LEASE
-----
THIS AGREEMENT OF LEASE made the day of , 1995 by and between XXXXX XXXX,
an individual resident of the Commonwealth of Pennsylvania (hereinafter referred
to as "Landlord") and TODAY'S MAN, INC., a Pennsylvania corporation (hereinafter
referred to as "Tenant").
W I T N E S S E T H:
--------------------
1. PREMISES
--------
In consideration of the rents, covenants and agreements hereinafter
reserved and contained on the part of each party hereto to be performed and/or
paid, Landlord has agreed to let and does hereby let and demise to Tenant and
Tenant has agreed to take and does hereby take and lease from Landlord certain
premises at 000 Xxxxxx Xxxxx, Xxxxxxxxxx Xxxxxxxx, Xxxxxxxxxx Xxxxxx, Xxx
Xxxxxx, including the office building and distribution center located thereon
containing approximately 140,800 interior square feet and known as Block 502 -
Lots 6, 7 and 9, and more fully described on Exhibit "A" attached hereto and
made a part hereof ("Demised Premises" or "Property").
2. TERM
----
The "Basic Term" of this Lease shall commence on _____________ , 1995
("Commencement Date") and shall terminate January 31, 2010, unless sooner
terminated as hereinafter provided. In the event the Landlord is unable to
deliver possession of the Demised Premises on the Commencement Date, then
Landlord shall use his best efforts to deliver possession as soon as possible
thereafter and shall pro rate all sums due under this lease to account for such
partial month.
3. BASE RENTAL.
-----------
Tenant covenants and agrees to pay an annual minimum base rent in twelve
(12) equal monthly installments, in advance and without setoff on the first
(1st) day of each and every calendar month during the Basic Term of this Lease,
in accordance with the following schedule: During each year of the term of this
Lease the annual minimum base rent shall be Seven Hundred Thirty Nine Thousand
Two Hundred ($739,200.00) Dollars (being Five Dollars and Twenty Five Cents
($5.25) per square foot multiplied by the 140,800 square feet contained in the
Demised Premises) payable in twelve (12) equal monthly installments of Sixty One
Thousand Six Hundred ($61,600.00) Dollars each ("Base Rent").
4. REAL ESTATE TAXES.
------------------
As used herein, the term "Taxes" shall mean and include all real estate
-2-
taxes and assessments against the land, buildings or improvements comprising the
Demised Premises described in Exhibit "A" attached hereto, that are payable to
any lawful authority during the calendar year.
During the Basic Term of this Lease and any extensions and renewals
thereof, Tenant shall pay to Landlord as additional rent all Taxes assessed or
imposed upon the Demised Premises provided, however, if any tax shall be imposed
with respect to a period of time which commences before or ends after the
Commencement Date and expiration date respectively, of this Lease, then Tenant
shall only be required to pay that portion thereof which is equal to the portion
of said period which falls within the Basic Term (and extension thereof, if
applicable). Tenant shall pay to Landlord all Taxes within thirty (30) days
after receipt of a xxxx therefor, accompanied by a written setting forth the
amount of said Taxes.
5. ADDITIONAL RENT.
---------------
As additional rent, Tenant shall pay to Landlord the Property's
"Operating Cost" (as hereinafter defined). "Operating Cost" shall mean the total
cost and expense incurred by Landlord in connection with the operation, repair,
-3-
maintenance, protection and management of the Property including:
(a) Wages, salaries, fees and other compensation including all payroll
taxes to or on behalf of any employee of Landlord performing services in
connection with the Property;
(b) Maintenance service including all cleaning costs, window and
sidewalks maintenance, including snow and trash removal;
(c) All utility charges not metered directly to tenants including
electricity, heat, water and sewer;
(d) All insurance costs and charges;
(e) All office accounting and legal expenses (other than lease
negotiation) incurred by Landlord in connection with the ownership and operation
of the Property; and
(f) Normal maintenance and repair expenses incurred by Landlord.
The liability of Tenant for payment of the Property's Operating Cost
shall commence as of the commencement of the Basic Term. Said Operating Costs
shall be paid as additional rent based upon Operating Cost for the previous
fiscal year of Landlord, in monthly installments in advance on the
-4-
first day of the month at the same time and place stated for the payment of
Basic Rent. The difference between the Operating Cost for the previous fiscal
year and the actual Operating Cost for any applicable fiscal year shall be
accounted for by Landlord within ninety (90) days following the end of
Landlord's fiscal year or following the termination of, or Tenant's default
under the terms of this Lease, and the necessary refund by Landlord or
additional payment by Tenant, in the amount of the difference shall be paid
within fifteen (15) days after being billed therefor by Landlord. Tenant's
obligation to pay for said Operating Costs shall be prorated for any portion of
a month.
6. NET LEASE.
----------
This Lease shall be deemed to be a net lease and Tenant shall pay to
Landlord, throughout the term of this Lease, the rent, additional rent and other
payments due hereunder. Tenant shall be responsible for payment of all utilities
consumed at the Demised Premises. Landlord shall not be required to make any
payment to maintain and carry the Demised Premises except as herein expressly
set forth and except for payments under any mortgage now existing or hereinafter
created by Landlord. Tenant accepts the Demised Premises in the condition in
which it now is, subject to the construction of the New Building in accordance
with the plans and specifications, and Tenant acknowledges that Landlord is
giving no warranties with respect to zoning and/or the use to which the Demised
Premises may be put.
-5-
7. USE.
----
Tenant may use or occupy the Demised Premises as and for offices and
warehouse distribution center and for no other purpose unless approved by
Landlord in writing.
8. COVENANT TO PAY RENT.
---------------------
Tenant shall well and truly pay to Landlord the Base Rental and
additional rent herein reserved, including all payments required under this
Lease, in lawful money of the United States at the office of Landlord or at such
other place as Landlord may from time to time designate in writing without
demand therefor, on the days and in the manner herein prescribed for the payment
thereof.
9. SUBLETTING AND ASSIGNING.
-------------------------
A. Tenant shall not assign this Lease or sublet all or any portion or
portions of the Demised Premises without first obtaining Landlord's prior
written consent thereto. Landlord agrees that any such consent shall not be
unreasonably withheld or delayed. Such consent, if given, will release Tenant
from its obligations hereunder. Tenant shall not convey, pledge, mortgage,
encumber or otherwise transfer (collectively, "Pledge") (whether voluntarily or
otherwise) this Lease or any interest in or under
it. Any attempt by Tenant to assign or pledge this Lease or sublet the Demised
Premises in contravention of the terms of this Lease shall constitute an Event
of Default hereunder.
-6-
B. Notwithstanding anything contained in Paragraph 9A above to the
contrary, the following shall not be deemed to be an assignment or sublet of
this lease requiring Landlord's prior written consent:
(1) Change of Tenant's name; or
(2) Merger of Tenant into another entity; or
(3) Acquisition by Tenant of other business; or
(4) Sale by Tenant, in bulk of assets other than in the ordinary
course of business; or
(5) Sale, issuance or transfer of the voting capital stock of Tenant
or of any corporate entity which directly or indirectly controls Tenant or of
any portion thereof; or
(6) In the event that Tenant becomes a corporation whose stock is
traded on a recognized public stock exchange, then the sale, issuance or
transfer of any voting capital stock of Tenant.
10. TENANT'S OBLIGATION TO REPAIR.
------------------------------
Except for repairs to the roof and structural repairs to the New
Building Landlord shall not be liable to make any repair whatsoever to the
Demised Premises. Tenant shall, throughout the Basic Term of the Lease and any
extension thereof, at its sole cost and expense, take good care of the Demised
-7-
Premises and keep it in good order and condition, whether such repairs be
ordinary or extraordinary, foreseen or unforeseen. Tenant shall, at its sole
cost and expense, keep the Demised Premises sidewalk immediately in front of the
Building, in a clean and orderly condition, free of accumulation of dirt,
rubbish, snow and ice. At all times during the Basic Term or any renewal or
extension thereof, Tenant shall maintain the exterior of the Building in good
and attractive condition.
11. WASTE.
------
Tenant shall not do or permit waste, damage or injury to or upon the
Demised Premises, or permit anything to be done upon the Demised Premises which
would prevent the procurement of any insurance policies which may at any time be
required pursuant to the provisions of this Lease or which may increase the
premium or charges for insurance on any other portion of the Property. Tenant
shall not obstruct or permit the obstruction of any street or sidewalk. Tenant
shall, at its own cost and expense, remove or cause to be removed the trash and
-8-
other rubbish and refuse from the Demised Premises and keep the Demised Premises
clean and neat. Tenant agrees to keep all accumulated rubbish in covered
containers in the rear of the New Building and to have the same removed
regularly. In the event Tenant fails to do so, in addition to all other rights
and remedies of Landlord, Landlord may cause the same to be done for Tenant and
Tenant agrees to pay the reasonable expenses thereof upon presentation of a xxxx
therefor.
12. TENANT TO COMPLY WITH LAW.
--------------------------
Tenant shall, at its sole cost and expense, promptly comply with the
requirements of every application statute, law and ordinance and with every
applicable lawful regulation or order made by any federal, state, municipal or
other public department, bureau, officer or authority with respect to the use or
occupation of the Demised Premises, including the making of any alteration of
the Demised Premises.
13. IMPROVEMENTS, CHANGES AND ALTERATIONS.
--------------------------------------
Tenant shall have the right from time to time and at any time during the
Basic Term of this Lease, at its sole cost and expense and without any approval
by Landlord being required (except as set forth below), to make only
non-structural interior alterations and changes, and structural alterations
which do not increase or decrease the floor area of the New Building, any of
which do not decrease the value of the New Building and do not affect the
visible front of the New Building (hereinafter sometimes collectively referred
to as "alterations"), subject, however, in all cases to the following:
-9-
(a) no alterations shall be undertaken until Tenant shall have procured
and paid for, so far as the same may be required from time to time, all permits
and authorizations of all governmental authorities having jurisdiction; and
(b) all alterations shall be made in good and workmanlike manner and in
compliance with all applicable permits, ordinances, regulations and laws; and
(c) if an alternative will substantially decrease the amount of square
feet of floor area of the New Building, Tenant shall first obtain the prior
written consent of Landlord to such alteration; and
(d) if a permitted structural alteration, Tenant shall submit plans and
specifications therefor to Landlord at least twenty (20) days prior to the
commencement of construction thereof; and
(e) no additional floors may be added to the New Building, and no
alterations may be made which are visible from or affect the exterior of the
Building.
(f) the general contractor performing such alterations shall first
execute and have recorded those documents which effect a mechanic's lien waiver
in favor of Landlord binding both the general contractor and all of his
subcontractors.
-10-
14. MECHANIC'S LIENS.
-----------------
If, because of any act or omission of Tenant, any mechanic's or other
lien, charge or order for the payment of money shall be filed against the
Demised Premises and/or Property (whether or not such lien, charge or order is
valid or enforceable as such), Tenant, at its sole cost and expense, shall cause
it to be cancelled or discharged of record by bonding or otherwise within sixty
(60) days after the filing thereof, and Tenant shall indemnify Landlord against
and save it harmless from all costs, expense, liabilities, losses, damages,
suits, fines, penalties, claims and demands, including reasonable counsel fees,
resulting therefrom.
15. INSPECTION OF PREMISES BY LANDLORD.
-----------------------------------
Landlord, its agents or designees, shall have the right to enter the
Demised Premises during reasonable business hours for the purpose of:
(a) inspecting the Demised Premises, and
(b) making any repairs and performing any work that may be necessary by
reason of Tenant's default under any of the terms, covenants and conditions of
this Lease continuing beyond the applicable periods of grace, and
-11-
(c) exhibiting the Demised Premises for the purpose of sale or mortgage.
Nothing in the Lease shall imply or impose any duty on Landlord to do
any work which Tenant is required to perform under this Lease and the
performance thereof by Landlord shall not constitute a waiver of any default by
Tenant respecting such work.
16. OWNERSHIP OF IMPROVEMENTS.
--------------------------
Until the termination of this Lease, title to the equipment, fixtures,
furnishings and all other items installed by Tenant in the Demised Premises or
thereon shall be and remain in Tenant. Upon the termination of this Lease, any
fixtures, equipment or improvements (other than removable "Trade Fixtures" as
the term is commonly applied), and any additions, changes and alterations in, on
or at the Demised Premises shall become the property of Landlord, without
payment or offset and shall be surrendered in accordance with the provisions of
Article 17.
17. SURRENDER OF PREMISES.
----------------------
Upon the termination of this Lease, Tenant shall peaceably and quietly
surrender the Demised Premises in good order, repair and condition, excepting
reasonable wear and tear and any condition permitted by Article 13 hereof.
-12-
18. INSURANCE.
----------
(a) Tenant, at its sole expense, shall maintain for the mutual benefit
of Landlord and Tenant insurance covering the Demised Premises against loss or
damage by fire and such risks as are customarily included in extended coverage
endorsements attached to fire insurance policies covering property in the
Township of Moorestown, State of New Jersey, in an amount equal to the
replacement cost of the Building of which the Demised Premises is a part.
(b) Tenant, at its sole expense, shall maintain, for the mutual benefit
of Landlord and Tenant, comprehensive general public liability insurance against
claims for bodily injury, death or property damage occurring in, on or about the
Demised Premises and any adjoining sidewalk or curb (including without
limitation, bodily injury, death or property damage resulting directly or
indirectly from the construction of any improvements and any other charge,
alteration, improvement, repair, construction or reconstruction) with minimum
limits of One Million ($1,000,000.00) Dollars for bodily injury or death to any
one person, Five Million ($5,000,000.00) Dollars for bodily injury or death to
any number of persons arising out of one accident, and Five Hundred Thousand
($500,000.00) Dollars for property damage.
(c) Tenant shall not carry any separate insurance of the same character
required under this Article 18 unless Landlord shall be named as an insured with
loss payable as herein provided.
-13-
(d) if requested, Tenant shall add Landlord's mortgages as additional
insureds to all policies required to be carried under this Article 18.
(e) The insurance required under this Article 18 shall be maintained
under valid and enforceable policies issued by insurance companies of recognized
responsibility doing business in the State of New Jersey. Tenant may carry the
insurance required under this Article 18 under a blanket policy covering the
Demised Premises as well as other properties.
(f) Each policy required under this Article 18 shall contain an
agreement that it will not be cancelled or modified without at least thirty (30)
days prior notice to Landlord and any mortgages of Landlord and that no omission
or negligence of Tenant will result in forfeiture of Landlord's insurance.
(g) Each of the parties hereto hereby releases the other, to the extent
of the releasing party's insurance coverage, from any and all liability for any
loss or damage which may be inflicted upon the property of such party even if
such loss or damage shall be brought about by the fault or negligence of the
-14-
other party, its agents or employees; provided, however, that this release shall
be effective only with respect to loss or damage occurring during such time as
the appropriate policy of insurance shall contain a clause to the effect that
this release shall not effect said policy or the right of the insured to recover
thereunder. If any policy does not permit such a waiver, and if the party to
benefit therefrom requests that such waiver be obtained, the other party agrees
to obtain an endorsement to its insurance policies permitting such waiver of
subrogation if it is available and if such policies do not provide therefor. If
an additional premium is charged for such waiver, the party benefitting
therefrom, if it desires to have the waiver, agrees to pay to the other the
amount of such additional premium promptly upon being billed therefor.
19. FIRE OR OTHER CASUALTY.
-----------------------
In the event of damage to the Demised Premises by fire or other
casualty, Landlord shall at its expense cause the damage be repaired to a
condition as nearly as practicable to that existing prior to the damage, with
reasonable promptness and diligence. Landlord shall not, however, be obligated
to repair, restore or rebuild any of Tenant's property or any alterations or
additions made by Tenant. To the extent and for the time that the Demised
-15-
Premises are rendered untenantable by a casualty, the Basic Rent shall
proportionately xxxxx. In the event the damage shall involve the Property
generally and shall be so extensive that Landlord shall decide not to repair or
rebuild the Property, or if available insurance proceeds are insufficient to
repair or rebuild the damage, or if any mortgagee of the Property shall not
permit the application of adequate insurance proceeds for repair or restoration,
or if the casualty shall not be of a type insured against under standard fire
policies with extended type coverage, this Lease shall, at the option of
Landlord, exercisable by written notice to Tenant given within ninety (90) days
after Landlord is notified of the extent of the casualty, be terminated as of
the date specified in such notice (which shall not be more than sixty (60) days
thereafter) and the Basic Rent (taking into account any abatement as aforesaid)
shall be adjusted proportionately as of the termination date and Tenant shall
thereupon promptly vacate the Demised Premises.
20. CONDEMNATION OR EMINENT DOMAIN.
-------------------------------
(a) Total or Partial Taking. In the event of exercise of the power of
eminent domain whereby:
(1) such portion of the Property is taken that access to the Demised
Premises is permanently impaired thereby and reasonable alternate access is not
provided by Landlord within a time period which is reasonable under the
circumstances; or
-16-
(2) all or substantially all of the Demised Premises or the Property
is taken; or
(3) less than substantially all of the Property is taken but
Landlord, acting in good faith, determines that it is economically unfeasible to
continue to operate the uncondemned portion of the Property as a commercial
facility; or
(4) ten per cent (10%) or more of the actual office building and
distribution center is taken, but Tenant, acting in good faith, determines that
because of such taking it is economically unfeasible to continue to conduct its
business in the uncondemned portion of the Demised Premises, then in the case of
(1) or (2), either party, and in the case of (3), Landlord, and in the case of
(4), Tenant, shall have the right to terminate this Lease as of the date when
possession of that part which was taken is required to be delivered or
surrendered to the condemning authority; and in such case all Basic Rent and
other charges shall be adjusted to the date of termination. A "taking" as such
term is used in this Section 20 shall include a transfer of title or of any
interest in the Property by deed or other instrument in settlement of or in lieu
of transfer by operation of law incident to condemnation proceedings.
-17-
(b) Temporary Taking. Notwithstanding anything hereinabove provided, in
the event of a taking of only the right to possession of the Demised Premises
for a fixed period of time or for the duration of an emergency or other
temporary condition, then this Lease shall continue in full force and effect
without any abatement of Basic Rent or additional rent, but the amounts payable
by the condemnor with respect to any period of time prior to the expiration or
sooner termination of this Lease shall be paid by the condemnor to Landlord and
the condemnor shall be considered a subtenant of Tenant. If the amounts payable
hereunder by the condemnor are paid in monthly installments, Landlord shall
apply the amount of such installments, or as much thereof as may be necessary
for the purpose, toward the amount of Basic Rent and/or additional rent due from
Tenant for the period, and Tenant shall pay to Landlord any deficiency between
the monthly amount thus paid by the condemnor and the amount due from Tenant.
(c) Tenant's Waiver. Regardless of whether this Lease shall terminate
Tenant shall have no right to participate or share in any condemnation claim,
damage award or settlement in lieu thereof with respect to any taking of any
-18-
nature; provided, however, that Tenant shall not be precluded from claiming or
receiving payment for Tenant's relocation and moving expenses as may be
permitted under applicable law so long as the amount of same does not reduce the
award which Landlord is entitle to receive.
21. INDEMNIFICATION OF LANDLORD AND RELEASE.
---------------------------------------
(a) Tenant agrees to indemnify and save harmless Landlord from and
against any and all claims by or behalf of any person or persons, firm or firms,
corporation or corporations, and any other entity arising from the occupancy,
conduct, operation or management of the Demised Premises or from any work or
thing whatsoever done or which was not done in and on the Demised Premises, or
arising from any breach or default on the part of Tenant in the performance of
any covenant or agreement on the part of Tenant to be performed pursuant to the
terms of this Lease, or under the law, or arising from any act, neglect or
negligence of Tenant, or any to its agents, contractors, servants, employees, or
licensees, or arising from any accident, injury or damage whatsoever caused to
any person, firm or corporation occurring during the term of this Lease, whether
or not such event results from a condition which existed prior to the execution
of this Lease and whether or not such event results in the termination of this
Lease by reason of damage to or destruction of the Demised Premises, in any
-19-
portion of the Demised Premises, and from and against all costs, expenses and
liabilities incurred in connection with any such claim or action or proceeding
brought thereon (including without limitation the fees of attorneys,
investigators and experts).
(b) Landlord shall not be held responsible for, and is hereby expressly
relieved from, any and all liability by reason of any injury, loss or damage to
persons or property in or about the Demised Premises or the Property, whether
the same be due to fire, breakage, leakage, water flow, steam, gas, use, misuse,
hatches, openings, defective construction or physical conditions anywhere in the
New Building, failure of water supply, or light or power, defects in electrical
wiring, plumbing or other equipment or mechanism, wind, lightening, storm or any
other cause whatsoever whether the loss, injury or damages be to the person or
property of Tenant or any other person.
22. CURING TENANT'S DEFAULTS.
-------------------------
If Tenant shall be in default in the performance of any of its
obligations under this Lease, Landlord may (but shall not be obligated to do
so), in addition to any other rights it may have under this Lease, in law or
equity, and after written notice to Tenant, except in case of emergency, cure
such default on behalf of Tenant, and Tenant shall reimburse Landlord upon
demand for any sums paid or costs incurred by Landlord in curing such default,
-20-
including interest at a rate of interest per annum equal to the announced prime
rate of Fidelity Bank for unsecured short term loans (the Default Rate"), from
the respective dates of Landlord's making of the payments and incurring of the
costs, on all sums advanced by Landlord as aforesaid, which sums and costs,
together with interest thereon, shall be deemed additional rent hereunder and
shall be payable upon demand.
23. DEFAULT PROVISIONS.
-------------------
This Lease and the term and estate hereby granted are subject to the
limitation that:
(a) Whenever Tenant shall default in the payment of any installment of
rent or of any other sum payable by Tenant to Landlord and Tenant shall fail to
pay the same within ten (10) days after written notice from Landlord; except
that Landlord shall not be required to give more than four (4) such notices in
any consecutive twelve month period in which event the failure to pay the same
shall be a default without such notice if payment is not made within ten (10)
days after the date upon which the same ought to be paid; or
-21-
(b) Whenever Tenant shall do, or permit anything to be done, whether by
action or inaction, contrary to any covenant or agreement on the part of Tenant
herein contained or contrary to any of the covenants, agreements, terms or
provisions of this Lease, or shall fail in the keeping or performance of any of
the covenants, agreements, terms or provisions contained in this Lease which on
the part or behalf of Tenant are to be kept or performed and Tenant shall fail
to cure the same within twenty (20) days after Landlord shall have given to
Tenant a written notice specifying the same; provided, if it is of such a nature
that it cannot be cured within such twenty (20) day period, if Tenant shall have
failed to commence the cure within such twenty (20) day period and thereafter to
diligently and continually prosecute the cure until fully corrected; or
(c) Whenever an involuntarily petition shall be filed against Tenant
under any bankruptcy or insolvency law or under the reorganization provisions of
any law or like import, or a receiver of or for Tenant or the property of Tenant
shall be appointed without the acquiescence of Tenant, and such situation under
this paragraph 23(c) shall continue and shall not be remedied by Tenant within
sixty (60) days after the happening of any such event; or
(d) Whenever Tenant shall make an assignment of the property of Tenant
for the benefit of creditors or shall file a voluntary petition under
-22-
any bankruptcy or insolvency law, or whenever any court of competent
jurisdiction shall approve a petition filed by Tenant under the reorganization
provisions of the United States Bankruptcy Code or under the provisions of any
law of like import, or whenever a petition shall be filed by Tenant under
Chapter 11 of the United States Bankruptcy Code or under the provisions of any
law of like import, or whenever Tenant shall vacate or desert or abandon the
Demised Premises; then, and in addition to any other rights or remedies Landlord
may have under this Lease, at law, or in equity, Landlord shall have the
following rights:
(1) To accelerate the whole or any part of the rent for the entire
unexpired balance of the term of this Lease, as well as all charges, payments,
costs and expenses herein agreed to be paid by Tenant, and any rent or other
charges, payments, costs and expenses if so accelerated shall, in addition to
any and all installments of rent already due and payable and in arrears, and/or
any other charges or payment herein reserved, included or agreed to be treated
or collected as rent and/or any other charges, expense or costs herein agreed to
be paid by Tenant which may be due and payable and in arrears, be deemed due and
payable as if, by the terms and provisions of this Lease, such accelerated rent
and other charges, payments, costs and expenses were on that date payable in
advance.
-23-
(2) To re-enter the Demised Premises and remove all persons and all
or any property therefrom by summary dispossess proceedings or by any suitable
action or proceeding at law, without being liable to indictment, prosecution or
damages therefor, and repossess and enjoy the Demised Premises, together with
all additions, alterations and improvements. Upon recovering possession of the
Demised Premises by reason of or based upon or arising out of a default on the
part of Tenant, Landlord may, at Landlord's option, either terminate this Lease
or make such alterations and repairs as may be necessary in order to relet the
Demised Premises and relet the Demised Premises or any part or parts thereof,
for a term or terms which may at Landlord's option be less than or exceed the
period which would otherwise have constituted the balance of the term of this
Lease and at such rent or rents and upon such other terms and conditions as in
Landlord's sole discretion may seem advisable and to such person or persons as
may in Landlord's discretion seem best; upon each such reletting all rents
received by Landlord from such reletting shall be applied: first, to the payment
of any indebtedness other than rent due hereunder from Tenant to Landlord;
second, to the payment of any costs and expenses of such
-24-
reletting, including brokerage fees and attorney's fees and all costs of such
alterations and repairs; third, to the payment of rent due and unpaid hereunder;
and the residue, if any, shall be held by Landlord and applied in payment of
future rent as it may become due and payable hereunder. If such rentals received
from such reletting during any month shall be less than that to be paid during
that month by Tenant hereunder, Tenant shall pay any such deficiency to
Landlord. Such deficiency shall be calculated and paid monthly. No such re-entry
or taking possession of the Demised Premises or the making of alterations and/or
improvements thereto or the reletting thereof shall be construed as an election
on the part of Landlord to terminate this Lease unless written notice of such
intention be given to Tenant. Landlord shall in no event be liable in any way
whatsoever for failure to relet the Demised Premises or, in the event that the
Demised Premises or any part or parts thereof are relet, for failure to collect
the rent thereof under such reletting. Notwithstanding any such reletting
without termination, Landlord may at any time thereafter elect to terminate this
Lease for such previous breach.
-25-
(3) To terminate this Lease and the term hereby created without any
right on the part of Tenant to waive the forfeiture by payment of any sum due or
by other performance of any condition, term or covenant broken. Whereupon
Landlord shall be entitled to recover, in addition to any and all sums and
damages for violation of Tenant's obligations hereunder in existence at the time
of such termination, damages for Tenant's default in an amount equal to the
amount of the rent reserved for the balance of the term of this Lease, as well
as all other charges, payments, costs and expenses herein agreed to be paid by
Tenant, all discounted at the rate of six (6%) percent per annum to their then
present worth, which amount shall be immediately due and payable from Tenant to
Landlord.
(4) No right or remedy herein conferred upon or reserved to Landlord
is intended to be exclusive of any other right or remedy herein or by law or in
equity provided, but each shall be cumulative and in addition to every other
right or remedy given herein or now or hereafter existing at law or in equity or
by statute.
(5) No waiver by Landlord of any breach by Tenant of any of Tenant's
obligations, agreements or covenants herein shall be a waiver of any subsequent
breach or of any obligation, agreement or covenant, nor shall any forbearance by
Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of
any rights and remedies with respect to such or any subsequent breach.
-26-
24. DEFINITIONS OF "LANDLORD" AND "TENANT".
---------------------------------------
(a) The term "Landlord", as used in this Lease, so far as Landlord's
covenants and agreements under this Lease are concerned, shall be limited to
mean and include only the owner or owners at the time in question. In the event
of any conveyance of such interest, Landlord herein named and each subsequent
grantor shall be automatically relieved, from and after the date of such
conveyance, of all liability respecting the performance of any Landlord's
covenants and agreements thereafter to be performed, and such grantee shall be
bound by all such covenants and agreements, it being intended that Landlord's
covenants and agreements shall be binding on Landlord, its successors and
assigns, only during and in respect of their respective successive periods of
ownership. In any event, the liability of the Landlord under this Lease, and the
liability of its successors and assigns, shall be limited to its interest in the
Demised Premises, and Tenant shall not attempt to collect or enforce any
indebtedness out of or from any asset of Landlord other than the Demised
Premises and its interest therein. In the event any judgment is entered into
against Landlord by reason of any obligation under this Lease, Tenant shall
cause the restrictions hereinabove stated to be noted in the judgment index.
-27-
(b) The term "Tenant" as used in this Lease, so far as covenants,
conditions and agreements to be performed on the part of Tenant are concerned,
shall be limited to mean Xxxx & Sons, Inc. t/a Today's Man, a Pennsylvania
corporation, and any subsequent permitted owner from time to time of the
Tenant's interest in this Lease. In the event of any permitted assignment or
other transfer of this Lease of all of Tenant's interests herein, the said Xxxx
& Sons, Inc. (and in case of any subsequent permitted assignment or other
transfer, the then assignor or transferor) shall be relieved from liability
hereunder.
25. NOTICES.
--------
Any notice, consent, approval, request or demand required or permitted
to be given in this Lease shall be in writing, sent by postage certified mail,
return receipt requested, addressed, as the case may be, to Landlord and Tenant
at:
000 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
or to such other address as the party to receive notice shall designate for
itself in the matter herein provided. Such notice or demand shall be deemed to
have been given on the date it shall have been mailed, as aforesaid.
-28-
26. ESTOPPEL CERTIFICATE.
---------------------
Within fifteen (15) days after request by either party, the other part
to this Lease, from time to time and without charge, shall deliver to the
requesting party or to any person, firm or corporation specified by the
requesting party, duly execute and acknowledged instrument, certifying:
(a) that this Lease is unmodified and in full force and effect, or if
there has been any modification, that the same is in full force and effect as
modified, and stating any such modification; and
(b) whether such party knows of any default by the requesting party in
the performance by the requesting party of the terms, covenants and conditions
of this Lease, and specifying the nature of such defaults, if any; and
(c) the dates to which the Basic Rental and additional rental has been
paid.
27. ALL RIGHTS CUMULATIVE.
----------------------
All the rights and remedies of Landlord and Tenant herein mentioned or
referred to or arising hereunder shall be deemed to be distinct, separate and
cumulative, notwithstanding that specific sections of this Lease may not so
provide, and no one or more of them, whether exercised or not, nor any mention
-29-
of or reference to any one or more of them herein, shall be deemed to be in
exclusion of or a waiver of any of the others or of any rights or remedies which
Landlord or Tenant might have, whether by present or future law or pursuant to
the Lease.
28. SIGNS.
-----
Except for signs which are located wholly within the interior of the
Demised Premises and which are not visible from the exterior of such New
Building, no signs shall be placed, erected, maintained or painted at any place
upon the New Building or Property without the prior written consent of Landlord
as to size, design, color, location, content, illumination, composition or
material, and mobility thereof.
29. SUBORDINATION.
--------------
Tenant agrees that this Lease shall, at the request of Landlord, be
subordinate to any mortgages that are now, or may hereafter be, placed upon the
Demised Premises and to any and all advances to be made thereunder, and to the
interest thereon, and all renewals, replacements and extensions thereof,
provided that the mortgagees named in said mortgages shall agree to recognize
the interest of Tenant under this Lease in the event of foreclosure, if Tenant
is not then in default.
-30-
30. ATTORNMENT.
-----------
If, and so long as, any mortgage on the Property is in effect, then at
the option of the mortgagee:
(a) This Lease and Tenant's tenancy hereunder will continue in full
force and effect notwithstanding
(i) the occurrence of any event of default under such mortgage;
(ii) any failure by Landlord to comply with any provision of this
Lease;
(iii) any defense, counterclaim or setoff to which Tenant might be
entitled against Landlord under this Lease;
(iv) any delay or omission by the mortgagee in exercising, or any
waiver by the mortgagee of, any right or remedy under the Mortgage or the note
which it secures ("Note");
(v) any amendment of or supplement to the Note or the mortgage
which does not affect any rights of Tenant under this Lease;
(vi) any bankruptcy, receivership, insolvency, reorganization,
composition, dissolution, liquidation, or similar proceeding with respect to
Landlord.
(b) If any such mortgagee shall enter into and become possessed of the
Demised Premises or any part thereof through summary or other proceedings,
-31-
Tenant shall be obligated to pay to such mortgagee the rent payable hereunder as
the same becomes payable and otherwise to comply with the provisions hereof on
the part of Tenant to be complied with; and
(c) If any such mortgagee or any purchaser at any public or private
foreclosure sale resulting from any default under any such mortgage, shall enter
into and become possessed of the Demised Premises or any part thereof through
summary or other proceedings, Tenant, without charge therefore, will attorn to
such mortgagee or purchaser, as the case may be, and recognize such mortgagee or
purchaser as its Landlord under this Lease, in accordance with all of the
provisions hereof, and will promptly execute upon request of such mortgagee or
purchaser an agreement of attornment, in recordable form.
31. QUIET ENJOYMENT.
----------------
Landlord covenants that if and so long as Tenant keeps and performs each
and every covenant, agreement, term, provision and condition in this Lease
contained on the part and on behalf of Tenant to be kept and performed, Tenant
shall quietly enjoy the Demised Premises without hindrance or molestation by
Landlord or anyone claiming any interest directly from Landlord (except for any
entity with which Tenant has executed a non-disturbance agreement), subject to
the covenants, agreements, terms provisions or conditions of this Lease.
-32-
32. CROSS-BROKERAGE.
----------------
Each part agrees to indemnify the other and hold the other harmless from
and against the claims of any and all brokers and other intermediaries employed
by the indemnifying party and/or who claim to have been employed by the
indemnifying party in connection with the entering into of this Lease.
33. HEADINGS.
---------
The headings of particular paragraphs herein are inserted for the
purpose of reference and convenience only and are in no way to be construed or
deemed to be a part of this Lease or as a limitation on the scope of the
particular paragraph to which they refer.
34. RIGHTS OF SUCCESSORS AND ASSIGNS.
---------------------------------
The covenants and agreements contained in the within Lease shall apply
to, inure to the benefit of, and be binding upon the parties hereto and upon
their respective successors and assigns, except as expressly otherwise provided
herein.
35. NO PARTNERSHIP.
---------------
Nothing contained herein shall be construed to create a partnership or
joint venture between Landlord and Tenant, or render Landlord in any way
responsible for the debt or losses of Tenant.
-33-
36. NO ORAL MODIFICATION.
---------------------
All understandings and agreements between the parties with respect to
the Demised Premises and Property are merged within this Lease, which alone
fully and completely set forth the understandings of the parties hereto. This
Lease and any and all provisions hereof may not be changed, modified or
discharged except by a written agreement signed by the party against whom
enforcement of any change, modification or discharge is sought. No covenant,
agreement, term, provision or condition of this Lease shall be deemed to have
been waived by either party unless such waiver be in writing and signed by the
waiving party or its duly authorized agent. Consent of either party to any act
or matter must be in writing and shall apply only with respect to the particular
act or matter to which such consent is given and shall not relieve the party
obtaining such consent from the obligations wherever required under this Lease
to obtain the consent of the other party to any other act or matter. Receipt or
acceptance of rent by Landlord shall not be deemed to be a waiver of any default
under the covenants, agreements, terms, provision and conditions of this Lease,
or of any right which Landlord may be entitled to exercise under this Lease.
-34-
37. CONSTRUCTION, INVALIDITY OR ANY PROVISION.
------------------------------------------
This Lease shall be construed and enforced in accordance with the laws
of the State of New Jersey. If any term or provision of this Lease or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease or the application of such
term or provision or circumstance other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
38. TOXIC WASTE.
------------
Tenant covenants that:
(a) no toxic or hazardous substance, including, without limitation,
asbestos and the group of organic compounds known as polychlorinated biphenyls,
shall be generated, treated, stored or disposed or, or otherwise deposited in or
located on the Property, including without limitation, the surface and
subsurface waters of the Property;
(b) no activity shall be undertaken on the Property which would cause
(i) the Property to become a hazardous waste treatment, storage or
disposal facility within the meaning of, or otherwise bring the subject Property
-35-
within the ambit of the Resource Conservation and Recovery Act of 1976 ("RCRA"),
42 U.S.C. ss.6901 et seq., or any similar state law or local ordinance;
(ii) a release or threatened release of hazardous waste from the
Property within the meaning of, or otherwise bring the Property within the ambit
of, the Comprehensive Environmental Response, Compensation and Liability Act of
1980 ("CERCLA"), 42 U.S.C. ss.9601-9657, or any similar state law or local
ordinance or any other Environmental Law, or
(iii) the discharge of pollutants or effluents into any water source
or system, or the discharge into the air of any emissions, which would require a
permit under the Federal Water Pollution Control Act, 33 U.S.C. ss.1251 et seq.,
or the Clear Air Act, 42 U.S.C. ss.7401 et seq., or any similar state law or
local ordinance;
(c) there shall be no substances or conditions in or on the Property
which may support a claim or cause of action under RCRA, CERCLA, or any other
federal, state or local environmental statutes, regulations, ordinances or other
environmental regulatory requirements, and
(d) there shall be no underground storage tanks or underground deposits
located on the Property.
-36-
39. ISRA.
-----
(a) Notwithstanding anything in this Lease to the contrary, if N.J.S.A.
13:1K-6 et seq. shall be applicable to the Property, and to the extent such
statute requires, Tenant agrees that, at its sole cost and expense, it shall
strictly observe, comply and fulfill and shall take all necessary steps to cause
any and all subtenants, if any, to strictly observe, comply and fulfill all of
the terms and provisions of the Industrial Site Recovery Act, N.J.S.A. 13:1K-6
et seq., as the same may be amended from time to time and all rules,
regulations, ordinances, opinions, orders and directives issued or promulgated
pursuant to or in connection with said Act by the Department of Environmental
Protection and Energy ("DEPE"), or any subdivision or bureau thereof, or any
other governmental or quasi-governmental agency, authority or body having
jurisdiction. (Said Act and all of said rules, regulations, ordinances,
opinions, orders and directives are hereinafter in this Section collectively
referred to as "ISRA").
(b) Tenant agrees that it shall, at its sole cost and expense:
(i) Post or cause to be posted any financial guarantee or other bond
required to secure implementation and completion of any Remedial Action Workplan
(hereinafter "Workplan"), and
(ii) Promptly implement and prosecute to completion or cause to be so
implemented and prosecuted any Workplan, in accordance with the criteria,
procedures and time schedules contained in said Workplan or as may be otherwise
ordered or directed by DEPE or such other agency or body as shall then have
jurisdiction over said Workplan.
(c) Without limiting the foregoing, Tenant agrees,
(i) at its sole cost and expense, to promptly discharge and remove
any lien or other encumbrance against the Property; and
-37-
(ii) to indemnify and hold Landlord harmless from and against any and
all liability, penalties, losses, expenses, damages, costs, claims, causes of
action, judgments and/or the like of whatever nature, including, but not limited
to, reasonable attorneys' fees, to the extent said lien, encumbrance, liability,
penalty, loss, expense, damage, cost, claim, cause of action, judgment and/or
the like arise from or in connection with Tenant's failure or inability, for any
reason whatsoever, to observe or comply with ISRA and/or the provisions of this
Section.
(d) Without limiting the foregoing, Tenant represents, covenants and
agrees that it has not entered into, and shall not at any time prior to the
-38-
termination of this Lease, enter into, any sublease, contract, agreement or
other arrangement written or oral, with or without consideration, of whatever
sort and however denominated (hereinafter collectively in this Paragraph
referred to as the "Agreement"), which permits the use and/or occupancy of all
or any part of the Property for the generation, manufacture, refining,
transportation, treatment, storage, handling or disposal of hazardous substances
or wastes (as said terms are defined in ISRA) on site, above ground or below
ground.
Tenant further represents, covenants and agrees that the Property shall
not, without the prior written consent of Landlord having been obtained, at any
time during the term of this Lease contain any underground or above-ground tanks
for the storage of fuel oil, gasoline and/or other petroleum products or
by-products.
40. SPILL COMPENSATION AND CONTROL ACT.
-----------------------------------
(a) Notwithstanding anything in this Lease to the contrary, to the
extent that such statute requires, Tenant agrees that, at its sole cost and
expense, it shall strictly observe, comply and fulfill all of the terms and
provisions of the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et
seq. as the same may be amended from time to time and all rules, regulations,
ordinances, opinions, orders and directives issued or promulgated pursuant to or
-39-
in connection with said Act by the Department of 0Environmental Protection and
Energy ("DEPE"), any subdivision or bureau thereof, or any other governmental or
quasi-governmental agency or body having jurisdiction. (Said Act and all of said
rules, regulations, ordinances, opinions, orders and directives are hereinafter
in this Section collectively referred to as "Spill Compensation Act.")
(b) Without limiting the foregoing, Tenant represents, covenants and
agrees that:
(i) It has not done or omitted to do; it has not suffered the
commission or omission of; it shall not do or omit to do; and it shall not
suffer the commission or omission of any act the commission or omission of which
is prohibited by, or may result in liability under, the Spill Compensation Act,
including, without limitation, the discharge of petroleum products or other
hazardous substances (as said terms are defined in the Spill Compensation Act);
(ii) From and after the date hereof, whenever the Spill Compensation
Act requires the "owner or operator" to do any, act, Tenant shall do such act on
his own account and for the account of Landlord, it being the intention of the
parties hereto that Landlord shall be free of all expenses and obligations
arising from or in connection with compliance with the Spill Compensation Act;
-40-
(iii) Tenant has not in the past, and does not now own, operate or
control and shall not during the term of this Lease acquire, own, operate or
control any major facility (as said term is defined in the Spill Compensation
Act) or any hazardous or solid waste disposal facility;
(iv) Tenant has not entered into, and shall not at any time during
the term of this Lease enter into any Agreement for the use and occupancy of, or
otherwise relating to, the Property or any other property, real or personal,
owned, operated or controlled by Tenant and located within the State of New
Jersey, which permits the discharge by any party thereto of petroleum products
and other hazardous substance; and
(v) To the best of Tenant's knowledge, neither Tenant nor any tenant
has in the past, is presently or shall in the future discharge any petroleum
product or other hazardous substances upon any property real or personal, owned,
operated and controlled by Tenant and located within the State of New Jersey.
(c) Without limiting the foregoing, Tenant agrees:
(i) at its own cost and expense, to promptly discharge and remove
any lien or other encumbrance against the Property or any other property owned
or controlled, in whole or in part, by Tenant; and
-41-
(ii) to indemnify and hold Landlord harmless from and against any and
all liability, penalties, losses, expenses, damages, costs, claims, causes of
action, judgment and/or the like, or whatsoever nature, including, but not
limited to, reasonable attorneys' fees.
41. NOTICE OF VIOLATION.
--------------------
In the event that Tenant shall receive a notice of a violation of ISRA
or the Spill Compensation Act from the applicable governmental authorities
having jurisdiction thereover or a notice of a discharge of any petroleum
product or other hazardous substances upon the Property or upon any other
property owned, operated or controlled by Tenant and located within the State of
New Jersey from any party whatsoever. Tenant shall forthwith deliver to Landlord
a copy of such notice. In the event that Tenant shall fail or neglect to
promptly commence to cure such violation of ISRA or the Spill Compensation Act
or to clean upon such discharge (as the case may be), if required either under
ISRA or the Spill Compensation Act, and to diligently proceed to complete same,
-42-
Landlord or its agents may, without any obligation to do so, enter the Property
or such other property of Tenant, and cure such violation or clean up discharge
at the cost and expense of Tenant, and in case of Tenant's failure to pay
-43-
therefore, the said cost and expense shall be added to the unpaid principal
balance.
IN WITNESS WHEREOF, the parties hereto have duly executed or caused to
be executed this Indenture of Lease as of the day and year first above written,
with intent to be legally bound hereby.
LANDLORD:
(SEAL)
---------------------- --------------------------------
WITNESS XXXXX XXXX
TENANT:
TODAY'S MAN, INC.
(Corporate Seal)
BY:
-----------------------------
F:\users\dsm\xxxx\lease.raf
Attest:
-------------------------
-44-
EXHIBIT "A"
