10/17/81 G
LEASE dated as of October 21, 1981 between Vornado,
Inc., as Landlord, and Popular Services, Inc., as Tenant.
Landlord hereby leases to Tenant premises situated in
Garfield, New Jersey.
The parties agree with each other as follows:
ARTICLE I
THE PARTIES, THE PREMISES, DEFINED TERMS
Section 1.01. The Parties.
(a) Vornado, Inc. is a Delaware corporation. Its address is
000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000. It is referred to
as "Landlord".
(b) Popular Services, Inc., is a New York corporation.
It has an address at 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000.
It is referred to as "Tenant".
Section 1.02. The Premises and Other Defined Terms.
(a) The Premises consists of a parcel of land and
building and other site improvements located upon that land. The
Premises are shown on Exhibit A. The building is referred to in
this Lease as the "Building". The portion of the Premises not
occupied by the Building is designated on Exhibit A and is
referred to in this Lease as the "Building Lot".
(b) Capitalized words and various phrases used in this
Lease which are capitalized may be defined terms. These terms are
defined in the body of the Lease.
(c) The following capitalized terms are defined in
various Sections and subsections of this Lease as set forth in
the following table:
Additional Rent................................4.03
Award..........................................5.14
Basic Rent.....................................4.01
Building.......................................1.02(a)
Building Lot...................................1.02
Cancellation Date..............................3.06
Claims.........................................5.02(b)
Commencement Date..............................3.02(a)
Delivery of Possession.........................2.05
Expiration Date................................3.02(b)
Impositions....................................4.02(c)
Insurance......................................5.11
Insurance Contributions........................5.11
Insurance Requirements.........................5.10
Lease Year.....................................3.02(c)
Lien...........................................5.03(b)
Master Lease...................................8.03(b)
Master Lessor..................................8.03(b)
Mortgage.......................................8.03(b)
Mortgagee......................................8.03(b)
Premises.......................................1.02(a)
Rent...........................................4.03
Supplementary Parking Area.....................7.01
Supplementary Parking Area Contributions.......7.03
Taking.........................................5.14
Taking Date....................................5.14
Tax Contributions..............................4.02
Tenant's Agents................................5.02
Tenant's Equipment.............................5.09
Tenant's Work..................................2.03
ARTICLE II
MAKING THE PREMISES READY FOR OCCUPANCY
Section 2.01. Condition of Premises.
The Premises shall be delivered in broom clean
condition. At the time of delivery of possession, the roof shall
be free of leaks and the plumbing, electrical, heating,
ventilation and air-conditioning (if any) systems shall be in
good working order. Landlord shall also remove all signs from the
Premises and shall repair the canopy over the front door of the
Building.
Section 2.02. Approvals.
(a) Promptly after the execution of this Lease,
Landlord and Tenant shall apply for any zoning variance or change
which may be required for the change of use of the Building to a
general office building with an auxiliary retail store of no more
than 15,000 square feet, for Tenant's occupancy. If required,
Landlord and Tenant shall join in the application. Landlord and
Tenant shall cooperate with each other in prosecuting the
application. The cost of the application, including any
attorneys' fees, shall be paid by Tenant. Any attorney selected
shall be subject to the reasonable approval of both parties.
(b) (i) If the variance or change has not been granted
within sixty (60) days following the date the initial application
for it is submitted, then, subject to subsection 2.02(c), either
party shall have the right to cancel this Lease by giving notice
to the other within ten (10) days following the expiration of
that sixty (60) day period.
(ii) If as a condition to the granting of the
variance or change Tenant shall be required to perform additional
alterations not otherwise required by other applicable legal
requirements or contemplated by Tenant as part of Tenant's Work
and the cost of the additional alterations shall exceed
$200,000.00, Tenant may cancel this Lease by giving notice to
Landlord within thirty days after the need for any such
alterations is imposed. Within thirty days after receipt of
Tenant's notice, Landlord may nullify the cancellation by
notifying Tenant that Landlord shall bear the cost of such
additional alterations in excess of $200,000.00.
(iii) If a variance or change is granted which
shall permit the Building to be used as an office building but
such variance or approval shall impose limitations upon the use
of the Building for office purposes which shall materially
adversely impair the use of the Building for Tenant's corporate
headquarters (as presently constituted), Tenant may cancel this
lease by giving Landlord notice within 30 days after the variance
is granted.
(c) If a party shall elect to cancel this Lease in
accordance with subsection 2.02(b), part (i) the other may
nullify that cancellation if at the time the cancellation notice
is given
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an application for the zoning variance or change is pending. The
right to nullify the cancellation shall be exercisable by giving
notice to the other party within ten (10) days after receipt of
the cancellation notice. If neither party elects to cancel this
Lease in accordance with subsection 2.02(b), part (i) or if a
cancellation notice is nullified in accordance with this
subsection (c) but the variance or change has not been granted
within one hundred and twenty (120) days following the date the
initial application is submitted, then either party may elect to
cancel this Lease by giving notice within ten (10) days following
the expiration of that one hundred and twenty (120) day period.
(d) Upon a cancellation of this Lease in accordance
with this Section 2.02, both parties shall be relieved of all
further obligations under this Lease.
Section 2.03. Tenant's Work.
(a) The alterations and improvements described in
Exhibit B are referred to in this Lease as "Tenant's Work". Within a
reasonable time after the date of this Lease Tenant shall submit
plans and specifications for Tenant's Work to Landlord for
Landlord's approval. Landlord shall not unreasonably withhold or
delay its approval.
(b) Promptly after the zoning variance or change referred
to in section 2.02 is approved, or, if none is required, promptly
after the date of this Lease, Tenant shall apply for all other
permits and approvals which shall be necessary with respect to
Tenant's Work and Tenant's occupancy of the Premises for office
purposes and incidental retail use. Promptly after the necessary
permits and approvals are issued, Tenant shall commence and
diligently prosecute such portions of Tenant's Work as shall be
necessary for the issuance of a certificate of occupancy for the
Premises. Tenant agrees to deliver all required copies of
permits, certificates and approvals to Landlord.
(c) Tenant's Work shall be performed in accordance
with all applicable legal requirements, the approved plans and
specifications, any building permit, all insurance requirements
and in a good and workmanlike manner.
Section 2.04. Insurance Covering Tenant's Work.
Tenant shall not commence to perform Tenant's Work,
repairs, or any alterations unless prior to the commencement of
the work, Tenant shall obtain and, during the performance of the
work, keep in force public liability and workmens' compensation
insurance to cover every contractor to be employed. The policies
shall be non-cancellable without ten days notice to Landlord and
shall be in amounts and by companies reasonably satisfactory to
Landlord. Prior to the commencement of Tenant's Work, Tenant
shall deliver duplicate originals or certificates of insurance
policies to Landlord.
Section 2.05. Delivery of Possession.
Delivery of Possession shall occur upon the later to
occur of (i) the date Landlord tenders possession of the Premises
to Tenant, or (ii) the date the variance or change referred to in
Section 2.02 shall have been granted. If the event referred to in
part (ii) shall occur on or before February 1, 1982, Landlord
agrees to tender possession of the Premises to Tenant on or
before February 1, 1982. If the event referred to in part (ii)
shall occur after February 1, 1982, Landlord agrees to tender
possession of the Premises to Tenant no later than the occurrence
of that event.
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ARTICLE III
TERM
Section 3.01. The Term Defined.
(a) The Term shall commence on the Commencement Date
and shall expire on the Expiration Date, as defined in Section
3.02.
(b) At any time after the Commencement Date, at the
request of either party, the other party shall execute a
certificate in recordable form setting forth the exact
Commencement Date and the originally fixed Expiration Date.
Section 3.02. Commencement Date and Expiration Date.
(a) The Commencement Date shall be the later to occur
of (i) Delivery of Possession or (ii) February 1, 1982.
(b) The Expiration Date shall be the tenth anniversary
of the last day of the first Lease Year. If this Lease is
cancelled or terminated prior to the fixed Expiration Date, the
Expiration Date shall be the date on which this Lease is
cancelled or terminated.
(c) The first Lease Year shall commence on the
Commencement Date and shall continue for four months. Each
subsequent Lease Year shall commence on the day following the end
of the preceding Lease Year and shall continue for one full year.
The last Lease Year shall end on the Expiration Date.
Section 3.03. Holdover.
If Tenant shall continue its occupancy of the Premises
after the Expiration Date, the occupancy shall not be deemed to
extend or renew the Term and the tenancy shall constitute a
tenancy from month to month on all of the terms of the Lease but
at the Rent in effect at the expiration of the Term.
Section 3.04. Short form Lease.
At any time during or prior to the Term, at the
request of either party, the other party shall execute a short
form lease or memorandum of lease in proper form for recording as
may be required by law, excluding any portion of Article IV.
Section 3.05. Right of First Refusal.
(a) If Landlord shall desire to lease the Premises for
a term which shall commence after the originally fixed Expiration
Date, provided that Tenant shall not be in Default under this
Lease and this Lease is in full force and effect, Landlord may
notify Tenant of the terms and conditions which shall be
satisfactory to Landlord and Tenant shall have fifteen days after
Landlord's notice to accept the terms and conditions submitted by
Landlord. If Tenant shall fail to do so within that fifteen day
period, Landlord shall have the right to enter into a lease with
any other party for the same or greater annual rate of rental
than the rental set forth in Landlord's notice and Tenant's
rights under this section shall not apply to that new lease.
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(b) Subject to the conditions of subsection (a), if on
or before the originally fixed Expiration Date Landlord shall have
received a bona fide offer to Lease the Premises from an
unaffiliated third party and that offer is acceptable to Landlord
(the "Offer"), provided that Tenant shall not be in Default under
this Lease and that this Lease is in full force and effect,
Tenant shall have the right to accept a lease for that Premises.
The terms of that lease shall be the same terms and conditions as
the Offer except as provided in this subsection. Landlord's
notice shall be accompanied by the proposed lease (the "New
Lease"). Tenant's right shall be only exercisable by Tenant by
giving notice to Landlord within fifteen days after Landlord's
notice that Tenant accepts the Offer accompanied by counterparts
of the New Lease executed by Tenant. The form of the New Lease
shall be substantially similar to the form of this lease, to the
extent practicable, and must otherwise be satisfactory to
Landlord. The term of the New Lease shall commence on the date
succeeding the Expiration Date and shall, at Landlord's election,
continue for the term provided for in the Offer or five years.
(c) Tenant's rights under this Section shall expire if
the lease shall be assigned by Tenant to any other party. The
expiration shall be effective whether or not Landlord had
previously consented to the assignment. If Tenant shall fail to
exercise its rights under this section within any applicable
fifteen day period, Tenant's rights under this section shall
expire. Time shall be of the essence with respect to Tenant's
exercise of its rights under this section.
Section 3.06. Tenant's Right of Cancellation.
(a) At any time following the third anniversary of the
Commencement Date, provided that Tenant shall not be in Default
of a material obligation under this Lease, Tenant shall have the
right to cancel this Lease by notifying Landlord of Tenant's
election. If Tenant shall elect to cancel this Lease, this Lease
shall be cancelled on the "Cancellation Date". The "Cancellation
Date" shall be the later to occur of (i) the first anniversary of
Tenant's notice of cancellation or (ii) the date of cancellation
set forth in Tenant's notice. In consideration for the right to
cancel this Lease, at the time Tenant shall exercise its right,
Tenant shall pay to Landlord an amount equal to the Rent which
would otherwise be payable during the full year following the
Cancellation Date.
(b) If this Lease is validly cancelled in accordance
with the provisions of subsection 3.06(a), except for liabilities
which have accrued prior to the Cancellation Date: Landlord shall
be relieved of all further obligations under the Lease; and upon
surrender of the Premises on or before the Cancellation Date in
accordance with Section 5.07, Tenant shall be relieved of all
further obligations under this Lease.
ARTICLE IV
RENT AND SECURITY
Section 4.01. Basic Rent.
(a) From and after the Commencement Date, Tenant shall
pay Basic Rent to Landlord at the annual rates set forth in the
following table:
Annual Rate
Applicable Period of Basic Rent
First Lease Year $ 102,009.38
Second and Third Lease Years $ 272,025.00
Fourth and Fifth Lease Years $ 321,408.00
Sixth and Seventh Lease Years $ 371,628.00
Eighth and Ninth Lease Years $ 421,848.00
Tenth and Eleventh Lease Years $ 472,068.00
(b) Basic Rent shall be payable in equal monthly
installments. Each installment shall be due in advance on the
first day of each month. If the Commencement Date occurs on a day
other than the first day of any month, Basic Rent for the period
which commences on the Commencement Date and ends on the last day
of the month in which the Commencement Date occurs shall be paid
on the Commencement Date and shall be apportioned equitably.
Section 4.02. Tax Contributions.
Tenant shall pay Tax Contributions to Landlord in
accordance with the following:
(a) Tax Contributions shall be payable from and after
the Commencement Date within thirty (30) days after Landlord
renders a xxxx to Tenant. Landlord shall not render bills more
than four times each calendar year. Landlord's failure to render
a xxxx shall not be construed as a waiver by Landlord of any
amount due. Tenant shall not be obligated to pay a quarterly
installment more than 45 days in advance of the date the
applicable installment of Impositions shall be due and payable to
the taxing authority.
(b) Tax Contributions means all Impositions if the
Premises is assessed as a separate, single tax lot. If the
Premises is not assessed as a separate tax lot, Tax Contributions
shall be calculated in accordance with subsection 4.02(e).
(c) (i) "Impositions" means all taxes, assessments,
and governmental charges which shall be assessed, levied, or
imposed against the Premises, the Building, the land underlying
the Premises, all improvements located upon the Premises and the
use of the Premises, Building and Building Lot, for each tax
fiscal year occurring during the Term. "Impositions" includes
taxes, assessments and other governmental charges which are
special, extraordinary and unforeseen and assessments for public
improvements to the extent provided in part (iii). "Impositions"
also includes all substitutes for the taxes and charges referred
to in this part (i) including a tax on rent. However, a
substitute tax shall be an Imposition only to the extent that the
tax would be payable under the assumption that the Premises were
the sole asset of the Landlord and the income from the Premises
were the sole revenue of the Landlord.
(ii) Assessments shall be included or excluded from
Impositions as follows:
(x) The word "Impositions" excludes any
assessment for public improvements which is a Lien
against the Premises as of the date of this Lease.
(y) If an assessment for public improvements
not excluded by clause (x) is payable in installments
and Landlord elects the installment method of payment,
only the installments which come due during the Term
shall be included in Impositions. If an assessment not
excluded by clause (x) is payable in installments, and
Landlord does not elect the installment method of payment,
then Impositions shall include only the installments
which would have come due during the Term had Landlord
elected the installment method of payment.
(iii) Impositions for any tax fiscal year
occurring partially within the term shall be equitably pro-rated
so that Tenant shall bear only such portion of Impositions
attributable to periods occurring within the Term.
(iv) Provided that Tenant shall pay all
Impositions when due, Landlord shall pay all Impositions to the
taxing authorities on or before the date the Impositions are
payable without accruing penalties or interest.
(d) If the Premises is not assessed as a separate,
single tax lot, the tax lot of which the Premises is a part is
referred to in this Lease as the "Entire Tax Lot". The parties
agree to cooperate with each other to cause the appropriate
taxing authority to assess the Premises as a single tax lot
separate from the balance of the Entire Tax Lot.
(e) If the Premises is not assessed as a separate,
single tax lot, the amount of Impositions with respect to the
Premises shall be determined in accordance with the following:
(i) Tax Contributions shall be equal to a
fraction of all taxes, assessments and governmental charges
(including any governmental charges levied in whole or in part in
lieu of real estate taxes) which shall be assessed, levied or
imposed against the Entire Tax Lot, including all improvements
upon the Entire Tax Lot, for each tax fiscal year occurring
during the Term. The numerator of the fraction shall be the fair
market value of the Premises, including the Building, as of the
tax assessment date. The denominator of the fraction shall be the
fair market value of the Entire Tax Lot, including all
improvements located upon the Entire Tax Lot, as of the tax
assessment date.
(ii) If the parties are unable to agree upon the
fair market value of the Premises and the Entire Tax Lot
respectively, the fair market values shall be determined by an
appraiser who is a member of the American Institute of Real
Estate Appraisers. If the parties are unable to agree upon the
appointment of an appraiser, then Landlord shall select an
appraiser and Tenant shall select an appraiser. The two
appraisers shall select a third appraiser. The fair market values
shall be determined by the third appraiser.
(iii) If the two appraisers selected by Landlord
and Tenant can not agree upon a third appraiser to be selected,
than either party may apply to a court of competent jurisdiction
to have the third appraiser selected.
(iv) The determination of the third appraiser
shall be conclusive evidence of the respective fair market values
of the Premises and the Entire Premises.
(v) In determining the respective fair market
values of the Premises, the existence of this Lease may not be
taken into consideration by the appraiser.
(vi) Until the appraisal process is completed,
Tenant shall make payments on account of Impositions in amounts
reasonably estimated by Landlord.
(f) Tenant shall have the right to conduct a tax
appeal with respect to the premises. Prior to commencing an
appeal, Tenant shall notify Landlord of Tenant's intention.
Within ten days after receipt of Tenant's notice, Landlord shall
have the right to conduct the appeal. Both parties shall
cooperate with each other with respect to a tax appeal conducted
by either party. If an appeal shall be conducted, after deducting
the cost of the attorney's and appraisal fees any remaining
refund shall be paid as follows:
(i) entirely to Tenant if Premises is assessed
as a separate, single tax lot; or
(ii) to be divided equitably between Landlord and
Tenant in the proportion that the refunded imposition was borne
by the parties, if the Premises is not assessed as part of a
separate, single tax lot.
Section 4.03. Payments of Rent.
(a) "Additional Rent" means Tax Contributions, and any
other charges Tenant is required to pay to Landlord, other than
Basic Rent.
(b) "Rent" means Basic Rent, Additional Rent and any
other charges Tenant is required to pay to Landlord.
(c) Except as otherwise provided, Rent shall be paid by
good check made to the order of Landlord. Except as otherwise
provided, Rent payments shall be placed in the United States mail
addressed to Landlord at the place where notices to Landlord may
be given. Rent shall be paid without setoff or deduction.
ARTICLE V
THE PREMISES
Section 5.01. Use of the Premises.
(a) The Premises shall be used for general and
executive offices purposes, including all uses incidental to
those purposes, and for no other purpose. Landlord agrees that
Tenant may use up to 15,000 square feet of the floor area of the
Building for the conduct of retail sales.
(b) The Premises shall be used solely in accordance
with all applicable legal requirements.
Section 5.02. Indemnification.
(a) Tenant hereby indemnifies Landlord against all
liability arising from any and all Claims which:
(i) arise from or are in connection with possession,
use, occupation, management, repair, maintenance or control of
the Premises;
(ii) arise from or are in connection with the
negligence or omission of Tenant or Tenant's agents in or about
the Premises, Building Lot, or elsewhere;
(iii) result from any Default, breach, violation or
non-performance of a provision of this lease; or
(iv) result in injury to person or property or
loss of life sustained in or about the Premises.
(b) "Claims" means any claims, suits, proceedings,
actions, causes of action, responsibility, liability, demands,
judgments and executions.
(c) "Tenant's Agents" includes Tenant's employees,
servants, licensees, tenants, subtenants, assignees, contractors
and invitees.
Section 5.03. Liens.
(a) If any Lien encumbers Landlord's interest in the
Premises as a result of work done or authorized by Tenant or any
other act or omission by Tenant, Tenant shall discharge the Lien,
by bonding it or otherwise, within forty-five (45) days after the
creation of the Lien.
(b) "Lien" means: any interest, lien, charge, claim or
encumbrance against the Premises, Tenant's leasehold interest in
the Premises, the Building, or the Building Lot.
Section 5.04. Repairs and Compliance with Laws.
(a) Upon reasonable notice from Tenant, Landlord shall
make necessary structural repairs to the foundation and exterior
walls of the Building, excluding all windows, plate glass, doors
and any fixtures and appurtenances composed of glass and any
damage caused by any act, omission or negligence of Tenant, or
Tenant's Agents, employees, invitees and contractors. Until the
first anniversary of the Commencement Date, Landlord shall
maintain and repair the roof of the Building.
(b) Except for the repairs Landlord is required to make in
accordance with subsection 5.04(a), Tenant shall make all repairs
necessary to maintain the Building and Building Lot in good order
and repair and in a safe and dry condition. Tenant's obligation
to perform repairs includes repairs to any heating or air
conditioning equipment located within or servicing the Building
exclusively; any sign installed by Tenant; the floor; to windows,
plate glass and any other fixtures composed of glass; and to the
Premises when the repairs are necessitated by any act or omission
of Tenant or Tenant's Agents. From and after the first
anniversary of the Commencement Date, Tenant shall maintain and
repair the roof of the Building. Tenant's repairs shall comply
with the following:
(i) all applicable legal requirements which
accrue from the date of this Lease and which are applicable to
the performance of Tenant's Work; and
(ii) all Insurance Requirements with respect to
the Premises.
(c) Tenant shall be solely responsible for cleaning
the Premises.
Section 5.05. Compliance.
Tenant shall observe and comply promptly with all
present and future legal requirements and Insurance Requirements
relating to or affecting the Premises or Tenant's use and
occupancy of it. If any legal requirement or Insurance
Requirement requires a repair, addition or alteration, Tenant's
obligation shall be limited to those portions of the Premises
which Tenant is required to repair in accordance with Section
5.04.
Section 5.06. Emergency Repairs.
If, in an emergency, it shall become necessary to make
promptly any repairs or replacements to the Premises, Landlord
may re-enter the Premises and proceed to perform repairs. If
repairs performed by Landlord were required to be made by Tenant,
within thirty (30) days after Landlord renders a xxxx therefor,
Tenant shall reimburse Landlord for the reasonable cost of making
those repairs.
Section 5.07. Surrender of Premises.
On the Expiration Date, Tenant shall quit and
surrender the Premises broom clean, and in the state of repair in
existence after the performance of Tenant's Work, reasonable wear
and tear excepted, together with all alterations, installations,
additions and improvements which may have been made in or
attached on or to the Premises. Upon surrender, Tenant shall
remove its personal property from the Premises, and Landlord may
require Tenant to remove any installation or alteration made by
Tenant, and restore the affected portion of the Premises to the
condition delivered. Tenant shall not be required to remove
partitioning, paneling, wall coverings or floor coverings.
Section 5.08. Alterations.
(a) Except as provided for in subsection 5.08(b), Tenant
may not make any alterations to the Premises without the prior
written consent of Landlord. If Landlord grants its consent to
any alterations, the alterations shall be performed in a good and
workmanlike manner. Landlord hereby agrees not to unreasonably
withhold its consent to interior non-structural alterations
proposed to be made to the Building. All alterations made by
Tenant shall comply with all applicable legal requirements and
all Insurance Requirements. Upon completion of any alteration,
Tenant shall deliver a set of as-built plans for that alteration
to Landlord.
(b) Provided that the alterations do not reduce the
value of the Premises, Landlord's consent shall not be required
for any set or combination of interior non-structural alterations
to the Building costing less than Twenty-Five Thousand
($25,000.00) Dollars. Tenant shall advise Landlord prior to
commencing any such alterations. Notwithstanding the foregoing,
if the consent of any Mortgagee is required for any alteration
proposed by Tenant, Tenant shall not commence that alteration
until the Mortgagee consents. Landlord shall cooperate with
Tenant in seeking any such consent.
(c) Alterations shall be considered part of the
Premises.
Section 5.09. Tenant's Equipment.
(a) "Tenant's Equipment" means: racks and other movable
trade fixtures, equipment, furniture and decorations installed in
the Building by Tenant. However, heating, ventilating, air
conditioning, plumbing, electrical, fire prevention, smoke and
fire detection, burglar alarm and illumination equipment,
installed by Tenant shall not be considered to be a part of
Tenant's Equipment and shall be considered part of the Premises.
(b) Tenant shall be entitled to affix Tenant's
Equipment to, to install Tenant's Equipment in, and to remove
Tenant's Equipment from, the Premises. Tenant's Equipment shall
be the property of Tenant and shall not be deemed to be part of
the Premises or subject to this Lease.
(c) Upon the Expiration Date, Tenant shall remove
Tenant's Equipment. Upon removal of Tenant's Equipment, Tenant
shall repair any damage to the Premises which shall have resulted
from affixing, installing, or removing Tenant's Equipment.
Section 5.10. Insurance.
(a) Tenant shall maintain comprehensive general
liability insurance with respect to the Premises in amounts not
less than Three Million ($3,000,000.00) Dollars for each
occurrence or person as to personal injury and One Million
($1,000,000.00) Dollars for each occurrence as to property
damage.
(b) Tenant's insurance policy shall be issued by an
insurer of recognized responsibility and shall be reasonably
satisfactory to Landlord in form and substance. Landlord, and
upon request of Landlord, any Mortgagee, Master Lessor or other
designee of Landlord shall be named as additional insureds.
(c) Upon the execution of this Lease by Tenant,
Tenant's insurance policy shall be delivered to Landlord.
(d) Tenant's insurance policy shall provide, in
effect, that the policy may not be cancelled, reduced in amount,
or modified by the insurer until at least twenty days after the
insurer shall have notified Landlord and Tenant in writing.
(e) Tenant may carry this insurance under a blanket
insurance policy. If Tenant elects to do so, in lieu of the
delivery of a copy of the actual insurance policy, Tenant may
deliver a certificate of the insurance company evidencing the
policy and required endorsements, and, upon the request of
Landlord, a copy of a specimen policy which sets forth the terms
and conditions of the coverage of the blanket policy.
(f) "Insurance Requirements" means the applicable
provisions of the insurance policy carried by Landlord covering
the Premises; all requirements of the insurer of any such policy;
and all orders, rules, regulations and other requirements of any
insurance service office which serves the community in which the
Premises are situated.
Section 5.11. Insurance Contributions.
Tenant shall pay Insurance Contributions to Landlord
in accordance with the following:
(a) "Insurance Contributions" means Tenant's Pro Rata
Share of the cost of insurance maintained by Landlord with
respect to the Building and Building Lot. Insurance Contributions
shall be payable from and after the Commencement Date.
(b) (i) "Insurance" includes fire insurance with
extended coverage, rental insurance, and public liability
insurance.
(ii) Tenant shall pay monthly installments on
account of Insurance Contributions to Landlord. Until changed
in accordance with part (iii), the installments shall be
an amount reasonably estimated by Landlord. Installments shall be
due in advance. If the Commencement Date is not the first day of
a month, Tenant shall pay a partial installment to Landlord on
the Commencement Date. The partial installment shall be an
equitable share of a full month's installment. If the
Commencement Date is the first day of a month, a full installment
shall be paid on the Commencement Date. Each subsequent
installment shall be due on the first day of each succeeding
month.
(iii) For each Lease Year after the first Lease
Year, monthly installments payable on account of Insurance
Contributions for a Lease Year shall be the Insurance
Contributions for the preceding Lease Year divided by the number
of months in the preceding Lease Year.
(iv) If the monthly payments made by Tenant on
account of the Insurance Contributions for any Lease Year are not
sufficient to fully pay the Insurance Contributions for that
Lease Year, Tenant shall pay the deficiency to Landlord. Tenant
shall pay the deficiency within ten days after the Landlord
renders its xxxx for the deficiency. If monthly payments on
account of Insurance Contributions are in excess of Insurance
Contributions for that Lease Year, Landlord shall reimburse Tenant
for the excess payments at the end of that Lease Year.
Section 5.12. Destruction.
(a) If the whole or any portion of the Building is
damaged by fire or insurable casualty and this Lease is not
terminated pursuant to subsection 5.12(b), rent shall xxxxx from
the date of such occurrence in the proportion that the portion of
the Building rendered unusable bears to the entire floor area
contained within the Building until the Building, or damaged
portion of it, shall be rebuilt or repaired as provided in this
Section. If Landlord shall carry full rental insurance for a
period of at least one year, the extent to which rent shall xxxxx
shall be equal to the amount of rental insurance proceeds
actually paid to Landlord.
(b) If the Building shall be damaged by fire or other
insurable casualty this Lease shall not be terminated except as
set forth in this subsection. If the damage is not substantially
repaired by Landlord in accordance with subsection 5.12(c) within
one year after its occurrence, the rental abatement shall continue
and Tenant may cancel this Lease by giving notice to Landlord
within thirty days after the end of that year. If the Building
shall be damaged by fire or other casualty to the extent of
thirty percent or more of its replacement value during the last
two years of the Term, either party shall have the right to
cancel this Lease by giving notice to the other within ninety
days following the casualty. Tenant hereby waives all other
rights to terminate this Lease it may have by reason of damage to
the Building or other portions of the Premises as a result of fire
or other casualty pursuant to any presently existing or hereafter
enacted statute or other law.
(c) If all or any portion of the Building is damaged
by fire or other casualty insurable under a standard fire
insurance policy with standard extended coverage endorsements and
this Lease is not terminated, Landlord shall, within a reasonable
time after the occurrence, repair or rebuild the Building or the
damaged portion to its condition immediately prior to the
occurrence, except for leasehold improvements and alterations
made by Tenant. Tenant shall be required to repair any damage to
leasehold improvements and alterations made by Tenant.
(d) If this Lease is cancelled in accordance with this
section, Rent shall be equitably pro-rated as of the date of
cancellation.
Section 5.13. Subrogation.
(a) Landlord and Tenant hereby release each other and
each other's officers, directors, employees and agents from
liability or responsibility for any loss or damage to
property covered by valid and collectable fire insurance with
standard extended coverage endorsement.
(b) This release shall apply not only to liability and
responsibility of the parties to each other but shall also extend
to liability and responsibility for anyone claiming through or
under the parties by way of subrogation or otherwise. This
release shall apply even if the fire or other casualty shall have
been caused by the fault or negligence of a party or anyone for
whom a party may be responsible.
(c) This release shall not apply to loss or damage of
property of a party unless the loss or damage occurs when the
fire or extended coverage insurance policies of the party contain
a clause or endorsement to the effect that any release shall not
adversely affect or impair the policies or prejudice the right of
the party to recover under it. Landlord and Tenant each agree that
fire and extended coverage insurance policies covering the
Building, Premises or their contents shall include this clause or
endorsement as long as it shall be obtainable without extra cost,
or, if extra cost shall be charged, so long as the other party
pays the extra cost. If extra cost shall be chargeable, the
party whose policy is subject to the extra cost shall advise the
other, and of the amount of the extra cost.
Section 5.14. Taking of the Premises.
(a) (i) "Taking" means: The Taking of, or damage to,
all or part of the Premises as a result of the exercise of any
power of eminent domain or purchase under threat thereof.
(ii) "Taking Date" means: the date on which the
condemning authority shall have the right to possession of all or
part of the Premises.
(iii) "Award" means the Award for, or proceeds
of, any Taking less the expenses of collecting the Award,
including fees of attorneys and appraisers.
(b) (i) Landlord shall be entitled to the entire Award
for any Taking of all or any part of the Premises. Tenant hereby
assigns to Landlord any share of such Award which may be awarded
to it. However, Tenant shall have a right to prosecute Tenant's
separate claim for loss of its personal property, if any,
relocation and moving expenses, and the unamortized value of the
initial Tenant's leasehold improvements made by Tenant.
(ii) For the purposes of this subsection (b), the
unamortized value of Tenant's leasehold improvements shall be
equal to the lesser of $500,000.00 or the cost of the initial
leasehold improvements included as part of Tenant's Work,
amortized on a straight line basis over ten years commencing on
the Commencement Date.
(iii) Tenant hereby waives and assigns to
Landlord any right to any portion of the Award for the loss of
its leasehold interest in the Premises.
(c) (i) If there is a permanent Taking of more than
twenty-five percent of the Building, either party shall have the
option to cancel this Lease by giving notice to the other within
ninety days after the Taking Date.
(ii) If there is a permanent Taking of more than
twenty-five percent of the parking spaces located within the
Building Lot and Landlord does not agree to provide up to
seventy-five percent of the previously available parking spaces
in a location or locations reasonably satisfactory to Tenant,
Tenant may cancel this Lease by giving Landlord notice within
ninety days after the Taking. Landlord shall make all reasonable
efforts to replace all Taken parking spaces with an equal number
of ground level parking spaces in an area which shall be in
compliance with applicable zoning laws, if any.
(d) If this Lease is not cancelled, the following shall
apply:
(i) Landlord shall restore the Premises to the
extent practical to render them reasonably suitable for the use
as set forth in Section 5.01.
(ii) The annual rate of Basic Rent shall be
reduced in accordance with the following:
(x) The applicable per square foot annual
rate or rates of Basic Rent shall be reduced by an
amount. The amount by which Basic Rent shall be
reduced shall be the product of the applicable per
square foot annual rate or rates of Basic Rent
multiplied by the number of square feet of the
Building Taken; and
(y) Any reduction in the annual rate of
Basic Rent shall be effective as of the Taking Date.
(iii) For the purposes of this subsection (d),
the floor area of the Building shall be deemed to be 83,764
square feet.
(e) If this Lease is cancelled in accordance with this
section, Rent shall be equitably pro-rated as of the date of
cancellation.
Section 5.15. Insurance Requirements.
Tenant agrees to comply with all of Insurance
Requirements relating to or affecting the Premises. If, as a
result of Tenant's failure to do so or as a result of or in
connection with the use to which the Premises is put by Tenant,
the insurance rates applicable to the Premises shall be
increased, Tenant shall pay to Landlord, on demand, the portion
of the premiums for all insurance policies that shall be
attributable to the increase caused by Tenant. If any such
requirement requires a repair, addition or alteration to the
Premises, Tenant's obligations shall be limited to those portions
of the Premises which Tenant is required to repair in accordance
with Section 5.04.
Section 5.16. Access to Premises, Easement for Pipes.
(a) Landlord and any Mortgagee of the Premises shall each be
entitled to:
(i) inspect the Premises at reasonable times and
upon reasonable notice; and
(ii) access to the Premises for the purpose of
exercising Landlord's rights under this Lease.
(b) Landlord hereby reserves the following rights and
privileges:
(i) an easement for all existing wires, pipes,
lines, conduits and related installations now running in, on,
under or over the Premises to remain in the locations in which
they are situated;
(ii) an easement to install new wires and new
pipes, wires, conduits and related installations in, on, over,
and under the Premises, as long as such new installations do not
unreasonably interfere with Tenant's use of the Premises,
Landlord shall repair any damage caused by the Premises by any
such action. The work shall be performed at reasonable times and
upon reasonable advance notice; and
(iii) a non-exclusive easement for persons and
vehicles to pass over the existing roadways at the Building Lot
to and from the entrance and exitways at the Premises and the
other premises presently owned by Landlord which is adjacent to
the Premises, including but not limited to the right to use all
existing driveways.
(c) Tenant shall not erect any barriers or other
installations which shall interfere with Landlord's rights under
this Section.
(d) In exercising Landlord's rights of entry under
this Section, Landlord shall give Tenant such oral or written
notice as shall be reasonable under the circumstances.
Section 5.17. Signs on the Premises.
Tenant may install signs at the Premises. Tenant's
signs must comply with all applicable legal requirements. Tenant
shall apply for and pay the cost of all permits and approvals
required in connection with Tenant's signs. Landlord shall join
in those applications, if necessary.
ARTICLE VI
UTILITIES
Section 6.01. Electricity.
Landlord is presently supplying electricity service to
the Premises. That service is measured by an existing check meter
or meters. Tenant shall maintain those meters and shall pay to
Landlord the cost of electricity service measured by those
meters. The payment shall be due within ten days after Landlord
renders its xxxx. The amount of the payment shall be equal to the
amount of consumption during the period in question as measured
by the meter(s) multiplied by a rate which shall not exceed the rate,
including any surcharge or fuel adjustment, which Tenant would
otherwise be obligated to pay to the utility company if
electricity were supplied to the Premises directly by the utility
company. Upon sufficient advance notice, Landlord may elect to
discontinue supplying electricity service to the Premises. If
Landlord does so, Tenant shall be obligated to arrange with the
utility company servicing the Premises for electricity service on
Tenant's account.
Section 6.02. Gas.
Tenant shall arrange with the utility company
servicing the Premises for gas service (if applicable), on
Tenant's account, to be provided to the Premises. If necessary,
Tenant shall install a gas meter or meters. Tenant shall maintain
any meter. Tenant shall pay for all gas service used at the
Premises.
Section 6.03. Water.
Tenant shall arrange with utility company servicing
the Premises for water, on Tenant's account, to be provided to
the Premises. If necessary, Tenant shall install a water meter or
meters. Tenant shall maintain any meter. Tenant shall pay for all
water used at the Premises.
Section 6.04. Frontage of Other Charges.
If any sewer rent, frontage charge or any similar
charge is imposed in connection with Tenant's consumption of
water or usage of the water system or sewerage system servicing
the Premises, Tenant shall promptly pay those charges directly to
the governmental authority or utility company imposing those
charges.
Section 6.05. Heat, Air Conditioning and Hot Water.
(a) Tenant shall pay for its own for heat, air conditioning,
if any, and hot water at the Building.
(b) Tenant agrees to maintain heat at the Building at
all times at a level reasonably estimated by Landlord to keep
waterpipes and sprinklers, if any, in the Building from freezing
and to otherwise prevent damage to the Building.
(c) Tenant shall be permitted to use all existing
utility lines and conduits located within the Premises and
servicing the Building.
ARTICLE VII.
PARKING AREAS AND BUILDING LOT
Section 7.01. Supplementary Parking Area.
The Supplementary Parking Area is a portion of a
parking area located within the premises adjacent to the
Premises. The Supplementary Parking Area is located as shown on
Exhibit A. Landlord shall have the right to relocate the
Supplementary Parking Area from time to time to other locations
within that adjacent Premises. Tenant shall have the right to use
up to 209 exclusive parking places with respect to the Premises.
If the Premises does not contain 209 spaces, then Tenant shall
have the exclusive use of a number of parking places located
within the
Supplementary Parking Area equal to the difference between 209
and the number of parking place located upon the Premises. Tenant
shall also have the right to use 141 non-exclusive parking places
within the Supplementary Parking Area. Tenant shall have 24 hour
access to the Supplemental Parking Area.
Section 7.02. Maintenance of Building Lot.
Tenant shall maintain, repair and clean the Building
Lot in order to keep the Building Lot in good order and repair
throughout the Term.
Section 7.03. Supplementary Parking Area Contributions.
(a) Tenant shall pay to Landlord within 30 days after
Landlord renders a xxxx therefor, Tenant's share of the
reasonable costs incurred by Landlord in operating, repairing and
maintaining the Supplementary Parking Area, including the cost of
cleaning, real estate taxes, patching, striping, lighting, and
snow removal. Except for repaving, Tenant shall not be obligated
to contribute towards the cost of improvements of a capital
nature. Tenant's share of the cost shall be in proportion to a
fraction. The numerator of the fraction shall be the number of
spaces, exclusive and non-exclusive, which Tenant has the right
to use at the Supplementary Parking Area. The denominator of the
fraction shall be the number of parking places located within the
Supplementary Parking Area which Tenant and other tenants at the
premises adjacent to the Premises have the right to use. Landlord
shall render no more than 12 bills each year.
(b) Landlord shall maintain records of the expenses
incurred by Landlord with respect to the Supplementary Parking
Area. The records shall be kept at Landlord's principal office.
Upon reasonable notice, from time to time, Tenant shall have the
right to inspect and audit those records. The records shall be
maintained until the first anniversary of the date Landlord
renders a xxxx with respect to those expenses.
(c) Landlord's failure to render a xxxx for any period
occurring during the Term shall not be construed as a waiver of
Landlord's right to any payment due under this Section.
(d) Tenant shall only be required to bear its share of
those expenses incurred during the Term. This provision and
Tenant's liability under this Section shall survive the
expiration or termination of this Lease.
(e) Landlord agrees to repair and maintain the
Supplementary Parking Area in a reasonable manner and to commence
to remove snow from it within a reasonable time after the end of
a snow fall.
ARTICLE VIII
INTERESTS IN THE PREMISES
AND TRANSFER OF INTEREST
Section 8.01. Assignment of Tenant's Interest.
(a) Tenant shall not assign its leasehold interest
under this Lease or sublet all or any part of the Premises
without Landlord's prior written consent. Subject to Landlord's
rights under subsection 8.01(b), Landlord's consent to an
assignment of this Lease or a subletting of the entire Premises
shall not be unreasonably withheld. No assignment or subletting
shall relieve Tenant of any obligations under this Lease. A
transfer of a controlling interest in Tenant's stock shall be
regarded as an assignment in the context of this Section 8.01.
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(b) (i) Prior to listing the Premises with a broker,
offering the Premises to others, or advertising the availability
of the Premises, Tenant agrees to notify Landlord if Tenant
desires to assign this Lease or sublet the entire Premises to any
party other than a party referred to in subsection 8.01(e).
(ii) If Tenant shall seek to assign this Lease or
sublet the whole of the Premises to an unaffiliated party, Tenant
shall notify Landlord of the identity of the proposed assignee or
sublessee and deliver to Landlord an executed counterpart of the
assignment agreement or sublease. Upon receipt by Landlord of
Tenant's notice given in accordance with this part (ii), Landlord
shall have the option to terminate this Lease. Landlord may
exercise its option to terminate this Lease by giving Tenant
written notice not later than sixty days after receipt of that
notice. If Landlord shall exercise its option to terminate this
Lease, the Lease shall terminate on the date rent under the
proposed sublease shall be scheduled to commence or the
effective date of the assignment. Any sublease or assignment
shall be entered into expressly subject to Landlord's rights
under this part (ii).
(iii) Upon termination, Landlord shall be
relieved of all obligations or liabilities set forth in this
Lease, except for accrued liabilities and except for those
liabilities which specifically are to survive a termination or
cancellation of this Lease. Upon termination and surrender of
possession of the Premises in accordance with Section 5.07,
Tenant shall be relieved of all obligations or liabilities set
forth in this Lease, except for accrued liabilities and except
for those liabilities which specifically are to survive a
termination or cancellation of this Lease.
(c) An assignment of Tenant's leasehold interest shall
not be effective unless and until assignor shall give notice of
the assignment to Landlord and the assignee assumes all of
Tenant's obligations under this Lease. A sublease shall not be
effective unless and until Tenant shall deliver to Landlord an
originally executed counterpart of the sublease agreement.
(d) The provisions of this Section shall apply to
Tenant, its sublessees, successors or assigns.
(e) Landlord hereby consents that Tenant may assign
this Lease or sublet the entire Premises to Tenant's parent, any
subsidiary or affiliate of Tenant, to any corporation which
merges with Tenant or to any party which purchases all or a
substantial portion of the assets or stock of Tenant. The
provisions of subsection 8.01(b) shall not apply to any such
assignment or subletting.
Section 8.02. Estoppel Certificates.
(a) Within ten days after request therefor, either
party shall deliver an Estoppel Certificate to the other party.
(b) An Estoppel Certificate shall set forth the
following statements to the best of the knowledge of the party
certifying:
(i) that this Lease has not been supplemented or
amended; or if it is alleged that this Lease shall have been
supplemented or amended, the manner in which it has been
supplemented or amended shall be specified;
(ii) that this Lease is not in full force and
effect, or if it is alleged that this Lease is not in full force
and effect, the reasons for the allegations shall be specified;
(iii) the date to which Basic Rent and Additional
Rent have been paid; and
(iv) that there exists no condition which
constitutes an Event of Default; or if it is alleged that such
condition exists, the nature of the condition shall be specified.
(c) An Estoppel Certificate may be relied upon by the
party requesting it or any other person to whom the Estoppel
Certificate may be exhibited or delivered. The contents of each
Estoppel Certificate shall be binding on the party which executed
it.
Section 8.03. Subordination.
(a) Tenant shall subordinate the lien of this Lease to
each Mortgage or Master Lease which may encumber the Premises
from time to time, and Tenant hereby agrees to attorn to any
Mortgagee or Master Lessor upon the request of either.
(b) (i) "Mortgage" means: any mortgage, deed of
trust or deed to secure debt which encumbers all or part of the
Premises, any modification, consolidation or extension of any
of the foregoing instruments; and any spreading agreements.
(ii) "Mortgagee" means: the holder of a Mortgage.
(iii) "Master Lease" means a lease of the
Premises or a lease of the ground underlying the Premises between
the owner thereof, as lessor, and Landlord, as lessee, giving
rise to Landlord's rights and privileges in the Premises or the
underlying land as the case may be.
(iv) "Master Lessor" means: the owner from time to
time of the lessor's interest under a Master Lease.
(c) Notwithstanding the provisions of subsection
8.03.(a), this Lease shall not be subordinate to any Master Lease
or Mortgage, unless the Master Lessor or Mortgagee shall agree in
writing to the effect that this Lease and Tenant's rights under
it in the event of a termination of the Master Lease or a
foreclosure of the Mortgage, respectively shall not be
terminated.
(d) If the agreements referred to in subsection
8.03(c) are not executed by the existing Mortgagee and Master
Lessor within 60 days after fully executed counterparts of this
Lease are exchanged by Landlord and Tenant then, Tenant shall
have the right to cancel this Lease by notifying Landlord within
ten days following that 60 day period. Tenant's sole remedy for
the failure of a Mortgagee of Master Lessor to execute such an
agreement shall be the right to cancel this Lease. If Tenant
elects to cancel this Lease, both parties shall be relieved of
all further liability under it.
Section 8.04. Transfer of Landlord's Interest.
(a) The following shall apply if Landlord's interest in
the Premises is a leasehold interest: "Landlord" means: the
owner of the Premises or the Mortgagee in possession of the
Premises for the time being. Each time the Premises is sold, the
Seller shall be entirely relieved of all obligations and
liability as Landlord under this Lease, accruing after the date
of the transfer. If a person who owns the Premises leases its
reversionary interest in the Premises to another person subject
to the lien of this Lease, the lessor shall be relieved of all of
its liability as Landlord under this Lease, accruing after the
date of the transfer.
(b) The following shall apply if the Landlord's interest in
the Premises is a leasehold interest: "Landlord" means: only the
owner of the leasehold estate in the Premises under a lease of
the reversionary interest in the Premises. Each time that
leasehold interest is assigned, the assignor shall be entirely
relieved of any obligations or liability under this Lease,
accruing after the date of the transfer. If the owner of the
leasehold estate also becomes the owner of the fee interest,
subsection (a) of this Section 8.04 shall apply instead of this
subsection.
Section 8.05. Brokerage.
Tenant represents that there was no broker or other
party, instrumental in consummating this Lease and no
conversations or prior negotiations were had with any broker or
other party concerning the renting of the Premises. Tenant agrees
to hold Landlord harmless against any claims for brokerage
commission or compensation arising out of any conversation or
negotiation had by Tenant with any broker or other party.
Section 8.06. Financial Statements.
On or before June 1st of each year, Tenant shall
deliver a complete financial statement of Tenant for Tenant's
fiscal year ending immediately prior to that June 1st. The
statement shall be certified as correct by an independent
certified public accountant.
Section 8.07. Landlord's Representation.
Landlord hereby represents as follows:
(i) Landlord is the holder of a leasehold estate
in the Premises and premises adjacent to the Premises.
(ii) Landlord's leasehold estate extends beyond
the Expiration Date of this Lease.
(iii) The Premises is encumbered by a Mortgage
granted to Xxxx Xxxxxxx Life Insurance Company to insure a debt
having an initial principal amount of $5,500,000.00.
(iv) No other Mortgage encumbers the Premises.
(v) Annexed as Exhibit C is a photocopy of a
title policy issued as of August 15, 1973.
(vi) The unrecorded sidetrack agreement referred
to in the deed recorded in Book 4036, Page 580 does not
materially adversely offset Tenant's use of the Premises and
shall not require Tenant to pay for the use of it (unless
Landlord shall hereafter permit Tenant to use it).
(vii) There have been no changes in the state of
title to the Premises or state of facts shown on the survey dated
March 5, 1973 by Xxxx X. Xxxxxxxxx & Co. since August 15, 1973 which
would materially adversely affect Tenant's use of the Premises.
Tenant agrees to order a title report for the Premises
If the title report shall reveal any condition or title defect
which renders Landlord's representation set forth in part (vi)
incorrect, Tenant's sole remedy shall be to cancel this Lease by
giving notice to Landlord within 45 days after the date of this
Lease. Tenant's notice must set forth the contended defect.
ARTICLE IX
DEFAULTS, DISPUTES AND REMEDIES
Section 9.01 Events of Default of Tenant.
(a) Each of the following events shall constitute an
"Event of Default" by Tenant under this Lease:
(i) If Tenant fails to pay any Rent when due, and
Tenant does not cure the failure within ten days after Landlord
shall have given notice to Tenant of such failure.
(ii) If Tenant fails to comply with any of its
other obligations of this Lease, and Tenant does not cure the
failure within twenty days after Landlord shall have given notice
to Tenant of such failure. However, if the obligations is of such
a nature that it can not be performed within that twenty day
period, Tenant shall not be deemed to be in default if Tenant
commences to perform the obligations within that twenty day
period and diligently prosecutes the performance to completion.
Section 9.02. Rights and Remedies Upon Default.
If an Event of Default occurs with respect to Tenant,
Landlord shall be entitled to take any action it deems advisable,
from time to time, under any one or more of the provision of this
Section 9.02 or Section 9.03.
(a) Landlord may proceed as it deems advisable, at law
or in equity, to enforce the provisions of this Lease.
(b) Landlord may notify Tenant that this Lease shall
terminate on a date specified in the notice, and this Lease shall
terminate on the date so specified. Notwithstanding such
termination, Tenant's liability under this Lease shall survive.
(c) Landlord may reenter the Premises and may
repossess the Premises by summary proceedings, ejectment or
otherwise. Landlord may dispossess Tenant and may remove Tenant
from the Premises without further notice to Tenant.
Notwithstanding any such repossession, re-entry or ejectment,
Tenant's liability under this Lease shall survive.
(d) Landlord may relet the Premises as a whole or in
part and for such term and extensions as Landlord determines. The
term and extensions may be greater or less than the period which
would have constituted the balance of the Term if this Lease had
not been terminated.
(d) Tenant shall pay the following amounts to
Landlord, as liquidated and agreed current damages, on each date
when an installment of Rent would have been payable if this Lease
had not been terminated:
(i) The installment of Rent which would have been
payable on that date, minus the rent (if any) received by
Landlord with respect to the reletting of the Premises during the
period with respect to which such installment of Rent would have
been payable, plus
(ii) All amounts paid by Landlord during such
period representing (x) other charges that would have been
payable by Tenant if this Lease had not been terminated; and (y)
Landlord's out-of-pocket expenses of reentering, repossessing and
reletting the Premises including attorneys' reasonable fees and
disbursements, commissions of brokers, fees of architects and
engineers in connection with any renovation or alteration, and
the cost of painting, altering or dividing the Premises.
(f) (i) At Landlord's option, Tenant shall pay
liquidated and agreed final damages to Landlord in the amounts
set forth as follows: liquidated and agreed final damages shall
be all Basic Rent and a reasonable estimate of Additional Rent
payable by Tenant under this Lease, for the balance of what would
have been the Term had Landlord not exercised its option under
subsection (b), discounted at present worth at the annual rate
of ten percent minus the fair rental value of the Premises for
the same period discounted to present worth at the same rate.
(ii) If Landlord exercises its option under part
(i) and Tenant pays the amount required to be paid under part
(i), Tenant shall be discharged from all obligations under this
Lease except for any obligations which shall have accrued prior
to the date of the termination under subsection (b).
(g) If this Lease is cancelled pursuant to this Article
IX, or if the Premises is repossessed pursuant to this Article
IX, Tenant waives any right of redemption, reentry or
repossession and any right to a trial by jury in the event of
summary proceedings.
Section 9.03. Landlord's Right to Cure Potential Defaults.
If Tenant shall fail to perform any of its obligations
under this Lease, after notice which is reasonable under the
circumstances is given to Tenant, Landlord shall have the right
to perform the obligation for the account and at the expense of
Tenant whether or not an Event of Default shall have occurred. In
connection therewith, Landlord may pay any reasonable expenses
necessary for such performance. If Tenant fails or refuses to
reimburse Landlord for the expenses, any fees of attorneys or
other professionals incurred in connection with such performance,
and interest at the highest rate legally allowable under the
circumstances, that amount shall be added to the next
installment of Basic Rent.
Section 9.04. Exculpation.
Landlord shall have absolutely no personal liability
with respect to any provision, of this Lease. In case Landlord
shall be a joint venture, partnership, tenancy in common,
association or other type of joint ownership, the members of the
venture, partnership, association or other form of joint
ownership shall have absolutely no personal liability with
respect to any provision of this Lease. If Tenant shall contend
that Landlord shall have any liability to Tenant, Tenant shall
look solely to the equity of the owner of the Premises at the
time the liability arose for the satisfaction of any remedies of
Tenant. If Landlord's interest is a leasehold interest, Tenant
shall look solely to the leasehold interest for the satisfaction
of any remedies. This exculpation of liability shall be absolute
and without exception.
Section 9.05. Waiver of Right of Redemption.
Tenant hereby expressly waives (to the extent legally
permissible), for itself and for all persons claiming by,
through, or under it, any right of redemption or for the
restoration of the operation of this Lease under any present or
future law in case Tenant shall be dispossessed for any cause, or
in case Landlord shall obtain possession of the Premises as
provided for in this Lease.
Section 9.06. Waiver of Trial By Jury.
Tenant hereby waive all right to trial by jury in any
claim, action, proceeding or counterclaim by Landlord against
Tenant on any matters arising out of or in any way connected with
this Lease, the relationship of Landlord and Tenant, or Tenant's
use or occupancy of the Premises.
ARTICLE X
INTERPRETATION AND NOTICE
Section 10.01. Interpretation.
Captions and headings used in this Lease are for
reference only. They shall not affect the interpretation of any
portion of this Lease. The use of the word "it" or "its" in
reference to a party shall be a proper reference even if that
party is a partnership, an individual or two or more individuals.
A provision that requires a party to perform an action shall be
construed as requiring the party to perform the action or to
cause the action to be performed, at that party's sole cost and
expense except when expressly provided to the contrary. A
provision that prohibits a party from performing an action shall
be construed as prohibiting such party from performing the action
and requiring the party to take all practical and legal steps to
prevent others from performing the action. "Including" means:
"including but not limited to". "Repair" includes the words
"replacement and restoration", "replacement or restoration",
"replace and restore", "replace or restore", as the case may be.
The singular includes the plural; the plural includes the
singular. "Any" means: "any and all". The term "reentry" shall
not be restricted to its technical legal meaning. If any
provision of this Lease shall be held to be invalid or
unenforceable to any extent, the remainder of this Lease shall
not be affected, and each provision of this Lease shall be valid
and shall be enforced to the fullest extent permitted by Law.
Section 10.02. Communications.
(a) Notices, requests, consents, approvals and other
communications under this Lease shall be effective only if in
writing, if mailed by registered or certified mail, return
receipt requested, postage prepaid, and if properly addressed.
(b) Communications shall be properly addressed only
if addressed as follows:
(i) if intended for Landlord, the communication
shall be addressed as set forth on page 1, Attention: Real Estate
Department, or such other address as Landlord designates by
giving notice thereof to Tenant, with a copy thereof to Xxxxx
Xxxxxx Xxxxxx Xxxxxx & Xxxxxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
(ii) if intended for Tenant, the communication
shall be addressed as set forth on page 1, Attention: Vice
President, Finance or to such other address as Tenant designates
by giving notice thereto to Landlord with a copy thereof to
Xxxxxxxx Xxxxx Xxxxxx Xxxxx & Xxxxx, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
(c) All notices shall be effective when received.
Section 10.03. Covenant of Quiet Enjoyment.
Landlord covenants that if Tenant pays the rent and
all other charges provided for in this Lease, performs all of its
other obligations, and observes all of the other provisions of
this Lease, Tenant shall at all times during the Term peaceably
and quietly have, hold and enjoy the Premises, without any
interruption or disturbance from Landlord, subject to the terms
of this Lease.
Section 10.04. Heirs, Successors and Assigns. This
Lease may not be changed or cancelled orally. This Lease shall be
binding upon the heirs, executors, administrators, personal
representatives, assigns and successors of the parties hereto.
Section 10.05. Counterparts and Exhibits. All exhibits
attached to this Lease are intended to be part of this Lease.
More than one counterpart of this Lease has been executed, but
each such counterpart shall constitute but one and the same
instrument.
Section 10.06. Execution. Notwithstanding anything to
the contrary, this Lease shall not be in force and effect and
shall not be binding upon any party unless and until actual and
complete counterparts of this Lease are properly executed by
Landlord and Tenant or by their respective duly authorized
officers, and such fully executed counterparts are exchanged by,
or delivered to each party.
Section 10.07. Com????????.
(a) Notices, requests, consents, approvals and other
communications ??? this Lease shall be effective only if in
writing, if mailed by registered or certified mail, return
receipt requested, postage prepaid, and if properly addressed.
(b) ??????? shall be ???????? addressed only if
???????? ?????? ?????????.
To signify its agreement to this instrument, Landlord
and Tenant have each caused this instrument to be executed and
attested to by their respective duly authorized officers.
ATTEST: LANDLORD:
VORNADO, INC.
/s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxxxx Xxxxx
---------------------------- -------------------------
XXXXXX XXXXXX XXXXXXXXX XXXXX
SECRETARY CHAIRMAN OF THE BOARD
ATTEST: TENANT:
POPULAR SERVICES, INC.
By: /s/ Xxxxx X. Xxxx
---------------------------- -------------------------
Assistant Secretary Vice President
