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XXXXX MOUNTAIN ASSOCIATES
Landlord,
and
Tenant
G-III LEATHER FASHIONS, INC.
LEASE
----------
Premises:
in
0000 Xxxxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxxxx 00000
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TABLE OF CONTENTS
ARTICLES PAGE
-------- ----
1 - DEFINITIONS .................................................. 1
2 - DEMISE AND TERM .............................................. 6
3 - RENT ......................................................... 6
4 - USE OF DEMISED PREMISES ...................................... 8
5 - PREPARATION OF DEMISED PREMISES .............................. 9
6 - TAX AND OPERATING EXPENSE PAYMENTS ........................... 9
7 - COMMON AREAS ................................................. 10
8 - SECURITY ..................................................... 11
9 - SUBORDINATION ................................................ 13
10 - QUIET ENJOYMENT .............................................. 14
11 - ASSIGNMENT, SUBLETTING AND MORTGAGING ........................ 14
12 - COMPLIANCE WITH LAWS ......................................... 17
13 - INSURANCE AND INDEMNITY ...................................... 18
14 - RULES AND REGULATIONS ........................................ 21
15 - ALTERATIONS AND SIGNS ........................................ 22
16 - LANDLORD'S AND TENANT'S PROPERTY ............................. 23
17 - REPAIRS AND MAINTENANCE ...................................... 24
18 - UTILITY CHARGES .............................................. 25
19 - ACCESS, CHANGES AND NAME ..................................... 26
20 - MECHANICS' LIENS AND OTHER LIENS ............................. 26
21 - NON-LIABILITY AND INDEMNIFICATION ............................ 27
22 - DAMAGE OR DESTRUCTION ........................................ 28
23 - EMINENT DOMAIN ............................................... 30
24 - SURRENDER .................................................... 31
25 - CONDITIONS OF LIMITATION ..................................... 31
26 - RE-ENTRY BY LANDLORD ......................................... 32
27 - DAMAGES ...................................................... 33
28 - AFFIRMATIVE WAIVERS .......................................... 36
29 - NO WAIVERS ................................................... 36
30 - CURING TENANT'S DEFAULTS ..................................... 36
31 - BROKER ....................................................... 37
32 - NOTICES ...................................................... 37
33 - ESTOPPEL CERTIFICATES ........................................ 38
34 - ARBITRATION .................................................. 38
35 - MEMORANDUM OF LEASE .......................................... 39
36 - MISCELLANEOUS ................................................ 39
EXHIBITS
Exhibit A - Demised Premises
Exhibit B - Description of Land
Exhibit C - Workletter
Exhibit D - Rules and Regulations
Exhibit E - Form of Non-Disturbance Agreement
Exhibit F - Approved List of Contractors
092193
091593
090993
LEASE, dated September 21st, 1993, between XXXXX MOUNTAIN ASSOCIATES, a New
Jersey general partnership, having an office at 000 Xxxxx Xxxxx, Xxxxxxxx, Xxx
Xxxxxx 00000-0000 ("Landlord"), and G-III LEATHER FASHIONS INC., a New York
corporation, having an office at 000 X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Tenant").
ARTICLE 1 - DEFINITIONS
1.01. As used in this Lease (including all Exhibits and any Riders attached
hereto, all of which shall be deemed to be part of this Lease) the following
words and phrases shall have the meanings indicated:
A. Advance Rent: $40,194.75.
B. Additional Charges: All amounts that become payable by Tenant to
Landlord hereunder other than the Fixed Rent and Percentage Rent.
C. Architect: Xxxxxxx Xxxx Xxxxx, or as Landlord may designate.
D. Broker: Xxxxx-Xxxxxxx.
E. Building: The building or buildings located on the Land and known as
0000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000.
F. Building Fraction: A fraction the numerator of which is the Floor Space
of the Building (approximately 202,040 square feet) and the denominator of which
is the aggregate Floor Space of the buildings in the Development. If the
aggregate Floor Space of the buildings in the Development shall be changed due
to any construction or alteration, the denominator of the Building Fraction
shall be increased or decreased to reflect such change.
Fl. Calendar Quarter: Any three-month period commencing on either a January
1, an April 1, a July 1 or an October 1.
G. Calendar Year: Any twelve-month period commencing on a January 1.
H. Commencement Date: The earlier of (a) the date on which both: (i) the
Demised Premises shall be Ready for Occupancy, and (ii) actual possession of the
Demised Premises shall have been delivered to Tenant by notice to Tenant, or (b)
the date Tenant, or anyone claiming under or through Tenant, first occupies the
Demised Premises or any part thereof for any purpose other than the performance
of Tenant's Work.
I. Common Areas: All areas, spaces and improvements in the Building and on
the Land which Landlord makes available from time to time for the common use and
benefit of the tenants and occupants of the Building and which are not
exclusively available for use by a single tenant or occupant, including, without
limitation, parking areas, roads, walkways, sidewalks,
landscaped and planted areas, community rooms, if any, the managing agent's
office, if any, and public rest rooms, if any.
J. Demised Premises: The space that is outlined in red on the floor
plans(s) attached hereto as Exhibit A. The Demised Premises contains or will
contain approximately 107,186 square feet of Floor Space subject to adjustment
upon verification by the Architect.
K. Development: All land and improvements now existing or hereafter
constructed, located south of Route 3, east of the Hackensack River, west of
County Avenue and north of Castle Road.
L. Development Common Areas: The roads and bridges that from time to time
service and provide access to the Development for the common use of the tenants,
invitees, and occupants of the Development, that are maintained by Landlord or
its related entities.
M. Expiration Date: February 28, 2000. However, if the Term is extended by
Tenant's effective exercise of Tenant's right, if any, to extend the Term, the
"Expiration Date" shall be changed to the last day of the latest extended period
as to which Tenant shall have effectively exercised its right to extend the
Term. For the purposes of this definition, the earlier termination of this Lease
shall not affect the "Expiration Date."
N. Fixed Rent: An amount at the annual rate of four and 50/100 Dollars
($4.50) per square foot multiplied by the Floor Space of the Demised Premises.
0. Floor Space: As to the Demised Premises, the sum of the floor area
stated in square feet bounded by the exterior faces of the exterior walls, or by
the exterior or Common Area face of any wall between the Demised Premises and
any portion of the Common Areas, or by the center line of any wall between the
Demised Premises and space leased or available to be leased to a tenant or
occupant.
01. Gross Sales: The dollar aggregate of: (a) the actual sales price of all
goods and merchandise sold, leased or licensed and the charges for all services
performed by Tenant or otherwise in connection with all business conducted at or
from the Retail Premises, whether made for cash, by check, credit or otherwise,
without reserve or deduction for inability or failure to collect the same,
including, without limitation, sales and services (i) where the orders therefor
originate at or are accepted at or from the Retail Premises, whether delivery or
performance thereof is made at or from the Retail Premises or any other place,
it being understood that all sales made and orders received at or from the
Retail Premises shall be deemed to have been made and completed therein even
though the orders are fulfilled elsewhere or the payments of account are
transferred to some other office for collection, (ii) where the orders therefor
result from solicitation off the Retail Premises but which are conducted by
personnel operating from or reporting to or under the control or supervision of
any employee at the Retail Premises, (iii) pursuant to mail, telegraph,
telephone or other similar orders received or billed at or from the Retail
Premises, and (iv) by means of mechanical or other vending devices, and (b) all
monies or other things of
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value received by Tenant from its operations at the Retail Premises (which are
not excluded from Gross Sales by the next succeeding sentence) including all
finance charges, cost of gift or merchandise certificates and all deposits not
refunded to customers. Gross Sales shall not include (x) the exchange of
merchandise between stores of Tenant where such exchange is made solely for the
convenient operation of Tenant's business and neither for the purpose of
depriving Landlord of the benefits of a sale which would otherwise be made at or
from the Retail Premises nor for the purpose of consummating a sale which has
been theretofore made at or from the Retail Premises, (y) sales of trade
fixtures which are not part of Tenant's stock in trade and not sold in the
regular course of Tenant's business, or (z) the amount of any city, county,
state or federal sales tax, luxury tax or excise tax on sales if the tax is
added to the selling price and separately stated and actually paid to the taxing
authority by Tenant; provided, however, no franchise or capital stock tax and no
income or similar tax based upon income, profits or Gross Sales shall be
deducted from Gross Sales in any event whatsoever. Cash or credit refunds made
upon transactions included within the Gross Sales, but not exceeding the selling
price of merchandise returned by the purchaser and accepted by Tenant, shall be
deducted from the Gross Sales for the period when such refunds are made. Each
charge or sale upon installment or credit or layaway, so called, shall be
treated as a sale for the full price in the month during which such charge or
sale shall be made, irrespective of the time when Tenant shall receive payment
from its customer. Each lease or rental or license of merchandise to customers
shall be treated as a sale in the month in which the lease, rental or license is
made for a price equal to the total rent or license fee payable. For purposes of
this paragraph the word "Tenant" shall include any of Tenant's subtenants,
concessionaires and licensees.
P. Guarantor: G-III Apparel Group Ltd. Guarantor has executed and delivered
to Landlord a Guaranty Agreement simultaneously herewith.
Q. Insurance Requirements: Rules, regulations, orders and other
requirements of the applicable board of underwriters and/or the applicable fire
insurance rating organization and/or any other similar body performing the same
or similar functions and having jurisdiction over the Land and Building, whether
now or hereafter in force.
R. Land: The Land upon which the Building and Common Areas are located. The
Land is described on Exhibit B.
S. Landlord's Work: The materials and work to be furnished, installed and
performed by Landlord at its expense in accordance with the provisions of
Exhibit C.
T. Legal Requirements: Laws and ordinances of all federal, state, city,
town, county, borough and village governments, and rules, regulations, orders
and directives of all departments, subdivisions, bureaus, agencies or offices
thereof, and of any other governmental, public or quasi-public authorities
having jurisdiction over the Land and Building, whether now or hereafter in
force, including, but not limited to, those pertaining to environmental matters.
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U. Mortgage: A mortgage and/or a deed of trust.
V. Mortgagee: A holder of a mortgage or a beneficiary of a deed of trust.
W. Operating Expenses: The sum of the following: (1) the cost and expense
(whether or not within the contemplation of the parties) for the repair,
replacement, maintenance, policing, insurance and operation of the Building and
Land, and (2) the Building Fraction of the sum of (a) the cost and expense for
the repair, replacement, maintenance, policing, insurance and operation of the
Development Common Areas; (b) the Real Estate Taxes, if any, attributable to the
Development Common Areas; The "Operating Expenses" shall, include, without
limitation, the following: (i) the cost for rent, casualty, liability, boiler
and fidelity insurance, (ii) if an independent managing agent is employed by
Landlord, the fees payable to such agent (provided the same are competitive with
the fees payable to independent managing agents of comparable facilities in
Xxxxxx County), and (iii) reasonable legal, accounting and other professional
fees. Operating Expenses shall specifically exclude the following: (i)
depreciation; (ii) debt service on any Superior Mortgage; (iii) leasehold
improvements specifically attributable to tenants other than the Tenant; (iv)
brokerage commissions; (v) sale or refinancing costs; (vi) attorneys fees and
other costs and expenses incurred in negotiations with prospective tenants,
disputes with other tenants or eviction proceedings against other tenants; (vii)
penalties or interest due to Landlord's violations of any Legal Requirement;
(viii) costs for which Landlord actually receives compensation from insurance
proceeds. All items included in Operating Expenses shall be determined in
accordance with generally accepted accounting principles consistently applied.
Wl. Percentage Rent: The amount for any period computed in accordance with
the provisions of Section 3.02.
W2. Percentage Rent Break Point Amount: An amount equal to the product of
(a) the total square footage of the Retail Premises and (b) Three Hundred Fifty
and 00/100 Dollars ($350.00).
W3. Percentage Rent Rate: 5%.
X. Permitted Uses: Warehousing and distribution of leather and other
wearing apparel and accessories, and the sewing, pressing and assembly of such
garments. Tenant shall also be permitted to utilize not more than 8,490 square
feet of Floor Space of the Demised Premises for retail purposes subject to
applicable zoning requirements.
Y. Person: A natural person or persons, a partnership, a corporation, or
any other form of business or legal association or entity.
Z. Ready for Occupancy: The condition of the Demised Premises when for the
first time the Landlord's Work shall have been substantially completed and, if
same is required to be obtained by Landlord, a temporary, permanent, or
continuing Certificate of Occupancy shall have been issued permitting use of the
Demised Premises for the Permitted Uses. The Landlord's Work shall be
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deemed substantially completed notwithstanding the fact that minor or
insubstantial details of construction, mechanical adjustment or decoration
remain to be performed, the noncompletion of which does not materially interfere
with Tenant's use of the Demised Premises.
AA. Real Estate Taxes: The real estate taxes, assessments and special
assessments imposed upon the Building and Land by any federal, state, municipal
or other governments or governmental bodies or authorities, and any expenses
incurred by Landlord in contesting such taxes or assessments and/or the assessed
value of the Building and Land, which expenses shall be allocated to the period
of time to which such expenses relate. If at any time during the Term the
methods of taxation prevailing on the date hereof shall be altered so that in
lieu of, or as an addition to or as a substitute for, the whole or any part of
such real estate taxes, assessments and special assessments now imposed on real
estate there shall be levied, assessed or imposed (a) a tax, assessment, levy,
imposition, license fee or charge wholly or partially as a capital levy or
otherwise on the rents received therefrom, or (b) any other such additional or
substitute tax, assessment, levy, imposition or charge, then all such taxes,
assessments, levies, impositions, fees or charges or the part thereof so
measured or based shall be deemed to be included within the term "Real Estate
Taxes" for the purposes hereof.
BB. Rent: The Fixed Rent, the Percentage Rent and the Additional Charges.
BB1. Retail Premises: That area within the Demised Premises from which
Tenant sells goods on a retail basis, including dressing/fitting rooms, related
storage areas, and any other area within the Demised Premises directly related
to the sale of such goods.
CC. Rules and Regulations: The rules and regulations that may be
promulgated by Landlord from time to time. The Rules and Regulations now in
effect are attached hereto as Exhibit D.
DD. Security Deposit: $80,389.50 (if in the form of a Letter of Credit);
$60,297.13 (if in the form of cash).
EE. Successor Landlord: As defined in Section 9.03.
FF. Superior Lease: Any lease to which this Lease is, at the time referred
to, subject and subordinate.
GG. Superior Lessor: The lessor of a Superior Lease or its successor in
interest, at the time referred to.
HH. Superior Mortgage: Any Mortgage to which this Lease is, at the time
referred to, subject and subordinate.
II. Superior Mortgagee: The Mortgagee of a Superior Mortgage at the time
referred to.
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JJ. Tenant's Fraction: 53.06%. If the size of the Demised Premises or the
Building shall be changed from the initial size thereof, due to any taking, any
construction or alteration work or otherwise, the Tenant's Fraction shall be
changed to the fraction the numerator of which shall be the Floor Space of the
Demised Premises and the denominator of which shall be the Floor Space of the
Building.
KK. Tenant's Property: As defined in Section 16.02.
LL. Tenant's Work: The facilities, materials and work which may be
undertaken by or for the account of Tenant (other than the Landlord's Work) to
equip, decorate and furnish the Demised Premises for Tenant's occupancy in
accordance with the provisions of Exhibit C.
MM. Term: The period commencing on the Commencement Date and ending at
11:59 p.m. of the Expiration Date, but in any event the Term shall end on the
date when this Lease is earlier terminated.
NN. Unavoidable Delays: A delay arising from or as a result of a strike,
lockout, or labor difficulty, explosion, sabotage, accident, riot or civil
commotion, act of war, fire or other catastrophe, Legal Requirement or an act of
the other party and any cause beyond the reasonable control of that party,
provided that the party asserting such Unavoidable Delay has exercised its best
efforts to minimize such delay.
ARTICLE 2 - DEMISE AND TERM
2.01. Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the Demised Premises, for the Term. This Lease is subject to (a) any
and all existing encumbrances, conditions, rights, covenants, easements,
restrictions and rights of way, of record, and other matters of record,
applicable zoning and building laws, regulations and codes, and such matters as
may be disclosed by an inspection or survey, and (b) easements now or hereafter
created by Landlord in, under, over, across and upon a strip of land twenty feet
(20') in width running along all lot lines of the Land for sewer, water,
electric, gas and other utility lines and services now or hereafter installed;
provided, however, Landlord represents, covenants and warrants to Tenant that
(i) the Demised Premises may be used and occupied for the purposes set forth
herein; (ii) Tenant shall have adequate means of ingress and egress to the
Demised Premises for such uses; and (iii) the foregoing shall in no manner
interfere with Tenant's use and quiet enjoyment of the Demised Premises during
the Term. Promptly following the Commencement Date, the parties hereto shall
enter into an agreement in form and substance satisfactory to Landlord setting
forth the Commencement Date.
ARTICLE 3 - RENT
3.01. Tenant shall pay the Fixed Rent in equal monthly installments in
advance on the first day of each and every calendar month during the Term
(except that Tenant shall pay, upon the execution and delivery of this Lease by
Tenant, the Advance Rent, to be applied against the first installment or
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installments of Fixed Rent becoming due under this Lease). If the Commencement
Date occurs on a day other than the first day of a calendar month, the Fixed
Rent for the partial calendar month at the commencement of the Term shall be
prorated.
3.02. Within fifteen (15) days after the end of each calendar month during
the Term, Tenant shall submit to Landlord a statement certified by Tenant (by an
authorized officer if Tenant is a corporation or by a partner if Tenant is a
partnership) stating the Gross Sales (including an itemization of all claimed
deductions therefrom) for such month. Within fifteen (15) days after the end of
each Calendar Quarter, Tenant shall pay to Landlord as Percentage Rent the
product of [(a) the amount, if any, by which the aggregate Gross Sales for the
Calendar Year in which such Calendar Quarter occurs up to the end of such
Calendar Quarter exceeds the Percentage Rent Break Point Amount and (b) the
Percentage Rent Rate] less (c) the amount theretofore paid as Percentage Rent
for the Calendar Year in which such Calendar Quarter occurs. Within ninety (90)
days after the end of each Calendar year, including any partial Calendar Year at
the beginning of the Term, and after the end of the Term, Tenant shall submit to
Landlord a statement certified by an independent certified public accountant
stating the Gross Sales (including an itemization of all claimed deductions
therefrom) and the Percentage Rent for such Calendar Year, or partial Calendar
Year if the Term shall begin on a date other than a January 1st and/or end on a
date other than a December 31st, as the case may be, and if the Percentage Rent
so stated for such period is more or less than the Percentage Rent paid for such
period, Tenant shall pay to Landlord the deficiency, or Landlord shall refund to
Tenant the excess, within twenty (20) days after submission of such statement of
Gross Sales. For at least thirty-six (36) months after the expiration of each
Calendar Year, including any partial Calendar Year at the beginning of the Term,
and after the end of the Term, Tenant shall keep and maintain (and shall cause
all subtenants, concessionaires and licensees to keep and maintain) in the
Demised Premises or the main office of Tenant full and accurate books of account
and records from which the Gross Sales can be determined. The books and records
maintained shall include, but shall not be limited to (i) cash register tapes
showing continuous grand total (from a sealed cash register), (ii) original
source documents, (iii) sequentially numbered receipts, (iv) federal, state &
local tax returns, (v) receipts from daily bank deposits, (vi) computer
printouts and (vii) bank statements. Landlord shall have the right from time to
time during such thirty-six (36) month period to inspect and audit all such
books and records relating to Gross Sales, and Tenant, each subtenant,
concessionaire and licensee will produce the same on request of Landlord. If any
such inspection and audit discloses that the Gross Sales were understated,
Tenant shall forthwith pay to Landlord any additional Percentage Rent shown to
be payable, and if the Gross Sales for any Calendar Year or partial Calendar
Year were understated by more than Fifteen Thousand Dollars ($15,000.00), Tenant
shall also pay the cost of Landlord's inspection and audit. Landlord does not in
any way, or for any purpose, become a partner or joint venturer with Tenant
hereunder. The provisions of this Lease relating to Percentage Rent are included
solely for the purpose of providing a method whereby rentals are to be measured
and ascertained.
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3.03. The Rent shall be paid in lawful money of the United States to
Landlord at its office, or such other place, or Landlord's agent, as Landlord
shall designate by notice to Tenant. Tenant shall pay the Rent promptly when due
without notice or demand therefor and without any abatement, deduction or setoff
for any reason whatsoever, except as may be expressly provided in this Lease. If
Tenant makes any payment to Landlord by check, same shall be by check of Tenant
and Landlord shall not be required to accept the check of any other Person, and
any check received by Landlord shall be deemed received subject to collection.
If any check is mailed by Tenant, Tenant shall post such check in sufficient
time prior to the date when payment is due so that such check will be received
by Landlord on or before the date when payment is due.
3.04. No payment by Tenant or receipt or acceptance by Landlord of a lesser
amount than the correct Rent shall be deemed to be other than a payment on
account, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance or pursue any other remedy in this Lease or at law
provided.
3.05. If Tenant is in arrears in payment of Rent, Tenant waives Tenant's
right, if any, to designate the items to which any payments made by Tenant are
to be credited, and Landlord may apply any payments made by Tenant to such items
as Landlord sees fit, irrespective of and notwithstanding any designation or
request by Tenant as to the items to which any such payments shall be credited.
3.06. In the event that any installment of Rent due hereunder shall be
overdue for five (5) business days, a "Late Charge" equal to three percent (3%)
or the maximum rate permitted by law, whichever is less ("Late Payment Rate")
for Rent so overdue may be charged by Landlord for each month or part thereof
that the same remains overdue. Any such Late Charges if not previously paid
shall, at the option of the Landlord, be added to and become part of the next
succeeding Rent payment to be made hereunder.
ARTICLE 4 - USE OF DEMISED PREMISES
4.01. Tenant shall use and occupy the Demised Premises for the Permitted
Uses, and Tenant shall not use or permit or suffer the use of the Demised
Premises or any part thereof for any other purpose.
4.02. If any governmental license or permit shall be required for the
proper and lawful conduct of Tenant's business in the Demised Premises or any
part thereof, Tenant shall duly procure and thereafter maintain such license or
permit and submit the same to Landlord for inspection. Tenant shall at all times
comply with the terms and conditions of each such license or permit. Tenant
shall not at any time use or occupy, or suffer or permit anyone to use or occupy
the Demised Premises, or do or permit anything to be done in the Demised
Premises, in any manner which (a) violates the Certificate of Occupancy for the
Demised Premises or for the Building; (b) causes or is
8
reasonably likely to cause injury to the Building or any equipment, facilities
or systems therein; (c) constitutes a violation of the Legal Requirements or
Insurance Requirements; (d) impairs or tends to impair the appearance of the
Building; (e) impairs or tends to impair the proper and economic maintenance,
operation and repair of the Building and/or its equipment, facilities or
systems; or (f) materially annoys or inconveniences other tenants or occupants
of the Building.
ARTICLE 5 - PREPARATION OF DEMISED PREMISES
5.01. The Demised Premises shall be completed and prepared for Tenant's
occupancy in the manner described in, and subject to the provisions of, Exhibit
C. Except as expressly provided to the contrary in this Lease, the taking of
possession by Tenant of the Demised Premises shall be conclusive evidence as
against Tenant that the Demised Premises and the Building were in good and
satisfactory condition at the time such possession was taken. Except as
expressly provided to the contrary in this Lease, Tenant is leasing the Demised
Premises "as is" on the date hereof.
5.02. If the substantial completion of the Landlord's Work shall be delayed
due to (a) any act or omission of Tenant or any of its employees, agents or
contractors (including, without limitation, [i] any delays due to changes in or
additions to the Landlord's Work, or [ii] any delays by Tenant in the submission
of plans, drawings, specifications or other information or in approving any
working drawings or estimates or in giving any authorizations or approvals), or
(b) any additional time needed for the completion of the Landlord's Work by the
inclusion in the Landlord's Work of any items specified by Tenant that require
long lead time for delivery or installation, then the Demised Premises shall be
deemed Ready for Occupancy on the date when they would have been ready but for
such delay(s). The Demised Premises shall be conclusively presumed to be in
satisfactory condition on the Commencement Date except for the minor or
insubstantial details of which Tenant gives Landlord notice within thirty (30)
days after the Commencement Date specifying such details (the "Punch List") with
reasonable particularity. Landlord shall use best efforts to complete said Punch
List within thirty (30) days of Landlord's receipt of Tenant's Punch List.
5.03. INTENTIONALLY OMITTED.
5.04. Landlord reserves the right, at any time and from time to time, to
increase, reduce or change the number, type, size, location, elevation, nature
and use of any of the Common Areas and the Building and any other buildings and
other improvements on the Land and in the Development, including, without
limitation, the right to move and/or remove same, provided same shall not
unreasonably block or interfere with Tenant's means of ingress or egress to and
from the Demised Premises.
ARTICLE 6 - TAX AND OPERATING EXPENSE PAYMENTS
6.01. Throughout the Term, Tenant agrees to pay to Landlord as an
Additional Charge hereunder, within fifteen (15) days in advance of the final
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date for which such is due without interest or penalty, Tenant's Fraction of the
Real Estate Taxes. If any assessment is payable in annual installments or in a
lump sum and Tenant does not elect to reimburse Landlord for such assessment in
a lump sum, there shall be added to the amount of the Real Estate Taxes payable
for the Calendar Year in which such assessment is payable and such subsequent
Calendar Year only that amount of such assessment, together with such interest
thereon, as would have been payable to the municipality in said Calendar Year if
Landlord had elected to pay said assessment in annual installments. Landlord
shall submit to Tenant copies of all bills covering Real Estate Taxes together
with an invoice showing the calculation of Tenant's Fraction of such Real Estate
Taxes.
6.02. Real Estate Taxes, whether or not a lien upon the Demised Premises
shall be apportioned between Landlord and Tenant at the beginning and end of the
Term; it being intended that Tenant shall pay only that portion of the Real
Estate Taxes as is allocable to the Demised Premises for the Term.
6.03. Tenant shall pay to Landlord Tenant's Fraction of the Operating
Expenses within twenty (20) days after Landlord submits to Tenant an invoice for
same.
6.04. Each such statement given by Landlord pursuant to Section 6.01 or
Section 6.03 shall be conclusive and binding upon Tenant unless within 30 days
after the receipt of such statement Tenant shall notify Landlord that it
disputes the correctness of the statement, specifying the particular respects in
which the statement is claimed to be incorrect. If such dispute is not settled
by agreement, either party may submit the dispute to arbitration as provided in
Article 34. Pending the determination of such dispute by agreement or
arbitration as aforesaid, Tenant shall, within ten (10) days after receipt of
such statement, pay the Additional Charges in accordance with Landlord's
statement, without prejudice to Tenant's position. If the dispute shall be
determined in Tenant's favor, Landlord shall forthwith pay to Tenant the amount
of Tenant's overpayment resulting from compliance with Landlord's statement,
plus interest thereon at the Late Payment Rate calculated from the date Tenant
first made payment of such disputed charges.
6.05. Landlord hereby grants Tenant the right, upon reasonable written
notice to Landlord, and at Tenant's sole cost and expense, to inspect Landlord's
books and records as same relate to Tenant's Operating Expenses and Real Estate
Taxes. Any such inspection shall occur at Landlord's normal place of business
and during Landlord's normal business hours.
ARTICLE 7 - COMMON AREAS
7.01. Subject to the provisions of Section 5.04, Landlord will operate,
manage, equip, light, repair and maintain, or cause to be operated, managed,
equipped, lighted, repaired and maintained, the Common Areas for their intended
purposes. Landlord reserves the right, at any time and from time to time, to
construct within the Common Areas kiosks, fountains, aquariums, planters, pools
and sculptures, and to install vending machines, telephone booths, benches and
the like, provided same shall not unreasonably
10
interfere with Tenant's means of ingress or egress to and from the Demised
Premises and provided same shall not otherwise materially increase Tenant's
expenses hereunder. Notwithstanding anything herein contained to the contrary,
Landlord agrees that Tenant shall not be responsible for any increase in
Operating Expenses related to purely esthetic improvements installed in the
Common Areas by Landlord unless (i) otherwise approved by Tenant or (ii)
directly benefitting Tenant's operation at the Demised Premises.
7.02. Tenant and its subtenants and concessionaires, and their respective
officers, employees, agents, customers and invitees, shall have the
non-exclusive right, in common with Landlord and all others to whom Landlord has
granted or may hereafter grant such right, but subject to the Rules and
Regulations, to use the Common Areas. Landlord reserves the right, upon fifteen
(15) days notice to Tenant (except in the event of an emergency), to close
temporarily all or any portions of the Common Areas when in Landlord's
reasonable judgment any such closing is necessary or desirable (a) to make
repairs or changes or to effect construction, (b) to prevent the acquisition of
public rights in such areas, (c) to discourage unauthorized parking, or (d) to
protect or preserve natural persons or property. Landlord may do such other acts
in and to the Common Areas as in its judgment may be desirable to improve or
maintain same; provided, however, Landlord hereby agrees to use its best
efforts, in connection with the exercise of its rights under this Article 7.02,
not to materially interfere with Tenant's use and occupancy of the Demised
Premises.
7.03. Tenant agrees that it, any subtenant or licensee and their respective
officers, employees, contractors and agents will park their automobiles and
other vehicles only where and as permitted by Landlord. Tenant will, if and when
so requested by Landlord, furnish Landlord with the license numbers of any
vehicles of Tenant, any subtenant or licensee and their respective officers,
employees and agents.
7.04. Subject to the provisions of Article 7.02 hereinabove, Landlord
hereby agrees that Tenant shall have exclusive right to the use of the area(s)
outside of the loading docks located within the Demised Premises subject, also
however, to Landlord's right to grant any other tenant of the Building access to
and from any other portion of the Building not a part of the Demised Premises.
ARTICLE 8 - SECURITY
8.01. Tenant has deposited with Landlord the Security Deposit as security
for the full and faithful payment and performance by Tenant of Tenant's
obligations under this Lease. If Tenant defaults in the full and prompt payment
and performance of any of its obligations under this Lease, including, without
limitation, the payment of Rent, Landlord may use, apply or retain the whole or
any part of the Security Deposit to the extent required for the payment of any
Rent or any other sums as to which Tenant is in default or for any sum which
Landlord may expend or may be required to expend by reason of Tenant's default
in respect of any of Tenant's obligations under
11
this Lease, including, without limitation, any damages or deficiency in the
reletting of the Demised Premises, whether such damages or deficiency accrue
before or after summary proceedings or other re-entry by Landlord. If Landlord
shall so use, apply or retain the whole or any part of the security, Tenant
shall upon demand immediately deposit with Landlord a sum equal to the amount so
used, applied and retained, as security as aforesaid. If Tenant shall fully and
faithfully pay and perform all of Tenant's obligations under this Lease, the
Security Deposit or any balance thereof to which Tenant is entitled shall be
returned or paid over to Tenant after the date on which this Lease shall expire
or sooner end or terminate, and after delivery to Landlord of entire possession
of the Demised Premises. In the event of any sale or leasing of the Land,
Landlord shall have the right to transfer the security to which Tenant is
entitled to the vendee or lessee and Landlord shall thereupon be released by
Tenant from all liability for the return or payment thereof; and Tenant shall
look solely to the new landlord for the return or payment of the same; and the
provisions hereof shall apply to every transfer or assignment made of the same
to a new landlord. Tenant shall not assign or encumber or attempt to assign or
encumber the monies deposited herein as security, and neither Landlord nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
8.02. Tenant shall have the option of posting a letter of credit in lieu of
a cash security deposit in which case the following provisions (i.e. Articles
8.02, 8.03 and 8.04) shall apply: As security for the performance by Tenant of
all the terms, conditions and covenants of this Lease upon Tenant's part to be
performed, Tenant shall provide to Landlord an irrevocable Letter of Credit in
the amount of Eighty Thousand Three Hundred Eighty Nine and 50/100 ($80,389.50)
in form and substance satisfactory to Landlord. Landlord shall have the right,
upon thirty (30) days notice to Tenant (except for Tenant's non-payment of Rent
or for Tenant's failure to comply with Article 8.03 for which no notice shall be
required), and regardless of the exercise of any other remedy the Landlord may
have by reason of a default, to draw upon said Letter of Credit to cure any
default of Tenant and if Landlord does so, Tenant shall upon demand,
additionally fund the Letter of Credit with the amount so drawn so that Landlord
shall have the full deposit on hand at all times during the Term of this Lease.
In the event of a sale of the Building or a lease of the Building, subject to
this Lease, Landlord shall have the right to transfer the security to the vendee
or lessee.
8.03. The Letter of Credit shall be the type which is automatically renewed
on an annual basis (annual Renewal Date); and will contain a provision requiring
the issuer thereof to give the beneficiary (Landlord) sixty (60) day advance
written notice of its intention not to renew the Letter of Credit on the next
Annual Renewal Date.
8.04. In the event Tenant shall fail to deliver to Landlord a substitute
irrevocable Letter of Credit, in the amount stated above, on or before thirty
(30) days prior to the next Annual Renewal Date, said failure shall be deemed a
default under this Lease. Landlord may, in its discretion treat this the same as
a default in the payment of rent or any other default and pursue the appropriate
remedy. In addition, and not in limitation,
12
Landlord shall be permitted to draw upon the Letter of Credit as in the case of
any other default by Tenant under this Lease.
ARTICLE 9 - SUBORDINATION
9.01. This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate to all ground leases and underlying leases of the Land
and/or the Building now or hereafter existing and to all Mortgages which may now
or hereafter affect the Land and/or building and/or any of such leases, whether
or not such Mortgages or leases shall also cover other lands and/or buildings,
to each and every advance made or hereafter to be made under such Mortgages, and
to all renewals, modifications, replacements and extensions of such leases and
such Mortgages and spreaders and consolidations of such Mortgages. The
provisions of this Section 9.01 shall be self-operative and no further
instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute, acknowledge and deliver any
instrument that Landlord, the lessor under any such lease or the Mortgagee of
any such Mortgage or any of their respective successors in interest may
reasonably request to evidence such subordination.
9.02. If any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this
Lease, or to claim a partial or total eviction, Tenant shall not exercise such
right (a) until it has given written notice of such act or omission to Landlord
and each Superior Mortgagee and each Superior Lessor whose name and address
shall previously have been furnished to Tenant by Landlord in writing, and (b)
until a reasonable period for remedying such act or omission shall have elapsed
following the giving of such notice and following the time when such Superior
Mortgagee or Superior Lessor shall have become entitled under such Superior
Mortgage or Superior Lease, as the case may be, to remedy the same (which
reasonable period shall in no event be less than the period to which Landlord
would be entitled under this Lease or otherwise, after similar notice, to effect
such remedy), provided such Superior Mortgagee or Superior Lessor shall with due
diligence give Tenant notice of intention to, and commence and continue to,
remedy such act or omission.
9.03. If any Superior Lessor or Superior Mortgagee shall succeed to the
rights of Landlord under this Lease, whether through possession or foreclosure
action or delivery of a new lease or deed, then at the request of such party so
succeeding to Landlord's rights ("Successor Landlord") and upon such Successor
Landlord's written agreement to accept Tenant's attornment, Tenant shall attorn
to and recognize such Successor Landlord as Tenant's landlord under this Lease
and shall promptly execute and deliver any instrument that such Successor
Landlord may reasonably request to evidence such attornment. Upon such
attornment this Lease shall continue in full force and effect as a direct lease
between the Successor Landlord and Tenant upon all of the terms, conditions and
covenants as are set forth in this Lease except that the Successor Landlord
shall not (a) be liable for any previous act or omission of Landlord under this
Lease; (b) be subject to any offset, not expressly provided for in this Lease,
which theretofore shall have accrued to Tenant against Landlord; (c) be liable
for the return of any Security Deposit, in
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whole or in part, to the extent that same is not paid over to the Successor
Landlord; or (d) be bound by any previous prepayment of more than one month's
Fixed Rent unless such prepayment shall have been expressly approved in writing
by the Superior Lessor of the Superior Lease or the Mortgagee of the Superior
Mortgage through or by reason of which the Successor Landlord shall have
succeeded to the rights of Landlord under this Lease.
9.04. If any then present or prospective Superior Mortgagee shall require
any modification(s) of this Lease, Tenant shall promptly execute and deliver to
Landlord such instruments effecting such modification(s) as Landlord shall
request, provided that such modification(s) do not adversely affect in any
material respect any of Tenant's rights or obligations under this Lease.
9.05. Landlord hereby agrees to provide Tenant with a Non-Disturbance
Agreement from the existing Superior Mortgagee provided same is in the form
annexed hereto as Exhibit E.
9.06. As an express condition to the agreement of Tenant to the foregoing
provisions of this Article 9, Landlord hereby agrees to provide Tenant with a
Non-Disturbance Agreement from any future Superior Mortgagee provided same is in
the form, generally, as that annexed hereto as Exhibit E.
9.07. Landlord hereby represents that it is not presently in default of the
existing Superior Mortgage.
9.08. Any Superior Mortgagee's fees and/or costs (including reasonable
legal costs) associated with the acquisition and delivery of any Non-
Disturbance Agreement shall be borne by Landlord.
ARTICLE 10 - QUIET ENJOYMENT
10.01. So long as Tenant pays all of the Rent and performs all of Tenant's
other obligations hereunder, Tenant shall peaceably and quietly have, hold and
enjoy the Demised Premises without hindrance, ejection or molestation by
Landlord or any person lawfully claiming through or under Landlord, subject,
nevertheless, to the provisions of this Lease and to Superior Leases and
Superior Mortgages, of which Landlord has notified Tenant in writing (which
notice requirement, for purposes of this Section 10.01, shall be deemed
satisfied upon Tenant's execution of an estoppel certificate or non-disturbance,
subordination and attornment agreement with respect to any such Superior Lessor
or Superior Mortgagee).
ARTICLE 11 - ASSIGNMENT, SUBLETTING AND MORTGAGING
11.01. Tenant shall not, whether voluntarily, involuntarily, or by
operation of law or otherwise, (a) assign or otherwise transfer this Lease, or
offer or advertise to do so, (b) sublet the Demised Premises or any part
thereof, or offer or advertise to do so, or allow the same to be used, occupied
or utilized by anyone other than Tenant, or (c) mortgage, pledge, encumber or
otherwise hypothecate this Lease in any manner whatsoever, without
14
in each instance obtaining the prior written consent of Landlord, which consent
shall not be unreasonably withheld, delayed, or conditioned. Landlord hereby
acknowledges that Tenant intends to sublease all or some portion of the Retail
Premises. Landlord hereby consents to such subletting provided, however, in
consideration thereof, Tenant hereby agrees to pay Landlord, as an Additional
Charge hereunder, fifty percent (50%) of the net profit achieved from such
subletting. "Net Profit", as that term is used herein, shall mean the difference
between (a) the rent Tenant receives from the aforesaid subtenant(s) (which
shall include, but not be limited to, all fixed rent and percentage rent, or
similar such "rents" without placing any emphasis on terminology) with deduction
for Tenant's reasonable expenses (i.e. brokerage commissions, reasonable cost of
construction, etc.) specifically associated with such subletting and (b) the
Rent Tenant is obligated to pay Landlord hereunder. Tenant agrees to provide
Landlord with copies of any such sublease(s) within ten (10) days of execution
of same. It is expressly understood and agreed by the parties hereto that the
gross sales generated by said subtenant(s) will not be included in the
definition of Gross Sales set forth at Article 1.01.(01); provided, however
Tenant agrees that notwithstanding the terminology used in any sublease, it will
calculate the gross sales of any such subtenant, for purposes of calculating the
50/50 division of profits discussed above, in a manner similar to the method by
which Gross Sales are calculated hereunder.
11.02. If at any time (a) the original Tenant named herein, (b) the then
Tenant, (c) any Guarantor, or (d) any Person owning a majority of the voting
stock of, or directly or indirectly controlling, the then Tenant shall be a
corporation or partnership, any transfer of voting stock or partnership interest
resulting in the person(s) who shall have owned a majority of such corporation's
shares of voting stock or the general partners' interest in such partnership, as
the case may be, immediately before such transfer, ceasing to own a majority of
such shares of voting stock or general partner's interest, as the case may be,
except as the result of transfers by inheritance, shall be deemed to be an
assignment of this Lease as to which Landlord's consent shall have been
required, and in any such event Tenant shall notify Landlord. The provisions of
this Section 11.02 shall not be applicable to any corporation all the
outstanding voting stock of which is listed on a national securities exchange
(as defined in the Securities Exchange Act of 1934, as amended) or is traded in
the over-the-counter market with quotations reported by the National Association
of Securities Dealers through its automated system for reporting quotations and
shall not apply to transactions with a corporation into or with which the then
Tenant is merged or consolidated or to which substantially all of the then
Tenant's assets are transferred or to any corporation which controls or is
controlled by the then Tenant or is under common control with the then Tenant,
provided that in any of such events (i) the successor to Tenant has a net worth
computed in accordance with generally accepted accounting principles at least
equal to the greater of (1) the net worth of Tenant immediately prior to such
merger, consolidation or transfer, or (2) the net worth of the original Tenant
on the date of this Lease, and (ii) proof satisfactory to Landlord of such net
worth shall have been delivered to Landlord at least 10 days prior to the
effective date of any such transaction. For the purposes of this Section, the
words "voting stock" shall refer to shares of stock regularly entitled to vote
for the election of
15
directors of the corporation. Landlord shall have the right at any time and from
time to time during the Term to inspect the stock record books of the
corporation to which the provisions of this Section 11.02 apply, and Tenant will
produce the same on request of Landlord.
11.03. If this Lease is assigned, whether or not in violation of this
Lease, Landlord may collect rent from the assignee. If the Demised Premises or
any part thereof are sublet or used or occupied by anybody other than Tenant,
whether or not in violation of this Lease, Landlord may, after default by
Tenant, and expiration of Tenant's time to cure such default, collect rent from
the subtenant or occupant. In either event, Landlord may apply the net amount
collected to the Rent, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of Section 11.01 or
Section 11.02, or the acceptance of the assignee, subtenant or occupant as
tenant, or a release of Tenant from the performance by Tenant of Tenant's
obligations under this Lease. The consent by Landlord to any assignment,
mortgaging, subletting or use or occupancy by others shall not in any way be
considered to relieve Tenant from obtaining the express written consent of
Landlord to any other or further assignment, mortgaging or subletting or use or
occupancy by others not expressly permitted by this Article 11. References in
this Lease to use or occupancy by others (that is, anyone other than Tenant)
shall not be construed as limited to subtenants and those claiming under or
through subtenants but shall be construed as including also licensees and others
claiming under or through Tenant, immediately or remotely.
11.04. Any permitted assignment or transfer, whether made with Landlord's
consent pursuant to Section 11.01 or without Landlord's consent if permitted by
Section 11.02, shall be made only if, and shall not be effective until, the
assignee shall execute, acknowledge and deliver to Landlord an agreement in form
and substance reasonably satisfactory to Landlord whereby the assignee shall
assume Tenant's obligations under this Lease and whereby the assignee shall
agree that all of the provisions in this Article 11 shall, notwithstanding such
assignment or transfer, continue to be binding upon it in respect to all future
assignments and transfers. Notwithstanding any assignment or transfer, whether
or not in violation of the provisions of this Lease, and notwithstanding the
acceptance of Rent by Landlord from an assignee, transferee, or any other party,
the original Tenant and any other person)s) who at any time was or were Tenant
shall remain fully liable for the payment of the Rent and for Tenant's other
obligations under this Lease.
11.05. The liability of the original named Tenant and any other Person(s)
(including but not limited to any Guarantor) who at any time are or become
responsible for Tenant's obligations under this Lease shall not be discharged,
released or impaired by any agreement or stipulation made by Landlord extending
the time of, or modifying any of the terms or obligations under this Lease, or
by any waiver or failure of Landlord to enforce, any of this Lease.
11.06. The listing of any name other than that of Tenant, whether on the
doors of the Demised Premises or the Building directory, or otherwise, shall not
operate to vest any right or interest in this Lease or in the
16
Demised Premises, nor shall it be deemed to be the consent of Landlord to any
assignment or transfer of this Lease or to any sublease of the Demised Premises
or to the use or occupancy thereof by others.
11.07. Without limiting any of the provisions of Article 27, if pursuant to
the Federal Bankruptcy Code (or any similar law hereafter enacted having the
same general purpose), Tenant is permitted to assign this Lease notwithstanding
the restrictions contained in this Lease, adequate assurance of future
performance by an assignee expressly permitted under such Code shall be deemed
to mean the deposit of cash security in an amount equal to the sum of one (1)
year's Fixed Rent, which deposit shall be held by Landlord for the balance of
the Term, without interest, as security for the full performance of all of
Tenant's obligations under this Lease, to be held and applied in the manner
specified for security in Section 8.01.
11.08. If Tenant shall propose to assign or in any manner transfer this
Lease or any interest therein, or sublet the Demised Premises or any part or
parts thereof, or grant any concession or license or otherwise permit occupancy
of all or any part of the Demised Premises by any person, Tenant shall give
notice thereof to Landlord, together with a copy of the proposed instrument that
is to accomplish same and such financial and other information pertaining to the
proposed assignee, transferee, subtenant, concessionaire or licensee as Landlord
shall reasonably require.
ARTICLE 12 - COMPLIANCE WITH LAWS
12.01. Tenant shall comply with all Legal Requirements which shall, in
respect of the Demised Premises or the use and occupation thereof, or the
abatement of any nuisance in, on or about the Demised Premises, impose any
violation, order or duty on Landlord or Tenant; and Tenant shall pay all the
costs, expenses, fines, penalties and damages which may be imposed upon Landlord
or any Superior Lessor by reason of or arising out of Tenant's failure to fully
and promptly comply with and observe the provisions of this Section 12.01.
However, Tenant need not comply with any such law or requirement of any public
authority, nor shall such failure to comply be deemed an Event of Default
hereunder, so long as Tenant shall be contesting the validity thereof, or the
applicability thereof to the Demised Premises, in accordance with Section 12.02.
12.02. Tenant may contest, by appropriate proceedings prosecuted diligently
and in good faith, the validity, or applicability to Tenant or the Demised
Premises, of any Legal Requirement, provided that (a) Landlord shall not be
subject to criminal penalty or to prosecution for a crime, and neither the
Demised Premises nor any part thereof shall be subject to being condemned or
vacated, by reason of non-compliance or otherwise by reason of such contest; (b)
before the commencement of such contest, Tenant shall furnish to Landlord the
bond of a surety company satisfactory to Landlord, which bond shall be, as to
its provisions and form, satisfactory to Landlord, and shall be in an amount at
least equal to 100% of the cost of such compliance (as estimated by a reputable
contractor designated by Landlord) and shall indemnify Landlord against the cost
thereof and against all liability for
17
damages, interest, penalties and expenses (including reasonable attorneys' fees
and expenses), resulting from or incurred in connection with such contest or
non-compliance, (c) such non-compliance or contest shall not constitute or
result in any violation of any Superior Lease or Superior Mortgage, or if any
such Superior Lease and/or Superior Mortgage shall permit such non-compliance or
contest on condition of the taking of action or furnishing of security by
Landlord, such action shall be taken and such security shall be furnished at the
expense of Tenant; and (d) Tenant shall keep Landlord advised as to the status
of such proceedings. Without limiting the application of the above, Landlord
shall be deemed subject to prosecution for a crime if Landlord, or its managing
agent, or any officer, director, partner, shareholder or employee of Landlord or
its managing agent, as an individual, is charged with a crime of any kind or
degree whatsoever, whether by service of a summons or otherwise, unless such
charge is withdrawn before Landlord or its managing agent, or such officer,
director, partner, shareholder or employee of Landlord or its managing agent (as
the case may be) is required to plead or answer thereto.
12.03. Notwithstanding the foregoing, Landlord hereby represents, to the
best of its knowledge and belief, that the Building and the Land are presently
in compliance with all applicable Legal Requirements, including, but not limited
to, those existing environmental Legal Requirements affecting the Demised
Premises, including, but not limited to, the Industrial Site Recovery Act, the
Spill Compensation and Control Act and the Comprehensive Environmental Response
Compensation and Liability Act. Landlord hereby agrees that it shall be
responsible for the Building's and Land's compliance with those Legal
Requirements in existence prior to the execution of this Lease.
12.04. Landlord hereby agrees that Tenant shall not be responsible for
those violation(s) of any applicable environmental Legal Requirement resulting
from the act, omission or negligence of another tenant in the Building unless,
and to the extent, same is also a result of the act, omission, or negligence of
Tenant, its agents, employees, representatives or contractors.
ARTICLE 13 - INSURANCE AND INDEMNITY
13.01. Landlord shall maintain or cause to be maintained All Risk insurance
in respect of the Building and other improvements on the Land normally covered
by such insurance at commercially competitive rates (except for the property
Tenant is required to cover with insurance under Section 13.02 and similar
property of other tenants and occupants of the Building or buildings and other
improvements which are on land neither owned by nor leased to Landlord) for the
benefit of Landlord, any Superior Lessors, any Superior Mortgagees and any other
parties Landlord may at any time and from time to time designate, as their
interests may appear, but not for the benefit of Tenant, and shall maintain rent
insurance as required by any Superior Lessor or any Superior Mortgagee. The All
Risk insurance will be in the amounts required by any Superior Lessor or any
Superior Mortgagee but not less than the amount sufficient to avoid the effect
of the co-insurance provisions of the applicable policy or policies. Landlord
may also maintain any other forms and types of insurance which Landlord shall
deem reasonable in respect of the
18
Building and Land. Landlord shall have the right to provide any insurance
maintained or caused to be maintained by it under blanket policies.
13.02. Tenant shall maintain the following insurance: (a) comprehensive
general public liability insurance in respect of the Demised Premises and the
conduct and operation of business therein, having not less than a $5,000,000.00
combined single limit per occurrence for bodily injury or death to any one
person and for bodily injury or death to any number of persons in any one
occurrence, and for property damage, including water damage and sprinkler
leakage legal liability (coverage to include but not be limited to (i) premises
operation, completed operations, broad form contractual liability and product
liability, (ii) comprehensive automobile, truck and vehicle liability insurance
covering all owned, hired and non-owned vehicles used by the contractor(s) in
connection with their work and any loading of such vehicles, with limits as
stated above and (iii) worker's compensation, employers liability and
occupational disease insurance as required by statutes, but in any event not
less than $500,000.00 for Coverage B covering all damages and injuries arising
from each accident or occupational disease) (b) steam boiler, air conditioning
and machinery insurance, protecting Landlord and Tenant, with limits of not less
than $500,000, if there is a boiler or pressure object or other similar
equipment in the Demised Premises, and (c) All Risk insurance in respect of
Tenant's stock in trade, fixtures, furniture, furnishings, removable floor
coverings, equipment, signs and all other property of Tenant in the Demised
Premises in an amount sufficient to avoid the effect of the co-insurance
provisions of the applicable policy or policies, and (d) such other insurance as
is required for compliance with the Insurance Requirements. Landlord may at any
time and from time to time require that the limits for the comprehensive general
public liability insurance to be maintained by Tenant be increased to the limits
that new tenants in the Building are required by Landlord to maintain, provided
same are commercially reasonable and consistent with the then industry practice
relative to comprehensive general public liability insurance limits. Tenant
shall deliver to Landlord and any additional named insured(s) certificates for
such fully paid-for policies at least ten (10) days before the Commencement
Date. Tenant shall procure and pay for renewals of such insurance from time to
time before the expiration thereof, and Tenant shall deliver to Landlord and any
additional insured(s) certificates therefor at least thirty (30) days before the
expiration of any existing policy. All such policies shall be issued by
companies of recognized responsibility, having a Bests Key Rating Guide of not
less than A, Class VII, licensed to do business in New Jersey, and all such
policies shall contain a provision whereby the same cannot be canceled unless
Landlord and any additional insured(s) are given at least thirty (30) days'
prior written notice of such cancellation. The certificates of insurance to be
delivered to Landlord by Tenant shall name Landlord as an additional insured
and, at Landlord's request, shall also name any Superior Lessors or Superior
Mortgagees of which Landlord has notified Tenant as additional insureds, and the
following phrase must be typed on the certificate of insurance: "Xxxxx Mountain
Associates, Xxxxx Mountain Industries, Inc., and its respective subsidiaries,
affiliates, associates, joint ventures, and partnerships, are hereby named as
additional insureds as their interests may appear (and if Landlord has so
requested, Tenant shall include any Superior Lessors and Superior Mortgagees as
additional insured(s)). It is intended for
19
this insurance to be primary and non-contributing." Tenant shall give Landlord
at least thirty (30) days' prior written notice that any such policy is being
canceled or replaced.
13.03. Tenant shall not do, permit or suffer to be done any act, matter,
thing or failure to act in respect of the Demised Premises or use or occupy the
Demised Premises or conduct or operate Tenant's business in any manner
objectionable to any insurance company or companies whereby the fire insurance
or any other insurance then in effect in respect of the Land and Building or any
part thereof shall become void or suspended or whereby any premiums in respect
of insurance maintained by Landlord shall be higher than those which would
normally have been in effect for the occupancy contemplated under the Permitted
Uses. In case of a breach of the provisions of this Section 13.03, in addition
to all other rights and remedies of Landlord hereunder, Tenant shall pay to
Landlord any and all increases of premiums on any insurance, including, without
limitation, rent insurance, resulting from any such breach.
13.04. Tenant shall indemnify and hold harmless Landlord and all Superior
Lessors and its and their respective partners, joint venturers, directors,
officers, agents, servants and employees from and against any and all claims for
injuries to persons or damage to the property of third parties arising from or
in connection with (a) the conduct or management of the Demised Premises or of
any business therein, or any work or thing whatsoever done, or any condition
created (other than by Landlord) in the Demised Premises during the Term or
during the period of time, if any, prior to the Commencement Date that Tenant
may have been given access to the Demised Premises; (b) any act, omission or
negligence of Tenant or any of its subtenants or licensees or its or their
partners, joint venturers, directors, officers, agents, employees or
contractors; (c) any accident, injury or damage whatever (unless caused by
Landlord's negligence) occurring in the Demised Premises; and (d) any breach or
default by Tenant in the full and prompt payment and performance of Tenant's
obligations under this Lease; together with all costs, expenses and liabilities
incurred in or in connection with each such claim or action or proceeding
brought thereon, including, without limitation, all attorneys' fees and
expenses. In case any action or proceeding is brought against Landlord and/or
any Superior Lessor and/or its or their partners, joint venturers, directors,
officers, agents and/or employees by reason of any such claim, Tenant, upon
notice from Landlord or such Superior Lessor, shall resist and defend such
action or proceeding by counsel reasonably satisfactory to Landlord. Landlord
hereby agrees to cooperate with Tenant and designated counsel in connection with
such defense. Landlord agrees to notify Tenant of any claim of which it becomes
aware under this Article 13.04. Tenant further agrees that it or its designated
counsel will not settle or otherwise compromise any such claim without the prior
consent of Landlord.
13.05. Landlord shall indemnify and hold Tenant and/or its partners, joint
venturers, directors, officers, agents and/or employees harmless from and
against any and all claims for injuries to persons or damage to the property of
third parties arising from or in connection with (a) any work done by Landlord
or any condition created by Landlord in the Demised Premises or
20
the Common Areas and (b) any act, omission, or negligence or Landlord in
connection with the maintenance of the Demised Premises or Common Areas;
together with all costs, expense and liabilities incurred in or in connection
with each such claim or action or proceeding brought thereon, including, without
limitation, all attorneys fees and expenses. In case any action or proceeding is
brought against Tenant and/or its partners, joint venturers, directors,
officers, agents and/or employees by reason of any such claim, Landlord, upon
notice from Tenant, shall resist and defend such action or proceeding by counsel
reasonably satisfactory to Tenant. Tenant hereby agrees to cooperate with
Landlord and designated counsel in connection with such defense. Tenant agrees
to notify Landlord of any claim of which it becomes aware under this Article
13.05. Landlord further agrees that it or its designated counsel will not settle
or compromise any such claim without the prior consent of Tenant.
13.06. Neither party shall be liable or responsible for, and each party
hereby releases the other from, all liability and responsibility to the other
and any person claiming by, through or under the other, by way of subrogation,
for any injury, loss or damage to any person or property in or around the
Demised Premises or to the other's business covered by insurance carried or
required to be carried hereunder irrespective of the cause of such injury, loss
or damage, and each party shall require its insurers to include in all of such
party's insurance policies which could give rise to a right of subrogation
against the other a clause or endorsement whereby the insurer waives any rights
of subrogation against the other or permits the insured, prior to any loss, to
agree with a third party to waive any claim it may have against said third party
without invalidating the coverage under the insurance policy.
ARTICLE 14 - RULES AND REGULATIONS
14.01. Tenant and its employees and agents shall faithfully observe and
comply with the Rules and Regulations and such reasonable changes therein
(whether by modification, elimination or addition) as Landlord at any time or
times hereafter may make and communicate to Tenant, which in Landlord's
judgment, shall be necessary for the reputation, safety, care or appearance of
the Land and Building, or the preservation of good order therein, or the
operation or maintenance of the Building or its equipment and fixtures, or the
Common Areas, and which do not (i) unreasonably affect the conduct of Tenant's
business in the Demised Premises, (ii) diminish, in any material sense, Tenant's
rights under this Lease, or (iii) increase, in any material sense, Tenant's
obligations under this Lease; provided, however, that in case of any conflict or
inconsistency between the provisions of this Lease and any of the Rules and
Regulations, the provisions of this Lease shall control. Landlord shall not be
liable to Tenant for violation of the Rules and Regulations by any other tenant
or its employees, agents, invitees or licensees. Landlord hereby agrees that it
shall not enforce the Rules and Regulations as against Tenant in a
discriminatory manner vis-a-vis the other tenants in the Building.
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ARTICLE 15 - ALTERATIONS AND SIGNS
15.01. Tenant shall not make any alterations or additions to the Demised
Premises, or make any holes or cuts in the walls, ceilings, roofs, or floors
thereof, or change the exterior color or architectural treatment of the Demised
Premises, without on each occasion first obtaining the consent of Landlord,
which consent shall not be unreasonably withheld, delayed or conditioned;
provided, however, with respect to those alterations to the Demised Premises
which do not exceed a cost, in the aggregate, of $150,000, or otherwise impact
upon the structure or systems of the Building, Landlord's consent shall not be
required. With respect to those alterations wherein Landlord's consent is
required, Tenant shall submit to Landlord plans and specifications for such work
at the time Landlord's consent is sought. Tenant shall pay to Landlord upon
demand the reasonable cost and expense of Landlord in (a) reviewing said plans
and specifications and (b) inspecting the alterations to determine whether the
same are being performed in accordance with the approved plans and
specifications and all Legal Requirements and Insurance Requirements, including,
without limitation, the fees of any architect or engineer employed by Landlord
for such purpose. Before proceeding with any permitted alteration which will
cost more than $150,000 (exclusive of the costs of decorating work and items
constituting Tenant's Property), as estimated by a reputable contractor
designated by Landlord, Tenant shall obtain and deliver to Landlord a
performance bond and a labor and materials payment bond (issued by a corporate
surety licensed to do business in New Jersey), each in an amount equal to 100%
of such estimated cost and in form satisfactory to Landlord. Tenant shall fully
and promptly comply with and observe the Rules and Regulations then in force in
respect of the making of alterations. Any review or approval by Landlord of any
plans and/or specifications with respect to any alterations is solely for
Landlord's benefit, and without any representation or warranty whatsoever to
Tenant in respect of the adequacy, correctness or efficiency thereof or
otherwise. Landlord hereby expressly consents to the alterations to be performed
by Tenant in connection with initial build-out of the Demised Premises.
15.02. Tenant shall obtain all necessary governmental permits and
certificates for the commencement and prosecution of permitted alterations and
for final approval thereof upon completion, and shall cause alterations to be
performed in compliance therewith and with all applicable Legal Requirements and
Insurance Requirements. Alterations shall be diligently performed in a good and
workmanlike manner, using materials and equipment at least equal in quality and
class to the better of (a) the original installations of the Building, or (b)
the then standards for the Building established by Landlord. Alterations shall
be performed by contractors first approved by Landlord; provided, however, that
any alterations in or to the mechanical, electrical, sanitary, heating,
ventilating, air conditioning or other systems of the Building shall be
performed only by the contractor(s) designated by Landlord. Alterations shall be
made in such manner as not to unreasonably interfere with or delay and as not to
impose any additional expense upon Landlord in the construction, maintenance,
repair or operation of the Building; and if any such additional expense shall be
incurred by Landlord as a result of Tenant's making of any alterations, Landlord
shall so notify Tenant of such additional expense, and, to the extent Tenant
continues to desire to perform such
22
alteration, Tenant shall pay any such additional expense upon demand. Throughout
the making of alterations, Tenant shall carry, or cause to be carried, worker's
compensation insurance in statutory limits and general liability insurance, with
completed operation endorsement, for any occurrence in or about the Building,
under which Landlord and its managing agent and any Superior Lessor whose name
and address shall previously have been furnished to Tenant shall be named as
parties insured, in such limits as Landlord may reasonably require, with
insurers reasonably satisfactory to Landlord. Tenant shall furnish Landlord with
reasonably satisfactory evidence that such insurance is in effect at or before
the commencement of alterations and, on request, at reasonable intervals
thereafter during the making of alterations. In connection with Landlord's
approval of Tenant's contractors, it is specifically agreed and understood by
the parties hereto that once Landlord has so approved a particular contractor,
said approval shall remain in force and effect through the Term without the need
for further request by Tenant unless an until Landlord otherwise advises Tenant
to the contrary.
15.03. Tenant shall not place any signs on the roof, exterior walls or
grounds of the Demised Premises without first obtaining Landlord's written
consent thereto, which consent shall not be unreasonably withheld, delayed or
conditioned provided Tenant's signage is similar, generally, to the other
signage permitted by Landlord on its other buildings in Xxxxxx Cove and provided
same is in compliance with applicable Legal Requirements. In placing any signs
on or about the Demised Premises, Tenant shall, at its expense, comply with all
applicable Legal Requirements and obtain all required permits and/or licenses.
15.04. Notwithstanding anything contained in this Article 15 to the
contrary, Landlord hereby approves those contractors to be utilized by Tenant
set forth on the attached Exhibit F.
ARTICLE 16 - LANDLORD'S AND TENANT'S PROPERTY
16.01. All fixtures, equipment, improvements and appurtenances attached to
or built into the Demised Premises at the commencement of or during the Term,
whether or not by or at the expense of Tenant, shall be and remain a part of the
Demised Premises, shall be deemed to be the property of Landlord and shall not
be removed by Tenant, except as provided in Section 16.02. Further, any
carpeting or other personal property in the Demised Premises on the Commencement
Date, unless installed and paid for by Tenant, shall be and shall remain
Landlord's property and shall not be removed by Tenant.
16.02. All movable partitions, business and trade fixtures, machinery and
equipment, material handling equipment, communications equipment and office
equipment, whether or not attached to or built into the Demised Premises, which
are installed in the Demised Premises by or for the account of Tenant without
expense to Landlord and can be removed without structural damage to the Building
and all furniture, furnishings, and other movable personal property owned by
Tenant and located in the Demised Premises (collectively, "Tenant's Property")
shall be and shall remain the property of Tenant and may be removed by Tenant at
any time during the Term; provided that if any of the Tenant's Property is
removed, Tenant shall repair or pay the
23
cost of repairing any damage to the Demised Premises, the Building or the Common
Areas resulting from the installation and/or removal thereof. Any equipment or
other property for which Landlord shall have granted any allowance or credit to
Tenant shall not be deemed to have been installed by or for the account of
Tenant without expense to Landlord, shall not be considered as the Tenant's
Property and shall be deemed the property of Landlord.
16.03. At or before the Expiration Date or the date of any earlier
termination of this Lease, or within fifteen (15) days after such an earlier
termination date, Tenant shall remove from the Demised Premises all of the
Tenant's Property (except such items thereof as Landlord shall have expressly
permitted to remain hereunder, which property shall become the property of
Landlord if not removed), and Tenant shall repair any damage to the Demised
Premises, the Building and the Common Areas resulting from any installation
and/or removal of the Tenant's Property. Any items of the Tenant's Property
which shall remain in the Demised Premises after the Expiration Date or after a
period of fifteen (15) days following an earlier termination date, may, at the
option of Landlord, be deemed to have been abandoned, and in such case such
items may be retained by Landlord as its property or disposed of by Landlord,
without accountability, in such manner as Landlord shall determine at Tenant's
reasonable expense.
ARTICLE 17 - REPAIRS AND MAINTENANCE
17.01. Tenant shall, throughout the Term, take good care of the Demised
Premises, the fixtures and appurtenances therein, and shall not do, suffer, or
permit any waste with respect thereto. Tenant shall keep and maintain all
interior portions of the Demised Premises including without limitation all
building equipment, windows, doors, loading bay doors and shelters, plumbing and
electrical systems, heating, ventilating and air conditioning ("HVAC") systems
in a clean and orderly condition. The phrase "keep and maintain" as used herein
includes repairs, replacement and/or restoration as appropriate. Tenant shall
not permit or suffer any over-loading of the floors of the Demised Premises.
Tenant shall be responsible for all repairs in and to the Demised Premises and
the Building (including the facilities and systems thereof) and the Common Areas
the need for which arises out of (a) the performance or existence of the
Tenant's Work or alterations, (b) the installation, use or operation of the
Tenant's Property in the Demised Premises, (c) the moving of the Tenant's
Property in or out of the Building, or (d) the act, omission, misuse or neglect
of Tenant or any of its subtenants or its or their employees, agents,
contractors or invitees. Tenant shall promptly replace all scratched, damaged or
broken doors and glass in and about the Demised Premises and shall be
responsible for all repairs, maintenance and replacement of wall and floor
coverings in the Demised Premises and for the repair and maintenance of all
sanitary and electrical fixtures and equipment therein. Tenant shall promptly
make all repairs in or to the Demised Premises for which Tenant is responsible,
and any repairs required to be made by Tenant to the mechanical, electrical,
sanitary, heating, ventilating, air-conditioning or other systems of the
Building shall be performed only by contractor(s) reasonably approved by
Landlord. Any other repairs in or to the
24
Building and the facilities and systems thereof for which Tenant is responsible
shall be performed by Landlord at Tenant's expense; but Landlord may, at its
option, before commencing any such work or at any time thereafter, require
Tenant to furnish to Landlord such security, in form (including, without
limitation, a bond issued by a corporate surety licensed to do business in New
Jersey) and amount, as Landlord shall deem necessary to assure the payment for
such work by Tenant.
17.02. Landlord shall make all structural repairs at Landlord's cost and
expense except to the extent same are Tenant's responsibility as hereinabove
provided in Section 17.01.
17.03. Landlord shall, at Landlord's cost and expense, make all structural
repairs and replacements in and to the roof. Although Tenant's responsibility,
Landlord shall also perform the normal routine maintenance and cleaning to the
roof, the cost of which shall be included in the Operating Expenses.
17.04. Tenant shall not permit or suffer the overloading of the floors of
the Demised Premises beyond two hundred fifty (250) pounds per square foot.
17.05. Except as otherwise expressly provided in this Lease, Landlord shall
have no liability to Tenant, nor shall Tenant's covenants and obligations under
this Lease be reduced or abated in any manner whatsoever, by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's doing any repairs, maintenance, or changes which Landlord is required
or permitted by this Lease, or required by Law, to make in or to any portion of
the Building.
ARTICLE 18 - UTILITY CHARGES
18.01. Tenant shall pay all charges for gas, water, sewer, electricity,
heat or other utility or service supplied to the Demised Premises as measured by
meters relating to Tenant's use, and any cost of repair, maintenance,
replacement, and reading of any meters measuring Tenant's consumption thereof.
Tenant expressly agrees that Landlord shall not be responsible for the failure
of supply to Tenant of any of the aforesaid, or any other utility service.
Landlord shall not be responsible for any public or private telephone service to
be installed in the space, particularly conduit, if required.
18.02. Tenant's use of electric energy in the Demised Premises shall not at
any time exceed the capacity of any of the electrical conductors and equipment
in or otherwise serving the Demised Premises. In order to insure that such
capacity is not exceeded and to avert any material adverse effect upon the
Building's electric service, Tenant shall not, without Landlord's prior consent
in each instance (which shall not be unreasonably withheld), connect any
fixtures, appliances or equipment to the Building's electric distribution system
or make any alteration or addition to the electric system of the Demised
Premises existing on the Commencement Date. Should Landlord grant such consent,
all additional risers or other equipment required therefor
25
shall be provided by Landlord and the cost thereof shall be paid by Tenant to
Landlord on demand.
ARTICLE 19 - ACCESS, CHANGES AND NAME
19.01. Except for the space within the inside surfaces of all walls, hung
ceilings, floors, windows and doors bounding the Demised Premises, all of the
Building, including, without limitation, exterior Building walls, core corridor
walls and doors and any core corridor entrance, any terraces or roofs adjacent
to the Demised Premises, and any space in or adjacent to the Demised Premises
used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other
utilities, sinks or other Building facilities and the use thereof, as well as
access thereto through the Demised Premises for the purpose of operating,
maintenance, decoration and repair, are reserved to Landlord. Landlord also
reserves the right, to install, erect, use and maintain pipes, ducts and
conduits in and through the Demised Premises, provided (i) such are properly
enclosed, (ii) same do not materially interfere with Tenant's use and occupancy
of the Demised Premises, and (iii) Landlord shall use best efforts to locate
same in "back-room" areas, closets and the like.
19.02. Landlord and its agents shall have the right to enter and/or pass
through the Demised Premises at any time or times upon reasonable prior notice
to Tenant and accompanied by a representative of Tenant (unless in the event of
an emergency when the circumstances shall dictate the nature and extent of
notice), (a) to examine the Demised Premises and to show then to actual and
prospective Superior Lessors, Superior Mortgagees, or prospective purchasers of
the Building, and (b) to make such repairs, alterations, additions and
improvements in or to the Demised Premises and/or in or to the Building or its
facilities and equipment as Landlord is required or reasonably desires to make;
provided, however, Landlord agrees, in connection with such repairs,
alterations, additions and improvements, to use its best efforts not to
materially interfere with Tenant's use and occupancy of the Demised Premises.
Landlord shall be allowed to take all materials into and upon the Demised
Premises that may be required in connection therewith, without any liability to
Tenant and without any reduction of Tenant's obligations hereunder. During the
period of nine (9) months prior to the Expiration Date, Landlord and its agents
may exhibit the Demised Premises to prospective tenants.
19.03. If at any time any windows of the Demised Premises are temporarily
darkened or obstructed by reason of any repairs, improvements, maintenance
and/or cleaning in or about the Building, or if any part of the Building or the
Common Areas, other than the Demised Premises, is temporarily or permanently
closed or inoperable, the same shall not be deemed a constructive eviction and
shall not result in any reduction or diminution of Tenant's obligations under
this Lease.
ARTICLE 20 - MECHANICS' LIENS AND OTHER LIENS
20.01. Nothing contained in this Lease shall be deemed, construed or
interpreted to imply any consent or agreement on the part of Landlord to
26
subject Landlord's interest or estate to any liability under any mechanic's or
other lien law. If any mechanic's or other lien or any notice of intention to
file a lien is filed against the Land, or any part thereof, or the Demised
Premises, or any part thereof, for any work, labor, service or materials claimed
to have been performed or furnished for or on behalf of Tenant or anyone holding
any part of the Demised Premises through or under Tenant, Tenant shall cause the
same to be canceled and discharged of record by payment, bond or order of a
court of competent jurisdiction within thirty (30) days after notice by Landlord
to Tenant.
ARTICLE 21 - NON-LIABILITY AND INDEMNIFICATION
21.01. Neither Landlord nor any partner, joint venturer, director, officer,
agent, servant or employee of Landlord shall be liable to Tenant for any loss,
injury or damage to Tenant or to any other Person, or to its or their property,
irrespective of the cause of such injury, damage or loss, unless caused by or
resulting from the negligence of Landlord, its agents, servants or employees in
the operation or maintenance of the Land or Building. Further, neither Landlord
nor any partner, joint venturer, director, officer, agent, servant or employee
of Landlord shall be liable (a) for any such damage caused by other tenants or
Persons in, upon or about the Land or Building, or caused by operations in
construction of any private, public or quasi-public work; or (b) even if
negligent, for consequential damages arising out of any loss of use of the
Demised Premises or any equipment or facilities therein by Tenant or any Person
claiming through or under Tenant.
21.02. Notwithstanding any provision to the contrary, Tenant shall look
solely to the estate and property of Landlord in and to the Land and Building
(or the proceeds received by Landlord on a sale of such estate and property but
not the proceeds of any financing or refinancing thereof) in the event of any
claim against Landlord arising out of or in connection with this Lease, the
relationship of Landlord and Tenant or Tenant's use of the Demised Premises or
the Common Areas, and Tenant agrees that the liability of Landlord arising out
of or in connection with this Lease, the relationship of Landlord and Tenant or
Tenant's use of the Demised Premises or the Common Areas shall be limited to
such estate and property of Landlord (or sale proceeds). No other properties or
assets of Landlord or any partner, joint venturer, director, officer, agent,
servant or employee of Landlord shall be subject to levy, execution or other
enforcement procedures for the satisfaction of any judgement (or other judicial
process) or for the satisfaction of any other remedy of Tenant arising out of,
or in connection with, this Lease, the relationship of Landlord and Tenant or
Tenant's use of the Demised Premises or the Common Areas and if Tenant shall
acquire a lien on or interest in any other properties or assets by judgment or
otherwise, Tenant shall promptly release such lien on or interest in such other
properties and assets by executing, acknowledging and delivering to Landlord an
instrument to that effect prepared by Landlord's attorneys. Tenant hereby waives
the right of specific performance and any other remedy allowed in equity if
specific performance or such other remedy could result in any liability of
Landlord for the payment of money to Tenant, or to any court or governmental
authority (by
27
way of fines or otherwise) for Landlord's failure or refusal to observe a
judicial decree or determination, or to any third party.
ARTICLE 22 - DAMAGE OR DESTRUCTION
22.01. If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other casualty (and if this Lease shall
not be terminated as in this Article 22 hereinafter provided), Landlord shall
repair the damage and restore and rebuild the Building and/or the Demised
Premises (except for the Tenant's Property) with reasonable dispatch after
notice to it of the damage or destruction and the collection of the insurance
proceeds attributable to such damage.
22.02. Subject to the provisions of Section 22.05, if all or part of the
Demised Premises shall be damaged or destroyed or rendered completely or
partially untenantable on account of fire or other casualty, the Rent shall be
abated or reduced, as the case may be, in the proportion that the untenantable
area of the Demised Premises bears to the total area of the Demised Premises,
for the period from the date of the damage or destruction to (a) the date the
damage to the Demised Premises shall be substantially repaired, or (b) if the
Building and not the Demised Premises is so damaged or destroyed, the date on
which the Demised Premises shall be made tenantable; provided, however, should
Tenant reoccupy a portion of the Demised Premises during the period the repair
or restoration work is taking place and prior to the date that the Demised
Premises are substantially repaired or made tenantable the Rent allocable to
such reoccupied portion, based upon the proportion which the area of the
reoccupied portion of the Demised Premises bears to the total area of the
Demised Premises, shall be payable by Tenant from the date of such occupancy.
22.03. If (a) the Building or the Demised Premises shall be totally damaged
or destroyed by fire or other casualty, or (b) the Building shall be so damaged
or destroyed by fire or other casualty (whether or not the Demised Premises are
damaged or destroyed) that its repair or restoration requires the expenditure,
as estimated by a reputable contractor or architect designated by Landlord, of
more than twenty percent (20%) (or ten percent [10%] if such casualty occurs
during the last two [2] years of the Term) of the full insurable value of the
Building immediately prior to the casualty, or (c) the Building shall be damaged
or destroyed by fire or other casualty (whether or not the Demised Premises are
damaged or destroyed) and either the loss shall not be covered by Landlord's
insurance or the net insurance proceeds (after deducting all expenses in
connection with obtaining such proceeds) shall, in the estimation of a reputable
contractor or architect designated by Landlord be insufficient to pay for the
repair or restoration work, then in either such case Landlord may terminate this
Lease by giving Tenant notice to such effect within ninety (90) days after the
date of the fire or other casualty.
22.04. Except as provided in Article 22.07 hereinbelow, Tenant shall not be
entitled to terminate this Lease and no damages, compensation or claim shall be
payable by Landlord for inconvenience, loss of business or annoyance arising
from any repair or restoration of any portion of the Demised Premises
28
or of the Building pursuant to this Article 22. Landlord shall use its best
efforts to make such repair or restoration promptly and in such manner as not
unreasonably to interfere with Tenant's use and occupancy of the Demised
Premises, but Landlord shall not be required to do such repair or restoration
work except during Landlord's business hours on business days.
22.05. Intentionally omitted.
22.06. Landlord will not carry insurance of any kind on the Tenant's
Property, and, except as provided by law or by reason of Landlord's breach of
any of its obligations hereunder, shall not be obligated to repair any damage to
or replace the Tenant's Property.
22.07. Notwithstanding anything herein contained to the contrary, Landlord
hereby agrees to advise Tenant, within thirty (30) days of the date of any fire
or other casualty, as to whether or not Landlord will be able to restore the
Demised Premises to a tenantable condition within ten (10) months from the date
of the casualty. In the event Landlord advises Tenant that it cannot so restore
the Demised Premises within said ten (10) month period, Tenant shall have the
right to terminate this Lease which right must be exercised within twenty (20)
days of the receipt of Landlord's notice. In the event Landlord advises Tenant
that it is able to restore the Premises within said ten (10) month period, or,
in the event Tenant fails to so advise Landlord within the twenty (20) day
period that it desires to terminate the Lease, then the provisions of Article
22.01 through 22.06 shall control. In the event Landlord advised Tenant it was
able to restore the Demised Premises to a tenantable condition within ten (10)
months from the date of any fire or other casualty, or, in the alternative,
Tenant failed to advise Landlord that it intended to terminate the Lease such
that Landlord commenced restoration of same, and in either such case, Landlord
fails to restore the Premises to a tenantable condition within said ten (10)
month period, Tenant shall have the right to terminate this Lease by delivering
written notice to Landlord to that effect within twenty (20) days of the last
day of said ten (10) month period.
It is specifically agreed by and between the parties hereto that to the extent
there is any fire or other casualty during the last eighteen (18) months of the
Term of the Lease or any extension thereof, and, in Tenant's reasonable business
judgement, it is not able to operate its business at the Demised Premises,
Tenant shall have the right to terminate this Lease by delivering written notice
to Landlord to that effect which termination shall be effective on the date of
Landlord's receipt of such notice.
22.08. The provisions of this Article 22 shall be deemed an express
agreement governing any case of damage or destruction of the Demised Premises
and/or Building by fire or other casualty, and any law providing for such a
contingency in the absence of an express agreement, now or hereafter in force,
shall have no application in such case.
29
ARTICLE 23 - EMINENT DOMAIN
23.01 If the whole of the Demised Premises shall be taken by any public or
quasi-public authority under the power of condemnation, eminent domain or
expropriation, or in the event of conveyance of the whole of the Demised
Premises in lieu thereof, this Lease shall terminate as of the day possession
shall be taken by such authority and Landlord shall forthwith, subject to the
provisions of Article 8, return Tenant's Security Deposit and any prepaid
amounts. If 25% or less of the Floor Space of the Demised Premises shall be so
taken or conveyed, this Lease shall terminate only in respect of the part so
taken or conveyed as of the day possession shall be taken by such authority. If
more than 25% of the Floor Space of the Demised Premises shall be so taken or
conveyed, this Lease shall terminate only in respect of the part so taken or
conveyed as of the day possession shall be taken by such authority, but either
party shall have the right, to terminate this Lease upon notice given to the
other party within 30 days after such taking possession. If more than 25% of the
Floor Space of the Building shall be so taken or conveyed, Landlord may, by
notice to Tenant, terminate this Lease as of the day possession shall be taken.
If more than 25% of the Floor Space of the Building shall be so taken or
conveyed, and Tenant, in its reasonable business judgment, is unable to continue
to operate in the Demised Premises, Tenant may, by notice to Landlord, terminate
this Lease as of the day possession shall be taken. If so much of the parking
facilities shall be so taken or conveyed that the number of parking spaces
necessary, in Landlord's reasonable judgment, for the continued operation of the
Building shall not be available, Landlord shall, by notice to Tenant, terminate
this Lease as of the day possession shall be taken. If this Lease shall continue
in effect as to any portion of the Demised Premises not so taken or conveyed,
the Rent shall be computed as of the day possession shall be taken on the basis
of the remaining Floor Space of the Demised Premises. Except as specifically
provided herein, in the event of any such taking or conveyance there shall be no
reduction in Rent. If this Lease shall continue in effect, Landlord shall, at
its expense, but shall be obligated only to the extent of the net award or other
compensation (after deducting all expenses in connection with obtaining same)
available to Landlord for the improvements taken or conveyed (excluding any
award or other compensation for land or for the unexpired portion of the term of
any Superior Lease), make all necessary alterations so as to constitute the
remaining Building a complete architectural and tenantable unit, except for the
Tenant's Property, and Tenant shall make all alterations or replacements to the
Tenant's Property and decorations in the Demised Premises. All awards and
compensation for any taking or conveyance, whether for the whole or a part of
the Land or Building, the Demised Premised or otherwise, shall be the property
of Landlord, and Tenant hereby assigns to Landlord all of Tenant's right, title
and interest in and to any and all such awards and compensation, including,
without limitation, any award or compensation for the value of the unexpired
portion of the Term. Tenant shall be entitled to claim, prove and receive in the
condemnation proceeding such award or compensation as may be allowed for the
Tenant's Property and for loss of business, good will, and depreciation or
injury to and cost of removal of the Tenant's Property, but only if such award
or compensation shall be made by the condemning authority in addition to, and
shall not result in a reduction of, the award or compensation made by it to
Landlord.
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23.02. If the temporary use or occupancy of all or any part of the Demised
Premises shall be taken during the Term, Tenant shall be entitled, except as
hereinafter set forth, to receive that portion of the award or payment for such
taking which represents compensation for the use and occupancy of the Demised
Premises, for the taking of the Tenant's Property and for moving expenses, and
Landlord shall be entitled to receive that portion which represents
reimbursement for the cost of restoration of the Demised Premises. This Lease
shall be and remain unaffected by such taking and Tenant shall continue to be
responsible for all of its obligations hereunder insofar as such obligations are
not affected by such taking and shall continue to pay the Rent in full when due.
If the period of temporary use or occupancy shall extend beyond the Expiration
Date, that part of the award or payment which represents compensation for the
use and occupancy of the Demised Premises (or a part thereof) shall be divided
between Landlord and Tenant so that Tenant shall receive (except as otherwise
provided below) so much thereof as represents compensation for the period up to
and including the Expiration Date and Landlord shall receive so much thereof as
represents compensation for the period after the Expiration Date.
ARTICLE 24 - SURRENDER
24.01. On the Expiration Date, or upon any earlier termination of this
Lease, Tenant shall quit and surrender the Demised Premises to Landlord
"broom-clean" and in good order, condition and repair, except for ordinary wear
and tear and such damage or destruction as Landlord is required to repair or
restore under this Lease, and Tenant shall remove all of Tenant's Property
therefrom except as otherwise expressly provided in this Lease. To the extent
Tenant elects to terminate the Lease in accordance with Article 22.07
hereinabove, Tenant shall have no obligation to surrender the Premises in
accordance with this Article 24.01.
24.02. If Tenant remains in possession of the Demised Premises after the
expiration of the Term, Tenant shall be deemed to be occupying the Demised
Premises as a tenant from month to month at the sufferance of Landlord subject
to all of the provisions of this Lease, except that the monthly Fixed Rent shall
be twice the Fixed Rent in effect during the last month of the Term, plus l/12th
of the average annual Percentage Rent for the immediately preceding three full
Calendar Years (or for the entire Term if less than three full Calendar Years).
24.03. No act or thing done by Landlord or its agents shall be deemed an
acceptance of a surrender of the Demised Premises, and no agreement to accept
such surrender shall be valid unless in writing and signed by Landlord.
ARTICLE 25 - CONDITIONS OF LIMITATION
25.01. This Lease is subject to the limitation that whenever Tenant or any
Guarantor (a) shall make an assignment for the benefit of creditors, or (b)
shall commence a voluntary case or have entered against it an order for
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relief under any chapter of the Federal Bankruptcy Code (Title 11 of the United
States Code) or any similar order or decree under any federal or state law, now
in existence, or hereafter enacted having the same general purpose, and such
order or decree shall have not been stayed or vacated within 30 days after
entry, or (c) shall cause, suffer, permit or consent to the appointment of a
receiver, trustee, administrator, conservator, sequestrator, liquidator or
similar official in any federal, state or foreign judicial or nonjudicial
proceeding, to hold, administer and/or liquidate all or substantially all of its
assets, and such appointment shall not have been revoked, terminated, stayed or
vacated and such official discharged of his duties within 30 days of his
appointment, then Landlord, at any time after the occurrence of any such event,
may give Tenant a notice of intention to end the Term at the expiration of five
(5) days from the date of service of such notice of intention, and upon the
expiration of said five (5) day period, whether or not the Term shall
theretofore have commenced, this Lease shall terminate with the same effect as
if that day were the expiration date of this Lease, but Tenant shall remain
liable for damages as provided in Article 27.
25.02. This Lease is subject to the further limitations that: (a) if Tenant
shall default in the payment of any Rent, and such default shall continue for
five (5) days after notice or (b) if Tenant shall, whether by action or
inaction, be in default of any of its obligations under this Lease (other than a
default in the payment of Rent) and such default shall continue and not be
remedied within fifteen (15) days after Landlord shall have given to Tenant a
notice specifying the same, or, in the case of a default which cannot with due
diligence be cured within a period of fifteen (15) days and the continuance of
which for the period required for cure will not subject Landlord or any Superior
Lessor to prosecution for a crime (as more particularly described in the last
sentence of Section 12.02) or termination of any Superior Lease or foreclosure
of any Superior Mortgage, if Tenant shall not, (i) within said fifteen (15) day
period advise Landlord of Tenant's intention to take all steps necessary to
remedy such default, (ii) duly commence within said fifteen (15) day period, and
thereafter diligently prosecute to completion all steps necessary to remedy the
default, and (iii) complete such remedy within a reasonable time after the date
of said notice by Landlord, or (c) if any event shall occur or any contingency
shall arise whereby this Lease would, by operation of law or otherwise, devolve
upon or pass to any person, firm or corporation other than Tenant, except as
expressly permitted by Article 11, or (d) if Tenant shall abandon the Demised
Premises, then, in any of said cases, Landlord may give to Tenant a notice of
intention to end the Term at the expiration of five (5) days from the date of
the service of such notice of intention, and upon the expiration of said five
(5) days, whether or not the Term shall theretofore have commenced, this Lease
shall terminate with the same effect as if that day were the expiration date of
this Lease, but Tenant shall remain liable for damages as provided in Article
27.
ARTICLE 26 - RE-ENTRY BY LANDLORD
26.01. If this Lease shall terminate as provided in Article 25, Landlord or
Landlord's agents and employees may immediately or at any time
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thereafter re-enter the Demised Premises, or any part thereof, either by summary
dispossess proceedings or by any suitable action or proceeding at law without
being liable to indictment, prosecution or damages therefor, and may repossess
the same, and may remove any Person therefrom, to the end that Landlord may
have, hold and enjoy the Demised Premises. The word "re-enter," as used herein,
is not restricted to its technical legal meaning. If this Lease is terminated
under the provisions of Article 25, or if Landlord shall re-enter the Demised
Premises under the provisions of this Article 26, or in the event of the
termination of this Lease, or of re-entry, by or under any summary dispossess or
other proceedings or action or any provision of law by reason of default
hereunder on the part of Tenant, Tenant shall thereupon pay to Landlord the Rent
payable up to the time of such termination of this Lease, or of such recovery of
possession of the Demised Premises by Landlord, as the case may be, and shall
also pay to Landlord damages as provided in Article 27.
26.02. In the event of a breach by Tenant of any of its obligations under
this Lease, Landlord shall also have the right of injunction. The special
remedies to which Landlord may resort hereunder are cumulative and are not
intended to be exclusive of any other remedies to which Landlord may lawfully be
entitled at any time and Landlord may invoke any remedy allowed at law or in
equity as if specific remedies were not provided for herein.
26.03. If this Lease shall terminate under the provisions of Article 25, or
if Landlord shall re-enter the Demised Premises under the provisions of this
Article 26, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Landlord shall be
entitled to retain all monies, if any, paid by Tenant to Landlord, whether as
Advance Rent, security or otherwise, but such monies shall be credited by
Landlord against any Rent due from Tenant at the time of such termination or
re-entry or, at Landlord's option, against any damages payable by Tenant under
Article 27 or pursuant to law.
ARTICLE 27 - DAMAGES
27.01. If this Lease is terminated under the provisions of Article 25 or if
Landlord shall re-enter the Demised Premises under the provisions of Article 26,
or in the event of the termination of this Lease, or of re-entry, by or under
any summary dispossess or other proceeding or action or any provision of law by
reason of default hereunder on the part of Tenant, Tenant shall pay as
Additional Charges to Landlord, at the election of Landlord, either or any
combination of:
(a) a sum which at the time of such termination of this Lease or at the
time of any such re-entry by Landlord, as the case may be, represents the then
value of the excess, if any, of (i) the aggregate amount of the Rent which would
have been payable by Tenant (conclusively presuming the average monthly
Percentage Rent and Additional Charges to be the same as were the average
monthly Percentage Rent and Additional Charges payable for the year, or if less
than 365 days have then elapsed since the Commencement Date, the partial year,
immediately preceding such termination or re-entry) for the period
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commencing with such earlier termination of this Lease or the date of any such
re-entry, as the case may be, and ending with the Expiration Date, over (ii) the
aggregate rental value of the Demised Premises for the same period; or
(b) sums equal to the Fixed Rent, Percentage Rent (in the same monthly
amount as the average monthly Percentage Rent payable for the year, or if less
than three hundred sixty five (365) days have then elapsed since the
Commencement Date, the partial year, immediately preceding such termination or
re-entry) and the Additional Charges which would have been payable by Tenant had
this Lease not so terminated, or had Landlord not so re-entered the Demised
Premises, payable upon the due dates therefor specified herein following such
termination or such re-entry and until the Expiration Date, provided, however,
that if Landlord shall relet the Demised Premises during said period, Landlord
shall credit Tenant with the net rents received by Landlord from such reletting,
such net rents to be determined by first deducting from the gross rents as and
when received by Landlord from such reletting the expenses incurred or paid by
Landlord in terminating this Lease or in re-entering the Demised Premises and in
securing possession thereof, as well as the expenses of reletting, including,
without limitation, altering and preparing the Demised Premises for new tenants,
brokers' commissions, reasonable legal fees, and all other expenses properly
chargeable against the Demised Premises and the rental therefrom, it being
understood that any such reletting may be for a period shorter or longer than
the period ending on the Expiration Date; but in no event shall Tenant be
entitled to receive any excess of such net rents over the sums payable by Tenant
to Landlord hereunder, nor shall Tenant be entitled in any suit for the
collection of damages pursuant to this subdivision (b) to a credit in respect of
any rents from a reletting, except to the extent that such net rents are
actually received by Landlord. If the Demised Premises or any part thereof
should be relet in combination with other space, then proper apportionment on a
square foot basis shall be made of the rent received from such reletting and of
the expenses of reletting; or
(c) a sum which at the time of such termination of this Lease or at the
time of any such re-entry by Landlord, as the case may be, represents the
aggregate amount of the Rent which would have been payable by Tenant
(conclusively presuming the average monthly Additional Charges to be the same as
were the average monthly Additional Charges payable for the year, or if less
than 365 days have then elapsed since the Commencement Date, the partial year,
immediately preceding such termination or re-entry) for the period commencing
with such earlier termination of this Lease or the date of any such re-entry, as
the case may be, and ending with the Expiration Date; provided, however, that if
Landlord shall relet the Demised Premises during said period, Landlord shall
credit Tenant with the net rents received by Landlord from such reletting, such
net rents to be determined by first deducting from the gross rents as and when
received by Landlord from such reletting the expenses incurred or paid by
Landlord in terminating this Lease or in re-entering the Demised Premises and in
securing possession thereof, as well as the expenses of reletting, including,
without limitation, altering and preparing the Demised Premises for new tenants,
brokers' commissions, reasonable legal fees, and all other expenses properly
chargeable against the Demised Premises and the rental therefrom, it being
understood that any such reletting may be for
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a period shorter or longer than the period ending on the Expiration Date; but in
no event shall Landlord have to account to Tenant for any rents in excess of the
total damages recovered by Landlord hereunder, nor shall Tenant be entitled in
any suit for the collection of damages pursuant to this subdivision (c) to a
credit in respect of any rents from a reletting, except to the extent that such
net rents are actually received by Landlord. If the Demised Premises or any part
thereof should be relet in combination with other space, then proper
apportionment on a square foot basis shall be made of the rent received from
such reletting and of the expenses of reletting.
Landlord shall not be liable in any way whatsoever for its failure or refusal to
relet the Demised Premises or any part thereof, or if the Demised Premises or
any part thereof are relet, for its failure to collect the rent under such
reletting, and no such refusal or failure to relet or failure to collect rent
shall release or affect Tenant's liability for damages or otherwise under this
Lease.
27.02. Suit or suits for the recovery of such damages or, any installments
thereof, may be brought by Landlord at any time and from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the Term would have expired if it had not been
so terminated under the provisions of Article 25, or under any provision of law,
or had Landlord not re-entered the Demised Premises. Nothing herein contained
shall be construed to limit or preclude recovery by Landlord against Tenant of
any sums or damages to which, in addition to the damages particularly provided
above, Landlord may lawfully be entitled by reason of any default hereunder on
the part of Tenant. Nothing herein contained shall be construed to limit or
prejudice the right of Landlord to prove for and obtain as damages by reason of
the termination of this Lease or re-entry of the Demised Premises for the
default of Tenant under this Lease, an amount equal to the maximum allowed by
any statute or rule of law in effect at the time, whether or not such amount be
greater than, equal to, or less than any of the sums referred to in Section
27.01.
27.03. In addition, if this Lease is terminated under the provisions of
Article 25, Tenant covenants that: (a) the Demised Premises then shall be in the
same condition as that in which Tenant has agreed to surrender the same to
Landlord at the Expiration Date; (b) Tenant shall have performed prior to any
such termination any obligation of Tenant contained in this Lease for the making
of any alteration or for restoring or rebuilding the Demised Premises or the
Building, or any part thereof; and (c) for the breach of any covenant of Tenant
set forth above in this Section 27.03, Landlord shall be entitled immediately,
without notice or other action by Landlord, to recover, and Tenant shall pay, as
and for liquidated damages therefor, the reasonable cost of performing such
covenant (as estimated by an independent contractor selected by Landlord).
27.04. In addition to any other remedies Landlord may have under this
Lease, and without reducing or adversely affecting any of Landlord's rights and
remedies under this Article 27, if any Rent or damages payable hereunder by
Tenant to Landlord are not paid within five (5) days after demand therefor, the
same shall bear interest at the Late Payment Rate or the maximum rate
35
permitted by law, whichever is less, from the due date thereof until paid, and
the amounts of such interest shall be Additional Charges hereunder.
ARTICLE 28 - AFFIRMATIVE WAIVERS
28.01. Tenant, on behalf of itself and any and all persons claiming through
or under Tenant, does hereby waive and surrender all right and privilege which
it, they or any of them might have under or by reason of any present or future
law, to redeem the Demised Premises or to have a continuance of this Lease after
being dispossessed or ejected from the Demised Premises by process of law or
under the terms of this Lease or after the termination of this Lease as provided
in this Lease.
28.02. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, and Tenant's use or occupancy of the
Demised Premises and use of the Common Area, including, without limitation, any
claim of injury or damage, and any emergency and other statutory remedy with
respect thereto. Tenant shall not interpose any counterclaim of any kind, except
compulsory counterclaims as permitted by applicable Court Rule, in any action or
proceeding commenced by Landlord to recover possession of the Demised Premises.
ARTICLE 29 - NO WAIVERS
29.01. The failure of either party to insist in any one or more instances
upon the strict performance of any one or more of the obligations of this Lease,
or to exercise any election herein contained, shall not be construed as a waiver
or relinquishment for the future of the performance of such one or more
obligations of this Lease or of the right to exercise such election, but the
same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission. The receipt by Landlord of Fixed Rent,
Percentage Rent or Additional Charges with knowledge of breach by Tenant of any
obligation of this Lease shall not be deemed a waiver of such breach.
ARTICLE 30 - CURING LANDLORD'S/TENANT'S DEFAULTS
30.01. If Tenant shall default in the performance of any of Tenant's
obligations under this Lease, Landlord, without thereby waiving such default,
may (but shall not be obligated to) perform the same for the account and at the
expense of Tenant, without notice in a case of emergency, and in any other case
only if such default continues after the expiration of fifteen (15) days from
the date Landlord gives Tenant notice of the default. Bills for any expenses
incurred by Landlord in connection with any such performance by it for the
account of Tenant, and bills for all costs, expenses and disbursements of every
kind and nature whatsoever, including reasonable attorneys' fees and
36
expenses, involved in collecting or endeavoring to collect the Rent or any part
thereof or enforcing or endeavoring to enforce any rights against Tenant or
Tenant's obligations hereunder, under or in connection with this Lease or
pursuant to law, including any such cost, expense and disbursement involved in
instituting and prosecuting summary proceedings or in recovering possession of
the Demised Premises after default by Tenant or upon the expiration of the Term
or sooner termination of this Lease, and interest on all sums advanced by
Landlord under this Article at the Late Payment Rate or the maximum rate
permitted by law, whichever is less, may be sent by Landlord to Tenant monthly,
or immediately, at Landlord's option, and such amounts shall be due and payable
in accordance with the terms of such bills.
30.02. If Landlord shall default in the performance of any of Landlord's
obligations under this Lease, Tenant, without thereby waiving such default, may
(but shall not be obligated to) perform the same for the account and at the
expense of Landlord, without notice in a case of emergency, and in any other
case only if such default continues after the expiration of thirty (30) days
from the date Tenant gives Landlord notice of the default. Bills for any
expenses incurred by Tenant in connection with any such performance by it for
the account of Landlord, may be sent by Tenant to Landlord monthly, or
immediately, at Tenant's option, and such amounts shall be due and payable in
accordance with the terms of such bills, but in no event shall any such xxxx be
due and payable less than thirty (30) days from the date of such bills.
ARTICLE 31 - BROKER
31.01. Landlord and Tenant represent to each other that no broker except
the Broker was instrumental in bringing about or consummating this Lease and
that neither party had any conversations or negotiations with any broker except
the Broker concerning the leasing of the Demised Premises. Landlord and Tenant
agree to indemnify and hold the other harmless against and from any claims for
any brokerage commissions and all costs, expenses and liabilities in connection
therewith, including, without limitation, attorneys' fees and expenses, arising
out of any conversations or negotiations had by Landlord or Tenant, or as the
case may be, with any broker other than the Broker. Landlord shall pay any
brokerage commission due the Broker pursuant to a separate agreement between
Landlord and the Broker.
ARTICLE 32 - NOTICES
32.01. Any notice, statement, demand, consent, approval or other
communication required or permitted to be given, rendered or made by either
party to the other, pursuant to this Lease or pursuant to any applicable Legal
Requirement, shall be in writing and shall be deemed to have been properly
given, rendered or made only if hand delivered or sent by United States
registered or certified mail, return receipt requested, addressed to the other
party at the address hereinabove set forth with copies, as to Tenant, to:
Fulbright and Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxx Xxxx, Esq., and to the Guarantor at the address set forth in the
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Guaranty, Attention: Chief Financial Officer; and as to Landlord, to the
attention of General Counsel with a concurrent notice to the attention of
Controller, and shall be deemed to have been given, rendered or made (i) if
mailed, on the second day after the day so mailed, unless mailed outside the
State of New Jersey, in which case it shall be deemed to have been given,
rendered or made on the third business day after the day so mailed, and (ii) if
hand delivered, on the date delivered. Either party may, by notice as aforesaid,
designate a different address or addresses for notices, statements, demands,
consents, approvals or other communications intended for it.
ARTICLE 33 - ESTOPPEL CERTIFICATES
33.01. Each party shall, at any time and from time to time, as requested by
the other party, upon not less than ten (10) days' prior notice, execute and
deliver to the requesting party a statement certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), certifying the dates to which the Fixed Rent and Additional
Charges have been paid, stating whether or not, to the best knowledge of the
party giving the statement, the requesting party is in default in performance of
any of its obligations under this Lease, and, if so, specifying each such
default of which the party giving the statement shall have knowledge, and
stating whether or not, to the best knowledge of the party giving the statement,
any event has occurred which with the giving of notice or passage of time, or
both, would constitute such a default of the requesting party, and, if so,
specifying each such event; any such statement delivered pursuant hereto shall
be deemed a representation and warranty to be relied upon by the party
requesting the certificate and by others with whom such party may be dealing,
regardless of independent investigation. Tenant also shall include in any such
statement such other information concerning this Lease as Landlord may
reasonably request.
ARTICLE 34 - ARBITRATION
34.01. Landlord may at any time request arbitration, and Tenant may at any
time when not in default in the payment of any Rent request arbitration, of any
matter in dispute but only where arbitration is expressly provided for in this
Lease. The party requesting arbitration shall do so by giving notice to that
effect to the other party, specifying in said notice the nature of the dispute,
and said dispute shall be determined in Newark, New Jersey, by a single
arbitrator, in accordance with the rules then obtaining of the American
Arbitration Association (or any organization which is the successor thereto).
The award in such arbitration may be enforced on the application of either party
by the order or judgment of a court of competent jurisdiction. The fees and
expenses of any arbitration shall be borne by the parties equally, but each
party shall bear the expense of its own attorneys and experts and the additional
expenses of presenting its own proof. If Tenant gives notice requesting
arbitration as provided in this Article, Tenant shall simultaneously serve a
duplicate of the notice on each Superior Mortgagee and Superior Lessor whose
name and address shall previously have been furnished
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to Tenant by Landlord in writing, and such Superior Mortgagees and Superior
Lessor shall have the right to participate in such arbitration.
ARTICLE 35 - MEMORANDUM OF LEASE
35.01. Neither party shall record this Lease. However, at the request of
either party, the other party shall promptly execute, acknowledge and deliver to
the requesting party a memorandum of lease in respect of this Lease sufficient
for recording. Such memorandum shall not be deemed to change or otherwise affect
any of the obligations or provisions of this Lease. Whichever party requests
such memorandum of Lease shall pay all recording costs and expenses, including
any taxes that are due upon such recording.
ARTICLE 36 - MISCELLANEOUS
36.01. Tenant expressly acknowledges and agrees that Landlord has not made
and is not making, and Tenant, in executing and delivering this Lease, is not
relying upon, any warranties, representations, promises or statements, except to
the extent that the same are expressly set forth in this Lease or in any other
written agreement(s) which may be made between the parties concurrently with the
execution and delivery of this Lease. All understandings and agreements
heretofore had between the parties are merged in this Lease and any other
written agreement(s) made concurrently herewith, which alone fully and
completely express the agreement of the parties and which are entered into after
full investigation. Neither party has relied upon any statement or
representation not embodied in this Lease or in any other written agreement(s)
made concurrently herewith.
36.02. No agreement shall be effective to change, modify, waive, release,
discharge, terminate or effect an abandonment of this Lease, in whole or in
part, unless such agreement is in writing, refers expressly to this Lease and is
signed by the party against whom enforcement of the change, modification,
waiver, release, discharge, termination or effectuation of abandonment is
sought.
36.03. If Tenant shall at any time request Landlord to sublet or let the
Demised Premises for Tenant's account, Landlord or its agent is authorized to
receive keys for such purposes without releasing Tenant from any of its
obligations under this Lease, and Tenant hereby releases Landlord of any
liability for loss or damage to any of the Tenant's Property in connection with
such subletting or letting.
36.04. Except as otherwise expressly provided in this Lease, the
obligations under this Lease shall bind and benefit the successors and assigns
of the parties hereto with the same effect as if mentioned in each instance
where a party is named or referred to; provided, however, that (a) no violation
of the provisions of Article 11 shall operate to vest any rights in any
successor or assignee of Tenant and (b) the provisions of this Section
39
36.04 shall not be construed as modifying the conditions of limitation contained
in Article 25.
36.05. Except for Tenant's obligations to pay Rent, the time for Landlord
or Tenant, as the case may be, to perform any of its respective obligations
hereunder shall be extended if and to the extent that the performance thereof
shall be prevented due to any Unavoidable Delay. Except as expressly provided to
the contrary, the obligations of Tenant hereunder shall not be affected,
impaired or excused, nor shall Landlord have any liability whatsoever to Tenant,
(a) because Landlord is unable to fulfill, or is delayed in fulfilling, any of
its obligations under this Lease due to any of the matters set forth in the
first sentence of this Section 36.05, or (b) because of any failure or defect in
the supply, quality or character of electricity, water or any other utility or
service furnished to the Demised Premises for any reason beyond Landlord's
reasonable control.
36.06. Any liability for payments hereunder (including, without limitation,
Additional Charges) shall survive the expiration of the Term or earlier
termination of this Lease.
36.07. INTENTIONALLY OMITTED.
36.08. If an excavation shall be made upon land adjacent to or under the
Building, or shall be authorized to be made, Tenant shall afford to the Person
causing or authorized to cause such excavation, license to enter the Demised
Premises for the purpose of performing such work as said Person shall reasonably
deem necessary or desirable to preserve and protect the Building from injury or
damage and to support the same by proper foundations, without any claim for
damages or liability against Landlord and without reducing or otherwise
affecting Tenant's obligations under this Lease.
36.09. Tenant shall not exercise its rights under Article 15 or any other
provision of this Lease in a manner which would violate Landlord's union
contracts or create any work stoppage, picketing, labor disruption or dispute or
any interference with the business of Landlord or any tenant or occupant of the
Building.
36.10. If known to Tenant, or if Tenant could have reasonably known of
same, Tenant shall give prompt notice to Landlord of (a) any occurrence in or
about the Demised Premises for which Landlord might be liable, (b) any fire or
other casualty in the Demised Premises, (c) any damage to or defect in the
Demised Premises, including the fixtures and equipment thereof, for the repair
of which Landlord might be responsible, and (d) any damage to or defect in any
part of the Building's sanitary, electrical, heating, ventilating, air-
conditioning, elevator or other systems located in or passing through the
Demised Premises or any part thereof.
36.11. This Lease shall be governed by and construed in accordance with the
laws of the State of New Jersey. If any provision of this Lease shall be invalid
or unenforceable, the remainder of this Lease shall not be affected and shall be
enforced to the extent permitted by law. The table of contents,
40
captions, headings and titles in this Lease are solely for convenience of
reference and shall not affect its interpretation. This Lease shall be construed
without regard to any presumption or other rule requiring construction against
the party causing this Lease to be drafted. If any words or phrases in this
Lease shall have been stricken out or otherwise eliminated, whether or not any
other words or phrases have been added, this Lease shall be construed as if the
words or phrases so stricken out or otherwise eliminated were never included in
this Lease and no implication or inference shall be drawn from the fact that
said words or phrases were so stricken out or otherwise eliminated. Each
covenant, agreement, obligation or other provision of this Lease on Tenant's
part to be performed, shall be deemed and construed as a separate and
independent covenant of Tenant, not dependent on any other provision of this
Lease. All terms and words used in this Lease, regardless of the number or
gender in which they are used, shall be deemed to include any other number and
any other gender as the context may require.
36.12. Landlord represents and warrants that (a) Landlord is the sole owner
of the Building, (b) Landlord has the full power and authority to enter into
this Lease, and (c) no other party shall have any right to use or occupy the
Demised Premises by lease or otherwise as of the Commencement Date.
36.13. Tenant represents and warrants that Tenant has the full power and
authority to enter into this Lease, and undertake the obligations of Tenant
hereunder.
36.14. Within thirty (30) days of each anniversary date of this Lease,
Tenant shall annually furnish to Landlord a copy of its then current audited
financial statement which shall be employed by Landlord for purposes of
financing the Premises and not distributed otherwise without prior authorization
of Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of
the day and year first above written.
("Landlord")
XXXXX MOUNTAIN ASSOCIATES
BY: XXXXX MOUNTAIN INDUSTRIES, INC.
("general partner")
BY: /s/ Xxxxxxx X. Xxxxxx, Xx.
------------------------------------
[Corporate Seal] Xxxxxxx X. Xxxxxx, Xx.
Vice President
("Tenant")
G-III LEATHER FASHIONS
BY: /s/ Xxxx Xxxxxx
------------------------------------
[Corporate Seal] Name: Xxxx Xxxxxx
Title: Secretary/Treasurer
41
091693
090993
RIDER TO LEASE DATED September 21st, 1993 BETWEEN XXXXX MOUNTAIN ASSOCIATES, AS
LANDLORD AND G-III LEATHER FASHIONS, AS TENANT.
Rl. If any of the provisions of this Rider shall conflict with any of the
provisions, printed or typewritten, of this Lease, such conflict shall resolve
in every instance in favor of the provisions of this Rider.
R2. Provided Tenant is not in default of any of the material terms and
conditions of the Lease, Tenant shall have two (2) successive options to extend
the Term of its lease of the Demised Premises, from the date upon which this
Lease would otherwise expire for two separate extended periods of five (5) years
each ("Extended Period"), the first of which is called the "First Extended
Period" and the second is called the "Second Extended Period", upon the
following terms and conditions:
1. If Tenant elects to exercise any one or both of said options, it shall
do so by giving notice of such election to Landlord on or before the date which
is nine (9) months before the beginning of the Extended Period for which the
Term is to be extended by the exercise of such option. Tenant agrees that it
shall have forever waived its right to exercise any such option if it shall fail
for any reason whatsoever to give such notice to Landlord by the time provided
herein for the giving of such notice, whether such failure is inadvertent or
intentional, time being of the essence as to the exercise of each such option.
2. If Tenant elects to exercise any one or both of said options, the Term
shall be automatically extended for the Extended Period covered by the option so
exercised without execution of an extension or renewal lease. Within ten (10)
days after request of either party following the effective exercise of any such
option, however, Landlord and Tenant shall execute, acknowledge and deliver to
each other duplicate originals of an instrument in recordable form confirming
that such option was effectively exercised.
3. Each Extended Period shall be upon the same terms and conditions as are
in effect immediately preceding the commencement of such Extended Period;
provided, however, that Tenant shall have no right or option to extend the Term
for any period of time beyond the expiration of the Second Extended Period and,
provided further, that in the Extended Period(s) the Fixed Rent shall be as
follows:
-1-
(a) The Fixed Rent during the First Extended Period shall be
Ninety-five percent (95%) of Fair Market Value ("FMV"). FMV shall be determined
by mutual agreement of the parties. If the parties are unable to agree on the
FMV, the parties shall choose a licensed Real Estate Appraiser who shall
determine the FMV. The cost of said Real Estate Appraiser shall be borne equally
by the parties. If the parties are unable to agree on a licensed Real Estate
Appraiser, each party shall select one Appraiser to appraise the FMV. If the
difference between the two appraisals is 20% or less of the lower appraisal,
then the FMV shall be the average of the two appraisals. If the difference
between the two appraisals is greater than 20% of the lower appraisal, the two
Appraisers shall select a third licensed Real Estate Appraiser to appraise the
FMV. The FMV shall in such case be the average of the three appraisals. The cost
of the third appraisal shall be borne equally by the parties. It is expressly
agreed by the parties hereto that the appraisals performed hereunder for the
purposes of calculating FMV shall value the Building without consideration of
the material handling equipment installed by Tenant.
(b) The Fixed Rent during the Second Extended Period shall be
Ninety-five percent (95%) of FMV.
Anything to the contrary contained herein notwithstanding, the Fixed Rent for
such First or Second Extended Period shall not be less than the Fixed Rent for
the period immediately preceding the Extended Period for which the Fixed Rent is
being calculated.
4. Any termination, expiration, cancellation or surrender of this Lease
shall terminate any right or option for the Extended Period(s) not yet
exercised.
5. Landlord shall have the right, for thirty (30) days after receipt of
notice of Tenant's election to exercise any option to extend the Term, to reject
Tenant's election if Tenant gave such notice while Tenant was in default in the
performance of any of its obligations under the Lease, and such rejection shall
automatically render Tenant's election to exercise such option null and void and
of no effect.
6. The options provided herein to extend the Term of the Lease may not be
severed from the Lease or separately sold, assigned or otherwise transferred.
-2-
R3. Notwithstanding anything contained in Article 1.01H to the contrary,
Tenant's obligation to make payment of Rent (exclusive of utilities for which
Tenant shall be obligated) hereunder shall commence on February 1, 1994.
("Landlord")
XXXXX MOUNTAIN ASSOCIATES
By: XXXXX MOUNTAIN INDUSTRIES, INC.
("general partner")
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
------------------------------------
Xxxxxxx X. Xxxxxx, Xx.
Vice President
("Tenant")
G-III LEATHER FASHIONS
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Secretary/Treasurer
-3-
