AGREEMENT OF LEASE
Agreement of Lease, made this 19th day of February, 1998, between FR
ACQUISITIONS, INC., a Maryland corporation, party of the first part, hereinafter
referred to as Owner, and DI GIORGIO CORPORATION, a Delaware corporation, party
of the second part, hereinafter referred to as Tenant.
WITNESSETH:
Owner hereby leases to Tenant and Tenant hereby hires from Owner all of
the land, property and improvements, known as and by the following street
address, 000 Xxxxxxx Xxxxx, Xxxxxx Xxxx, Xxx Xxxx, in the County of Nassau,
State of New York, for the term of two (2) years (or until such term shall
sooner cease and expire as hereinafter provided) to commence on the ________ day
of __________________, 1998, and to end on the __________ day of
_______________, 20___ and both dates inclusive, at an annual rental rate of ONE
MILLION FIVE HUNDRED TWENTY-FIVE THOUSAND FIVE HUNDRED DOLLARS and 00/100
($1,525,500.00) which Tenant agrees to pay in lawful money of the United States
which shall be legal tender in payment of all debts and dues, public and
private, at the time of payment, in equal monthly installments in advance on the
first day of each month during said term, at the office of Owner or such other
place as Owner may designate, without any set off or deduction whatsoever,
except that Tenant shall pay the first monthly installment on the commencement
date.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns, hereby
covenant as follows:
1. RENT
Tenant shall pay the rent as above and as hereinafter
provided.
2. OCCUPANCY
Tenant shall use and occupy demised premises for warehousing
and distributing products that are not hazardous materials (as defined in the
annexed Rider) with appurtenant offices (including computer room) and/or for all
other purposes which are lawful and in compliance with the certificate of
occupancy for the demised premises provided such use is in accordance with the
certificate of occupancy for the building, if any, and for no other purpose.
3. ALTERATIONS - See Rider
If any mechanic's lien is filed against the demised premises,
or the building of which the same forms a part, for work claimed to have been
done for, or materials furnished to, Tenant, whether or not done pursuant to
this Article, the same shall be discharged by Tenant within thirty (30) days
thereafter, at Tenant's expense, by payment or filing the bond required by law
or otherwise. All fixtures and all paneling, partitions, railings and like
installations, installed
in the premises at any time, either by Tenant or by Owner on Tenant's behalf,
shall, upon installation, become the property of Owner and shall remain upon and
be surrendered with the demised premises. Nothing in this Article shall be
construed to give Owner title to or to prevent Tenant's removal of trade
fixtures, moveable office furniture and equipment, but upon removal of any such
from the premises or upon removal of other installations as may be required by
Owner, Tenant shall immediately and at its expense, repair and restore the
premises to the condition existing prior to installation and repair any damage
to the demised premises or the building due to such removal. All property
permitted or required to be removed by Tenant at the end of the term remaining
in the premises after Tenant's removal shall be deemed abandoned and may, at the
election of Owner, either be retained as Owner's property or removed from the
premises by Owner, at Tenant's expense. Subject to Rider
4. REPAIRS
Tenant shall, throughout the term of this lease, take good
care of the demised premises including the bathrooms and lavatory facilities and
the windows and window frames and, the fixtures and appurtenances therein and at
Tenant's sole cost and expense promptly make all repairs thereto and to the
building, whether structural or non-structural in nature. Tenant shall also
repair all damage to the building and the demised premises caused by the moving
of Tenant's fixtures, furniture or equipment. All the aforesaid repairs shall be
of quality or class equal to the original work or construction. If Tenant fails
, after thirty (30) days notice, to proceed with due diligence to commence
repairs required to be made by Tenant, the same may be made by the Owner at the
expense of Tenant, and the reasonable expenses thereof incurred by Owner shall
be collectible, as additional rent, after rendition of a xxxx or statement
therefor. If the demised premises be or become infested with vermin, Tenant
shall, at its expense, cause the same to be exterminated. The provisions of this
Article 4 with respect to the making of repairs shall not apply in the case of
fire or other casualty with regard to which Article 9 hereof shall apply.
5. WINDOW CLEANING
Tenant will not clean nor require, permit, suffer or allow any
window in the demised premises to be cleaned from the outside in violation of
Section 202 of the New York State Labor Law or any other applicable law or of
the Rules of the Board of Standards, and Appeals, or of any other Board or body
having or asserting jurisdiction.
6. REQUIREMENTS OF LAW, FIRE INSURANCE
Prior to the commencement of the lease term, if Tenant is then
in possession, and at all times thereafter Tenant shall, at Tenant's sole cost
and expense, promptly comply with all present and future laws, orders and
regulations of all state, federal, municipal and local governments, departments,
commissions and boards and any direction of any public officer pursuant to law,
and all orders, rules and regulations of the New York Board of Fire
Underwriters, or the Insurance Services Office, or any similar body which shall
impose any violation, order or duty upon Owner or Tenant with respect to the
demised premises, whether or
not arising out of Tenant's use or manner of use thereof. Tenant shall not do or
permit any act or thing to be done in or to the demised premises which is
contrary to law, or which will invalidate or be in conflict with public
lability, fire or other policies of insurance at any time carried by or for the
benefit of Owner. Tenant shall not keep anything in the demised premisses except
as now or hereafter permitted by the Fire Department, Board of Fire
Underwriters, Fire Insurance Rating Organization and other authority having
jurisdiction. Tenant shall not place a load upon any floor of the demised
premises exceeding the floor load per square foot area which it was designed to
carry and which is allowed by law. Owner reserves the right to prescribe the
weight and position of all safes, business machines and mechanical equipment.
Such installations shall be placed and maintained by Tenant, at Tenant's
expense, in settings sufficient, in Owner's judgement, to absorb and prevent
vibration, noise and annoyance.
7. SUBORDINATION
This lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or hereafter affect such
leases or the real property of which demised premises are a part and to all
renewals, modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument or subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall from time to time execute promptly any certificate that Owner may
reasonably request, provided it provides for non-disturbance.
8. TENANT'S LIABILITY INSURANCE PROPERTY LOSS, DAMAGE,
INDEMNITY
Owner or its agents shall not be liable for any damage to
property of Tenant or of others entrusted to employees of the building, nor for
loss of or damage to any property of Tenant by theft or otherwise, nor for any
injury or damage to persons or property resulting from any cause of whatsoever
nature, unless caused by or due to the negligence of Owner, its agents, servants
or employees; Owner or it agents shall not be liable for any damage caused by
other tenants or persons in, upon or about said building or caused by operations
in connection of any private, public or quasi public work. If at any time any
windows of the demised premises are temporarily closed, darkened or bricked up
(or permanently closed, darkened or bricked up, if required by law) for any
reason whatsoever including, but not limited to Owner's own acts, Owner shall
not be liable for any damage Tenant may sustain thereby and Tenant shall not be
entitled to any compensation therefor nor abatement or diminution of rent nor
shall the same release Tenant from its obligations hereunder nor constitute an
eviction. Tenant shall indemnify and save harmless Owner against and from all
liabilities, obligations, damages, penalties, claims, costs and expenses for
which Owner shall not be reimbursed by insurance, including reasonable
attorney's fees, paid, suffered or incurred as a result of any breach by Tenant,
Tenant's agents, contractors, employees, invitees, or licensees, of any covenant
or condition of this lease, or the carelessness, negligence or improper conduct
of the Tenant, Tenant's agents, contractors, employees, invitees or licensees,
unless due to Landlord's gross negligence. Tenant's liability under this lease
extends to the acts and omissions of any sub-tenant, and any agent, contractor,
employee, invitee or licensee of any sub-tenant. In case any action or
proceeding is brought against Owner by reason of any such claim, Tenant, upon
written notice from Owner, will, at Tenant's expense, resist or defend such
action or proceeding.
9. DESTRUCTION, FIRE AND OTHER CASUALTY
If the demised premises or any part thereof shall be damaged
by fire or other casualty, Tenant shall give immediate notice thereof to Owner
and this lease shall continue in full force and effect except as hereinafter set
forth. Owner and Tenant each hereby releases and waives all right of recovery
above, against the other or any one claiming through or under each of them by
way of subrogation or otherwise. The release and waiver herein referred to shall
be deemed to include any loss or damage to the demised premises and/or to any
personal property, equipment, trade fixtures, goods and merchandise located
therein. Tenant acknowledges that Owner will not carry insurance on Tenant's
furniture and or furnishings or any fixtures or equipment, improvements, or
appurtenances removable by Tenant and agrees that Owner will not be obligated to
repair any damage thereto or replace the same. Tenant hereby waives the
provisions of Section 227 of the Real Property Law and agrees that the
provisions of this Article shall govern and control in lieu thereof.
10. EMINENT DOMAIN
If in whole or any material part of the demised premises shall
be acquired or condemned by Eminent Domain for any public or quasi public use or
purpose, then and in that event, at Tenant's option, to be exercised by a
written notice delivered within thirty (30) days of the taking by Eminent
Domain, the term of this lease shall cease and terminate from the date of title
vesting in such proceeding and Tenant shall have no claim for the value of any
unexpired term of said lease. Tenant shall have the right to make an independent
claim to the condemning authority for the value of Tenant's moving expenses and
personal property, trade fixtures and equipment, provided Tenant is entitled
pursuant to the terms of the lease to remove such property, trade fixtures and
equipment at the end of the term and provided further such claim does not reduce
Owner's award.
11. ASSIGNMENT, MORTGAGE, ETC.
Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, expressly
covenants that it shall not assign, mortgage or encumber this agreement, nor
underlet, or suffer or permit the demised premises or any part thereof to be
used by others, without the prior written consent of Owner in each instance; not
to be unreasonably withheld. If this lease be assigned, or if the demised
premises or any part thereof be underlet or occupied by anybody other than
Tenant, Owner may, after default by Tenant, collect rent from the assignee,
under-tenant or occupant, and apply the net amount collected to the rent herein
reserved, but no such assignment, underletting, occupancy or collection shall be
deemed a waiver of this covenant, or the acceptance of the assignee, undertenant
or occupant as tenant, or a release of Tenant from the further performance by
Tenant of covenants on the part of Tenant herein contained. The consent by Owner
to an assignment or
underletting shall not in any wise be construed to relieve Tenant from obtaining
the express consent in writing of Owner to any further assignment or
underletting.
12. ELECTRIC CURRENT - (Deleted)
13. ACCESS TO PREMISES
Owner or Owner's agents shall have the right (but shall not be
obligated) to enter the demised premises in any emergency at any time, and, at
other reasonable times, upon reasonable notice, to examine the same and to make
such repairs, replacements and improvements as Owner may elect to perform in the
premises after Tenant's failure to make repairs or perform any work which Tenant
is obligated to perform under this lease, or for the purpose of complying with
laws, regulations and other directions of governmental authorities. Owner may,
during the progress of any work in the demised premises, take all necessary
materials and equipment into said premises without the same constituting an
eviction nor shall the Tenant be entitled to any abatement of rent while such
work is in progress nor to any damages by reason of loss or interruption of
business or otherwise. In accessing the demised premises, Landlord shall act so
as to not to significantly interfere with Tenant's business operations and shall
give reasonable prior notice of said access. Throughout the term hereof Owner
shall have the right to enter the demised premises at reasonable hours for the
purpose of showing the same to prospective purchasers or mortgagees of the
building, and during the last six (6) months of the term for the purpose of
showing the same to prospective tenants and may, during said six months period,
place upon the demised premises the usual notices "To Let" and "For Sale" which
notices Tenant shall permit to remain thereon without molestation. If Tenant is
not present to open and permit an entry into the demised premises, Owner or
Owner's agents may enter the same whenever such entry may be necessary or
permissible by master key or forcibly and provided reasonable care is exercised
to safeguard Tenant's property, such entry shall not render Owner or its agents
liable therefor, nor in any event shall the obligations of Tenant hereunder be
affected.
14. VAULT, VAULT SPACE, AREA
No Vaults, vault space or area, whether or not enclosed or
covered, not within the property line of the building is leased hereunder
anything contained in or indicated on any sketch, blue print or plan, or
anything contained elsewhere in this lease to the contrary notwithstanding.
Owner makes no representation as to the location of the property line of the
building. All vaults and vault space and all such areas not within the property
line of the building, which Tenant may be permitted to use and/or occupy, is to
be used and/or occupied under a revocable license, and if any such license be
revoked, or if the amount of such space or area be diminished or required by any
federal, state or municipal authority or public utility, Owner shall not be
subject to any liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent, nor shall such revocation, diminution or
requisition be deemed constructive or actual eviction. Any tax, fee or charge of
municipal authorities for such vault or area shall be paid by Tenant, if used by
Tenant, whether or not specifically leased hereunder.
15. OCCUPANCY
Tenant will not at any time use or occupy the demised premises
in violation of the certificate of occupancy issued for the building of which
the demised premises are a part. Tenant has inspected the premises and accepts
them as is, subject to the riders annexed hereto with respect to Owner's work,
if any. In any event, Owner makes no representation as to the condition of the
premises and Tenant agrees to accept the same subject to violations, whether or
not of record. If any governmental license or permit shall be required for the
proper and lawful conduct of Tenant's business, Tenant shall be responsible for
and shall procure and maintain such license or permit.
16. BANKRUPTCY
(a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be cancelled by Owner by sending of a written
notice to Tenant within a reasonable time after the happening of any one or more
of the following events: (1) the commencement of a case in bankruptcy or under
the laws of any state naming Tenant as the debtor; or (2) the making by Tenant
to an assignment or any other arrangement for the benefit of creditors under any
state statute. Neither Tenant nor any person claiming through or under Tenant,
or by reason of any statute or order of court, shall thereafter be entitled to
possession of the premises demised but shall forthwith quit and surrender the
premises. If this lease shall be assigned in accordance with its terms, the
provisions of this Article 16 shall be applicable only to the party then owning
Tenant's interest in this Lease.
(b) It is stipulated and agreed that in the event of the
termination of this lease pursuant to (a) hereof, Owner shall forthwith,
notwithstanding any other provisions of this lease to the contrary, be entitled
to recover from Tenant as and for liquidated damages an amount equal to the
difference between the rental reserved hereunder for the unexpired portion of
the term demised and the fair and reasonable rental value of the demised
premises for the same period. In the computation of such damages the difference
between any installment of rent becoming due hereunder after the date of
termination and the fair and reasonable rental value of the demised premises for
the period for which such installment was payable shall be discounted to the
date of termination at the rate of four percent (4%) per annum. If such premises
or any part thereof be relet by the Owner for the unexpired term of said lease
or any part thereof, before presentation of proof of such liquidated damages to
any court, commission or tribunal, the amount of rent reserved upon such
reletting shall be deemed to be the fair and reasonable rental value for the
part or the whole of the premises so re-let during the term of the re-letting.
Nothing herein contained shall limit or prejudice the right of the Owner to
prove for and obtain as liquidated damages by reason of such termination, an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, such damages are to be
proved, whether or not such amount be greater, equal to, or less than the amount
of the difference referred to above.
17. DEFAULT
If Tenant defaults in fulfilling its covenant to any rent or
additional rent, and Tenant fails to cure said default, (i) as to the first such
default in any calendar year in the payment of base rent and as to all defaults
in the payment of additional rent, within five (5) days of written notice of
said default and (ii) as to all other defaults in payment of base rent within
ten (10) days of the date on which said payment was due, the Owner may serve a
five (5) day notice of cancellation, and upon the expiration of said five (5)
days this Lease and the term thereunder shall end and expire as fully and
completely as if the expiration of such five (5) day period were the day herein
definitely fixed for the end and expiration of this Lease and the term thereof
and Tenant shall then quit and surrender the demised premises to Owner but
Tenant shall remain liable as hereinafter provided.
(1) If Tenant defaults in fulfilling any of the covenants of
this lease other than the covenants for the payment of rent or additional rent;
or if the demised premises becomes vacant or deserted "or if this lease be
rejected under ss.235 of Title 11 of the US Code (Bankruptcy code);" or if any
execution or attachment shall be issued against Tenant or any of Tenant's
property whereupon the demised premises shall be taken or occupied by someone
other than Tenant; then in any one or more of such events, upon Owner serving a
written thirty (30) days notice upon Tenant specifying the nature of said
default and upon the expiration of said thirty (30) days, if Tenant shall have
failed to comply with our remedy such default, or if the said default or
omission complained of shall be of a nature that the same cannot be completely
cured or remedied within said thirty (30) day period, and if Tenant shall not
have diligently commenced during such default within such thirty (30) day
period, and shall not thereafter with reasonable diligence and in good faith,
proceed to remedy or cure such default, then Owner may serve a written five (5)
days' notice of cancellation of this lease upon Tenant, and upon the expiration
of said five (5) days this lease and the term thereunder shall end and expire as
fully and completely as if the expiration of such five (5) day period were the
day herein definitely fixed for the end and expiration of this lease and the
term thereof and Tenant shall then quit and surrender the demised premises to
Owner but Tenant shall remain liable as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been
given, and the term shall expire as aforesaid; or if Tenant shall make default
in the payment of the rent reserved herein or any item of additional rent herein
mentioned or any part of either or in making any other payment herein required;
then and in any of such events Owner may without notice, re-enter the demised
premises and dispossess Tenant by summary proceedings and the legal
representative of Tenant or other occupant of demised premises and remove their
effects and hold the premises as if this lease had not been made, and Tenant
hereby waives the service of notice of intention to re-enter or to institute
legal proceedings to that end.
18. REMEDIES OF OWNER AND WAIVER OF REDEMPTION
In case of any such default, re-entry, expiration and/or
dispossess by summary proceedings or other wise, (A) the rent, and additional
rent, shall become due thereupon and be paid up to the time of such re-entry,
dispossess and/or expiration, (B) Owner may re-let the
premises or any part or parts thereof, either in the name of Owner or otherwise,
for a term or terms, which may at Owner's option be less than or exceed the
period which would otherwise have constituted the balance of the term of this
lease and may grant concessions or free rent or charge a higher rental than that
in this lease, (C) Tenant or the legal representatives of Tenant shall also pay
Owner as liquidated damages for the failure of Tenant to observe and perform
said Tenant's covenants herein contained, any deficiency between the rent hereby
reserved and or covenanted to be paid and the net amount, if any, of the rents
collected on account of the subsequent lease or leases of the demised premises
for each month of the period which would otherwise have constituted the balance
of the term of this lease. The failure of Owner to re-let the premises or any
part or parts thereof shall not release or affect Tenant's liability for
damages. In computing such liquidated damages there shall be added to the said
deficiency such expenses as Owner may incur in connection with re-letting, such
as legal expenses, reasonable attorneys' fees, brokerage, advertising and for
keeping the demised premises in good order. Any such liquidated damages shall be
paid in monthly installments by Tenant on the rent day specified in this lease
and any suit brought to collect the amount of the deficiency for any month shall
not prejudice in any way the rights of Owner to collect the deficiency for any
subsequent month by a similar proceeding. Owner, in putting the demised premises
in good order or preparing the same for re-rental may, at Owner's option, make
such alterations, repairs, replacements, and/or decorations in the demised
premises as Owner, in Owner's sole judgment, considers advisable and necessary
for the purpose of re-letting the demised premises, and the making of such
alterations, repairs, replacements, and/or decorations shall not operate or be
construed to release Tenant from liability hereunder as aforesaid. Owner shall
in no event be liable in any way whatsoever for failure to re-let the demised
premises, or in the event that the demised premises are re-let, for failure to
collect the rent thereof under such re-letting, and in no event shall Tenant be
entitled to receive any excess, if any, of such net rents collected over the
sums payable by Tenant to Owner hereunder. In the event of a breach or
threatened breach by Tenant of any of the covenants or provisions hereof, Owner
shall have the right of injunction and the right to invoke any remedy allowed at
law or in equity as if re-entry, summary proceedings and other remedies were not
herein provided for. Mention in this lease of any particular remedy, shall not
preclude Owner from any other remedy, in law or in equity. Tenant hereby
expressly waives any and all rights of redemption granted by or under any
present or future laws.
19. FEES AND EXPENSES
If Tenant shall default in the observance or performance of
any term or covenant on Tenant's part to be observed or performed under or by
virtue of any of the terms or provisions in any article of this lease, after
notice if required and upon expiration of any applicable grace period if any,
(except in an emergency), then, unless otherwise provided elsewhere in this
lease, Owner may immediately or at any time thereafter and without notice
perform the obligation of Tenant thereunder. If Owner, in connection with the
foregoing or in connection with any default by Tenant in the covenant to pay
rent hereunder, makes any expenditures or incurs and obligations for the payment
of money, including but not limited to reasonable attorney's fees, in
instituting, prosecuting or defending any action or proceedings, and prevails in
any such action or proceeding, then Tenant will reimburse Owner for such sums so
paid or obligations incurred with interest and costs. The foregoing expenses
incurred by reason of Tenant's default shall be
deemed to be additional rent hereunder and shall be paid by Tenant to Owner
within ten (10) days of rendition of any xxxx or statement to Tenant therefor.
If Tenant's lease term shall have expired at the time of making of such
expenditures or incurring of such obligations, such sums shall be recoverable by
Owner as damages.
20. BUILDING ALTERNATIONS AND MANAGEMENT - (Deleted)
21. NO REPRESENTATIONS BY OWNER
Neither Owner nor Owner's agents have made any representations
or promises with respect to the physical condition of the building, the land
upon which it is erected or the demised premises, the rents, leases, expenses of
operation or any other matter or thing affecting or related to the demised
premises or the building except as herein expressly set forth and no rights,
easements or licenses are acquired by Tenant by implication or otherwise except
as expressly set forth in the provisions of this lease. Tenant has inspected the
building and the demised premises and is thoroughly acquainted with their
condition and agrees to take the same "as is" on the date possession is tendered
and acknowledges that the taking of possession of the demised premises by Tenant
shall be conclusive evidence that the said premises and the building of which
the same form a part were in satisfactory condition at the time such possession
was so taken, except as to latent defects. All understandings and agreements
heretofore made between the parties hereto are merged in this contract, which
alone fully and completely expresses the agreement between Owner and Tenant and
any executory agreement hereafter made shall be ineffective to change, modify,
discharge or effect an abandonment of it in whole or in part, unless such
executory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
22. END OF TERM
Upon the expiration or other termination of the term of this
lease, Tenant shall quit and surrender to Owner the demised premises, free of
debris, in good order and condition, ordinary wear and damages which Tenant is
not required to repair as provided elsewhere in this lease excepted, and Tenant
shall remove all its property from the demised premises subject to the Rider.
Tenant's obligation to observe or perform this covenant shall survive the
expiration or other termination of this lease. If the last day of the term of
this Lease or any renewal thereof, falls on Sunday, this lease shall expire at
noon on the preceding Saturday unless it be a legal holiday in which case it
shall expire at noon on the preceding business day.
23. QUIET ENJOYMENT
Owner covenants and agrees with Tenant that upon Tenant paying
the rent and additional rent and observing and performing all the terms
covenants and conditions, on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the premises hereby demised, subject,
nevertheless, to the terms and conditions of this lease including, but not
limited to, Article 34 hereof and to the ground leases, underlying leases and
mortgages hereinbefore mentioned.
24. FAILURE TO GIVE POSSESSION - (Deleted)
25. NO WAIVER
The failure of either party to seek redress for violation of,
or to insist upon the strict performance of any covenant or condition of this
lease, shall not prevent a subsequent act which would have originally
constituted a violation from having all the force and effect of an original
violation. The receipt by Owner of rent with knowledge of the breach of any
covenant of this lease shall not be deemed a waiver of such breach and no
provision of this lease shall be deemed to have been waived by Owner unless such
waiver be in writing signed by Owner. No payment by Tenant or receipt by Owner
of a lesser amount than the monthly rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any endorsement
or statement of any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Owner may accept such check or
payment without prejudice to Owner's right to recover the balance of such rent
or pursue any other remedy in this lease provided. All checks rendered to Owner
as and for the rent of the demised premises shall be deemed payments for the
account of Tenant. Acceptance by Owner of rent from anyone other than Tenant
shall not be deemed to operate as an attornment to Owner by the payor of such
rent or as a consent by Owner to an assignment or subletting by Tenant of the
demised premises to such payor, or as a modification of the provisions of this
lease. No act or thing done by Owner or Owner's agents during the term hereby
demised shall be deemed an acceptance of a surrender of said premises and no
agreement to accept such surrender shall be valid unless in writing signed by
Owner. No employee of Owner or Owner's agent shall have any power to accept the
keys of said premises prior to the termination of the lease and the delivery of
keys to any such agent or employee shall not operate as a termination of the
lease or a surrender of the premises.
26. WAIVER OF TRIAL BY JURY
It is mutually agreed by and between Owner and Tenant that the
respective parties hereto shall and they hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other (except for personal injury or property damage) on any matters
whatsoever arising out of or in any way connected with the lease, the
relationship of Owner and Tenant, Tenant's use of or occupancy of said premises,
and any emergency statutory or any other statutory remedy. It is further
mutually agreed that in the event Owner commences any proceeding or action for
possession including a summary proceeding for possession of the premises, Tenant
will not interpose any counterclaim of whatever nature or description in any
such proceeding including a counterclaim under Article 4 except for mandatory
counterclaims.
27. INABILITY TO PERFORM
This Lease and the obligation of Tenant to pay rent hereunder
and perform all of the other covenants and agreements hereunder on part of
Tenant to be performed shall in no wise be affected, impaired or excused because
Owner is unable to fulfill any of its obligations under this lease or to supply
or delayed in supplying any service expressly or impliedly to be supplied
or is unable to make, or is delayed in making any repair, additions, alterations
or decorations or is unable to supply or is delayed in supplying any equipment,
fixtures or other materials if Owner is prevented or delayed from doing so by
reason of strike or labor troubles or any cause whatsoever beyond Owner's sole
control including, but not limited to, government preemption or restrictions or
by reason of any rule, order or regulation of any department or subdivision
thereof of any government agency or by reason of the conditions which have been
or are affected, either directly or indirectly, by war or other emergency.
28. BILLS AND NOTICES
Except as otherwise in this lease provided, a xxxx statement,
notice or communication which Owner may desire or be required to give to Tenant,
shall be deemed sufficiently given or rendered if, in writing, delivered to
Tenant personally or sent by registered or certified mail addressed to Tenant at
Di Giorgio Corporation, 000 Xxxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000, Attn: Xx.
Xxxxxxx X. Xxxx, CFO and EVP, and the time of the rendition of such xxxx or
statement and of the giving of such notice or communication shall be deemed to
be the time when the same is delivered to Tenant, mailed, or left at the
premises as herein provided. Any notice by Tenant to Owner must be served by
registered or certified mail or by nationally recognized overnight carrier
addressed to Owner at the address first hereinabove given or at such other
address as Owner shall designate by written notice.
29. WATER CHARGES
(See Rider)
30. SPRINKLERS
Anything elsewhere in this lease to the contrary
notwithstanding, if the New York Board of Fire Underwriters or the New York Fire
Insurance Exchange or any bureau, department or official of the federal, state
or city government recommend that any changes, modifications, alterations, or
additional sprinkler heads or other equipment be made or supplied in an existing
sprinkler system by reason of Tenant's business, or the location of partitions,
trade fixtures, or other contents of the demised premises, or for any other
reason, or if any such sprinkler system installations, modifications,
alterations, additional sprinkler heads or other such equipment, become
necessary to prevent the imposition of a penalty or charge against the full
allowance for a sprinkler system in the fire insurance rate set by any said
Exchange or by any fire insurance company, Tenant shall, at Tenant's expense,
promptly make such sprinkler system changes, modifications, alterations, and
supply additional sprinkler heads or other equipment as required whether the
work involved shall be structural or non-structural in nature.
31. ELEVATORS, HEAT, CLEANING - (Deleted)
32. SECURITY - (Deleted)
33. CAPTIONS
The Captions are inserted only as a mater of convenience and
for reference and in no way define, limit or describe the scope of this lease
nor the intent of any provision thereof.
34. DEFINITIONS
The term "Owner" as used in this lease means only the owner,
of the fee or of the leasehold of the building, or the mortgagee in possession,
for the time being of the land and building (or the owner of a lease of the
building or of the land and building) of which the demised premises form a part,
so that in the event of any sale or sales of said land and building or of said
lease, or in the event of a lease of said building, or of the land and building,
the said Owner shall be and hereby is entirely freed and relieved of all
covenants and obligations of Owner hereunder accruing from and after the sale,
and it shall be deemed and construed without further agreement between the
parties or their successors in interest, or between the parties and the
purchaser, at any such sale, or the said lessee of the building, or of the land
and building, that the purchaser or the lessee of the building has assumed and
agreed to carry out any and all covenants and obligations of Owner hereunder
accruing from and after the sale. The words "re-enter" and "re-entry" as used in
this lease are not restricted to their technical legal meaning. The term "rent"
includes the annual rental rate whether so expressed or expressed in monthly
installments, and "additional rent." "Additional rent" means all sums which
shall be due to Owner from Tenant under this lease, in addition to the annual
rental rate. The term "business days" as used in this lease, shall exclude
Saturdays, Sundays and all days observed by the State or Federal Government as
legal holidays and those designated as holidays by the applicable building
service union employees service contract or by the applicable Operating
Engineers contract with respect to HVAC service. Wherever it is expressly
provided in this lease that consent shall not be unreasonably withheld, such
consent shall not be unreasonably delayed.
35. ADJACENT EXCAVATION - SHORING
If an excavation shall be made upon land adjacent to the
demised premises, or shall be authorized to be made, Tenant shall afford to the
person causing or authorized to cause such excavation, license to enter upon the
demised premises for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the building of which demised premises form a
part from injury or damage and to support the same by proper foundations without
any claim for damages or indemnity against Owner, or diminution or abatement of
rent.
36. RULES AND REGULATIONS - (Deleted)
37. GLASS - (Deleted)
38. ESTOPPEL CERTIFICATE - (Deleted)
39. DIRECTORY BOARD LISTING - (Deleted)
40. SUCCESSORS AND ASSIGNS
The covenants, conditions and agreements contained in this
lease shall bind and inure to the benefit of Owner and Tenant and their
respective heirs, distributees, executors, administrators, successors, and
except as otherwise provided in this lease, their assigns. Tenant shall look
only to Owner's estate an interest in the land and building for the satisfaction
of Tenant's remedies for the collection of a judgement (or other judicial
process) against Owner in the event of any default by Owner hereunder, and no
other property or assets of such owner (or any partner, member, officer or
director thereof, disclosed or undisclosed), shall be subject to levy, execution
or other enforcement procedure for the satisfaction of Tenant's remedies under
or with respect to this lease, the relationship of Owner and Tenant hereunder,
or Tenant's use and occupancy of the demised premises.
See Rider annexed hereto and made a part hereof.
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and
sealed this lease as of the day and year first above written.
FR ACQUISITIONS, INC.
Witness for Owner:
____________________________ By: ______________________________________
DI GIORGIO CORPORATION
Witness for Tenant
____________________________ By: ______________________________________
ACKNOWLEDGMENTS
CORPORATE TENANT
STATE OF NEW JERSEY s.s.:
County of Middlesex
On this ____ day of February, 1998, before me personally came Xxxxxxxx
X. Xxxxxxxx to me known, who being by me duly sworn, did depose and say that he
is the Vice President of Di Giorgio Corporation , the corporation described in
and which executed the foregoing instrument, as TENANT; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order.
--------------------------
RIDER TO LEASE BETWEEN
FR ACQUISITIONS, INC.,a Maryland corporation,
AS LANDLORD
AND
Di GIORGIO CORP., a Delaware corporation,
AS TENANT
41. RIDER CONTROLS:
In case of a conflict between the provisions of this rider, and the
printed provisions of this lease, the provisions of this rider shall prevail.
42. ADDITIONAL RENT/OPERATING EXPENSES:
Any sums of money required to be paid under this lease by Tenant in
addition to the rent herein provided, shall be deemed "additional rent due and
payable." It shall be paid after demand therefor with the rent next due or as
may be otherwise provided herein. Such additional rent shall be deemed to be and
shall constitute rent hereunder and shall be collectible in the same manner and
with the same remedies as if they had been rents originally reserved herein.
Tenant's obligation to pay additional rent shall survive the earlier termination
and/or expiration of the term of this lease. If Landlord receives from Tenant
any payment less than the sum of the annual rental rate, additional rent, and
other charges then due and owing, Landlord, in its sole discretion, may allocate
such payment in whole or in part to any annual rental rate, any additional rent,
and/or other charge or to any combination thereof. Landlord's failure to deliver
to Tenant a statement showing Tenant liability for additional rent for any
portion of the term of this lease during the term of this lease shall neither
prejudice or waive Landlord's right to deliver any such statement for a
subsequent period or to include in such subsequent period a previous period.
43. LATE CHARGE/RETURNED CHECK CHARGE:
(a) Tenant shall pay a late charge of 5% of any payment of rent or
additional rent or any other sum of money or payment not received by Landlord
within ten (10) days after the same is due. Such late charge shall be in
addition to all of Landlord's other rights and remedies hereunder in the event
of Tenant's default and shall be payable as additional rent.
(b) If any check tendered by Tenant to Landlord is returned by the bank
for non-payment for any reason whatsoever, there will be an administrative
charge of $25.00 per check, each time it is returned which amount shall be
deemed additional rent.
44. TAXES:
(a) The Tenant shall pay any and all Real Estate Taxes accruing during the
term of this lease for the demised premises directly to the municipality or
governmental authority assessing such Real Estate Taxes before such payment is
due without penalty. Tenant shall provide Landlord with reasonable proof of
payment of any such Real Estate Taxes within twenty (20) days after written
request. If Tenant shall fail to make any such payment prior to the imposition
of penalties, Landlord shall have the right, but not the obligation to pay such
Real Estate Taxes and any payment made by Landlord for such Real Estate Taxes
shall be deemed additional rent under this lease and shall accrue interest at a
per annum fixed rate equal to the Prime Rate plus two (2) percentage points (the
"Interest Rate") from the date paid by Landlord until Tenant shall reimburse
Landlord for such payment. The Prime Rate shall be the "prime rate" announced by
the Chase Manhattan Bank from the time to time.
(b) Real Estate Taxes shall mean any and all taxes, assessments, sewer
and water rents, rates and charges, license fees, impositions, liens, and all
other municipal and governmental charges of any nature whatsoever (except only
inheritance, franchise and estate taxes and income taxes not herein expressly
agreed to be paid by Tenant), whether general or special, ordinary or
extraordinary foreseen or unforeseen which may presently or in the future become
due or payable or which may be levied, assessed or imposed by any taxing
authority against the demised premises, including without limitation, all taxes
and assessments for improving any streets, alleys, sidewalks, sidewalk vaults
and alley vaults, if any.
(c) (i) If required to be paid to the holder of the first mortgage
affecting the demised premises (provided same is not Landlord or an affiliate of
Landlord), Landlord may, at its election, require Tenant to pay estimated
monthly installments, in advance, of Real Estate Taxes which may be next due
under this lease on the first day of each month, as additional rent. Said
installments shall be equal to the estimated Real Estate Taxes next due (as
reasonably estimated by the Landlord) less all installments already paid
therefor, divided by the number of months that are to elapse before one month
prior to the date when such Real Estate Taxes will become due. If Landlord shall
exercise its rights hereunder, Landlord and not Tenant shall then pay the Real
Estate Taxes directly or cause the mortgagee to pay the Real Estate Taxes.
(ii) Any deficiency in the amount of any such aggregate
payment shall constitute a default under this lease entitling Landlord to all
its rights and remedies hereunder as a default in the payment of rent, unless
paid by Tenant within twenty (20) days after notice of such deficiency.
(iii) If the total of the payments made by the Tenant shall
exceed the amount of payments actually made for Real Estate Taxes, such excess
shall be promptly refunded to Tenant by the Landlord provided Tenant is not then
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in default beyond applicable grace period. If, however, said payments made by
the Tenant shall not be sufficient to pay such Real Estate Taxes when same shall
become due and payable, then, within ten (10) days of the notice of the
deficiency from Landlord, the Tenant shall pay to the Landlord any amount
necessary to make up the deficiency. If there shall be a default under any of
the provisions of this lease and an action or proceeding shall be commenced as
herein provided, the Landlord shall be and hereby is, authorized and empowered
to apply, at the time of the commencement of such action or proceeding, or at
any time thereafter, the balance then remaining in the funds accumulated for
Real Estate Taxes as a credit against the rent and additional rent then
remaining unpaid hereunder.
(d) Not used.
(e) Not used.
(f) Landlord shall have the exclusive right to contest or protest the
assessed value of the demised premises and the land and building of which it
forms a part for all periods after the Commencement Date, provided, however,
that if Landlord shall not have commenced such a proceeding within twenty (20)
days after request from Tenant to do so, Tenant may, at its expense and cost,
bring such a proceeding (in Landlord's name, if necessary). In the event that
Landlord commences a tax certiorari proceeding without the consent and not at
the request of Tenant and such tax certiorari proceeding results in an increased
assessment, Tenant will not be responsible for any resulting increase in real
estate taxes.
(g) If as a result of any tax certiorari proceeding, whether previously
settled, now pending or hereafter brought by either Landlord or Tenant, Landlord
shall receive a refund of or credit against future payments of Real Estate Taxes
(after deducting all costs and expenses incurred to collect same), for any year
(i) prior to the Commencement Date or (ii) in which this lease is in full force
and effect and for which Tenant shall have paid the additional rent and annual
rental rate set forth herein, then, provided this lease shall not have been
terminated for Tenant's default, Tenant shall receive 100% of such refund which
shall be pro rated for any partial year in which the term of this lease expires.
This provision shall survive the expiration of the term of this lease. If as a
result of a tax certiorari proceeding Tenant shall receive a refund in Real
Estate Taxes (after deducting all costs and expenses incurred to collect same)
which Landlord is entitled to receive, Tenant shall receive such payment on
behalf of Landlord and pay Landlord such amount promptly after receipt.
45. INSURANCE:
Tenant shall, at its sole cost and expense, at all times during the
term of this lease (and any extensions thereof) obtain and pay for and maintain
in full force and effect the insurance policy or policies described in Schedule
C attached hereto. Certified copies of all insurance policies required pursuant
to this lease (or certificates thereof, in form and substance acceptable to
Landlord), shall be delivered to Landlord not less than five (5) days prior to
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the commencement of the term of this lease. If Tenant fails to submit such
policies or certificates to Landlord within the specified time, or otherwise
fails to obtain and maintain insurance coverages in accordance with this
paragraph, and such failure continues for more than ten (10) days after written
notice from Landlord, then Landlord's sole option, may, but shall not be
obligated to, procure such insurance on behalf of, and at the expense of,
Tenant. Tenant shall reimburse Landlord for such amounts upon demand, it being
understood that any such sums for which Tenant is required to reimburse Landlord
shall constitute additional rent.
46. TENANT TO PROVIDE FINANCIAL STATEMENT:
Tenant agrees that upon request by Landlord or Landlord's Agent, as
defined below, it will furnish to Landlord and to prospective or current
mortgagees of the building, and/or land of which it forms a part, such publicly
filed financial information as such current or prospective mortgagees may
request.
47. NO BROKER:
(a) Each party represents and warrants to the other that no broker has
earned or is otherwise entitled to a commission or finder's fee in connection
with this leasing, except that Xxxxx Xxxxx shall be entitled to a commission
upon Tenant's exercise of the option granted hereunder, to be paid by Landlord.
Each indemnifying party agrees to indemnify, defend, and hold harmless the other
party for any and all costs, expenses, and liability including legal fees
incurred by the other party as a result of a breach by the indemnifying party of
the aforementioned warranty or any inaccuracy or alleged inaccuracy of the above
representation.
(b) If any lien shall be filed against the demised premises, or the
building of which same is a part, by any broker based upon dealings with an
indemnifying party, such lien shall be discharged by the indemnifying party
within thirty (30) days thereafter, at the indemnifying party's expense, by
payment or by filing the bond required by law.
48. TENANT'S REPAIRS/MAINTENANCE:
(a) TENANT REPAIRS:
(i) Tenant shall, at its expense, throughout the term of this lease, maintain
and preserve, in working order (i.e. the building operational and the roof free
from leaks) and subject to paragraphs ll and 64 hereof, casualty excepted, the
demised premises and the facilities and systems thereof (including, but not
limited to, structural elements including the roof, the demised premises'
parking lot, and the electrical, mechanical, HVAC, and plumbing systems).
Without limiting the generality of the foregoing, Tenant, at its expense, shall
promptly replace or repair all broken doors and broken glass in and about the
demised premises and repair and maintain all sanitary and electrical fixtures
therein. Any repairs or replacements required to be made by Tenant to the
mechanical, electrical, sanitary, HVAC, or other systems of the demised premises
shall be performed by qualified employees or appropriately licensed contractors
4
approved by Landlord, which approval shall not be unreasonably withheld. All
repairs and replacements shall be made with materials of equal or better quality
than the items being repaired or replaced.
(ii) It is acknowledged by the parties hereto that the
maintenance of the driveways, snow removal, sump (if any), parking areas,
illumination of said parking areas, buffer area, live planting, fencing, and
insuring of the parking area shall be the responsibility of the Tenant.
(iii) Tenant shall supply at its own expense all gas,
electricity, fuel, heat, water, window cleaning and air conditioning.
(iv) To the extent that Requirements of Law (as defined in
paragraph 6), including (I) any requirements pursuant to the Americans with
Disabilities Act and the regulations promulgated thereunder and/or, (II) the
installation of a sprinkler system, require any structural or capital repairs,
the cost of such structural or capital repairs shall be amortized over their
useful life and the resulting monthly payment shall be paid by Tenant as
Additional Rent during the Term as the same may be extended. However, in the
event said repairs are necessitated due to Tenant's Alterations or particular
use of the Premises, Tenant shall bear full and complete responsibility for
same.
(v) If Tenant does not maintain or repair such elements as
provided in this Article, the Landlord may, but shall not be obligated to, after
not less than thirty (30) days additional notice (except in the case of
emergency), provided such period shall be extended if same can not be reasonably
be performed within such 30 day period, for the reasonable period necessary,
therefor, provided Tenant promptly commences same and diligently prosecutes same
to completion, make the necessary repair or cure the defective condition at the
expense of the Tenant and the Tenant shall reimburse Landlord promptly upon
request therefor. The amount of such reimbursement shall be considered
additional rent upon the failure of the Tenant to reimburse Landlord within ten
(10) days of demand thereof.
(b) VANDALISM:
Notwithstanding any contrary provision of this lease, Tenant,
at its expense, shall make any and all repairs including structural repairs to
the demised premises which may be necessitated by any break-in, forcible entry
or other trespass into or upon the demised premises, regardless of whether or
not such entry and damage is caused by the negligence or fault of Tenant or
occurs during or after business hours.
(c) WINDOWS:
Tenant shall, at its own cost and expense, clean and maintain,
including repair or replacement when necessary, all windows in the demised
premises. Tenant shall keep and maintain insurance for all glass in the demised
premises naming Landlord as additional insured.
5
(d) REFUSE PICK-UP:
Tenant shall provide for the removal at least biweekly of all
garbage, at its cost and expense and for such purpose obtain a service to pick
up rubbish on a regular basis. Garbage and refuse shall be kept in containers or
dumpsters.
(e) BUILDING CLEANING:
Tenant shall, at its cost and expense, take good care of and
keep clean and free from debris both the interior and exterior area in front of
the demised premises including exterior sidewalks adjacent to the demised
premises.
49. LANDLORD'S REPAIRS:
During the term of this lease, the Landlord shall only be responsible
for structural repairs to the demised premises which shall have been occasioned
by the negligent, willful or intentional acts of omission or commission of the
Landlord, its agents, employees or invitees. Tenant shall promptly give written
notice to Landlord with respect to any damages to the interior or exterior of
the demised premises.
50. LANDLORD'S WORK:
N/A
51. "AS IS," "WHERE IS" CONDITION OF DEMISED PREMISES:
Tenant agrees that Tenant is in occupancy of the demised premises, is
familiar with the condition of the demised premises, and Tenant hereby accepts
the demised premises on an "AS-IS," "WHERE-IS" basis, in its present condition,
subject to all latent and patent defects, damage, and its other conditions,
title defects, encumbrances, liens or title conditions, violations, notices of
violations, real estate taxes, assessments, and all other matters to which
Landlord has agreed to accept or has accepted title to the demised premises from
Tenant as Seller under the Contract (hereinafter defined) or otherwise. Tenant
acknowledges that neither Landlord nor any agent of Landlord ("Agent") nor any
representative of Landlord has made any representation as to the condition of
the demised premises or the suitability of the demised premises for Tenant's
intended use. Tenant represents and warrants that Tenant has made its own
inspection of the demised premises and is not relying on any representation of
Landlord with respect thereto. Neither Landlord nor Agent shall be obligated to
make any repairs, replacements or improvements of any kind or nature to the
demised premises (whether structural or nonstructural and whether or not
involving the roof of the building, the building's heating, ventilating and air
conditioning system, the demised premises' parking lot, or any other component
of the demised premises) in connection with, or in consideration of, this lease.
6
52. TENANT RESTRICTIONS:
(a) NOISE/ODORS:
Tenant covenants and agrees that throughout the demised term
it shall not suffer, allow or permit any condition at the demised premises to
constitute a nuisance or other violation of law, including without limitation,
any offensive or obnoxious vibration, noises, odor, or other undesirable effect,
and upon Landlord's notice thereof to Tenant, Tenant shall, within five (5) days
thereof, eliminate or control same. If any such condition is not so remedied
then Landlord may at its discretion either: (a) remedy such condition and any
cost and expense incurred by Landlord therefore shall be deemed additional rent
and paid by Tenant to Landlord together with the next installment of rent due
hereunder, or (b) treat such failure on the part of the Tenant to remedy such
condition as a material default under the provisions of this lease on the part
of the Tenant hereunder, entitling Landlord to any of its remedies, pursuant to
the terms of this lease. In no event, however, shall the Tenant make any
alteration, addition or structural installation in or to the premises or any
parts thereof to remedy or cure such default without the prior written consent
of the Landlord.
(b) TOXIC/HAZARDOUS WASTES:
(i) Tenant shall not cause or permit any Hazardous Material
(as hereinafter defined) to be brought upon, kept or used in or about the
demised premises by Tenant, its agents, employees, contractors or invitees,
except in compliance with all applicable laws and in compliance with all
required or necessary permits, if any. Tenant further covenants and agrees that
it shall not discharge any Hazardous Material in the ground or sewer disposal
system, except in compliance with all applicable laws and in compliance with all
required or necessary permits, if any. If Tenant breaches the obligations stated
in the preceding sentences, or if Tenant's introduction of Hazardous Material on
the demised premises results in contamination of the demised premises or any
other part of the building or land of which it forms a part or if there is such
a discharge during the Term of this Lease, then Tenant shall (A) immediately
give Landlord written notice thereof, and (B) indemnify, defend and hold
harmless Landlord from any and all claims, judgments, damages, penalties, fines,
costs, liabilities or losses (including, without limitation, diminution in value
of the demised premises or the building or land of which it forms a part, loss
or restriction on use of space in the building of land of which it forms a part,
reasonable sums paid in settlement of claims, reasonable attorneys',
consultants' and other expert fees) which arise during or after the term as a
result of such breach, contamination, or discharge. The foregoing
indemnification includes, without limitation, costs incurred in connection with
any required investigation of site conditions or any clean-up, remedial, removal
or restoration work required by any federal, state or local governmental agency
or political subdivision. Without limiting the foregoing, if the presence of any
Hazardous Material within the demised premises caused or permitted by Tenant
results in any contamination of the demised premises or any other part of the
7
building or land of which it forms a part, Tenant shall promptly take all
actions at its sole expense as are necessary to return the demised premises or
any other part of the building or land of which it forms a part to the condition
existing prior to the introduction of any such Hazardous Material.
(ii) As used herein, the term "Hazardous Material" means: (A)
asbestos, petroleum products, and polychlorinated biphenyls, and (B) hazardous
or toxic materials, wastes and substances which are defined, determined or
identified as such pursuant to all present and future federal, state or local
laws, rules or regulations and judicial or administrative interpretations
thereof (collectively "Governmental Laws").
(iii) Landlord and its agents shall have the right, but not
the duty, to inspect the demised premises at any reasonable time and upon
reasonable notice to Tenant to determine whether Tenant is complying with the
terms of this Article. If Tenant is not in compliance with the provisions of
this Article, Landlord shall have the right upon five (5) days written notice
(except in the event of an emergency) to immediately enter upon the demised
premises to remedy said noncompliance at Tenant's expense and any expense
incurred by Landlord shall be paid by Tenant upon demand and shall be deemed
additional rent. Landlord shall use reasonable efforts to minimize interference
with Tenant's business.
(iv) Tenant's obligations under this paragraph 52(d) shall
survive the termination of this Lease for any reason.
53. LIMITATION OF LANDLORD'S LIABILITY AND TENANT'S INDEMNIFICATION:
(a) None of Landlord, any managing agent, Superior Parties (as defined
below), or their respective affiliates, owners, partners, directors, officers,
agents and employees (collectively "Landlord's Affiliates") 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 or willful acts or omissions
of Landlord, or its agents, servants or employees in the operation or
maintenance of the demised premises (subject, however, to the doctrine of
comparative negligence in the event of negligence on the part of Tenant or any
of its contractors). Further, none of Landlord or Landlord's Affiliates, shall
be liable (i) for any such damage caused by other persons in, upon or about the
demised premises, or caused by operations in construction of any private, public
or quasi-public work; or (ii) with respect to matters for which Landlord is
liable, for consequential or indirect damages purportedly 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.
(b) Tenant hereby indemnifies, defends, and holds Landlord and all
Landlord Affiliates harmless from and against any and all claims, judgments,
liens, causes of action, liabilities, damages, costs, losses and expenses
(including, but not limited to reasonable legal, engineering and consulting fees
of engineers, attorneys and consultants selected by Landlord) arising from or in
connection with (i) the conduct or management of the demised premises or any
8
business therein, or any work or Alterations done, or any condition created
(other than by Landlord or Landlord's Affiliates or Agents) in or about the
demised premises during either or both of the term of this lease and the period
of time, if any, prior to the Commencement Date that Tenant may have been given
access to the demised premises pursuant to this Lease, including any and all
mechanics and other liens and encumbrances; (ii) any act, omission or negligence
of Tenant or any of its subtenants or licensees or their partners, directors,
officers, agents, employees, invitees or contractors; (iii) any accident, injury
or damage whatsoever (unless caused by Landlord's gross negligence or willful
acts or those of its Affiliates or Agents) occurring in, at or upon the demised
premises; (iv) any breach or default by Tenant in the full and prompt payment
and performance of Tenant's obligations under this lease; (v) any breach by
Tenant of any of its warranties and representations under this lease; and (vi)
any actions necessary to protect Landlord's interest under this lease in a
bankruptcy proceeding or other proceeding under the Bankruptcy Code. In case any
action or proceeding is brought against Landlord or any Landlord Affiliate by
reason of any such claim, Tenant, upon notice from any or all of Landlord, Agent
or any Superior Party (hereinafter defined), shall resist and defend such action
or proceeding. Tenant's obligations under this Paragraph 53(b) shall survive the
termination of this Lease for any reason.
(c) The obligations of Tenant hereunder shall not be affected, impaired
or excused, and Landlord shall have no liability whatsoever to Tenant, with
respect to any act, event or circumstance arising out of (i) Landlord's failure
to fulfill, or delay in fulfilling any of its obligations under this lease by
reason of labor dispute, governmental preemption of property in connection with
a public emergency or shortages of fuel, supplies, or labor, or any other cause,
whether similar or dissimilar, beyond Landlord's reasonable control; or (ii) any
failure or defect in the supply, quantity or character of utilities furnished to
the demised premises, or by reason of any requirement, act or omission of any
public utility or others serving the demised premises beyond Landlord's
reasonable control. Tenant shall not hold Landlord or Agent liable for any
latent defect in the demised premises, nor shall Landlord be liable for injury
or damage to person or property caused by fire, or theft, or resulting from the
operation of heating or air conditioning or lighting apparatus, or from falling
plaster, or from steam, gas, electricity, water, rain, snow, ice, or dampness,
that may leak or flow from any part of the demised premises, or from the pipes,
appliances or plumbing work of the same. Tenant agrees that under no
circumstances shall Landlord be liable to Tenant for any loss of, destruction
of, damage to or shortage of any property; including, but not limited to,
Tenant's Property, unless caused by Landlord's gross negligence, willful acts or
omissions or those of its Affiliates or Agents.
(d) Notwithstanding anything to the contrary contained in this lease,
the liability of Landlord and Landlord's Affiliates (and of any Successor
Landlord hereunder) to Tenant shall be limited to the interest of Landlord in
the demised premises, and Tenant agrees to look solely to Landlord's interest in
the demised premises for the recovery of any judgment or award against Landlord
9
and Landlord's Affiliates, it being intended that Landlord and Landlord's
Affiliates shall not be personally liable for any judgment or deficiency.
54. UTILITIES:
Notwithstanding anything previously written anywhere in this lease,
Tenant shall bear the cost and expense of the following services and utilities
supplied to the demised premises, to the extent incurred during or otherwise
attributable to the Term or to Tenant's use or occupancy of the demised
premises:
(a) all electricity in and about the demised premises;
(b) fuel for heating purposes in and about the demised
premises;
(c) water and sewer charges assessed against the demised
premises; and
(d) all other utilities and services delivered or otherwise furnished
to or for the demised premises.
55. TENANT'S FAILURE TO VACATE:
In the event the Tenant does not vacate the demised premises upon the
expiration date of this lease, or upon the expiration of any extension or
renewal thereof, then and in that event the Tenant shall remain as a month to
month Tenant at a monthly rental equal to one hundred and fifty (150%) percent
of the monthly rent payable for the month immediately preceding the end of the
Term, plus all additional rent due under this lease for any such holdover period
and Tenant shall also remain liable for all real estate taxes, insurance and
utilities. The acceptance by the Landlord of such rental after the expiration
date of this lease shall not be construed as consent to such continued
occupancy.
56. ASSIGNMENT/SUBLET:
Tenant covenants that it shall not assign this lease nor sublet the
demised premises or any part thereof without the prior written consent of
Landlord in each instance. Tenant may, without the consent of Landlord, assign
or sublet all or any portion of its leasehold to an Affiliate under common
control with Tenant or to a successor entity incident to a merger or
consolidation or to the Purchaser of substantially all of Tenant's assets.
Landlord shall not unreasonably withhold its consent to a proposed
assignment or sublet, provided:
(a) Such assignment or sublease shall be for a use which is in
compliance with the then existing zoning regulations and the Certificate of
Occupancy for the demised premises or the building, and consistent with the use
hereinabove set forth;
(b) At the time of such assignment or subletting, Tenant shall not be
in default under the terms, covenants, agreements and conditions of this Lease;
10
(c) In addition to any other sums payable hereunder, Landlord shall be
entitled to and Tenant shall promptly remit to Landlord, fifty percent (50%) of
(i) any consideration received by Tenant as a result of any assignment of its
leasehold interest and/or (ii) the difference between the rent payable by any
subtenant and the rent payable under this Lease, in each case net of Tenant's
reasonable costs of preparing the demised premises for the assignee or
subtenant, reasonable attorneys fees incurred in connection with preparing the
assignment or sublet documents and reasonable brokerage commissions paid to an
independent, licensed real estate broker.
(d) In the event of an assignment, the assignee must assume in writing
the performance of all of the terms, covenants, conditions, agreements and
obligations of the within lease;
(e) A duly executed duplicate original of said assignment or sublease
must be delivered by Certified Mail, Return Receipt Requested to the Landlord at
the address herein set forth not less than ten (10) days before the date of said
assignment or sublease;
(f) Such assignment or subletting shall not, however, release the
within Tenant from its liability for the full and faithful performance of all of
the terms, covenants, agreements, and conditions of this lease, including the
payment of rent and additional rent;
(g) If this lease shall be assigned, or if the demised premises or any
part thereof be sublet, underlet or occupied by anyone other than Tenant,
Landlord may after default by Tenant, collect rent from the assignee, subtenant,
undertenant or occupant, and apply the net amount collected to the rent herein
reserved or additional rent due hereunder.
(h) A request for Landlord's consent to a proposed assignment or
proposed sublet shall be deemed Tenant's offer to terminate this lease as of the
last day of the calendar month during the term hereof immediately preceding the
commencement of such sublease or the effective date of such assignment and to
vacate and surrender the demised premises to Landlord on the date fixed in the
notice. If Landlord within ten (10) business days after the receipt thereof has
not accepted in writing the offer by Tenant to cancel and terminate said lease
and to vacate and surrender the demised premises, the lease shall remain in full
force and effect and Landlord shall not unreasonably withhold its consent to the
proposed assignment or sublet. This subparagraph (i) shall not apply to an
assignment or sublet to a parent or other affiliate.
(i) As additional security for the prompt payment of the rent herein
reserved to Landlord, and for the faithful performance and punctual observance
of all the other terms, covenants, agreements, and conditions herein contained,
Tenant hereby assigns to Landlord all of Tenant's rights, title, and interest in
and to any sublease which may be made by Tenant affecting the demised premises,
or any part thereof, and in and to the rents due or to become due under the
terms of any such sublease. The aforesaid assignment shall take effect, however,
only in the event of any default hereunder made or suffered by Tenant and after
11
written notice given by Landlord to the subtenant or subtenants, as the case may
be, and shall take effect as to such of said subleases as Landlord shall elect
to continue in full force and effect.
57. COMMENCEMENT DATE:
In the event that the term of this lease commences or ends on a date
other than the first or last of the month, the rent for that month shall be
prorated.
58. TERMINATION:
At the expiration of the term of this Lease or upon the early termination of
this Lease, Tenant shall deliver to Landlord any and all equipment belonging to
Landlord in working condition, reasonable wear and tear excepted, including
equipment installed or replaced by the Tenant. In no event shall Tenant remove
any of the following materials or equipment without Landlord's prior written
consent: any power wiring or power panels, lighting or lighting fixtures, wall
or window coverings, carpets or other floor coverings, heaters, air conditioners
or any other heating or air conditioning equipment, fencing or security gates,
or other similar building operating equipment and decorations. However, Tenant,
shall have the right to and shall, upon request by Landlord prior to the
termination of this lease, shall remove all personal property of Tenant, its
movable business and trade equipment (including, without limitation, its racks,
and signs prior to the Expiration Date, and upon removal, Tenant shall repair
and restore any damage due to such removal and restore the demised premises to a
usable condition (as to the racks, Tenant shall cut all related bolts and file
or otherwise level them even with the flooring) and a condition substantially in
conformity with that of the remaining areas of the demised premises. With
respect to its Racks and its refrigeration and freezer equipment only, Tenant
shall have up to forty-five (45) days after the end of the Term to remove same,
provided that Tenant shall have no right to use, occupy or possess the demised
premises during said 45 day period except as may be necessary to remove its
racks and its refrigeration and freezer equipment and provided, further, that
Tenant in removing its racks and its refrigeration and freezer equipment, shall
make all reasonable efforts necessary to minimize interference with the efforts
of Landlord or any successor Tenant attempting to install tenant improvements or
otherwise to prepare the demised premises for occupancy by another party.
Tenant, may, but shall not be obligated to remove its refrigeration and freezer
equipment from the demised premises as permitted above.
59. ESTOPPEL CERTIFICATES:
Either party shall, from time to time and within ten (10) days after
any request by the other party, execute and deliver to the requesting party (and
to any other party designated by the requesting party), a statement: (i)
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); (ii) certifying the dates to which the
rent has been paid; (iii) stating whether the requesting party is in default in
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performance of any of its obligations under this lease, and, if so, specifying
each such default; (iv) stating whether any event has occurred which, with the
giving of notice or passage of time, or both, would constitute such a default,
and, if so, specifying each such event; and (v) stating whether any substantial
rights of the non-requesting party (e.g., options) have been waived. 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 the requesting party may be dealing, regardless of independent
investigation. The non-requesting party also shall include in any such
statements such other information concerning this lease as the requesting party
may reasonably request.
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60. DEFAULT:
It is specifically understood and agreed that if either party commences
a Summary Proceeding or any other action against the other party due to any
violation and/or defaults by the other party in the observance or performances
of the terms, covenants, conditions or agreements to be performed or observed by
the other party under this Lease, the prevailing party shall bear the cost of
the other party's reasonable attorney fees.
61. MISCELLANEOUS:
(a) This instrument contains the entire and only agreement between the
parties with respect to the leasing of the demised premises. No oral statements
or representations or prior written matter not contained herein shall have any
force or effect.
(b) This lease shall not be modified, changed, or amended in any way or
except by a writing subscribed by both parties.
(c) Any reference in the printed portion of this lease to the City of
New York and the Administrative Code of the City of New York shall, where
applicable, be deemed to refer to the ordinances, rules and regulations of the
county, town, village and other governmental authorities with jurisdiction over
the demised premises.
(d) If any term or provision of this lease or the application thereof
to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this lease, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby and each term and
provision of this lease shall be valid and enforced to the fullest extent
permitted by law.
(e) This agreement shall be governed by and construed in accordance
with the laws of the State of New York.
(f) Neither this lease nor any memorandum hereof shall be recorded
without Landlord's prior written consent.
(g) Each provision of this Lease which requires the consent or approval
of a party shall be deemed to require the same in each instance in which such
provision may be applicable. Any consent or approval by a party to or of any act
or omission by the other party requiring consent or approval shall not be deemed
to waive any future requirement for such consent or approval to or of any
subsequent similar act or omission.
(h) This lease shall not be construed more strictly against one party
than against the other merely by virtue of the fact that it may have been
prepared by counsel for one of the parties, it being recognized that both
Landlord and Tenant have contributed substantially and materially to the
preparation of this lease. To the headings of various Articles in this lease are
for convenience only, and are not to be utilized in construing the content or
meaning of the substantive provisions hereof.
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62. ALTERATIONS:
(a) Tenant may, from time to time, at its expense, make alterations or
improvements in and to the demised premises (hereinafter collectively referred
to as "Alterations"), provided that with respect to any alterations the cost of
which exceeds $50,000.00 in the aggregate in any calendar year, Tenant first
obtains the written consent of Landlord in each instance. Landlord's consent to
Alterations shall not be unreasonably withheld, provided that: (i) the
Alterations are non-structural and the structural integrity of the demised
premises shall not be impacted, (ii) the Alterations are to the interior of the
demised premises; (iii) the proper functioning of the mechanical, electrical,
heating, ventilating, air-conditioning ("HVAC"), sanitary and other service
systems of the demised premises shall not be impacted and the usage of such
systems by Tenant shall not be increased beyond their capacity; (iv) Tenant
shall have appropriate insurance coverage reasonably satisfactory to Landlord
regarding the performance and installation of the Alterations; (v) the
Alterations shall conform with all other requirements of this lease; and (vi)
Tenant shall have provided Landlord with detailed plans (the "Plans") for such
Alterations in advance of requesting Landlord's consent. Additionally, after
obtaining Landlord's preliminary consent to the Plans, but before proceeding
with any Alterations, Tenant shall, at its expense, obtain all necessary
governmental permits and certificates for the commencement and prosecution of
Alterations and shall submit to Landlord, drawings, plans and specifications
conforming to and consistent with the plans, and all permits for the work to be
done.
(b) Tenant shall cause the Alterations to be performed in compliance
with all applicable permits, laws and requirements of public authorities, and
with Landlord's reasonable rules and regulations or any other conditions and
restrictions that Landlord may have imposed as a condition to granting its
consent to the Alterations. Tenant shall cause the Alterations to be diligently
performed in a good and workmanlike manner, using new materials and equipment at
least equal in quality and class to the standards for the demised premises
established by Landlord. Tenant shall obtain all necessary permits and
certificates for final governmental approval of the Alterations and shall
provide Landlord with "as built" plans, copies of all construction contracts,
governmental permits and certificates and copies of paid final lien waivers.
(c) Tenant shall pay when due all claims for labor and material
furnished to the demised premises in connection with the Alterations. Tenant
shall not permit any mechanics or materialmen's liens to attach to the demised
premises or Tenant's leasehold estate. Tenant, at its expense, shall procure the
satisfaction or discharge of record of all such liens and encumbrances within
thirty (30) days after the filing thereof. In the event Tenant has not so
performed, Landlord may, at its option, pay and discharge such liens and Tenant
shall be responsible to reimburse Landlord, on demand, for all costs and
expenses incurred in connection therewith, together with interest thereon at the
rate of 18% per annum, which expenses shall include reasonable fees of attorneys
of Landlord's choosing, and any costs in posting bond to effect discharge or
15
release of the lien as an encumbrance against the demised premises. Any sums due
from Tenant pursuant to the preceding sentence shall constitute additional rent
under this lease.
63. LIEN PROHIBITION:
Nothing contained in this lease shall be deemed to be, or construed in
any way as constituting, the consent of Landlord to any person for the
performance of any labor or the furnishing of any materials at or to the demised
premises or the building and land of which the demised premises are a part, nor
as giving Tenant any right, power or authority to contract or permit the
performance of any labor or the furnishing of any material which might give rise
to the right to record or file a lien against the demised premises or the real
property of which the demised premises are a part or against the interests
therein of Landlord or Tenant, it being intended that all persons who may
perform any labor or furnish any materials to Tenant at the demised premises
shall look only to the credit of Tenant and such security as Tenant may furnish
to such persons for the payment of all such labor and materials. Landlord does
not consent to the recording or filing of any mechanics' or other liens against
the leased premises or the real property of which the demised premises are a
part or the interest of Landlord or Tenant therein.
64. FURTHER RE: CASUALTY:
(a) Notification. Tenant shall give prompt notice to Landlord of (i)
any fire or other casualty in the demised premises, and (ii) any damage to or
defect in any part or appurtenance of the demised premises' sanitary,
electrical, HVAC, elevator or other systems located in or passing through the
demised premises or any part thereof.
(b) Repair Provisions. If the demised premises are damaged by fire or
other insured casualty, Tenant shall repair or cause to be repaired the damage
and restore and rebuild the demised premises with reasonable dispatch in order
to restore the demised premises as nearly as practicable to a condition and fair
market value not less than the condition required to be maintained and fair
market value thereof, immediately prior to such casualty. All such repair or
restoration work shall be undertaken and completed in a good and workmanlike
manner and in compliance with all applicable laws, codes, ordinances and
recorded instruments, without regard to the sufficiency or immediate
availability of insurance proceeds attributable to such damage, and Tenant shall
repair the damage to and restore and repair Tenant's Property, with reasonable
dispatch after such damage or destruction. All such work by Tenant shall be
deemed Alterations for the purposes of this lease.
(c) To the foregoing, notwithstanding, following any substantial
casualty or other damage, Tenant may terminate this Lease in accordance and in
compliance with the provisions of paragraph "70" hereof, provided that, in such
event only, Tenant shall assign to Landlord all insurance proceeds resulting
16
from such casualty and shall thereafter remain liable for all Rents, Additional
Rents, Real Estate Taxes and Insurance Premiums, as provided in paragraph "70".
(d) No Rental Abatement. Any damage by fire or other casualty caused to
the demised premises notwithstanding, Tenant shall remain fully liable for rent
and all additional rent without abatement, setoff reduction of any kind and
shall remit said sums in accordance with the terms of this Lease.
(e) Tenant hereby expressly waives the provisions of Section 227 of the
Real Property Law and agrees that the foregoing provisions of this paragraph
shall govern and control in lieu thereof.
65. NOTICES:
Any notice required to be given by either party pursuant to this lease,
shall be in writing and shall be deemed to have been properly given, rendered or
made only if personally delivered, or if sent by Federal Express or other
comparable commercial overnight delivery service, addressed to the other party
at the addresses set forth below (or to such other address as Landlord or Tenant
may designate to each other from time to time by written notice), and shall be
deemed to have been given, rendered or made on the day so delivered or on the
first business day after having been deposited with the courier service:
If to Landlord: FR Acquisitions, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxxxxx 00000
Att: Xx. Xxxxxxxxx Yap and
Mr. Xxxxx XxXxxxxx
With a copy to its
Regional Office: First Industrial
000 Xxxxxxxxx Xxxxxxxxx
P. O. Xxx 000
Xxxxxxx, Xxx Xxxx 00000
Att: Xx. Xxx Xxxxxx,
Xx. Regional Director
With a copy to: Barack, Xxxxxxxxxx, Xxxxxxxxxx &
Xxxxxxx
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Att: Xxxxxx Xxxxxxxxx and
Xxxxxxx Xxxxxxxx-Xxxxx
With an additional
copy to: Xxxxxx Xxxxxx Flattau & Klimpl, LLP
0000 Xxxxxx xx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Att: Miles X. Xxxxxx, Esq.
If to Tenant: Di Giorgio Corporation
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Att: General Counsel
17
With a copy to: Di Giorgio Corporation
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Att: Chief Financial Officer
66. NET LEASE:
This is an absolutely net lease, and, except as otherwise specifically
provided herein, this lease shall not terminate nor shall Tenant have any right
to terminate this lease except as provided in paragraph "70" or paragraph "64";
nor shall Tenant be entitled to any abatement, deduction, deferment, suspension
or reduction of, or setoff, defense or counterclaim against, any rentals,
charges, or other sums payable by Tenant under this lease; nor shall the
respective obligations of Landlord and Tenant be otherwise affected by reason of
damage to or destruction of the demised premises from whatever cause, any taking
by condemnation or eminent domain, the lawful or unlawful prohibition of
Tenant's use of the demised premises, the interference with such use by any
persons, corporations or other entities unrelated to Landlord, it being the
intention that the obligations of Landlord and Tenant hereunder shall be
separate and independent covenants and agreements and that the annual rental,
additional rent and all other charges and sums payable by Tenant hereunder shall
continue to be payable in all events unless the obligations to pay the same
shall be terminated pursuant to the express provisions of this lease; and Tenant
covenants and agrees that it will remain obligated under this lease in
accordance with its terms, and that it will not take any action to terminate,
cancel, rescind or void this lease, notwithstanding the bankruptcy, insolvency,
reorganization, composition, readjustment, liquidation, dissolution, winding up
or other proceedings affecting Landlord or any assignee of, or successor to,
Landlord, and notwithstanding any action with respect to this lease that may be
taken by a trustee or receiver of Landlord or any assignee of, or successor to,
Landlord or by any court in any such proceeding.
67. LANDLORD'S TITLE:
Tenant acknowledges that Tenant transferred title to the demised
premises to Landlord on the date hereof pursuant to a contract of sale dated
February , 1998 ("Contract") and, accordingly, Tenant shall, during the term of
this lease:
(a) remain responsible for complying, at its expense, subject, however,
to Paragraph 48(a)(iv) in respect of any required alteration or addition to the
demised premises, with the Americans with Disabilities Act of 1990 (42 U.S.C.
ss.ss.12101 et. seq.) and the regulations promulgated thereunder (the "ADA"),
insofar as the ADA relates to the demised premises. Tenant shall indemnify,
defend and hold harmless Landlord from and against all loss, cost, damage or
expense (including, without limitation, reasonable attorneys' fees and
disbursements) which result from any claim arising out of Tenant's use during
the term that the demised premises does not comply with the ADA or the
guidelines set forth therein, whether or not Tenant uses the demised premises as
a "place of public accommodation" (as defined in the ADA).
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68. RENT PAYMENTS:
All rent and additional rent and all other sums and charges due under
this lease, shall be paid to Landlord in accordance with the payment directions
attached hereto as Schedule C or pursuant to such other directions as Landlord
shall designate in this lease or otherwise.
69. SUBORDINATION AND ATTORNMENT:
(a) This lease, and all rights of Tenant hereunder, are subject and
subordinate to all ground leases of the land and building of which the demised
premises forms a part (the "Property") now or hereafter existing and to the lien
of all mortgages or trust deeds or deeds of trust and all renewals,
modifications, replacements and extensions thereof; and to all "Spreaders" and
consolidations thereof (all of which are hereafter referred to collectively as
"Mortgages"), that may now or hereafter affect or encumber all or any portion of
Landlord's interest in the Property. This subordination shall apply to each and
every advance made, or to be made, under such Mortgages. This paragraph shall be
self-operative and no further instrument of subordination shall be required,
however, in confirmation of such subordination, Tenant shall, from time to time,
execute acknowledge and deliver any instrument that Landlord may, from time to
time, reasonably require in order to evidence or confirm such subordination
provided that any such instrument shall provide non-disturbance protection for
Tenant. Tenant acknowledges that this lease and the rents due under this lease
have been (and, in the future, may be) assigned by Landlord to a Superior
Mortgagee (defined below) as additional collateral security for the loans
secured by the Superior Mortgage (defined below) held by such Superior
Mortgagee. Any ground lease to which this Lease is subject and subordinate is
hereafter referred to as a "Superior Lease", the Lessor under a Superior Lease
is hereinafter referred to as a "Superior Lessor," and the lessee thereunder, a
"Superior Lessee" and any Mortgage to which this Lease is subject and
subordinate is hereinafter referred to as a "Superior Mortgage" and the holder
of a Superior Mortgage is hereinafter referred to as a Superior Mortgagee.
(b) In the event that Landlord breaches or otherwise fails to timely
perform any of its obligations under this lease, Tenant shall give, by
registered or certified mail, return receipt requested, written notice of such
alleged breach or default to Landlord and to each Superior Mortgagee and
Superior Lessor whose name and address shall previously have been furnished, in
writing, to Tenant. Any or all of Landlord, a Superior Mortgagee or Superior
Lessor may remedy or cure such breach or default within thirty (30) days
following the giving of such notice; provided, however, that said thirty (30)
day cure period shall be automatically extended in the event that the breach or
default cannot, by its nature, be cured within thirty (30) days and one or more
of Landlord, the Superior Mortgagee or the Superior Lessor is diligently
proceeding to cure said default.
(c) If any Superior Lessor or Superior Mortgagee (whether by receiver
or otherwise) shall succeed to the rights of Landlord hereunder or comes into
possession of the Property or any part thereof, then, at the request of such
19
party (hereinafter referred to as a "Successor Landlord"), Tenant shall attorn
to and recognize each Successor Landlord as Tenant's landlord under this lease
and shall promptly execute and deliver any instrument such Successor Landlord
may reasonably request to further evidence such attornment. Tenant hereby
acknowledges that in the event of such succession, then from and after the date
on which the Successor Landlord acquires Landlord's rights and interest under
this lease (the "Succession Date"), the rights and remedies available to Tenant
under this Lease with respect to any obligations of any Successor Landlord shall
be limited to the equity interest of the Successor Landlord in the Property; and
the Successor Landlord shall not (i) be liable for any act, omission or default
of Landlord or other prior lessor under this lease if and to the extent that
such act, omission or default occurs prior to the Succession Date; (ii) except
as required under Paragraphs 49 and Paragraph 9 of this lease, be required to
make or complete any tenant improvements or capital improvements or to repair,
restore, rebuild or replace the demised premises or any part thereof in the
event of damage casualty or condemnation; or (c) be required to pay any amounts
to Tenant that are due and payable, under the express terms of this lease, prior
to the Succession Date. Additionally, from and after the Succession Date,
Tenant's obligation to pay the annual rental rate or additional rent or any
other sum due the Landlord under this lease, shall not be subject to any
abatement, deduction, set-off or counterclaim against the Successor Landlord
that arises as a result of, or due to, a default of Landlord or any other lessor
that occurs prior to the Succession Date. Moreover, no Successor Landlord shall
be bound by any advance payments of the annual rental rate or additional rent or
any other sum due the Landlord under this lease made prior to the calendar month
in which the Succession Date occurs nor by any Security that is not actually
delivered to, and received by, the Successor Landlord. To the provisions of this
Paragraph 69(c) shall be self operative upon demand of such Superior Lessor or
Superior Mortgage and no further instrument shall be required to give effect to
such provisions.
70. TENANT'S RIGHT TO CANCEL:
(a) Notwithstanding anything to the contrary herein, Tenant shall have
the right and option to cancel this lease, subject to the conditions described
below in paragraph 70(b) provided that the Tenant shall serve a written notice
to such effect upon Landlord by certified mail, return receipt requested not
less than sixty (60) days before the proposed date of cancellation ("Effective
Date"). If Tenant shall exercise such option, this lease and the term hereof
shall expire and terminate on such Effective Date with the same effect as if
that were the date originally set forth herein for the expiration of the term
hereof, and Tenant shall vacate and surrender the demised premises to Landlord,
in the manner and condition required by this lease, on or before such date as if
such date were the date originally set forth herein for the expiration of the
term hereof.
(b) The above described right of cancellation shall be effective and
binding on Landlord if and only if:
20
(i) such notice is sent by the Tenant named herein, such right
being personal to such Tenant and not transferable to any assignee or subtenant.
(ii) Tenant shall not be in default under any of the terms,
covenants, conditions, and provisions of this lease at the time of any such
notice or on the Effective Date, beyond applicable notice and grace period, if
any.
(iii) Tenant shall remit to Landlord, simultaneous with its
delivery of the aforesaid notice, a lump sum payment equal to all Rent and
Additional Rent due under the Lease through the expiration of the Term and
Tenant shall thereafter remit to Landlord, on an as accrued basis, all real
estate taxes and insurance premiums relating to the demised premises during the
remainder of the Term provided Landlord continues to own the premises. Except as
provided in this paragraph 70 and in paragraph 64(c), if applicable, following
the Effective Date, Tenant shall have no other or further obligations with
respect to the Lease or the demised premises.
(c) If and only if, Landlord lets the Premises to another tenant for
all or a portion of the remaining Term of this Lease, and provided Tenant has
remitted to Landlord all of the sums required under the terms of this paragraph
"70", then within thirty (30) days of the end of this Lease (without taking into
consideration, for purposes of setting this date, Tenants prior cancellation)
Landlord shall remit to Tenant, after deducting all "reletting" expenses, the
aggregate amount of any base rent and additional rent (for real estate taxes and
insurance premiums only) collected up to a maximum of the amount remitted to
Landlord by Tenant incident to its cancellation under this paragraph "70". For
purposes of this paragraph, reletting expenses shall include all related
broker's commissions, advertising costs, tenant improvements, maintenance, rent
concessions, repairs to the premises, legal fees and other related costs.
71. NO NEW CONTRACTS:
During the term of the Lease, Tenant shall not enter into any Contract,
agreement or arrangement for the provision of goods or services to be performed,
delivered at or otherwise benefitting the Premises, which shall survive the term
of the lease unless same may be terminated by Tenant or its successor on no more
than 30 days notice.
72. OPTION TO RENEW:
So long as no Default shall have occurred and be continuing on either
the last day of the initial term or on the day Tenant purports to exercise the
option granted by this paragraph, Tenant may elect to extend and renew the term
for one (1) additional term of five (5) years (the "Option Term"). Such election
shall be exercised by Tenant giving Landlord written notice not less than one
hundred eighty (180) days prior to the expiration of the initial term. Time will
be of the essence with respect to the giving of notice by Lessee of its election
to extend the term. The Rent payable during the Option Term shall be as set
forth on Schedule A and all other terms of this Lease shall continue in full
21
force and effect throughout the Option Term, except that Tenant shall have no
further option to extend or renew this Lease.
FR ACQUISITIONS, INC., a
Maryland Corporation
By:
Name:
Title:
Di GIORGIO CORP., a Delaware
corporation
By: /s/ Xxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
22
SCHEDULE "A"
RENTAL SCHEDULE
COMMENCEMENT DATE: Date of closing of the Contract.
EXPIRATION DATE: To the last day of the Second Lease Year
or earlier upon default or otherwise as
provided in this Lease.
OPTION PERIOD: Five (5) years from the expiration of the
initial Term, if and only if Tenant duly
and timely exercises its renewal option
in accordance with the terms of the
Lease.
LEASE YEAR: The term "Lease Year" shall mean a period of time
conforming to the following: The first "Lease
Year" of the term of this lease shall mean the
period beginning on the Commencement Date and
ending on the date 12 months after the Commencement
Date, the second Lease Year of the term of this
lease shall commence on the day following the last
day of the first Lease Year and end l2 months
thereafter.
TERM MONTHLY ANNUALLY
---- ------- --------
FIRST LEASE YEAR $127,125.00 $1,525,500.00
SECOND LEASE YEAR $127,125.00 $1,525,500.00
FIRST OPTION YEAR $137,295.00 $1,647,540.00
SECOND OPTION YEAR $137,295.00 $1,647,540.00
THIRD OPTION YEAR $137,295.00 $1,647,540.00
FOURTH OPTION YEAR $137,295.00 $1,647,540.00
FIFTH OPTION YEAR $137,295.00 $1,647,540.00
SCHEDULE "B"
RENT PAYMENT DIRECTIONS
MAILING DIRECTIONS:
Rent sent through the U.S. Postal Service (other than by overnight delivery)
shall be addressed as follows:
FIRST INDUSTRIAL, L.P.
X.X. XXX 00000
XXXXXX, XXX XXXXXX 00000-0000
COMMERCIAL OVERNIGHT
DELIVERY DIRECTIONS:
Rent sent by a commercial overnight delivery service such as Federal Express,
UPS, First Priority Overnight Mail or other comparable overnight delivery
service shall be addressed as follows:
Northern Trust Company
000 Xxxxx Xxxxx
0xx Xxxxx
Receipt & Dispatch
Xxxxxxx, Xxxxxxxx 00000
Attn: First Industrial, L.P.
Lock Box No. 75631
NOTE: ALL CHECKS SHOULD BE MADE PAYABLE TO FIRST INDUSTRIAL, L.P.
LEASE SCHEDULE "C"
REQUIRED INSURANCE
(a) "All-Risk" Property and Loss of Income Coverage for Tenant's
Property. "All Risk" (including without limitation earthquake and flood) (i)
property insurance on a replacement cost basis, covering all structural and
non-structural elements of the building which forms a part of the demised
premises, all alterations, building systems, fixtures, whether or not attached
to, or built into, the demised premises, which are installed in the demised
premises, all in an amount not less than the full replacement cost of all such
property and providing coverage for all risks, including fire and extended
coverage, sprinkler leakage, water damage, water damage legal liability, rental
insurance, and public liability and property damage insurance (combined single
limit) with respect to any accident or casualty occurring therein or with
respect thereto (ii) loss-of-income insurance in an amount sufficient to assure
that Landlord shall recover the loss of any rental income due and owing to
Landlord from Tenant under the terms of this lease, which coverage shall provide
such protection to Landlord for a period of not less than the unexpired term of
the Lease, as the same may have been extended. To the total amount of the
deductible required under each policy providing such coverage shall be no more
than $25,000.00 per loss. Landlord and any other parties designated by Landlord
(including, but not limited to, its beneficiary, its general and limited
partners, and Superior Mortgagees and/or Superior Lessors) shall be included as
loss payee(s).
(b) Liability Coverage. Commercial general public liability and
comprehensive automobile liability (and, if necessary to comply with any
conditions of this Lease, umbrella liability insurance) covering Tenant against
any claims arising out of liability for bodily injury and death and personal
injury and advertising injury and property damage occurring in and about the
demised premises, and/or the Property and otherwise resulting from any acts and
operations of Tenant, its agents and employees, with limits of not less than
total limits of $2,000,000.00 per occurrence and $5,000,000.00 annual general
aggregate, per location. To the total amount of a deductible or otherwise
self-insured retention with respect to such coverage shall be not more than
$50,000.00 per occurrence. Such insurance shall include, inter alia: (i)
"occurrence" rather than "claims made" policy forms unless such "occurrence"
policy forms are not available; (ii) any and all liability assumed by Tenant
under the terms of this lease, to the extent such insurance is available;(iii)
Landlord and any other parties designated by Landlord or Agent (including, but
not limited to, its beneficiary, its general and limited partners, and Superior
Mortgagees and/or Superior Lessors) shall be designated as Additional Insured(s)
with respect to (x) the demised premises, and (y) all operations of Tenant, and
(z) any property and areas and facilities of Landlord used by Tenant, its
employees, invitees, customers or guests; and (iv) severability of insured
parties and cross-liability so that the protection of such insurance shall be
afforded to Landlord and its designees in the same manner as if separate
policies had been issued to each of the insured parties.
(c) Workers' Compensation Coverage. Workers' compensation and
employer's liability insurance as required by the laws of New York State, unless
Tenant is permitted under applicable law to be self insured in this regard.
All insurance policies required under this lease Schedule shall: (i) be
issued by companies licensed to do business in the State in which the Property
is located and acceptable to Landlord and any Superior Mortgagees, Superior
Lessors and any other party having any interest in the Property; (ii) not be
subject to cancellation or material change or non-renewal without at least
thirty (30) days' prior written notice to Landlord and any other parties
designated by Landlord (A) to be loss payee(s) or additional insured(s) under
the insurance policies required from Tenant, or (B) to receive such notices;
(iii) be deemed to be primary insurance in relation to any other insurance
maintained by Landlord or Agent; and (iv) at the sole option and discretion of
Landlord, include other appropriate endorsements or extensions of coverage
typically carried by triple net tenants or owners of similar properties as would
be reasonably required of Landlord by any Superior Mortgagees, Superior Lessors
or any other party having any interest in the Property.
