry and detainer and without incurring any
liability for any damage resulting therefrom and Xxxxxx agrees to reimburse
Landlord, on demand, as additional rent, for any expenses which Landlord may
incur in thus affecting compliance with Tenant's obligations under this Lease;
(F) Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of the Lease or of law, to which Tenant is or
may be entitled, may be handled, removed and stored, as the case may be, by or
at the direction of Landlord at the risk, cost and expense of Tenant, and
Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession under Xxxxxxxx's control.
Any such property of Tenant not retaken by Tenant from storage within 30 days
after removal from the Premises shall, at Landlord's option, be deemed conveyed
by Tenant to Landlord under this Lease as by a bill of sale without further
payment or credit by Landlord to Tenant. Landlord hereby waives any right to
distrain Tenant's property.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
of the other remedies herein provided or any other remedies provided by law or
of equity (all such remedies being cumulative), nor shall pursuit of any remedy
herein provided constitute a forfeiture or waiver of any rent due to Landlord
hereunder or of any damages accruing to Landlord by reason of the violation of
any of the terms, provisions and covenants herein contained. No act or thing
done by Landlord or its agents during the Term shall be deemed a termination of
this Lease or an acceptance of the surrender of the Premises, and no agreement
to terminate this Lease or accept a surrender of said Premises shall be valid
unless in writing signed by Landlord. No waiver by Landlord of any violation or
breach of any of the terms, provisions, and covenants herein contained shall be
deemed or construed to constitute a waiver of any other violation or breach of
any of the terms, provisions and covenants herein contained. Xxxxxxxx's
acceptance of the payment of rental or other payments hereunder after the
occurrence of an event of default shall not be construed as an accord and
satisfaction, compromise or waiver of such default, unless the Landlord so
notifies Tenant in writing. Forbearance by Landlord in enforcing one or more of
the remedies herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of such default or of Landlord's right to
enforce any such remedies with respect to such default or any subsequent
default. If, on account of any breach or default by Tenant under the Lease, it
shall become necessary or appropriate for Landlord to employ or consult with an
attorney concerning or to enforce or defend any of Landlord's rights or
remedies, Xxxxxx agrees to pay all reasonable attorneys' fees incurred by
Landlord.
22. QUIET ENJOYMENT.
Landlord represents and warrants that it has full right and authority to
enter into this Lease and that Tenant, while paying the rental and performing
its other covenants and agreements herein set forth, shall peaceably and quietly
have, hold and enjoy the Premises for the Term without hindrance or molestation
from Landlord subject to the terms and provisions of this Lease.
23. DAMAGE BY FIRE, ETC.
(A) Landlord agrees to maintain standard fire and extended coverage
insurance covering the Building in an amount not less than 90% of the full
"replacement cost" thereof (as such term is defined in the Replacement Cost
Endorsement to be attached thereto, if any) insuring against the perils of fire
and lightning and including extended coverage, and earthquake and flood
coverage, or at Landlord's option, "All Risk" coverage, with earthquake and
flood
9
coverage, all such coverages and endorsements to be as defined, provided and
limited in the standard bureau forms prescribed by the insurance regulatory
authority for the state in which the property is situated for use by insurance
companies admitted in such state for the writing of such insurance on risks
located within such state. Subject to the provisions of paragraphs 23(C), 23(D)
and 23(F), such insurance shall be for the sole benefit of Landlord and under
its sole control. Such insurance shall include protection for continuation of
rental payments for a period of 12 months in the event of any damage caused by
the perils referred to above. Xxxxxx agrees to pay to Landlord, as additional
rental, Landlord's commercially reasonable cost of maintaining such insurance.
Said payments shall be made to landlord within ten days after presentation to
Tenant of Landlord's statement setting forth the amount due with a copy of the
invoice and the failure to pay such share shall be treated in the same manner as
a default in the payment of rent hereunder when due. Any payment to be made
pursuant to this Paragraph with respect to the year in which the Lease commences
or terminates shall be prorated. Tenant shall not take out separate insurance
concurrent in form or contributing in the event of loss with that required to be
maintained by Landlord hereunder unless Landlord is included as an additional
insured thereon. Tenant shall immediately notify Landlord whenever any such
separate insurance is taken out and shall promptly deliver to Landlord the
policy or policies of such insurance.
(B) If the Building should be damaged or destroyed by fire, tornado or
other casualty, Tenant shall give immediate written notice thereof to Landlord.
(C) If the Building should be damaged by any peril covered by the
insurance to be provided by Landlord under Paragraph 23(A), but only to such
extent that the Building can in Landlord's reasonable estimation (which shall
be made within 45 days after the damage) be materially restored within 180 days
after the date upon which Landlord is notified by Tenant of such damage (except
that Landlord may elect not to rebuild if such damage occurs during the last
year of the Term unless Tenant immediately elects to renew the Lease, if any
renewal terms remain available to be exercised), this Lease shall not terminate,
and Landlord shall at its sole cost and expense thereupon proceed with
reasonable diligence to rebuild and repair such building to substantially the
condition in which it existed prior to such damage, and Landlord shall rebuild,
repair or replace any part of the partitions, fixtures, additions and other
improvements which may have been placed in, on or about the Premises by Tenant.
If the Premises are untenantable in whole or in part following such damage, the
rent payable hereunder during the period in which the Premises are untenantable
shall be reduced to such extent as may be fair and reasonable under all of the
circumstances and fully abated if the Premises are wholly untenantable. In the
event that Landlord should fail to materially restore the Building within 180
days after the date upon which Landlord is notified by Tenant of such damage,
Tenant may (if it has given Landlord at least 30 days notice of its need and
intent to do so) at its option terminate this Lease by delivering written notice
of its termination to Landlord as Tenant's exclusive remedy, whereupon all
rights and obligations hereunder shall cease and terminate; provided, however,
that if construction is delayed because of changes, deletions, or additions in
construction requested by Xxxxxx, strikes, lockouts, casualties, acts of God,
war, material or labor shortages, Governmental regulation or control or other
causes beyond the reasonable control of Landlord, the period for restoration,
repair or rebuilding shall be extended for the amount of time Landlord is so
delayed up to 90 additional days. For purposes hereof, the Building or Premises
shall be deemed "materially restored" if they are in such condition as would not
prevent or materially interfere with Xxxxxx's use of the Premises for the
purpose for which it was then being used.
(D) If the Building should be damaged or destroyed by fire, tornado or
other casualty and Landlord is not required to rebuild pursuant to the
provisions of paragraph 23(C), this Lease shall at the option of Landlord, upon
notice to Tenant, given within 30 days after Landlord is notified by Tenant of
such damage, terminate and the rent shall be abated during the unexpired portion
of this Lease, effective upon the date of the occurrence of such damage.
(E) Notwithstanding anything herein to the contrary and unless otherwise
provided in a nondisturbance agreement, in the event the holder of any
indebtedness secured by a mortgage or deed of trust covering the Premises or the
Building requires that the insurance proceeds to be applied to such
indebtedness, then Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within 15 days after such
requirement is made by any such holder, whereupon this Lease and on the date of
such notice to Tenant as if the date of such notice were the date originally
fixed in this Lease for the expiration of the Term.
(F) In the event of any damage or destruction to the Premises by any peril
covered by the provisions of this Article, Tenant shall, upon notice from
Landlord, forthwith remove, at its sole cost and expense, such portion or all of
the Tenant's shelves, bins, machinery and other trade fixtures and all other
property belonging to Tenant or his licensees from such portion or all of the
Premises as Landlord shall request and Tenant hereby indemnifies and holds
Landlord (including without limitation the trustee and beneficiaries if Landlord
is a trust), Landlord's agents and employees harmless from any loss, liability,
claims, suits, costs, expenses, including attorney's fees and damages, both real
and alleged, arising out of any damage or injury as a result of the failure to
properly secure the Premises prior to such removal and/or
10
as a result of such removal.
24. EMINENT DOMAIN.
(A) If the whole or any substantial part of the Building should be taken
for any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof and the taking would prevent or materially interfere with the use of the
Premises or Building for the purposes for which they are then being used, this
Lease shall terminate and the rent shall be abated during the unexpired portion
of this Lease, effective when the physical taking of said property shall occur.
(B) If part of the Building shall not be taken for any public or
quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain, or by private purchase in lieu thereof, and this Lease
is not terminated as provided in Paragraph 24(A), this Lease shall not terminate
but the rent payable hereunder during the unexpired portion of this Lease shall
be reduced to such extent, if at all, as may be fair and reasonable under all of
the circumstances and Landlord shall at Landlord's expense undertake to restore
the Premises to a condition suitable for Tenant's use, as near to the condition
thereof immediately prior to such taking as is reasonably feasible under all the
circumstances.
(C) In the event of any such taking or private purchase in lieu thereof,
Landlord and Tenant shall each be entitled to receive and retain such separate
awards and/or portion of lump sum awards as may be allocated to their respective
interests in any condemnation proceedings; provided that Tenant shall not be
entitled to receive any award for Tenant's loss of its leasehold interest, the
right to such award being hereby assigned by Tenant to Landlord.
25. SALE BY LANDLORD.
In the event of a sale or conveyance by Landlord of the Building, the same
shall operate to release Landlord from any future liability upon any of the
covenants or conditions, expressed or implied, herein contained in favor of
Xxxxxx, and in such event Xxxxxx agrees to look solely to the responsibility of
the successor in interest of Xxxxxxxx in and to this Lease. Except as set forth
in this Article, this Lease shall not be affected by any such sale, and Xxxxxx
agrees to attorn to the purchaser or assignee. If any security has been given by
Tenant to secure the faithful performance of any of the covenants of this Lease,
Landlord shall transfer or deliver said security, as such, to Landlord's
successor in interest and thereupon Landlord shall be discharged from any
further liability with regard to said security, provided that any successor
shall be liable for such security.
26. ESTOPPEL CERTIFICATES.
Within ten days following any written request which Landlord may make from
time to time, Tenant shall execute and deliver to Landlord or any prospective
Landlord or mortgagee or prospective mortgagee a sworn statement certifying: (a)
the date of commencement of this Lease, (b) the fact that this Lease is
unmodified and in full force and effect (or, if there have been modifications
hereto, that this Lease is in full force and effect, as modified, and stating
the date and nature of such modifications), (c) the date to which the rent and
other sums [ILLEGIBLE] this Lease by either Landlord or Tenant except as
specified to the best of Tenant's knowledge in Tenant's statement.
27. SURRENDER OF PREMISES.
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At the end of the Term or any renewal thereof or other sooner termination
of this Lease, Tenant will peaceably deliver up to Landlord possession of the
Premises, together with all improvements or additions upon or belonging to the
same, by whomsoever made, in good condition, broom clean and free of all debris,
ordinary wear and tear and damage by fire, earthquake, Act of God, repairs for
which Tenant is not responsible or the elements alone excepted. Tenant may, upon
termination of this Lease, remove all movable partitions of less than full
height from floor to ceiling, counters, and other personal property of Tenant
removable without material damage to such property or the Premises previously
installed by Tenant, at Tenant's sole cost, title to which shall be in Tenant
until such termination, repairing such damage caused by such removal. Property
not so removed shall be deemed abandoned by the Tenant and title to the same
shall thereupon pass to Landlord under this Lease as by a bill of sale. Subject
to the Addendum, upon request by Landlord, Tenant shall remove any or all
permanent improvements or additions to the Premises installed at Tenant's cost
and all movable partitions, counters and other personal property of Tenant
removable without material damage to such property or the Premises which may be
left by Tenant and repair any damage resulting from such removal. Tenant shall
indemnify Landlord against any loss or liability resulting from delay by Xxxxxx
in so surrendering the Premises, including without limitation any claims made by
any succeeding tenant founded on such delay.
All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the Term of this Lease shall survive the
expiration or earlier termination of the Term.
28. NOTICES.
Any notice or document required or permitted to be delivered hereunder
shall be in writing and shall be effective upon delivery, if personally
delivered, or two days after mailing, if mailed. All notices shall be personally
delivered or sent by United States Mail, postage prepaid, Certified or
Registered Mail, addressed to the parties hereto at the respective addresses set
forth opposite their respective signatures on the Reference Page, or at such
other address as they have theretofore specified by written notice delivered in
accordance herewith.
29. TAXES PAYABLE BY TENANT.
In addition to the foregoing, Xxxxxx agrees to pay, before delinquency,
any and all taxes levied or assessed against Tenant and which become payable
during the term hereof upon Tenant's equipment, furniture, fixtures, and other
personal property of Tenant located in the Premises.
30. DEFINED TERMS AND HEADINGS.
The article headings herein are for convenience of reference and shall in
no way define, increase, limit, or describe the scope or intent of any provision
of this Lease. Any indemnification of, insurance of, or option granted to
Landlord shall also include or be exercisable by Landlord's trustee,
beneficiary, agents and employees, as the case may be. In any case, where
12
this Lease is signed by more than one person, the obligations hereunder shall be
joint and several. The terms "Tenant" and "Landlord" or any pronoun used in
place thereof shall indicate and include the masculine or feminine, the singular
or plural number, individuals, marital communities, firms, or corporations, and
their and each of their respective successors, executors, administrators, and
permitted assigns, according to the context hereof. Xxxxxx agrees to furnish
promptly upon demand a corporate resolution, proof of due authorization by
partners, or other appropriate documentation evidencing the due authorization of
Tenant to enter into this Lease. The term "rentable area" shall mean the
rentable area of the Premises or the Building as calculated by the Landlord on
the basis of the plans and specifications (which were available for inspection
by Tenant at the time the Lease was executed) of the Building and including a
proportionate share of any common areas. Tenant hereby consents and agrees that
the calculation of rentable area on the Reference Page shall be controlling.
31. CONFESSION OF JUDGMENT.
32. ENFORCEABILITY.
If for any reason whatsoever any of the provisions hereof shall be void,
unenforceable or ineffective, all of the other provisions shall be and remain in
full force and effect.
33. COMMISSIONS.
Each of the parties (i) represents and warrants to the other that it has
not dealt with any broker or finder in connection with this Lease, except as
described on the Reference Page; and (ii) indemnifies and holds the other
harmless from any and all leases, liability, costs or expenses (including
attorneys' fees) incurred as a result of any breach of the foregoing warranty.
34. TIME AND APPLICABLE LAW.
Time is of the essence of this Lease and all of its provisions. This Lease
shall in all respects be governed by the laws of the state in which the Building
is located.
35. PARKING.
Tenant shall have the right to use the parking facilities of the Building,
as shown on Exhibit A.
36. SUCCESSORS AND ASSIGNS.
Subject to the provisions of Article 11, the terms, covenants and
conditions contained herein shall be binding upon and inure to the benefit of
the heirs, successors, executors, administrators, marital communities, if any,
and assigns of the parties hereto.
37. ENTIRE AGREEMENT.
This Lease, together with its exhibits, contains all agreements of the
parties hereto and supersedes any previous negotiations. There have been no
representations made by the Landlord or Tenant or understandings made between
the parties other than those set forth in this Lease and its exhibits. This
Lease may not be modified except by a written instrument duly executed by the
parties hereto.
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38. EXAMINATION NOT OPTION.
Submission of this Lease shall not be deemed to be a reservation of the
Premises. Landlord and Tenant shall not be bound hereby until its delivery to
Tenant of an executed copy hereof signed by Xxxxxxxx, already having been signed
by Tenant, and until such delivery Landlord reserves the right to exhibit and
lease the Premises to other prospective tenants. Notwithstanding anything
contained herein to the contrary, Landlord may withhold delivery of possession
of the Premises from Tenant until such time as Tenant has paid to Landlord the
security deposit required by Article 5, the first month's rent as set forth in
Article 3,
39. RECORDATION.
Neither Landlord nor Tenant shall record this Lease or a short form
memorandum hereof without the prior written consent of the other party, and the
party offering the name for recording shall pay all charges and taxes incident
thereto.
40. LIMITATION OF LANDLORD'S LIABILITY.
The obligations of Landlord herein are intended to be binding only on the
property of the entity acting as Landlord and shall not be personally binding,
nor shall any resort be had to the private properties of, any of its trustees or
board of directors and officers, as the case may be, its investment manager, the
general partners thereof or any employees or agents of Landlord, or the
investment manager.
14
ADDENDUM TO LEASE BETWEEN 0000 XXXXXX XXXX PARTNERSHIP
("LANDLORD") AND AMBASSADOR EYE WEAR GROUP ("TENANT") FOR
0000 XXXXXXXX XXXX, XXXXXXXX, XXXXXXXXXXXX ("PREMISES")
1. In the event of any conflict between the terms of the form Lease
("Lease") and the terms of this Addendum, the terms of this Addendum shall
control.
2. Provided that no event of default has occurred and is continuing
hereunder, Tenant shall have the option to renew the term of this Lease for one
additional term of five (5) years ("Renewal Term") by notice to Landlord
("Renewal Notice") given at least six (6) months days prior to the expiration
of the initial Term. All terms and conditions of this Lease shall apply to the
Renewal Term, except that the Annual Rent shall be fixed as forth in Schedule 1.
The initial Term and Renewal Term are hereafter collectively called the "Term".
3. Notwithstanding the provisions of Section 1 of the Form Lease, Tenant
may cease active business operations at the Premises so long as (i) Tenant
continues to make all payments and perform all other obligations of Tenant under
the Lease (including, without limitation, maintenance, repair, replacement and
insurance obligations), and (ii) Tenant gives Landlord thirty (30) days advance
written notice of Tenant's intention to cease operations.
4. Notwithstanding the provisions of Section 1 of the Form Lease, in the
event that structural changes to the Premises are hereafter required as a result
of any change in law or regulation, Landlord shall make such alterations and the
cost thereof shall be paid by Tenant to Landlord as additional rent in equal
monthly installments based on amortizing the cost of such alterations, with
interest at Wall Street Journal Prime Rate as of the date of the expenditure,
over ten (10) years (provided that such payments shall only be due during the
remainder of the Term).
5. Landlord hereby represents and warrants to Tenant that Landlord has
received no violation notices affecting the Premises.
6. Notwithstanding the provisions of Section 3 of the Form Lease, the late
charge payable under Section 3 shall be $500 for only the first three (3)
occasions in any twelve-month period on which Tenant incurs a late charge;
thereafter the late charge shall equal the greater of $500 or five percent (5%)
of the overdue amount.
7. Notwithstanding the provisions of Section 4 of the Form
Lease, Tenant, shall not be responsible for any of Landlord's franchise, income,
inheritance or corporate taxes. Any governmental assessments against the
Premises may be paid by Tenant over the maximum period allowed by law. In
addition, Tenant may, with counsel of its own designation, institute appropriate
proceedings for the reduction of any assessed valuation of the Premises, and
diligently prosecute the same to final determination, so long as such
proceedings operate to stay an action to enforce the lien of such taxes.
Landlord shall cooperate, at Xxxxxx's expense, in the institution and
prosecution of such proceedings to final determination thereof.
8. Notwithstanding the provisions of Section 6 and Section 27 of the Term
Lease, Tenant shall only be required, upon expiration or termination of the
Lease, to remove alterations, additions; and improvements (collectively,
"Alterations") made to the Premises if, at the time Landlord approves such
Alterations, Landlord specifies that such Alterations must be so removed.
Non-structural alterations in an amount not in excess of $25,000 may be made by
Tenant without Landlord's consent. In addition, Landlord hereby approves the
alterations described in the plans and specifications listed on Exhibit B
attached hereto and agrees that such alterations need not be removed when the
Tenant leaves the Premises.
9. Section 7(F) of the Form Lease is hereby amended to add the following
provision at the end of the Section: "Landlord shall indemnify and defend Tenant
from suits, actions, damages, liabilities and expenses (including court costs
and reasonable attorneys' fees) arising out of the negligent or willful act or
omission of Landlord, its agents, contractors, employees, servants, invitees,
licensees or concessionaires."
10. Section 8 of the Form Lease is hereby amended to add the following
provision at the end of the Section: "If Landlord fails to perform any repairs
required under this Section after thirty (30) days notice from Tenant, Tenant
may perform such repairs and collect the cost thereof from Landlord, such
invoices to be paid by Landlord within thirty (30) days after receipt.
Notwithstanding the foregoing, in an emergency Tenant may take reasonable
immediate steps to preserve life or property if Landlord fails to respond to a
telephone call advising Landlord of the emergency. If Landlord fails to pay such
amounts and Xxxxxx obtains a judgment against Landlord, Xxxxxx may then offset
the amount of such judgment against the next installment{s) of Annual Rent.
11. Notwithstanding the provisions of Section 11 of the Form Lease, Tenant
may assign the Lease or sublet the Premises, without Landlord's consent but only
after fifteen (15) days
2
advance written notice to Landlord, (a) to a parent, subsidiary or other
affiliate of Tenant, provided that if the Lease is assigned and the Tenant is
released by Landlord, such assignee must have a net worth at least as great as
Tenant's net worth on the date hereof (i.e., not less than $2,000,000), as
determined by financial statements prepared in accordance with GAAP by an
independent certified public accountant, or (ii) in connection with a public
offering, a merger or consolidation of Tenant or a sale of substantially all of
Tenant's business, provided that the surviving acquiring entity has a net worth
at least as great as Tenants net worth on the date hereof (i.e., not less than
$2,000,000 as determined by financial statements prepared in accordance with
GAAP by an independent certified public accountant. The provisions of Section
11 of the Form Lease requiring payment to Landlord of 75% of any net increase
in rent received by Tenant from a subtenant or assignee shall not apply to any
transfer not requiring Landlord's consent as described above.
12. Notwithstanding the provisions of Section 11 of the Form Lease, if a
court determines that Landlord has withheld its consent to an assignment or
sublease of the Premises unreasonably, Tenant may terminate this Lease by notice
within thirty (30) days after such determination.
13. Section 12 of the Form Lease is hereby amended to add the following
provision at the end of the Section: "The foregoing indemnification requirement
shall not apply to suits, actions, damages, liabilities and expenses arising out
of the negligent or willful act or omission of Landlord, its agents,
contractors, employees, servants, invitees, licensees or concessionaires."
14. Section 17 of the Form Lease is hereby amended to add the following
provision: "Landlord shall request a Subordination, Non-Disturbance and
Attornment Agreement in form reasonably satisfactory to Tenant ("SNDA") from
each current and future ground lessor and lender holding a mortgage on the
Premises. If an SNDA in form reasonably satisfactory to Tenant has not been
executed by Xxxxxxxx's current mortgage lender within ten (10) days after the
date hereof, Tenant shall have the right to terminate this Lease by notice to
Landlord given within fifteen (15) days after the date hereof; failure by Tenant
to give a termination notice within such fifteen (15) day period shall
constitute a waiver of such right. Notwithstanding the first sentence of this
Section 17, this Lease shall not be deemed to be subordinate to any mortgage if
the holder of such mortgage refuses or fails to execute an SNDA. Landlord
represents and warrants that there are no ground leases in effect for any
portion of the Premises."
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15. Notwithstanding the provisions of Section 20A of the Form Lease, no
event of default shall occur unless Tenant fails to pay any amount owing to
Landlord within ten (10) days after notice from Landlord, provided that Landlord
need only give such notice three (3) times in any twelve-month period, and
thereafter any failure to make any payment within ten (10) days after such
payment is due shall be an event of default without notice.
16. Notwithstanding the provisions of Section 20B of the Form Lease, in
the case of a default which cannot with due diligence be cured within a period
of twenty (20) days, no event of default shall occur if Tenant in good faith
duly institutes within such twenty (20) day period all steps necessary to cure
the same and promptly and diligently prosecutes to completion such cure within a
reasonable time after such notice, but not more that one hundred (120) days.
17. Section 21 of the Form Lease is hereby amended to add the following
provision: "The waiver by Tenant of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of any subsequent
breach of the same or a waiver of any other term, covenant or condition herein
contained. The failure of Tenant at any time or times to enforce its rights
under said covenants and provisions strictly in accordance with the same shall
not be construed as having created a custom in any way or manner contrary to the
specific terms, provisions and covenants of this Lease or as having in any way
or manner modified the same."
18. Notwithstanding the provisions of Section 26 of the Form Lease,
Landlord shall provide a similar estoppel letter upon request from Tenant.
19. Section 33 of the Form Lease is hereby amended to insert the following
provision at the end of the Section: "Landlord shall be responsible for payment
of commissions to the Brokers listed on the Reference Page."
20. Landlord and Tenant each acknowledge that they are intending to enter
an Agreement of Sale for the Premises, that this Lease will terminate at Closing
under the Agreement of Sale, and that this Lease shall remain in full force and
effect if Closing does not occur under the Agreement of Sale for any reason. If
Closing under the Agreement of Sale does not occur by January 1, 1998, the
Annual Base Rent shall increase as set forth in the Reference Page.
21. Notwithstanding anything to the contrary set forth in the form lease,
Tenant, at Tenant's election, shall have (a) ten (10) business days following
the full execution of this Agreement
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to obtain at Tenant's expense such structural and mechanical reports as Tenant
may require and to deliver copies of such reports to Landlord, and (b)
forty-five (45) days following the full execution of this Agreement to obtain at
Tenant's expense such environmental reports as Tenant may require, and to
deliver copies of such Reports to Landlord. If Tenant is dissatisfied for any
reason with the contents of any of the structural or mechanical reports, Tenant
shall have the right, prior to the expiration of the foregoing 10-day period, to
terminate this Agreement by notice to Landlord, whereupon the parties will have
no further obligations; if Tenant is dissatisfied for any reason with the
contents of any of the environmental reports, Tenant shall have the right, prior
to the expiration of the foregoing 45-day period, to terminate this Agreement by
notice to Landlord, whereupon the parties will have no further obligations. If
Tenant fails to notify Landlord of Tenant's election within the time periods set
forth above, Tenant shall be deemed to have waived its right to terminate this
Agreement.
22. (a) Landlord represents to Tenant that the current real estate taxes
are $51,872.40 per annum as set forth on the Reference Page, and Xxxxxxxx is not
aware of any pending or threatened special assessments.
(b) Landlord shall immediately begin and diligently pursue repairs to
the roof, and upon completion of the repairs Tenant shall reimburse Landlord on
demand for fifty percent (50%) of the cost thereof, up to a maximum
reimbursement of $11,000.
(c) Tenant is taking occupancy on the date hereof, and shall
immediately have all utilities put into Tenant's name. The Commencement Date for
payment of rent shall be August 1, 1997.
IN WITNESS WHEREOF, the parties have executed this Addendum on the same
date as the Form Lease.
AMBASSADOR EYEWEAR GROUP
By: /s/ [Illegible]
0000 Xxxxxx Xxxx Partnership
By: /s/ [Illegible]
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SCHEDULE 1
RENEWAL TERM RENT
The Annual Base Rent for each year of the Renewal Term shall be Three
Hundred Fifteen Thousand Seventy Six Dollars ($315,076), payable in monthly
installments of Twenty Six Thousand Two Hundred Fifty Six Dollars and Forty
Cents ($26,256.40).
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