EXHIBIT NO. 10.2
LEASE FOR A DISTRIBUTION CENTER AND CORPORATE
HEADQUARTERS FACILITY BETWEEN THE COMPANY
AND XXXXX MOUNTAIN ASSOCIATES, DATED JUNE 30, 1998
EXHIBIT INDEX
TABLE OF CONTENTS
ARTICLES PAGE
-------- ----
1 - DEFINITIONS .............................................................. 1
2 - DEMISE AND TERM .......................................................... 5
3 - RENT ..................................................................... 5
4 - USE OF DEMISED PREMISES .................................................. 6
5 - PREPARATION OF DEMISED PREMISES .......................................... 6
6 - TAX AND OPERATING EXPENSE PAYMENTS ....................................... g
7 - DEVELOPMENT COMMON AREAS .................................................10
8 - SECURITY .................................................................10
9 - SUBORDINATION ............................................................11
10 - QUIET ENJOYMENT .........................................................13
11 - ASSIGNMENT, SUBLETTING AND MORTGAGING ...................................13
12 - COMPLIANCE WITH LAW'S ...................................................16
13 - INSURANCE AND INDEMNITY .................................................17
14 - RULES AND REGULATIONS ...................................................19
15 - ALTERATIONS AND SIGNS ...................................................19
16 - LANDLORD'S AND TENANT'S PROPERTY ........................................21
17 - REPAIRS AND MAINTENANCE .................................................22
18 - UTILITY CHARGES .........................................................23
19 - ACCESS. CHANGES AND NAME ................................................23
20 - MECHANICS' LIENS AND OTHER LIENS ...................................24
21 - NON-LIABILITY AND INDEMNIFICATION ..................................24
22 - DAMAGE OR DESTRUCTION ...................................................25
23 - EMINENT DOMAIN ..........................................................26
24 - SURRENDER ...............................................................27
25 - CONDITIONS OF LIMITATION ................................................28
26 - RE-ENTRY BY LANDLORD ....................................................28
27 - DAMAGES .................................................................29
28 - AFFIRMATIVE WAIVERS .....................................................31
29 - NO WAIVERS ..............................................................32
30 - CORING TENANT'S DEFAULTS ................................................32
31 - BROKER ..................................................................32
32 - NOTICES .................................................................33
33 - ESTOPPEL CERTIFICATES ...................................................33
34 - ARBITRATION .............................................................33
35 - MEMORANDUM OF LEASE .....................................................33
36 - MISCELLANEOUS ...........................................................33
EXHIBIT
Exhibit A - Description of Land
Exhibit B - Site Plan
Exhibit C - Work and Installation to be Performed and Furnished in
Demised Premises
Exhibit D - Rules and Regulations
Exhibit E - Letter of Credit
LEASE, dated June 30, 1998, between XXXXX MOUNTAIN ASSOCIATES, a New
Jersey partnership, having an office at 000 Xxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx
00000-0000 ("Landlord"), and THE CHILDREN'S PLACE RETAIL STORES, INC., a
Delaware corporation, having an office at Xxx Xxxxx Xxxxx, Xxxx Xxxxxxxx, XX
00000 ("Tenant").
ARTICLE 1 - DEFINITIONS
1.01. As used in this Lease (including in all Exhibits and any Riders
attached hereto, all of which shall be deemed to be part of this Lease) the
following words and phrases shall have the meanings indicated:
A. Advance Rent: $89,149.81
B. Additional Charges: All amounts that become payable by Tenant to
Landlord hereunder other than the Fixed Rent.
C. Architect: Xxxxxxx Xxxx Xxxxx, or as Landlord may designate.
D. Broker: Resource Realty.
E. Building: The building or buildings located on the Land and known as
000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx.
F. Building Fraction: The fraction, the numerator of which is the Floor
Space of the Building (approximately 203,771 square feet) and the denominator of
which is the aggregate Floor Space of the buildings in the Development
(approximately 10,337,983 square feet). If the aggregate Floor Space of the
buildings in the Development shall be changed due to any construction or
alteration, the denominator of the Building Fraction shall be increased (but not
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decreased, except in the event of a reduction in size of the Development and
concomitant exclusion of those Operating Expenses relating to those areas
removed from the Development) to reflect such change.
G. Business Days: All days except Saturdays, Sundays, days observed by the
federal or state government as legal holidays.
H. Business Hours: Generally customary daytime business hours, but not
before 9:00 A.M. or after 6:00 P.M.
I. Calendar Year: Any twelve-month period commencing on a January 1.
J. Commencement Date: The date on which actual possession of the Demised
Premises shall have been delivered to Tenant by notice to Tenant. [See Article
5]
K. Demised Premises: The Building and the Land located at 000 Xxxxxxxx
Xxxx, Xxxxxxxx, Xxx Xxxxxx, Xxx Xxxxxx as more particularly depicted on the site
plan(s) attached hereto as Exhibit B, outlined in red, containing approximately
203,771 square feet of Floor Space.
K1. Development: All land and improvements owned by Landlord or its
parents, subsidiaries, or affiliates, now existing or hereafter constructed,
located south of Route 3, east of the Hackensack River, west of County Avenue
and north of Castle Road.
L. Development Common Areas: The roads and bridges that from time to time
service and provide access to the Development for the common use of the tenants,
invitees, occupants of the Development, that are maintained by Landlord or its
related entities.
N. Expiration Date: January 31, 2004. However, if the Term is extended by
Tenant's effective exercise of Tenant's right, if any, to extend the Term, the
"Expiration Date" shall be changed to the last day of the latest extended period
as to which Tenant shall have effectively exercised its right to extend the
Term. For the purposes of this definition, the earlier termination of this Lease
shall not affect the "Expiration Date."
O. Fixed Rent: Commencing on the Commencement Date through the date which
is the day before the second anniversary of the Commencement Date, an amount at
the annual rate of Five and 25/100 Dollars ($5.25) multiplied by the number of
square feet of Floor Space; and from the second anniversary of the Commencement
Date through the Expiration Date, an amount at the annual rate of Five and
50/100 Dollars ($5.50) multiplied by the number of square feet of Floor Space of
the Demised Premises.
O1. Fixed Rent Commencement Date: January 1, 1999.
P. Floor Space: As to the Demised Premises, the sum of the floor area
stated in square feet bounded by the exterior faces of the exterior walls. Any
reference to Floor Space of a building shall mean the floor area of all levels
or stories of such building, excluding any roof, except such portion thereof
(other than cooling towers, elevator penthouses, mechanical rooms, chimneys and
staircases, entrances and exits) as is permanently enclosed, and including any
interior basement level or mezzanine area not occupied or used by a tenant on a
continuing or
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repetitive basis, and any mechanical room, enclosed or interior truck dock, and
areas used by Landlord for storage, for housing meters and/or other equipment or
for other purposes. Any reference to the Floor Space is intended to refer to the
Floor Space of the entire area in question irrespective of the Person(s) who may
be the owner(s) of all or any part thereof.
Q. Guarantor: None.
R. Insurance Requirements: Rules, regulations, orders and other
requirements of the applicable board of underwriters and/or the applicable fire
insurance rating organization and/or any other similar body performing the same
or similar functions and having jurisdiction or cognizance over the Land and
Building, whether now or hereafter in force.
S. Land: The land described on Exhibit A, upon which the Building is
located.
T. Landlord's Work: The materials and work to be furnished, installed and
performed by Landlord at its expense in accordance with the provisions of
Exhibit C.
U. Legal Requirements: Laws and ordinances of all federal, state, county,
and municipal governments, and rules, regulations, orders and directives of all
departments, subdivisions, bureaus, agencies or offices thereof, and of any
other governmental, public or quasi-public authorities having jurisdiction over
the Land and Building, whether now or hereafter in force, including, but not
limited to, those pertaining to environmental matters.
V. Mortgage: A mortgage and/or a deed of trust.
W. Mortgagee: A holder of a mortgage or a beneficiary of a deed of trust.
X. Operating Expenses: The sum of the following: (1) the cost and expense
(whether or not within the contemplation of the parties) for the repair,
replacement, maintenance, policing, insurance and operation of the Building and
Land, and (2) the Building Fraction of the sum of (a) the cost and expense for
the repair, replacement, maintenance, policing, insurance and operation of the
Development Common Areas; (b) the Real Estate Taxes, if any, attributable to the
Development Common Areas. The "Operating Expenses" shall, include, without
limitation, the cost for rent, casualty, liability, boiler and fidelity
insurance. All items included in Operating Expenses shall be determined in
accordance with generally accepted accounting principles consistently applied.
The parties hereto acknowledge that Tenant shall be operating the Building and
shall be incurring directly all Operating Expenses and paying the same directly
to the applicable service provider and that it is not intended that, in the
ordinary course, Landlord will incur or invoice Tenant for Operating Expenses
hereunder, except for Operating Expenses relating to the cost and expense for
the repair, replacement, maintenance, policing, insurance and operation of the
Development Common Areas the Real Estate Taxes, if any, attributable to the
Development Common Areas, and as otherwise expressly provided or permitted under
this Lease.
Y. Permitted Uses: The Demised Premises shall be used solely for
warehousing of Tenant's non-hazardous goods and office use (as corporate
headquarters for Tenant) and, subject further to and in accordance with Legal
Requirements, for periodic warehouse sales.
Z. Person: A natural person or persons, a partnership, a corporation, or
any other form of
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business or legal association or entity.
AA. [Intentionally Omitted].
BB. Real Estate Taxes: The real estate taxes, assessments, special
assessments, sewer rents, water charges, and all other similar charges and
impositions imposed upon the Building and Land by any federal, state, municipal
or other governments or governmental bodies or authorities, and any expenses
incurred by Landlord in contesting such taxes or assessments and/or the assessed
value of the Building and Land, which expenses shall be allocated to the period
of time to which such expenses relate. If at any time during the Term the
methods of taxation prevailing on the date hereof shall be altered so that in
lieu of, or as an addition to or as a substitute for, the whole or any part of
such real estate taxes, assessments and special assessments now imposed on real
estate there shall be levied, assessed or imposed (a) a tax, assessment, levy,
imposition, license fee or charge wholly or partially as a capital levy or
otherwise on the rents received therefrom, or (b) any other such additional or
substitute tax, assessment, levy, imposition or charge, then all such taxes,
assessments, levies, impositions, fees or charges or the part thereof so
measured or based shall be deemed to be included within the term "Real Estate
Taxes" for the purposes hereof. Except as otherwise provided in the second
sentence of this Section 1.01BB, Real Estate Taxes shall not include the
following: (i) gross receipts, excess profits, revenue, payroll, and stamp
taxes; or (ii) inheritance, gift, estate, succession, sales, transfer,
corporate, franchise, excise, capital levies, capital stock and personal
property.
CC. Rent: The Fixed Rent and the Additional Charges.
DD. Rules and Regulations: The reasonable rules and regulations that may
be promulgated by Landlord from time to time, which may be reasonably changed by
Landlord from time to time. The Rules and Regulations now in effect are attached
hereto as Exhibit D.
EE. Security Deposit: Such amount as Tenant has deposited or hereinafter
deposits with Landlord as security under this Lease. Tenant shall deliver to
Landlord, upon execution hereof, a clean irrevocable letter of credit in the
amount of $535,000 as security hereunder as of the date hereof, in accordance
with the provisions of Article 8 of this Lease.
FF. Successor Landlord: As defined in Section 9.03.
GG. Superior Lease: Any lease to which this Lease is, at the time referred
to, subject and subordinate.
HH. Superior Lessor: The lessor of a Superior Lease or its successor in
interest, at the time referred to.
II. Superior Mortgage: Any Mortgage to which this Lease is, at the time
referred to, subject and subordinate.
JJ. Superior Mortgagee: The Mortgagee of a Superior Mortgage at the time
referred to.
KK. Tenant's Property: As defined in Section 16.02.
LL. Tenant's Work: The facilities, materials and work which may be
undertaken by or
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for the account of Tenant (other than the Landlord's Work) to equip, decorate
and furnish the Demised Premises for Tenant's occupancy in accordance with the
provisions of Exhibit C.
MM. Term: The period commencing on the Commencement Date and ending at
11:59 p.m. of the Expiration Date, but in any event the Term shall end on the
date when this Lease is earlier terminated.
NN. Unavoidable Delays: A delay arising from or as a result of a strike,
lockout, or labor difficulty, explosion, sabotage, accident, riot or civil
commotion, act of war, fire or other catastrophe, Legal Requirement or an act of
the other party and any cause beyond the reasonable control of that party,
provided that the party asserting such Unavoidable Delay has exercised its best
efforts to minimize such delay.
ARTICLE 2 - DEMISE AND TERM
2.01. Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the Demised Premises, for the Term. This Lease is subject to (a) any
and all existing encumbrances, conditions, rights, covenants, easements,
restrictions and rights of way, of record, and other matters of record,
applicable zoning and building laws, regulations and codes, and such matters as
may be disclosed by an inspection or survey, and (b) easements now or hereafter
created by Landlord in, under, over, across and upon the Land for access, sewer,
water, electric, gas and other utility lines and services now or hereafter
installed; provided, however, Landlord represents covenants and warrants to
Tenant that the Demises Premises may be used and occupied for the purposes set
forth herein; and that the foregoing shall in no manner interfere with Tenant's
use and quiet enjoyment of the Demised Premises. Promptly following the
Commencement Date, the parties hereto shall enter into an agreement in form and
substance satisfactory to Landlord setting forth the Commencement Date.
ARTICLE 3 - RENT
3.01. Tenant shall pay the Fixed Rent in equal monthly installments in
advance on the first day of each and every calendar month during the Term
commencing on the Fixed Rent Commencement Date (except that Tenant shall pay,
upon the execution and delivery of this Lease by Tenant, the Advance Rent, to be
applied against the first installment or installments of Fixed Rent becoming due
under this Lease).
3.02. The Rent shall be paid in lawful money of the United States to
Landlord at its office, or such other place, or Landlord's agent, as Landlord
shall designate by notice to Tenant. Tenant shall pay the Rent promptly when due
without notice or demand therefor and without any abatement, deduction or setoff
for any reason whatsoever, except as may be expressly provided in this Lease. If
Tenant makes any payment to Landlord by check, same shall be by check of Tenant
and Landlord shall not be required to accept the check of any other Person, and
any check received by Landlord shall be deemed received subject to collection.
If any check is mailed by Tenant, Tenant shall post such check in sufficient
time prior to the date when payment is due so that such check will be received
by Landlord on or before the date when payment is due. Tenant shall assume the
risk of lateness or failure of delivery of the mails, and no lateness or failure
of the mails will excuse Tenant from its obligation to have made the payment in
question when
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required under this Lease.
3.03. No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct Rent shall be deemed to be other than a payment
on account, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance or pursue any other remedy in this Lease or at law
provided.
3.04. If Tenant is in arrears in payment of Rent, Tenant waives Tenant's
right, if any, to designate the items to which any payments made by Tenant are
to be credited, and Landlord may apply any payments made by Tenant to such items
as Landlord sees fit, irrespective of and notwithstanding any designation or
request by Tenant as to the items to which any such payments shall be credited.
3.05. In the event that any installment of Rent due hereunder shall be
overdue for five (5) days or more, a "Late Charge" equal to four percent (4%) or
the maximum rate permitted by law, whichever is less ("Late Payment Rate") for
Rent so overdue may be charged by Landlord for each month or part thereof that
the same remains overdue (so that, for example, in the case of a payment of
Fixed Rent which has not been paid within the applicable grace period, the Late
Charge shall be deemed imposed as of the first day of the month to which such
payment relates). In the event that any check tendered by Tenant to Landlord is
returned for insufficient funds, Tenant shall pay to Landlord, in addition to
the charge imposed by the preceding sentence, a fee of $25.00. Any such Late
Charges if not previously paid shall, at the option of the Landlord, be added to
and become part of the next succeeding Rent payment to be made hereunder.
Notwithstanding any of the foregoing to the contrary, as to the original named
Tenant and any Permitted Assignee(s), the Late Charge shall be waived once per
calendar year provided payment is received by Landlord within ten (10) days of
its due date.
3.06 Except as otherwise expressly set forth in this Lease, it is intended
that the Fixed Rent shall be an absolutely net return to Landlord throughout the
Term, free of any expense, charge or other deduction whatsoever, with respect to
the Demised Premises, the Building, the Land and/or the ownership, leasing,
operation, management, maintenance, repair, rebuilding, use or occupation
thereof, or any portion thereof, with respect to any interest of Landlord
therein.
ARTICLE 4 - USE OF DEMISED PREMISES
4.01. Tenant shall use and occupy the Demised Premises for the Permitted
Uses, and Tenant shall not use or permit or suffer the use of the Demised
Premises or any part thereof for any other purpose.
4.02. If any governmental license or permit, including a certificate of
occupancy or certificate of continued occupancy (a "Certificate of Occupancy"),
shall be required for the proper and lawful conduct of Tenant's business in the
Demised Premises or any part thereof, Tenant shall duly procure and thereafter
maintain such license or permit and submit the same to Landlord for inspection.
Tenant shall at all times comply with the terms and conditions of each such
license or permit. Tenant shall not at any time use or occupy, or suffer or
permit anyone to use or occupy the Demised Premises, or do or permit anything to
be done in the Demised
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Premises, in any manner which (a) violates the Certificate of Occupancy for the
Demised Premises or for the Building; (b) causes or is liable to cause injury to
the Building or any equipment, facilities or systems therein; (c) constitutes a
violation of the Legal Requirements or Insurance Requirements; (d) impairs or
tends to impair the character, reputation or appearance of the Building; (e)
impairs or tends to impair the proper and economic maintenance, operation and
repair of the Building and/or its equipment, facilities or systems.
ARTICLE 5 - PREPARATION OF DEMISED PREMISES
5.01.(a) The Demised Premises shall be completed and prepared for Tenant's
occupancy in the manner described in, and subject to the provisions of, Exhibit
C. Tenant shall occupy the Demised Premises promptly after possession thereof is
delivered to Tenant by Landlord giving to Tenant a notice of such effect. Except
as expressly provided to the contrary in this Lease, and subject to Landlord's
obligation to perform Landlord's Work, the taking of possession by Tenant of the
Demised Premises shall be conclusive evidence as against Tenant that the Demised
Premises and the Building were in good and satisfactory condition at the time
such possession was taken. Except as expressly provided to the contrary in this
Lease, Tenant is leasing the Demised Premises "as is" on the date hereof,
subject to reasonable wear and tear and the rights of the present occupant(s) of
the Demised Premises to remove its or their trade fixtures and other property
from the Demised Premises.
(b)(i) Tenant shall, except for Landlord's Work, be responsible for
all construction and work to prepare the Demised Premises for Tenant's occupancy
at Tenant's cost and expense. Such construction by Tenant shall be in accordance
with Section 36.09 of this Lease. Prior to performing any work in the Demised
Premises, Tenant shall, within sixty (60) days of the date thereof submit to
Landlord for approval final plans and specifications for all construction work
in the Demised Premises including, but not limited to layout, mechanical,
electrical and plumbing plans and finish schedules ("Plans and Specifications").
Tenant shall employ licensed architect(s) and/or engineer(s) for the preparation
of the Plans and Specifications. Landlord shall notify Tenant of Landlord's
approval or disapproval of such Plans and Specifications within fifteen (15)
days after receipt thereof. If Landlord disapproves, Landlord shall specify the
reasons for disapproval and Tenant shall, within fifteen (15) days of receipt of
notice of Landlord's disapproval, resubmit revised Plans and Specifications that
correct such items. Notwithstanding anything contained to the contrary herein,
if Landlord has not responded to Tenant's submission of Plans and Specifications
within twenty (20) Business Days after receipt thereof, Tenant's Plans and
Specifications so submitted shall be deemed approved.
(ii) Tenant shall obtain and provide all design and architectural
services necessary to perform Tenant's Work and shall be responsible for
complying with all building codes and Legal Requirements in connection with
Tenant's Work, prior to commencing any work in the Demised Premises. Tenant
shall obtain a permanent certificate of occupancy of the Demised Premises for
the Permitted Uses. The construction of the Demised Premises shall be performed
in a first class workmanlike manner. At all times when construction of the
Demised Premises is in progress and prior to the Commencement Date, Tenant shall
maintain or cause to be maintained the insurance coverage required under Section
13.01.
(iii) Tenant shall be solely responsible for the structural
integrity of the
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improvements made by Tenant and for the adequacy or sufficiency of the Plans and
Specifications and all the improvements depicted thereon or covered thereby, and
Landlord's consent thereto, approval thereof, or incorporation therein of any of
its recommendations shall in no way diminish Tenant's responsibility therefor or
reduce or mitigate Tenant's liability in connection therewith. Landlord shall
have no obligations or liabilities by reason of this Lease in connections with
the performance of construction or of the finish, decorating or installation
work performed by Tenant, or on its behalf, or in connection with the contracts
for the performance thereof entered into by Tenant. Any warranties extended or
available to Tenant in connection with the aforesaid work shall be for the
benefit also of Landlord. Tenant further agrees that once it commences
construction, it shall diligently and continuously proceed with construction to
completion. Subject to the requirements of this subparagraph, Landlord agrees
that Tenant may install additional windows and skylights; provided, however,
that the installation of any skylights must be installed in coordination with
the installation of the new built-up roof constituting a portion of Landlord's
Work and accordance with and subject to any roof warranty obtained or to be
obtained in connection therewith, which may require inspection, supervision or
actual installation by the company which installed the roof of the Building.
Tenant shall furnish Landlord with as-built drawings upon completion of the
installation.
(c) Landlord agrees to complete the demolition of the non-structural
warehouse mezzanine and offices (the Initial Landlord's Work) on or before
October 1, 1998 and to deliver possession of the Demised Premises by October 1,
1998. It is understood and agreed that the Term of the Lease shall commence at
such time as Landlord delivers to Tenant the Demised Premises with the Initial
Landlord's Work substantially completed, notwithstanding that the balance of
Landlord's Work (Landlord's Work Balance) shall not then have been completed.
Landlord shall substantially complete the balance of Landlord's Work by the
Fixed Rent Commencement Date. All Rent obligations shall commence as of the
Commencement Date, except Fixed Rent shall commence on the Fixed Rent
Commencement Date. Landlord shall use its reasonable efforts to timely perform
and complete such work in such a manner so as to minimize the interference with
Tenant's use of the Demised Premises as contemplated by this Lease and not
unreasonably interfere with Tenant's means of ingress or egress to and from the
Demised Premises (provided however that nothing contained herein shall obligate
Landlord to perform work other than on Business Days during Business Hours). The
Initial Landlord's Work and Landlord's Work Balance, as the case may be, shall
be deemed substantially completed when such work is completed, except for minor
or insubstantial details of construction, mechanical adjustment or decoration
remain to be performed, the noncompletion of which does not materially interfere
with Tenant's use of the Demised Premises.
(d) Landlord shall make available to Tenant (or enforce for Tenant's
benefit) all extant third party warranties and guaranties available in
connection with Landlord's Work or the existing mechanical systems.
(e) Tenant acknowledges and agrees that it shall be responsible for the
issuance of any required continued or permanent occupancy certificate or
certificate of occupancy.
(f) Tenant acknowledges and agrees that Tenant shall be responsible, at
its cost and expense, for Americans With Disabilities Act compliance required
with respect to the Demised Premises during the Term, excepting only that
certain work being performed by Landlord as part of Landlord's Work as more
particularly described in item 8 on Exhibit C hereto.
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5.02. If the substantial completion of the Landlord's Work shall be
delayed due to (a) any act or omission of Tenant or any of its employees, agents
or contractors (including, without limitation, [i] any delays due to changes in
or additions to the Landlord's Work, or [ii] any delays by Tenant in the
submission of plans, drawings, specifications or other information or in
approving any working drawings or estimates or in giving any authorizations or
approvals), or (b) any additional time needed for the completion of the
Landlord's Work by the inclusion in the Landlord's Work of any items specified
by Tenant that require long lead time for delivery or installation, then the
Demised Premises shall be deemed Ready for Occupancy on the date when they would
have been ready but for such delay(s). Not later than thirty (30) days from the
Commencement Date, with respect to the Initial Landlord's Work, and not later
than sixty (60) days from the completion of the Landlord's Work Balance with
respect to the Landlord's Work Balance, as the case may be, Tenant shall have
the right to submit to Landlord a "punchlist" noting any incomplete or incorrect
Landlord's Work in detail sufficient for Landlord to act thereon. Landlord shall
use its reasonable efforts to timely perform and complete such punchlist items
in such a manner so as to minimize the interference with Tenant's use of the
Demised Premises as contemplated by this Lease and not unreasonably interfere
with Tenant's means of ingress or egress to and from the Demised Premises
(provided however that nothing contained herein shall obligate Landlord to
perform work other than on Business Days during Business Hours).
5.03. [Intentionally Omitted].
5.04. [Intentionally Omitted].
ARTICLE 6 - TAX AND OPERATING EXPENSE PAYMENTS
6.01. Tenant shall pay to Landlord, as hereinafter provided, the Real
Estate Taxes. If any portion of the Building shall be exempt from all or any
part of the Real Estate Taxes, then for the period of time when such exemption
is in effect, the Floor Space on such exempt portion shall be excluded when
making the above computations in respect of the part of the Real Estate Taxes
for which such portion shall be exempt. Landlord shall estimate the annual
amount of the Real Estate Taxes (which estimate may be changed by Landlord at
any time and from time to time), and Tenant shall pay to Landlord 1/12th of the
amount so estimated on the first day of each month in advance. Tenant shall also
pay to Landlord on demand from time to time the amount which, together with said
monthly installments, will be sufficient in Landlord's estimation to pay any
Real Estate Taxes thirty (30) days prior to the date when such Real Estate Taxes
shall first become due. When the amount of any item comprising Real Estate Taxes
is finally determined for a real estate fiscal tax year, Landlord shall submit
to Tenant a statement in reasonable detail of the same, and the figures used for
computing the same, and if the amount so stated is more or less than the amount
theretofore paid by Tenant for such item based on Landlord's estimate, Tenant
shall pay to Landlord the deficiency within ten (10) days after submission of
such statement, or Landlord shall, at its sole election, either refund to Tenant
the excess or apply same to future installments of Real Estate Taxes due
hereunder. Any Real Estate Taxes for a real estate fiscal tax year, a part of
which is included within the Term and a part of which is not so included, shall
be apportioned on the basis of the number of days in the real estate fiscal tax
year included in the Term, and the real estate fiscal tax year for
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any improvement assessment will be deemed to be the one-year period commencing
on the date when such assessment is due, except that if any improvement
assessment is payable in installments, the real estate fiscal tax year for each
installment will be deemed to be the one-year period commencing on the date when
such installment is due. The above computations shall be made by Landlord in
accordance with generally accepted accounting principles, and the Floor Space
referred to will be based upon the average of the Floor Space in existence on
the first day of each month during the period in question. In addition to the
foregoing, Tenant shall be responsible for any increase in Real Estate Taxes
attributable to assessments for improvements installed by or for the account of
Tenant at the Demised Premises. If the Demised Premises are not separately
assessed, the amount of any such increase shall be determined by reference to
the records of the tax assessor.
6.02. Tenant shall pay to Landlord the Operating Expenses within ten (10)
days after Landlord submits to Tenant an invoice and back-up documentation for
the Operating Expenses.
6.03. Each such statement given by Landlord pursuant to Section 6.01 or
Section 6.02 shall be conclusive and binding upon Tenant unless within 60 days
after the receipt of such statement Tenant shall notify Landlord that it
disputes the correctness of the statement, specifying the particular respects in
which the statement is claimed to be incorrect. Pending the determination of
such dispute by agreement or otherwise, Tenant shall, within ten (10) days after
receipt of such statement, pay the Additional Charges in accordance with
Landlord's statement, without prejudice to Tenant's position. If the dispute
shall be determined in Tenant's favor, Landlord shall forthwith pay to Tenant
the amount of Tenant's overpayment resulting from compliance with Landlord's
statement, and if said overpayment exceeded ten (10%) of the amount billed on
such Landlord's statement, then such payment shall be accompanied by interest on
the amount of the overpayment at the Late Payment Rate.
ARTICLE 7 - DEVELOPMENT COMMON AREAS
7.01. Landlord reserves the right, at any time and from time to time, to
close all or any portions of the Development Common Areas when in Landlord's
reasonable judgment any such closing is necessary or desirable (a) to make
repairs or changes or to effect construction, (b) to prevent the acquisition of
public rights in such areas, (c) to discourage unauthorized parking, (d) to
protect or preserve natural persons or property, or (e) to cease the utilization
of such premises as a Development Common Area. Landlord may do such other acts
in and to the Development Common Areas as in its judgment may be desirable to
improve or maintain same. Landlord shall use reasonable efforts to minimize
interference with Tenant's use of the Demised Premises or means of ingress or
egress to and from the Demised Premises and/or the truck loading areas of the
Demised Premises (provided however that nothing contained herein shall obligate
Landlord to perform work other than on Business Days during Business Hours).
Landlord shall endeavor to provide Tenant with reasonable prior notice of any
such closing, which may be oral, except in the event of emergency.
7.02. Tenant agrees that it, any subtenant or licensee and their
respective officers, employees, contractors and agents will park their
automobiles and other vehicles only on the Demised Premises where and as
permitted by Landlord. Landlord hereby confirms that there exists on the Land
approximately one hundred (180) parking spaces in which Tenant, its subtenant(s)
or licensee(s) and their respective officers, employees, contractors and agents
shall be permitted to park their vehicles. Tenant will, if and when so requested
by Landlord, furnish Landlord with the license numbers of any vehicles of
Tenant, any subtenant or licensee and their respective officers, employees and
agents.
ARTICLE 8 - SECURITY
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8.01. (a) In the event Tenant deposits with Landlord any Security Deposit,
the same shall be held as security for the full and faithful payment and
performance by Tenant of Tenant's obligations under this Lease. If Tenant
defaults beyond any applicable notice and cure period, if any, in the full and
prompt payment and performance of any of its obligations under this Lease,
including, without limitation, the payment of Rent, Landlord may use, apply or
retain the whole or any part of the security so deposited to the extent required
for the payment of any Rent or any other sums as to which Tenant is in default
or for any sum which Landlord may expend or may be required to expend by reason
of Tenant's default in respect of any of Tenant's obligations under this Lease,
including, without limitation, any damages or deficiency in the reletting of the
Demised Premises, whether such damages or deficiency accrue before or after
summary proceedings or other re-entry by Landlord. If Landlord shall so use,
apply or retain the whole or any part of the security, Tenant shall upon demand
immediately deposit with Landlord a sum equal to the amount so used, applied and
retained, as security as aforesaid. If Tenant shall fully and faithfully pay and
perform all of Tenant's obligations under this Lease, the security or any
balance thereof to which Tenant is entitled shall be returned or paid over to
Tenant after the date on which this Lease shall expire or sooner end or
terminate, and after delivery to Landlord of entire possession of the Demised
Premises. In the event of any sale or leasing of the Land, Landlord shall have
the right to transfer the security to which Tenant is entitled to the vendee or
lessee and Landlord shall thereupon be released by Tenant from all liability for
the return or payment thereof; and Tenant shall look solely to the new landlord
for the return or payment of the same; and the provisions hereof shall apply to
every transfer or assignment made of the same to a new landlord. Tenant shall
not assign or encumber or attempt to assign or encumber the monies deposited
herein as security, and neither Landlord nor its successors or assigns shall be
bound by any such assignment, encumbrance, attempted assignment or attempted
encumbrance.
8.01. (b) In lieu of all or a portion of the cash security required by
this Lease, Tenant shall provide to Landlord an irrevocable transferable Letter
of Credit in the amount of the Security Deposit in form and substance
satisfactory to Landlord and issued by a financial institution approved by
Landlord. Landlord shall have the right, upon written notice to Tenant (except
that for Tenant's non-payment of Rent or for Tenant's failure to comply with
Article 8.03, no such notice shall be required) and regardless of the exercise
of any other remedy the Landlord may have by reason of a default, to draw upon
said Letter of Credit to cure any default of Tenant or for any purpose
authorized by Section 8.01(a) of this Lease and if Landlord does so, Tenant
shall, upon demand, additionally fund the Letter of Credit with the amount so
drawn so that Landlord shall have the full deposit on hand at all times during
the Term of the Lease and for a period of thirty (30) days' thereafter. In the
event of a sale of the Building or a lease of the Building subject to this
Lease, Landlord shall have the right to transfer the security to the vendee or
lessee, provided such vendee or lessee is bound by all the terms and provisions
of this Lease.
8.02. The Letter of Credit shall expire not earlier than thirty (30) days'
after the Expiration Date of this Lease. Upon Landlord's prior consent, the
Letter of Credit may be of the type which is automatically renewed on an annual
basis (Annual Renewal Date), provided however, in such event Tenant shall
maintain the Letter of Credit and its renewals in full force and effect during
the entire Term of this Lease (including any renewals or extensions) and for a
period of thirty (30) days thereafter. The Letter of Credit will contain a
provision requiring the issuer thereof to give the beneficiary (Landlord) sixty
(60) days' advance written notice of its intention not to renew the Letter of
Credit on the next Annual Renewal Date.
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8.03. In the event Tenant shall fail to deliver to Landlord a substitute
irrevocable Letter of Credit, in the amount stated above, on or before thirty
(30) days prior to the next Annual Renewal Date, said failure shall be deemed a
default under this Lease. Landlord may, in its discretion treat this the same as
a default in the payment of Rent or any other default and pursue the appropriate
remedy. In addition, and not in limitation, Landlord shall be permitted to draw
upon the Letter of Credit as in the case of any other default by Tenant under
the Lease.
8.04. Provided Tenant is not in default of its obligations under this
Lease beyond any applicable notice and/or cure periods, if any, Landlord shall
consent to a reduction of the Security Deposit in the amount of $285,000.00 on
the second anniversary of the Commencement Date resulting in a total Security
Deposit of $250,000.00. Provided Tenant is not in default of its obligations
under this Lease, Landlord shall consent to a reduction of the Security Deposit
in the amount of $75,000.00 on the fourth anniversary of the Commencement Date.
In the event Landlord has accepted a Letter of Credit in lieu of cash security,
such reduction shall be reflected by a reduction in the amount of the Letter of
Credit, either by amendment of the Letter of Credit in form and substance
reasonably satisfactory to Landlord or by furnishing of a replacement Letter of
Credit in form and substance reasonably satisfactory to Landlord. In no event
however shall any Letter of Credit contain a provision for its automatic
reduction.
ARTICLE 9 - SUBORDINATION
9.01. (a) This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate to all ground leases and underlying leases of the Land
and/or the Building now or hereafter existing and to all Mortgages which may now
or hereafter affect the Land and/or building and/or any of such leases, whether
or not such Mortgages or leases shall also cover other lands and/or buildings,
to each and every advance made or hereafter to be made under such Mortgages, and
to all renewals, modifications, replacements and extensions of such leases and
such Mortgages and spreaders and consolidations of such Mortgages. The
provisions of this Section 9.01 shall be self-operative and no further
instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute, acknowledge and deliver any
instrument that Landlord, the lessor under any such lease or the Mortgagee of
any such Mortgage or any of their respective successors in interest may
reasonably request to evidence such subordination.
(b) Notwithstanding anything contained herein to the contrary, this
Lease shall be contingent upon Landlord obtaining for Tenant a Non-Disturbance,
Subordination, and Attornment Agreement with the holder of the first mortgage,
Lincoln National Life Insurance Company (which is the only existing mortgage as
of the date hereof) on the Demised Premises on such mortgagee's standard form
(the "Initial SNDA") which Tenant shall promptly execute, acknowledge and
deliver to evidence such subordination, non-disturbance and attornment. Landlord
and Tenant shall cooperate in all respects with each other and such mortgagee in
order to obtain the Initial SNDA in an expeditious manner, and shall provide any
information reasonably required by such mortgagee. Landlord shall not be
required to use anything other than reasonable efforts nor shall Landlord be
required to institute any legal action or proceeding, in order to obtain said
agreement. If Lincoln National Life Insurance fails to approve or expressly
disapproves of this Lease or fails to agree or expressly refuses or declines to
deliver or enter into such Initial SNDA, by the date which is forty-five (45)
days from the date hereof, then, in such event, either Landlord or Tenant shall
have the right to terminate this Lease upon written notice
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to the other given no later than the date which is fifty (50) days from the date
hereof. In the event that this Lease is terminated in accordance with the
foregoing, the Advance Rent and Security Deposit shall be promptly returned to
Tenant, and the rights and obligations of each party hereunder and this Lease
shall be deemed null and void and without force and effect. In the event Tenant
fails to exercise its right to cancel this Lease in accordance with the
foregoing, Tenant's right to cancel shall be deemed null and void. Landlord
shall not be obligated to commence any Landlord's Work until the contingencies
set forth in this Paragraph 9.01 have been fully satisfied or waived. This Lease
shall be subordinate to future ground leases or mortgages only on the condition
that Landlord shall obtain from any such future mortgagee and/or ground lessor a
subordination, non-disturbance and attornment agreement with respect to this
Lease on such mortgagee's standard form.
9.02. If any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this
Lease, or to claim a partial or total eviction, Tenant shall not exercise such
right (a) until it has given written notice of such act or omission to Landlord
and each Superior Mortgagee and each Superior Lessor whose name and address
shall previously have been furnished to Tenant, and (b) until a reasonable
period for remedying such act or omission shall have elapsed following the
giving of such notice and following the time when such Superior Mortgagee or
Superior Lessor shall have become entitled under such Superior Mortgage or
Superior Lease, as the case may be, to remedy the same (which reasonable period
shall in no event be less than the period to which Landlord would be entitled
under this Lease or otherwise, after similar notice, to effect such remedy),
provided such Superior Mortgagee or Superior Lessor shall with due diligence
give Tenant notice of intention to, and commence and continue to, remedy such
act or omission.
9.03. If any Superior Lessor or Superior Mortgagee shall succeed to the
rights of Landlord under this Lease, whether through possession or foreclosure
action or delivery of a new lease or deed, then at the request of such party so
succeeding to Landlord's rights ("Successor Landlord") and upon such Successor
Landlord's written agreement to accept Tenant's attornment, Tenant shall attorn
to and recognize such Successor Landlord as Tenant's landlord under this Lease
and shall promptly execute and deliver any instrument that such Successor
Landlord may reasonably request to evidence such attornment. Upon such
attornment provided such Successor Landlord recognizes this Lease this Lease
shall continue in full force and effect as a direct lease between the Successor
Landlord and Tenant upon all of the terms, conditions and covenants as are set
forth in this Lease except that the Successor Landlord shall not (a) be liable
for any previous act or omission of Landlord under this Lease; (b) be subject to
any offset, not expressly provided for in this Lease, which theretofore shall
have accrued to Tenant against Landlord; (c) be liable for the return of any
Security Deposit, in whole or in part, to the extent that same is not paid over
to the Successor Landlord; or (d) be bound by any previous modification of this
Lease or by any previous prepayment of more than one month's Fixed Rent or
Additional Charges, unless such modification or prepayment shall have been
expressly approved in writing by the Superior Lessor of the Superior Lease or
the Mortgagee of the Superior Mortgage through or by reason of which the
Successor Landlord shall have succeeded to the rights of Landlord under this
Lease.
9.04. If any then present or prospective Superior Mortgagee shall require
any modification(s) of this Lease, Tenant shall promptly execute and deliver to
Landlord such instruments effecting such modification(s) as Landlord shall
request, provided that such modification(s) do not adversely affect in any
material respect any of Tenant's rights under this
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Lease.
ARTICLE 10 - QUIET ENJOYMENT
10.01. So long as Tenant pays all of the Rent and performs all of Tenant's
other obligations hereunder, Tenant shall peaceably and quietly have, hold and
enjoy the Demised Premises without hindrance, ejection or molestation by
Landlord or any person lawfully claiming through or under Landlord, subject,
nevertheless, to the provisions of this Lease and to Superior Leases and
Superior Mortgages.
ARTICLE 11 - ASSIGNMENT, SUBLETTING AND MORTGAGING
11.01. Tenant shall not, whether voluntarily, involuntarily, or by
operation of law or otherwise, (a) assign or otherwise transfer this Lease, or
offer or advertise to do so, (b) sublet the Demised Premises or any part
thereof, or offer or advertise to do so, or allow the same to be used, occupied
or utilized by anyone other than Tenant, or (c) mortgage, pledge, encumber or
otherwise hypothecate this Lease in any manner whatsoever, without in each
instance obtaining the prior written consent of Landlord.
Landlord agrees not to unreasonably withhold its consent to the subletting of
the Demised Premises or an assignment of this Lease. In determining
reasonableness, Landlord may take into consideration all relevant factors
surrounding the proposed sublease and assignment, including, without limitation,
the following: (i) the nature of the business and the proposed use of the
Demised Premises by the proposed assignee or subtenant in relation to the other
tenants or occupants of the Building or Development; (ii) whether the proposed
assignee or subtenant is then a tenant (or subsidiary, affiliate or parent of a
tenant) of other space in the Building or Development, whether owned or managed
by Landlord or its affiliates and Landlord or its affiliates has space available
within the Development; (iii) the financial condition of the proposed assignee
or subtenant; (iv) the effect that the proposed assignee's or subtenant's
occupancy or use of the Demised Premises would have upon the operation and
maintenance of the Building and the Development; (v) the extent to which the
proposed assignee or subtenant and Tenant provide Landlord with assurances
reasonably satisfactory to Landlord as to the satisfaction of Tenant's
obligations hereunder. In any event, at no time shall there be more than two (2)
subtenants of the Demised Premises permitted.
In the event the Demised Premises are sublet or this Lease is assigned
(except pursuant to Section R6 hereof), Tenant shall pay to Landlord as an
Additional Charge the following amounts less the actual reasonable expense
incurred by Tenant in connection with such assignment or subletting, as
substantiated by Tenant, in writing, to Landlord's reasonable satisfaction,
including, without limitation, a reasonable brokerage fee and reasonable legal
fees, as the case may be: (i) in the case of an assignment, an amount equal to
fifty percent (50%) of all sums and other consideration paid to Tenant by the
assignee for or by reason of such assignment, and (ii) in the case of a
sublease, fifty percent (50%) of any rents, additional charge or other
consideration payable under the sublease to Tenant by the subtenant which is in
excess of the Fixed Rent and Additional Charges accruing during the term of the
sublease in respect of the subleased space (at the rate per square foot payable
by Tenant hereunder) pursuant to the terms hereof.
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11.02. If at any time (a) the original Tenant named herein, (b) the then
Tenant, (c) any Guarantor, or (d) any Person owning a majority of the voting
stock of, or directly or indirectly controlling, the then Tenant shall be a
corporation or partnership, any transfer of voting stock or partnership interest
resulting in the person(s) who shall have owned a majority of such corporation's
shares of voting stock or the general partners' interest in such partnership, as
the case may be, immediately before such transfer, ceasing to own a majority of
such shares of voting stock or general partner's interest, as the case may be,
except as the result of transfers by inheritance, shall be deemed to be an
assignment of this Lease as to which Landlord's consent shall have been
required, and in any such event Tenant shall notify Landlord. The provisions of
this Section 11.02 shall not be applicable to any corporation all the
outstanding voting stock of which is listed on a national securities exchange
(as defined in the Securities Exchange Act of 1934, as amended) or is traded in
the over-the-counter market with quotations reported by the National Association
of Securities Dealers through its automated system for reporting quotations and
shall not apply to transactions with a corporation into or with which the then
Tenant is merged or consolidated or to which substantially all of the then
Tenant's assets are transferred or to any corporation which controls or is
controlled by the then Tenant or is under common control with the then Tenant,
provided that in any of such events (i) the successor to Tenant has a net worth
computed in accordance with generally accepted accounting principles at least
equal to the greater of (1) the net worth of Tenant immediately prior to such
merger, consolidation or transfer, or (2) the net worth of the original Tenant
on the date of this Lease, and (ii) proof satisfactory to Landlord of such net
worth shall have been delivered to Landlord at least 10 days prior to the
effective date of any such transaction. For the purposes of this Section, the
words "voting stock" shall refer to shares of stock regularly entitled to vote
for the election of directors of the corporation. Landlord shall have the right
at any time and from time to time during the Term to inspect the stock record
books of the corporation to which the provisions of this Section 11.02 apply,
and Tenant will produce the same on request of Landlord.
11.03. If this Lease is assigned, whether or not in violation of this
Lease, Landlord may collect rent from the assignee. If the Demised Premises or
any part thereof are sublet or used or occupied by anybody other then Tenant,
whether or not in violation of this Lease, Landlord may, after default by
Tenant, and expiration of Tenant's time to cure such default, collect rent from
the subtenant or occupant. In either event, Landlord may apply the net amount
collected to the Rent, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of any of the provisions of Section
11.01 or Section 11.02, or the acceptance of the assignee, subtenant or occupant
as tenant, or a release of Tenant from the performance by Tenant of Tenant's
obligations under this Lease. The consent by Landlord to any assignment,
mortgaging, subletting or use or occupancy by others shall not in any way be
considered to relieve Tenant from obtaining the express written consent of
Landlord to any other or further assignment, mortgaging or subletting or use or
occupancy by others not expressly permitted by this Article 11. References in
this Lease to use or occupancy by others (that is, anyone other than Tenant)
shall not be construed as limited to subtenants and those claiming under or
through subtenants but shall be construed as including also licensees and others
claiming under or through Tenant, immediately or remotely.
11.04. Any permitted assignment or transfer, whether made with Landlord's
consent pursuant to Section 11.01 or without Landlord's consent if permitted by
Section 11.02, shall be made only if, and shall not be effective until, the
assignee shall execute, acknowledge and deliver to Landlord an agreement in form
and substance reasonably satisfactory to Landlord whereby the assignee shall
assume Tenant's obligations under this Lease and whereby the assignee shall
agree
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that all of the provisions in this Article 11 shall, notwithstanding such
assignment or transfer, continue to be binding upon it in respect to all future
assignments and transfers. Notwithstanding any assignment or transfer, whether
or not in violation of the provisions of this Lease, and notwithstanding the
acceptance of Rent by Landlord from an assignee, transferee, or any other party,
the original Tenant and any other person(s) who at any time was or were Tenant
shall remain fully liable for the payment of the Rent and for Tenant's other
obligations under this Lease.
11.05. The liability of the original named Tenant and any other Person(s)
(including but not limited to any Guarantor) who at any time are or become
responsible for Tenant's obligations under this Lease shall not be discharged,
released or impaired by any agreement extending the time of, or modifying any of
the terms or obligations under this Lease, or by any waiver or failure of
Landlord to enforce, any of this Lease.
11.06. The listing of any name other than that of Tenant, whether on the
doors of the Demised Premises or the Building directory, or otherwise, shall not
operate to vest any right or interest in this Lease or in the Demised Premises,
nor shall it be deemed to be the consent of Landlord to any assignment or
transfer of this Lease or to any sublease of the Demised Premises or to the use
or occupancy thereof by others. Notwithstanding anything contained in this Lease
to the contrary, Landlord shall have the absolute right to withhold its consent
to an assignment or subletting to a Person who is otherwise a tenant or occupant
or prospective tenant or occupant of the Building, or of a building in the
Development owned or managed by Landlord or its affiliated entities and there is
then available space within the Development.
11.07. Without limiting any of the provisions of Article 25, if pursuant
to the Federal Bankruptcy Code (or any similar law hereafter enacted having the
same general purpose), Tenant is permitted to assign this Lease notwithstanding
the restrictions contained in this Lease, adequate assurance of future
performance by an assignee expressly permitted under such Code shall be deemed
to mean the deposit of cash security in an amount equal to the sum of one (1)
year's Fixed Rent plus an amount equal to the Additional Charges for the
Calendar Year preceding the year in which such assignment is intended to become
effective, which deposit shall be held by Landlord for the balance of the Term,
without interest, as security for the full performance of all of Tenant's
obligations under this Lease, to be held and applied in the manner specified for
security in Article .
11.08. If Tenant shall propose to assign or in any manner transfer this
Lease or any interest therein, or sublet the entire Demised Premises, or grant
any concession or license or otherwise permit occupancy of all of the Demised
Premises by any person, Tenant shall give notice thereof to Landlord, together
with a copy of the proposed instrument that is to accomplish same and such
financial and other information pertaining to the proposed assignee, transferee,
subtenant, concessionaire or licensee as Landlord shall reasonably require, and
Landlord may, in addition to Landlord's right to give or withhold consent,
terminate this Lease by notice given to Tenant within thirty (30) days after
receipt of said proposed instrument and financial and other information, and
upon the date specified in such notice, which date shall be not less than thirty
(30) days and not more than sixty (60) days after the giving of said notice,
this Lease shall terminate. If Landlord does not so terminate this Lease, and
(if Landlord consents to the subject transaction or if Landlord's consent is not
required to same) if Tenant does not consummate the subject transaction within
sixty (60) days after the last day on which Landlord might have so terminated
this Lease as a result of such transaction, Tenant shall again be required to
comply
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with the provisions of this Section 11.08. in connection with any such
transaction as if the notice by Tenant referred to above in this Section 11.08.
had not been given. Notwithstanding anything contained in this Lease to the
contrary, Landlord shall not be obligated to entertain or consider any request
by Tenant to consent to any proposed assignment of this Lease or sublet of all
or any part of the Demised Premises unless each request by Tenant is accompanied
by a non-refundable (except in the event of a recapture) fee payable to Landlord
in the amount of One Thousand Dollars ($1,000.00) to cover Landlord's
administrative, legal, and other costs and expenses incurred in processing each
of Tenant's requests. Neither Tenant's payment nor Landlord's acceptance of the
foregoing fee shall be construed to impose any obligation whatsoever upon
Landlord to consent to Tenant's request.
ARTICLE 12 - COMPLIANCE WITH LAWS
12.01. Tenant shall comply with all Legal Requirements which shall, in
respect of the Demised Premises or the use and occupation thereof, or the
abatement of any nuisance in, on or about the Demised Premises, impose any
violation, order or duty on Landlord or Tenant; and Tenant shall pay all the
cost, expenses, fines, penalties and damages which may be imposed upon Landlord
or any Superior Lessor by reason of or arising out of Tenant's failure to fully
and promptly comply with and observe the provisions of this Section 12.01.
However, Tenant need not comply with any such law or requirement of any public
authority so long as Tenant shall be contesting the validity thereof, or the
applicability thereof to the Demised Premises, in accordance with Section 12.02.
Landlord represents to Tenant that it has received no written notice of any
violation of applicable Legal Requirements, and that to the best of Landlord's
knowledge, exclusive of compliance matters addressed by Landlord's Work or
Tenant's Work, the Demised Premises are presently in substantial compliance with
all Legal Requirements.
12.02. Tenant may contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
Premises, of any Legal Requirement, provided that (a) Landlord shall not be
subject to criminal penalty or to prosecution for a crime, and neither the
Demised Premises nor any part thereof shall be subject to being condemned or
vacated, by reason of non-compliance or otherwise by reason of such contest; (b)
before the commencement of such contest, Tenant shall furnish to Landlord either
(i) the bond of a surety company satisfactory to Landlord, which bond shall be,
as to its provisions and form, satisfactory to Landlord, and shall be in an
amount at least equal to 125% of the cost of such compliance (as estimated by a
reputable contractor designated by Landlord) and shall indemnify Landlord
against the cost thereof and against all liability for damages, interest,
penalties and expenses (including reasonable attorneys' fees and expenses),
resulting from or incurred in connection with such contest or non-compliance, or
(ii) other security in place of such bond satisfactory to Landlord; (c) such
non-compliance or contest shall not constitute or result in any violation of any
Superior Lease or Superior Mortgage, or if any such Superior Lease and/or
Superior Mortgage shall permit such non-compliance or contest on condition of
the taking of action or furnishing of security by Landlord, such action shall be
taken and such security shall be furnished at the expense of Tenant; and (d)
Tenant shall keep Landlord advised as to the status of such proceedings. Without
limiting the application of the above, Landlord shall be deemed subject to
prosecution for a crime if Landlord, or its managing agent, or any officer,
director,
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partner, shareholder or employee of Landlord or its managing agent, as an
individual, is charged with a crime of any kind or degree whatsoever, whether by
service of a summons or otherwise, unless such charge is withdrawn before
Landlord or its managing agent, or such officer, director, partner, shareholder
or employee of Landlord or its managing agent (as the case may be) is required
to plead or answer thereto.
12.03. Notwithstanding anything contained in this Lease to the contrary,
Tenant shall not file any Real Estate Tax appeal without the prior written
consent of Landlord, which consent shall not be unreasonably withheld or
delayed. In the event any Real Estate Tax appeal is filed by Tenant (either with
or without the consent of Landlord): (i) Tenant shall provide Landlord with
written notice of Tenant's intention to file such tax appeal not less than
thirty (30) days prior to the filing of same and Tenant shall provide Landlord
with copies of all filings and all appraisal reports and discovery obtained in
connection therewith, (ii) Landlord reserves the right, but not the obligation,
to prosecute such appeal itself and in such event may require Tenant to withdraw
any appeal filed by Tenant in the event Landlord files an appeal with respect to
the subject matter of Tenant's appeal, or at Landlord's option, Landlord shall
have the right at any time, but not the obligation, to prosecute such appeal
itself, (iii) any such appeal shall be at Tenant's sole cost and expense and
Tenant shall indemnify Landlord against the cost thereof and against all
liability for damages, interest, penalties and expenses (including experts' and
attorneys' fees and expenses), resulting from or incurred in connection with
such appeal, including but not limited to any increase in Real Estate Taxes
resulting therefrom, and (iv) Tenant shall keep Landlord advised as to the
status of such proceedings filed by Tenant. In the event that Landlord receives
a refund or credit for Real Estate Taxes from any taxing authority for any
period in respect to which Tenant paid such Real Estate Taxes, Landlord shall
promptly notify Tenant thereof and, provided that Tenant shall not then be in
default hereunder beyond any applicable notice and/or cure period, refund to
Tenant, the net amount of such refund or credit, after deducting Landlord's
costs incurred in securing such refund or credit. In the event Tenant obtains
directly from any taxing authority any refund in connection with any such tax
appeal, such refund, in whole, shall be immediately paid over to Landlord for
distribution as provided in the preceding sentence.
ARTICLE 13 - INSURANCE AND INDEMNITY
13.01. During the Term Tenant shall maintain at its own cost and expense
the following insurance: (a) comprehensive or commercial general liability
insurance in respect of the Demised Premises and the conduct and operation of
business therein, having limits of not less than $5,000,000.00 combined single
limit per occurrence for bodily injury or death to any one person and for bodily
injury or death to any number of persons in any one occurrence, and for property
damage, including water damage and sprinkler leakage legal liability (coverage
to include but not be limited to (i) premises operation, completed operations,
broad form contractual liability and product liability, (ii) comprehensive
automobile, truck and vehicle liability insurance covering all owned, hired and
non-owned vehicles used by the contractor(s) in connection with their work and
any loading of such vehicles, with limits as stated above and (iii) workmen's
compensation, employers liability and occupational disease insurance as required
by statutes, but in any event not less than $500,000.00 for Coverage B covering
all damages and injuries arising from each accident or occupational disease),
(b) All-Risk insurance (including flood and earthquake) covering the Demised
Premises against loss or damage in an amount equal to the full replacement value
thereof as same might increase from time to time or such higher amount as either
may be required by the holder of any fee mortgage covering the Demises Premises
or is necessary to prevent Landlord and/or Tenant from becoming a co-insurer,
including boiler and machinery insurance, if applicable (c) rent insurance with
broad form extended coverage endorsement in an amount equal to the Rent and all
other charges payable by Tenant pursuant to this Lease for a period of one (1)
year, with coverage to apply as respects Landlord and any
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Mortgagee regardless of any rent abatement provisions elsewhere in this Lease,
and (d) any other insurance required for compliance with the Insurance
Requirements. Landlord may at any time and from time to time require that the
limits for the comprehensive or commercial general liability insurance to be
maintained by Tenant be increased to the limits that new Tenants in similar
buildings are required by Landlord to maintain. The insurance carried pursuant
to Section 13.01 (b) shall be carried in favor of Landlord and the holder of any
fee mortgage on the Premises and the standard mortgagee clause shall be attached
to the appropriate policies. Insurance carried pursuant to Section 13.01 (b)
shall provide that the loss, if any, shall be adjusted with and payable to the
party who will perform the work of restoration pursuant to Article 22 and such
mortgagee as their interests may appear. Tenant shall deliver to Landlord and
any additional named insured(s) certificates for such fully paid-for policies
upon execution hereof. Upon request of Landlord, Tenant shall furnish Landlord
with copies of all such insurance policies. Tenant shall procure and pay for
renewals of such insurance from time to time before the expiration thereof, and
Tenant shall deliver to Landlord and any additional insured(s) certificates
therefor at least thirty (30) days before the expiration of any existing policy.
All such policies shall be issued by companies of recognized responsibility,
having a Bests Key Rating Guide of not less than A, Class VII, licensed to do
business in New Jersey, and all such policies shall contain a provision whereby
the same cannot be canceled unless Landlord and any additional insured(s) are
given at least thirty (30) days' (ten (10) days in the case of non-payment of
premium) prior written notice of such cancellation. The certificates of
insurance to be delivered to Landlord by Tenant shall be on an XXXXX 27 form or
its equivalent and shall name Landlord as an additional insured and, at
Landlord's request, shall also name any Superior Lessors or Superior Mortgagees
as additional insureds, and the following phrase must be typed on the
certificate of insurance: "Xxxxx Mountain Industries, Inc., and its respective
subsidiaries, affiliates, associates, joint ventures, and partnerships, are
hereby named as additional insureds as their interests may appear (and if
Landlord has so requested, Tenant shall include any Superior Lessors and
Superior Mortgagees as additional insured(s). It is intended for this insurance
to be primary and non-contributing." Tenant shall give Landlord at least thirty
(30) days' prior written notice that any such policy is being canceled or
replaced. Tenant's obligations to carry the insurance provided for herein may be
brought within the coverage of a so-called blanket policy of insurance carried
and maintained by Tenant; provided, however, that (i) certificates of insurance
(on XXXXX 27 form or equivalent) are delivered to Landlord and that Landlord
shall be named as an additional insured thereunder, as its interest may appear
as more particularly required hereinabove, (ii) the coverage afforded Landlord
shall not be reduced or diminished by reason of the use of such blanket policy
of insurance, (iii) the requirements set forth herein are otherwise satisfied;
(iv) such blanket policy shall reference the Demised Premises and guarantee a
minimum limit available for the Demised Premises equal to the insurance amounts
required in this Lease; and (v) Tenant agrees to make available to Landlord, at
all reasonable times, the original policies of insurance.
13.02. Tenant shall not do, permit or suffer to be done any act, matter,
thing or failure to act in respect of the Demised Premises or use or occupy the
Demised Premises or conduct or operate Tenant's business in any manner
objectionable to any insurance company or companies whereby the fire insurance
or any other insurance then in effect in respect to the Land and Building or any
part thereof shall become void or suspended or whereby any premiums in respect
of insurance maintained by Landlord shall be higher than those which would
normally have been in effect for the occupancy contemplated under the Permitted
Uses. In case of a breach of the provisions of this Section 13.02, in addition
to all other rights and remedies of Landlord hereunder, Tenant shall (a)
indemnify Landlord and the Superior Lessors and hold Landlord and
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the Superior Lessors harmless from and against any loss which would have been
covered by insurance which shall have become void or suspended because of such
breach by Tenant and (b) pay to Landlord any and all increases of premiums on
any insurance, including, without limitation, rent insurance, resulting from any
such breach.
13.03. Tenant shall indemnify and hold harmless Landlord and all Superior
Lessors and its and their respective partners, joint venturers, directors,
officers, agents, servants and employees from and against any and all claims
arising from or in connection with (a) the conduct or management of the Demised
Premises or of any business therein, or any work or thing whatsoever done, or
any condition created (other than by Landlord) in the Demised Premises during
the Term or during the period of time, if any, prior to the Commencement Date
that Tenant may have been given access to the Demised Premises; (b) any act,
omission or negligence of Tenant or any of its subtenants or licensees or its or
their partners, joint venturers, directors, officers, agents, employees or
contractors; (c) any accident, injury or damage whatever (unless caused solely
by Landlord's negligence) occurring in the Demised Premises; and (d) any breach
or default by Tenant in the full and prompt payment and performance of Tenant's
obligations under this Lease; together with all costs, expenses and liabilities
incurred in or in connection with each such claim or action or proceeding
brought thereon, including, without limitation, all attorneys' fees and
expenses. In case any action or proceeding is brought against Landlord and/or
any Superior Lessor and/or its or their partners, joint venturers, directors,
officers, agents and/or employees in connection with conduct or management of
the Demised Premises or by reason of any claim referred to above, Tenant, upon
notice from Landlord or such Superior Lessor, shall, at Tenant's cost and
expense, resist and defend such action or proceeding by counsel reasonably
satisfactory to Landlord.
13.04. Neither party shall be liable or responsible for, and each party
hereby releases the other from, all liability and responsibility to any Person
claiming by, through or under the other, by way of subrogation, for any injury,
loss or damage to any property in or around the Demised Premises or to the
other's business covered by insurance carried or required to be carried
hereunder irrespective of the cause of such injury, loss or damage, and each
party shall require its insurers to include in all of such party's insurance
policies which could give rise to a right of subrogation against the other a
clause or endorsement whereby the insurer waives any rights of subrogation
against the other or permits the insured, prior to any loss, to agree with a
third party to waive any claim it may have against said third party without
invalidating the coverage under the insurance policy.
ARTICLE 14 - RULES AND REGULATIONS
14.01. Tenant and its employees and agents shall faithfully observe and
comply with the Rules and Regulations and such reasonable changes therein
(whether by modification, elimination or addition) as Landlord at any time or
times hereafter may make and communicate to Tenant, which in Landlord's
judgment, shall be necessary for the reputation, safety, care or appearance of
the Land and Building, or the preservation of good order therein, or the
operation or maintenance of the Building or its equipment and fixtures, and
which do not unreasonably affect the conduct of Tenant's business in the Demised
Premises; provided, however, that in case of any conflict or inconsistency
between the provisions of this Lease and any of the Rules and Regulations, the
provisions of this Lease shall control.
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ARTICLE 15 - ALTERATIONS AND SIGNS
15.01. Tenant shall not make any alterations or additions to the Demised
Premises, or make any holes or cuts in the walls, ceilings, roofs, or floors
thereof, or change the exterior color or architectural treatment of the Demised
Premises, without on each occasion first obtaining the consent of Landlord.
Landlord's consent shall not be required for any non-structural interior
alteration of the Demised Premises which does not adversely affect the structure
of the Building or functional utility of the Building for the Permitted Uses.
Tenant agrees to give Landlord notice of any non-structural alteration costing
more than Fifty Thousand Dollars ($50,000.00). Landlord agrees that it shall not
unreasonably withhold or delay its consent to structural or non-structural
alterations provided same do not adversely affect the structure of the Building
or the functional utility of the Building for the Permitted Uses. Tenant shall
submit to Landlord plans and specifications for such work at the time Landlord's
consent is sought. Notwithstanding anything contained to the contrary herein, if
Landlord has not responded to Tenant's submission of plans and specifications
within fifteen (15) Business Days after receipt thereof, Tenant's plans and
specifications so submitted shall be deemed approved. At the time such consent
is granted, Tenant shall agree (or if no consent is required, upon request of
Landlord upon notification by Tenant of such alteration) to restore the Demised
Premises on or before the Expiration Date to their condition as of the
Commencement Date, reasonable wear and tear excepted and subject to Article 24.
Tenant shall pay to Landlord upon demand the reasonable cost and expense of
Landlord actually incurred to third parties in (a) reviewing said plans and
specifications and (b) inspecting the alterations to determine whether the same
are being performed in accordance with the approved plans and specifications and
all Legal Requirements and Insurance Requirements, including, without
limitation, the fees of any architect or engineer employed by Landlord for such
purpose. Before proceeding with any permitted alteration which will cost more
than $100,000 (other than the initial Tenant's Work and exclusive of the costs
of decorating work and items constituting Tenant's Property), as estimated by a
reputable independent contractor designated by Landlord, Tenant shall obtain and
deliver to Landlord either (i) a performance bond and a labor and materials
payment bond (issued by a corporate surety licensed to do business in New
Jersey), each in an amount equal to 125% of such estimated cost and in form
reasonably satisfactory to Landlord, or (ii) such other security as shall be
reasonably satisfactory to Landlord. Tenant shall fully and promptly comply with
and observe the Rules and Regulations then in force in respect of the making of
alterations. Any review or approval by Landlord of any plans and/or
specifications with respect to any alterations is solely for Landlord's benefit,
and without any representation or warranty whatsoever to Tenant in respect of
the adequacy, correctness or efficiency thereof or otherwise.
15.02. Tenant shall obtain all necessary governmental permits and
certificates for the commencement and prosecution of permitted alterations and
for final approval thereof upon completion, and shall cause alterations to be
performed in compliance with all applicable Legal Requirements and Insurance
Requirements. Alterations shall be diligently performed in a good and
workmanlike manner, using new materials and equipment at least equal in quality
and class to the better of (a) the original installations of the Building, or
(b) the then standards for the Building established by Landlord. Alterations
shall be performed by contractors first approved by Landlord; provided, however,
that any alterations in or to the mechanical, electrical, sanitary, heating,
ventilating, air conditioning or other systems of the Building shall be
performed only by the contractor(s) reasonably acceptable to Landlord.
Alterations shall be made in such manner as not to unreasonably interfere with
or delay and as not to impose any additional expense upon
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Landlord in the construction, maintenance, repair or operation of the Building;
and if any such additional expense shall be incurred by Landlord as a result of
Tenant's making of any alterations, Tenant shall pay any such additional expense
upon demand. Throughout the making of alterations, Tenant shall carry, or cause
to be carried, workmen's compensation insurance in statutory limits and general
liability insurance, with completed operation endorsement, for any occurrence in
or about the Building, under which Landlord and its managing agent and any
Superior Lessor whose name and address shall previously have been furnished to
Tenant shall be named as parties insured, in such limits as Landlord may
reasonably require, with insurers reasonably satisfactory to Landlord. Tenant
shall furnish Landlord with reasonably satisfactory evidence that such insurance
is in effect at or before the commencement of alterations and, on request, at
reasonable intervals thereafter during the making of alterations.
15.03. Tenant shall not place any signs on the roof, exterior walls or
grounds of the Demised Premises without first obtaining Landlord's written
consent thereto. Landlord shall not unreasonably withhold or delay its consent
to (i) a sign indicating Tenant's (or other identifying information) on the
exterior of the Demised Premises, or (ii) directional signs indicating the
location of Tenant's loading areas. In placing any sign on or about the Demised
Premises, Tenant shall, at its expense, maintain such sign, repair any damage
caused to the Building, comply with all applicable Legal Requirements, obtain
all required permits and/or licenses and agree to remove said sign and repair
all damage to the Building caused by such removal at or prior to the Expiration
Date.
ARTICLE 16 - LANDLORD'S AND TENANT'S PROPERTY
16.01. All fixtures, equipment, improvements and appurtenances attached to
or built into the Demised Premises at the commencement of or during the Term,
whether or not by or at the expense of Tenant, shall be and remain a part of the
Demised Premises, shall be deemed to be the property of Landlord and shall not
be removed by Tenant, except as provided in Section 16.02. Further, any
carpeting or other personal property in the Demised Premises on the Commencement
Date, unless installed and paid for by Tenant, shall be and shall remain
Landlord's property and shall not be removed by Tenant.
16.02. All movable partitions, business and trade fixtures, machinery and
equipment, communications equipment and office equipment, whether or not
attached to or built into the Demised Premises, which are installed in the
Demised Premises by or for the account of Tenant without expense to Landlord and
can be removed without structural damage to the Building and all furniture,
furnishings, and other movable personal property owned by Tenant and located in
the Demised Premises (collectively, "Tenant's Property") shall be and shall
remain the property of Tenant and may be removed by Tenant at any time during
the Term; provided that if any of the Tenant's Property is removed, Tenant shall
repair or pay the cost of repairing any damage to the Demised Premises,
resulting from the installation and/or removal thereof. Any equipment or other
property for which Landlord shall have granted any allowance or credit to Tenant
shall not be deemed to have been installed by or for the account of Tenant
without expense to Landlord, shall not be considered as the Tenant's Property
and shall be deemed the property of Landlord.
16.03. At or before the Expiration Date or the date of any earlier
termination of this Lease, or within fifteen (15) days after such an earlier
termination date, Tenant shall remove from the Demised Premises all of the
Tenant's Property (except such items thereof as Landlord
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shall have expressly permitted to remain, which property shall become the
property of Landlord if not removed), and Tenant shall repair any damage to the
Demised Premises resulting from any installation and/or removal of the Tenant's
Property. Any items of the Tenant's Property which shall remain in the Demised
Premises after the Expiration Date or after a period of fifteen (15) days
following an earlier termination date, may, at the option of Landlord, be deemed
to have been abandoned, and in such case such items may be retained by Landlord
as its property or disposed of by Landlord, without accountability, in such
manner as Landlord shall determine at Tenant's expense.
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ARTICLE 17 - REPAIRS AND MAINTENANCE
17.01. Tenant shall, throughout the Term, take good care of the Demised
Premises, the fixtures and appurtenances therein, and shall not do, suffer, or
permit any waste with respect thereto. Tenant shall keep and maintain all
interior and exterior portions of the Demised Premises including, without
limitation, the roof, the roof deck, all Building equipment, windows, doors,
loading bay doors and shelters, plumbing and electrical systems, heating,
ventilating and air conditioning ("HVAC") systems in a clean and orderly
condition and in good order and repair. Tenant shall keep and maintain all
floors, sidewalks, landscaping (including lawn areas), curbing, paving whether
in driveways, parking areas or access easements. The phrase "keep and maintain"
as used herein includes repairs, replacement and/or restoration as appropriate.
Tenant shall maintain the exterior areas of the Demised Premises free of
accumulation of snow, ice, dirt and rubbish. Tenant shall not permit or suffer
any over-loading of the floors of the Building. Tenant shall be responsible for
all repairs, interior and exterior, structural and nonstructural, ordinary and
extraordinary, in and to the Demised Premises, including the Building and Land
and the facilities and systems thereof, the need for which arises out of (a) the
performance or existence of the Tenant's Work or alterations, (b) the
installation, use or operation of the Tenant's Property in the Demised Premises,
(c) the moving of the Tenant's Property in or out of the Building, or (d) the
act, omission, misuse or neglect of Tenant or any of its subtenants or its or
their employees, agents, contractors or invitees. Upon request by Landlord,
Tenant shall furnish Landlord with true and complete copies of maintenance
contracts and with copies of all invoices for work performed, confirming
Tenant's compliance with its obligations under this Article. In the event Tenant
fails to furnish such copies, Landlord shall have the right, at Tenant's cost
and expense, to conduct such inspections or surveys as may be required to
determine whether or not Tenant is in compliance with this Article and to have
any work required of Tenant performed at Tenant's cost and expense. Tenant shall
promptly replace all scratched, damaged or broken doors and glass in and about
the Demised Premises and shall be responsible for all repairs, maintenance and
replacement of wall and floor coverings in the Demised Premises and for the
repair and maintenance of all sanitary and electrical fixtures and equipment
therein. Tenant shall promptly make all repairs in or to the Demised Premises
for which Tenant is responsible, and any repairs required to be made by Tenant
to the mechanical, electrical, sanitary, heating, ventilating, air-conditioning
or other systems of the Building shall be performed only by contractor(s)
reasonably acceptable to Landlord. Any other repairs in or to the Building and
the facilities and systems thereof for which Tenant is responsible may, at
Landlord's option, be performed by Landlord at Tenant's expense. Landlord agrees
to assign to Tenant the roof warranty, to the extent assignable. In the event
that said roof warranty shall not be assignable, Landlord agrees that it shall,
at the direction of Tenant and at no cost or expense to Landlord, enforce the
same for the benefit of Tenant. In the event that any of Tenant's roof
installations as part of Tenant's Work or otherwise, or Tenant's utilization,
servicing or maintenance of any of such installations, shall result in any roof
puncture or roof penetration which would violate the roof warranty or otherwise
violate the roof warranty, Tenant shall be responsible, at its sole cost and
expense, to keep and maintain the roof membrane, without benefit of such roof
warranty.
17.02. Except as otherwise provided in Section 17.01 above, Landlord shall
be responsible for the structural integrity of the Building (excluding, roof and
roof deck) and shall, at its cost and expense, make all repairs and replacements
to the structural elements thereof. For the purposes hereof structural shall
mean footings, foundations, structural steel, exterior walls, and load bearing
members. Notwithstanding anything contained in the immediately preceding
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sentence to the contrary, Tenant shall be responsible for the ordinary
day-to-day maintenance and repairs to the exterior walls, including, but not
necessarily limited to, painting, sealing, and re-pointing.
17.03. Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant, nor shall Tenant's covenants and obligations
under this Lease be reduced or abated in any manner whatsoever, by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's doing any repairs, maintenance, or changes which Landlord is required
or permitted by this Lease, or required by Law, to make in or to any portion of
the Building.
17.04. Tenant shall not permit or suffer the overloading of the floors of
the Demised Premises beyond 250 pounds per square foot, or lesser amount as may
be applicable to any mezzanine area.
ARTICLE 18 - UTILITY CHARGES
18.01. Tenant shall pay all charges for gas, water, sewer, electricity,
heat or other utility or service supplied to the Demised Premises as measured by
meters relating to Tenant's use, and the cost of repair, maintenance,
replacement, and reading of any meters measuring Tenant's consumption thereof.
Tenant expressly agrees that Landlord shall not be responsible for the failure
of supply to Tenant of any of the aforesaid, or any other utility service.
Landlord shall not be responsible for any public or private telephone service to
be installed in the space, particularly conduit if required.
18.02. Tenant's use of electric energy in the Demised Premises shall not
at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Demised Premises. In order to insure that
such capacity is not exceeded and to avert possible adverse effect upon the
Building's electric service, Tenant shall not, without Landlord's prior consent
in each instance (which shall not be unreasonably withheld), connect any
fixtures, appliances or equipment to the Building's electric distribution system
or make any alteration or addition to the electric system of the Demised
Premises existing on the Commencement Date. Should Landlord grant such consent,
all additional risers or other equipment required therefor shall be provided by
Landlord and the cost thereof shall be paid by Tenant to Landlord on demand.
ARTICLE 19 - ACCESS, CHANGES AND NAME
19.01. Except for the space within the inside surfaces of all walls, hung
ceilings, floors, windows and doors bounding the Demised Premises, all of the
Building, including, without limitation, exterior Building walls, core corridor
walls and doors and any core corridor entrance, any terraces or roofs adjacent
to the Demised Premises, and any space in or adjacent to the Demised Premises
used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other
utilities, sinks or other Building facilities and the use thereof, as well as
access thereto through the Demised Premises for the purpose of operating,
maintenance, decoration and repair, are reserved to Landlord. Landlord also
reserves the right, to install, erect, use and maintain pipes, ducts and
conduits in and through the Demised Premises, provided such are (1) properly
enclosed, (2) do not interfere with Tenant's use and occupancy of the Demised
Premises, and (3) do not reduce the size of the useable area of the Demised
Premises, except in a de minimis manner.
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19.02. Landlord and its agents shall have the right to enter and/or pass
through the Demised Premises at all reasonable times upon reasonable prior
notice to Tenant, which may be oral, from Landlord, except in the event of
emergency (a) to examine the Demised Premises and to show them to actual and
prospective Superior Lessors, Superior Mortgagees, or prospective purchasers of
the Building, and (b) to make such repairs, alterations, additions and
improvements in or to the Demised Premises and/or in or to the Building or its
facilities and equipment as Landlord is required or desires to make. Landlord
shall be allowed to take all materials into and upon the Demised Premises that
may be required in connection therewith, without any liability to Tenant and
without any reduction of Tenant's obligations hereunder. During the period of
nine (9) months prior to the Expiration Date, Landlord and its agents may
exhibit the Demised Premises to prospective tenants.
19.03. If at any time any windows of the Demised Premises are temporarily
darkened or obstructed by reason of any repairs, improvements, maintenance
and/or cleaning in or about the Building, or if any part of the Building is
temporarily or permanently closed or inoperable, the same shall not be deemed a
constructive eviction and shall not result in any reduction or diminution of
Tenant's obligations under this Lease.
19.04. [Intentionally Omitted].
19.05. [Intentionally Omitted].
19.06. Landlord may adopt any name for the Building. Landlord reserves the
right to change the name and/or address of the Building at any time.
ARTICLE 20 - MECHANICS' LIENS AND OTHER LIENS
20.01. Nothing contained in this Lease shall be construed to imply any
consent of Landlord to subject Landlord's interest or estate to any liability
under any mechanic's, construction or other lien law. If any lien or any Notice
of Intention (to file a lien), Lis Pendens, or Notice of Unpaid Balance and
Right to File Lien is filed against the Land, the Building, or any part thereof,
or the Demised Premises, or any part thereof, for any work, labor, services or
materials claimed to have been performed or furnished for or on behalf of
Tenant, or anyone holding any part of the Demised Premises through or under
Tenant, Tenant shall cause the same to be canceled and discharged of record by
payment, bond or order of a court of competent jurisdiction within fifteen (15)
days after notice by Landlord to Tenant.
ARTICLE 21 - NON-LIABILITY AND INDEMNIFICATION
21.01. Neither Landlord nor any partner, joint venturer, director,
officer, agent, servant or employee of Landlord shall be liable to Tenant for
any loss, injury or damage to Tenant or to any other Person, or to its or their
property, irrespective of the cause of such injury, damage or loss, unless
caused by or resulting from the negligence of Landlord, its agents, servants or
employees in the operation or maintenance of the Land or Building without
contributory egligence on the part of Tenant or any of its subtenants or
licensees or its or their employees, agents or contractors. Further, neither
Landlord nor any partner, joint venturer, director, officer, agent, servant or
employee of Landlord shall be liable (a) for any such damage caused by other
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tenants or Persons in, upon or about the Land or Building, or caused by
operations in construction of any private, public or quasi-public work; or (b)
even if negligent, for consequential damages arising out of any loss of use of
the Demised Premises or any equipment or facilities therein by Tenant or any
Person claiming through or under Tenant.
21.02. Notwithstanding any provision to the contrary, Tenant shall look
solely to the estate and property of Landlord in and to the Land and Building
(or the proceeds received by Landlord on a sale of such estate and property but
not the proceeds of any financing or refinancing thereof) in the event of any
claim against Landlord arising out of or in connection with this Lease, the
relationship of Landlord and Tenant or Tenant's use of the Demised Premises, and
Tenant agrees that the liability of Landlord arising out of or in connection
with this Lease, the relationship of Landlord and Tenant or Tenant's use of the
Demised Premises shall be limited to such estate and property of Landlord (or
sale proceeds). No other properties or assets of Landlord or any partner, joint
venturer, director, officer, agent, servant or employee of Landlord shall be
subject to levy, execution or other enforcement procedures for the satisfaction
of any judgment (or other judicial process) or for the satisfaction of any other
remedy of Tenant arising out of, or in connection with, this Lease, the
relationship of Landlord and Tenant or Tenant's use of the Demised Premises and
if Tenant shall acquire a lien on or interest in any other properties or assets
by judgment or otherwise, Tenant shall promptly release such lien on or interest
in such other properties and assets by executing, acknowledging and delivering
to Landlord an instrument to that effect prepared by Landlord's attorneys.
Tenant hereby waives the right of specific performance and any other remedy
allowed in equity if specific performance or such other remedy could result in
any liability of Landlord for the payment of money to Tenant, or to any court or
governmental authority (by way of fines or otherwise) for Landlord's failure or
refusal to observe a judicial decree or determination, or to any third party.
ARTICLE 22 - DAMAGE OR DESTRUCTION
22.01. If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other casualty (and if this Lease shall
not be terminated as in this Article 22 hereinafter provided), Landlord shall
repair the damage and restore and rebuild the Building and/or the Demised
Premises (except for the Tenant's Property) with reasonable dispatch after
notice to it of the damage or destruction and the collection of the insurance
proceeds attributable to such damage.
22.02. Subject to the provisions of Section 22.05, if all or part of the
Demised Premises shall be damaged or destroyed or rendered completely or
partially untenantable on account of fire or other casualty, the Rent shall be
abated or reduced, as the case may be, in the proportion that the untenantable
area of the Demised Premises bears to the total area of the Demised Premises (to
the extent of rent insurance proceeds received by Landlord from insurance
maintained by Tenant), for the period from the date of the damage or destruction
to the date the damage to the Demised Premises shall be substantially repaired
provided, however, should Tenant reoccupy a portion of the Demised Premises
during the period the repair or restoration work is taking place and prior to
the date that the Demised Premises are substantially repaired or made tenantable
the Rent allocable to such reoccupied portion, based upon the proportion which
the area of the reoccupied portion of the Demised Premises bears to the total
area of the Demised Premises, shall be payable by Tenant from the date of such
occupancy.
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22.03. If (a) the Building or the Demised Premises shall be totally
damaged or destroyed by fire or other casualty, or (b) the Building shall be so
damaged or destroyed by fire or other casualty that its repair or restoration
requires the expenditure, as estimated by a reputable contractor or architect
designated by Landlord, of more than thirty-five percent (35%) (or fifteen
percent [15%] if such casualty occurs during the last two [2] years of the Term)
of the full insurable value of the Building immediately prior to the casualty,
or (c) the Building shall be damaged or destroyed by fire or other casualty and
either the loss shall not be covered by Landlord's insurance or the net
insurance proceeds (after deducting all expenses in connection with obtaining
such proceeds) shall, in the estimation of a reputable contractor or architect
designated by Landlord be insufficient to pay for the repair or restoration
work, then in either such case Landlord may terminate this Lease by giving
Tenant notice to such effect within ninety (90) days after the date of the fire
or other casualty. Notwithstanding any of the foregoing to the contrary, if the
Building shall be so damaged or destroyed by fire or other casualty so that it
is rendered untenantable for Tenant's use and occupancy and its repair would
take more than twelve (12) months from the date of the fire or other casualty to
accomplish (the "Restoration Period"), as reasonably estimated by the Architect,
(the "Architect's Determination"), then Tenant shall have the right to terminate
this Lease upon written notice to Landlord given within thirty (30) days of
notice of the Architect's Determination. Landlord shall give Tenant written
notice of the Architect's Determination within sixty (60) days of such damage or
destruction.
22.04. Tenant shall not be entitled to terminate this Lease, except as
otherwise provided above, and no damages, compensation or claim shall be payable
by Landlord for inconvenience, loss of business or annoyance arising from any
repair or restoration of any portion of the Building pursuant to this Article
22. Landlord shall use its best efforts to make such repair or restoration
promptly and in such manner as to not unreasonably interfere with Tenant's use
and occupancy of the Demised Premises, but Landlord shall not be required to do
such repair or restoration work except during Business Hours on Business Days.
22.05. Notwithstanding any of the foregoing provisions of this Article 22,
if by reason of some act or omission on the part of Tenant or any of its
subtenants or its or their partners, directors, officers, servants, employees,
agents or contractors, either (a) Landlord or any Superior Lessor or any
Superior Mortgagee shall be unable to collect all of the insurance proceeds
(including, without limitation, rent insurance proceeds) applicable to damage or
destruction of the Building by fire or other casualty, or (b) the Building shall
be damaged or destroyed or rendered completely or partially untenantable on
account of fire or other casualty, then, without prejudice to any other remedies
which may be available against Tenant, there shall be no abatement or reduction
of the Rent. Further, nothing contained in this Article 22 shall relieve Tenant
from any liability that may exist as a result of any damage or destruction by
fire or other casualty.
22.06. Landlord will not carry insurance of any kind on the Tenant's
Property and, except as provided by law or by reason of Landlord's breach of any
of its obligations hereunder, shall not be obligated to repair any damage to or
replace the Tenant's Property.
22.07. The provisions of this Article 22 shall be deemed an express
agreement governing any case of damage or destruction of the Building by fire or
other casualty, and any law providing for such a contingency in the absence of
an express agreement, now or hereafter in force, shall have no application in
such case.
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ARTICLE 23 - EMINENT DOMAIN
23.01 If the whole of the Demised Premises shall be taken by any public or
quasi-public authority under the power of condemnation, eminent domain or
expropriation, or in the event of conveyance of the whole of the Demised
Premises in lieu thereof, this Lease shall terminate as of the day possession
shall be taken by such authority. If 25% or less of the Floor Space of the
Building shall be so taken or conveyed, this Lease shall terminate only in
respect of the part so taken or conveyed as of the day possession shall be taken
by such authority. If more than 25% of the Floor Space of the Building shall be
so taken or conveyed, this Lease shall terminate only in respect of the part so
taken or conveyed as of the day possession shall be taken by such authority, but
either party shall have the right to terminate this Lease upon notice given to
the other party within 30 days after such taking possession. If so much of the
parking facilities shall be so taken or conveyed that the number of parking
spaces necessary, in Landlord's judgment, for the continued operation of the
Building shall not be available, Landlord shall, by notice to Tenant, terminate
this Lease as of the day possession shall be taken. If this Lease shall continue
in effect as to any portion of the Demised Premises not so taken or conveyed,
the Rent shall be computed as of the day possession shall be taken on the basis
of the remaining Floor Space of the Building. Except as specifically provided
herein, in the event of any such taking or conveyance there shall be no
reduction in Rent. If this Lease shall continue in effect, Landlord shall, at
its expense, but shall be obligated only to the extent of the net award or other
compensation (after deducting all expenses in connection with obtaining same)
available to Landlord for the improvements taken or conveyed (excluding any
award or other compensation for land or for the unexpired portion of the term of
any Superior Lease), make all necessary alterations so as to constitute the
remaining Building a complete architectural and tenantable unit, except for the
Tenants' property, and Tenant shall make all alterations or replacements to the
Tenant's Property and decorations in the Demised Premises. All awards and
compensation for any taking or conveyance, whether for the whole or a part of
the Land or Building, shall be property of Landlord, and Tenant hereby assigns
to Landlord all of Tenant's right, title and interest in and to any and all such
awards and compensation, including, without limitation, any award or
compensation for the value of the unexpired portion of the Term. Tenant shall be
entitled to claim, prove and receive in the condemnation proceeding such award
or compensation as may be allowed for the Tenant's property and for loss of
business, good will, and depreciation or injury to and cost of removal of the
Tenant's property, but only if such award or compensation shall be made by the
condemning authority in addition to, and shall not result in a reduction of, the
award or compensation made by it to Landlord.
23.02. If the temporary use or occupancy of all or any part of the Demised
Premises shall be taken during the Term, Tenant shall be entitled, except as
hereinafter set forth, to receive that portion of the award or payment for such
taking which represents compensation for the use and occupancy of the Demised
Premises, for the taking of the Tenant's Property and for moving expenses, and
Landlord shall be entitled to receive that portion which represents
reimbursement for the cost of restoration of the Demised Premises. This Lease
shall be and remain unaffected by such taking and Tenant shall continue
responsible for all of its obligations hereunder insofar as such obligations are
not affected by such taking and shall continue to pay the Rent in full when due.
If the period of temporary use or occupancy shall extend beyond the Expiration
Date, that part of the award or payment which represents compensation for the
use and occupancy of the Demised Premises (or a part thereof) shall be divided
between Landlord and Tenant so that
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Tenant shall receive (except as otherwise provided below) so much thereof as
represents compensation for the period up to and including the Expiration Date
and Landlord shall receive so much thereof as represents compensation for the
period after the Expiration Date. All monies to be paid to Tenant as, or as part
of, an award or payment for temporary use and occupancy for a period beyond the
date to which the Rent has been paid shall be received, held and applied by the
first Superior Mortgagee (or if there is no Superior Mortgagee, by Landlord as a
trust fund) for payment of the Rent becoming due hereunder.
ARTICLE 24 - SURRENDER
24.01. On the Expiration Date, or upon any earlier termination of this
Lease, or upon any re-entry by Landlord upon the Demised Premises, Tenant shall
quit and surrender the Demised Premises to Landlord "broom-clean" and in good
order, condition and repair, except for ordinary wear and tear and such damage
or destruction as Landlord is required to repair or restore under this Lease,
and Tenant shall remove all of Tenant's property therefrom except as otherwise
expressly provided in this Lease.
24.02. If Tenant remains in possession of the Demised Premises after the
expiration of the Term, Tenant shall be deemed to be occupying the Demised
Premises at the sufferance of Landlord subject to all of the provisions of this
Lease, except that the monthly Fixed Rent shall be twice the Fixed Rent in
effect during the last month of the Term.
24.03. No act or thing done by Landlord or its agents shall be deemed an
acceptance of a surrender of the Demised Premises, and no agreement to accept
such surrender shall be valid unless in writing and signed by Landlord.
ARTICLE 25 - CONDITIONS OF LIMITATION
25.01. This Lease is subject to the limitation that whenever Tenant or any
Guarantor (a) shall make an assignment for the benefit of creditors, or (b)
shall commence a voluntary case or have entered against it an order for relief
under any chapter of the Federal Bankruptcy Code (Title 11 of the United States
Code) or any similar order or decree under any federal or state law, now in
existence, or hereafter enacted having the same general purpose, and such order
or decree shall have not been stayed or vacated within 30 days after entry, or
(c) shall cause, suffer, permit or consent to the appointment of a receiver,
trustee, administrator, conservator, sequestrator, liquidator or similar
official in any federal, state or foreign judicial or nonjudicial proceeding, to
hold, administer and/or liquidate all or substantially all of its assets, and
such appointment shall not have been revoked, terminated, stayed or vacated and
such official discharged of his duties within 30 days of his appointment then
Landlord, at any time after the occurrence of any such event, may give Tenant a
notice of intention to end the Term at the expiration of five (5) days from the
date of service of such notice of intention, and upon the expiration of said
five (5) day period, whether or not the Term shall theretofore have commenced,
this Lease shall terminate with the same effect as if that day were the
expiration date of this Lease, but Tenant shall remain liable for damages as
provided in Article 27.
25.02. This Lease is subject to the further limitations that: (a) if
Tenant shall default in the payment of any Rent, and such default shall continue
for ten (10) days after written notice or
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invoice, or (b) if Tenant shall, whether by action or inaction, be in default of
any of its obligations under this Lease (other than a default in the payment of
Rent) and such default shall continue and not be remedied within twenty (20)
days after Landlord shall have given to Tenant a notice specifying the same, or,
in the case of a default which cannot with due diligence be cured within a
period of twenty (20) days and the continuance of which for the period required
for cure will not subject Landlord or any Superior Lessor or prosecution for a
crime (as more particularly described in the last sentence of Section 12.02) or
termination of any Superior Lease or foreclosure of any Superior Mortgage, if
Tenant shall not, (i) within said twenty (20) day period advise Landlord of
Tenant's intention to take all steps necessary to remedy such default, (ii) duly
commence within said twenty (20) day period, and thereafter diligently prosecute
to completion all steps necessary to remedy the default, and (iii) complete such
remedy within a reasonable time after the date of said notice by Landlord, or
(c) if any event shall occur or any contingency shall arise whereby this Lease
would, by operation of law or otherwise, devolve upon or pass to any person,
firm or corporation other than Tenant, except as expressly permitted by Article
11, or (d) if Tenant shall vacate or abandon the Demised Premises, which shall
not be remedied within the applicable grace period, if any, provided therefor
under such other lease, then in any of said cases Landlord may give to Tenant a
notice of intention to end the Term at the expiration of five (5) days from the
date of the service of such notice of intention, and upon the expiration of said
five (5) days, whether or not the Term shall theretofore have commenced, this
Lease shall terminate with the same effect as if that day were the expiration
date of this Lease, but Tenant shall remain liable for damages as provided in
Article 27.
ARTICLE 26 - RE-ENTRY BY LANDLORD
26.01. If Tenant shall default in the payment of any Rent, and such
default shall continue for ten (10) days after written notice or invoice, or if
this Lease shall terminate as provided in Article 25, Landlord or Landlord's
agents and employees may immediately or at any time thereafter re-enter the
Demised Premises, or any part thereof, either by summary dispossess proceedings
or by any suitable action or proceeding at law without being liable to
indictment, prosecution or damages therefor, and may repossess the same, and may
remove any Person therefrom, to the end that Landlord may have, hold and enjoy
the Demised Premises. The word "re-enter," as used herein, is not restricted to
its technical legal meaning. If this Lease is terminated under the provisions of
Article 25, or if Landlord shall re-enter the Demised Premises under the
provisions of this Article 26, or in the event of the termination of this Lease,
or of re-entry, by or under any summary dispossess or other proceedings or
action or any provision of law by reason of default hereunder on the part of
Tenant, Tenant shall thereupon pay to Landlord the Rent payable up to the time
of such termination of this Lease, or of such recovery of possession of the
Demised Premises by Landlord, as the case may be, and shall also pay to Landlord
damages as provided in Article 27.
26.02. In the event of a breach or threatened breach by Tenant of any of
its obligations under this Lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies to which
Landlord may lawfully be entitled at any time and Landlord may invoke any remedy
allowed at law or in equity as if specific remedies were not provided for
herein.
26.03. If this Lease shall terminate under the provisions of Article 25,
or if Landlord shall re-enter the Demised Premises under the provisions of this
Article 26, or in the event of the
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termination of this Lease, or of re-entry, by or under any summary dispossess or
other proceeding or action or any provision of law by reason of default
hereunder on the part of Tenant, Landlord shall be entitled to retain all
monies, if any, paid by Tenant to Landlord, whether as Advance Rent, security or
otherwise, but such monies shall be credited by Landlord against any Rent due
from Tenant at the time of such termination or re-entry or, at Landlord's
option, against any damages payable by Tenant under Article 27 or pursuant to
law.
ARTICLE 27 - DAMAGES
27.01. If this Lease is terminated under the provisions of Article 25, or
if Landlord shall re-enter the Demised Premises under the provisions of Article
26, or in the event of the termination of this Lease, or of re-entry, by or
under any summary dispossess or other proceeding or action or any provision of
law by reason of default hereunder on the part of Tenant, Tenant shall pay as
Additional Charges to Landlord, at the election of Landlord, either or any
combination of:
(a) a sum which at the time of such termination of this Lease or at
the time of any such re-entry by Landlord, as the case may be, represents
the then value of the excess, if any, of (i) the aggregate amount of the
Rent which would have been payable by Tenant (conclusively presuming the
average monthly Additional Charges to be the same as were the average
monthly Additional Charges payable for the year, or if less than 365 days
have then elapsed since the Commencement Date, the partial year,
immediately preceding such termination or re-entry) for the period
commencing with such earlier termination of this Lease or the date of any
such re-entry, as the case may be, and ending with the Expiration Date,
over (ii) the aggregate rental value of the Demised Premises for the same
period; or
(b) sums equal to the Fixed Rent and the Additional Charges which
would have been payable by Tenant had this Lease not so terminated, or had
Landlord not so re-entered the Demised Premises, payable upon the due
dates therefor specified herein following such termination or such
re-entry and until the Expiration Date, provided, however, that if
Landlord shall relet the Demised Premises during said period, Landlord
shall credit Tenant with the net rents received by Landlord from such
reletting, such net rents to be determined by first deducting from the
gross rents as and when received by Landlord from such reletting the
expenses incurred or paid by Landlord in terminating this Lease or in
re-entering the Demised Premises and in securing possession thereof, as
well as the expenses of reletting, including, without limitation, altering
and preparing the Demised Premises for new tenants, brokers' commissions,
legal fees, and all other expenses properly chargeable against the Demised
Premises and the rental therefrom, it being understood that any such
reletting may be for a period shorter or longer than the period ending on
the Expiration Date; but in no event shall Tenant be entitled to receive
any excess of such net rents over the sums payable by Tenant to Landlord
hereunder, nor shall Tenant be entitled in any suit for the collection of
damages pursuant to this subdivision (b) to a credit in respect of any
rents from a reletting, except to the extent that such net rents are
actually received by Landlord. If the Demised Premises or any part thereof
should be relet in combination with other space, then proper apportionment
on a square foot basis shall be made of the rent received from such
reletting and of the expenses of reletting; or
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(c) a sum which at the time of such termination of this Lease or at
the time of any such re-entry by Landlord, as the case may be, represents
the aggregate amount of the Rent which would have been payable by Tenant
(conclusively presuming the average monthly Additional Charges to be the
same as were the average monthly Additional Charges payable for the year,
or if less than 365 days have then elapsed since the Commencement Date,
the partial year, immediately preceding such termination or re-entry) for
the period commencing with such earlier termination of this Lease or the
date of any such re-entry, as the case may be, and ending with the
Expiration Date; provided, however, that if Landlord shall relet the
Demised Premises during said period, Landlord shall credit Tenant with the
net rents received by Landlord from such reletting, such net rents to be
determined by first deducting from the gross rents as and when received by
Landlord from such reletting the expenses incurred or paid by Landlord in
terminating this Lease or in re-entering the Demised Premises and in
securing possession thereof, as well as the expenses of reletting,
including, without limitation, altering and preparing the Demised Premises
for new tenants, brokers' commissions, legal fees, and all other expenses
properly chargeable against the Demised Premises and the rental therefrom,
it being understood that any such reletting may be for a period shorter or
longer than the period ending on the Expiration Date; but in no event
shall Landlord have to account to Tenant for any rents in excess of the
total damages recovered by Landlord hereunder, nor shall Tenant be
entitled in any suit for the collection of damages pursuant to this
subsection (c) to a credit in respect of any rents from a reletting,
except to the extent that such net rents are actually received by
Landlord. If the Demised Premises or any part thereof should be relet in
combination with other space, then proper apportionment on a square foot
basis shall be made of the rent received from such reletting and of the
expenses of reletting.
If the Demised Premises or any part thereof should be relet by Landlord before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such reletting shall, prima facie, be the fair and
reasonable rental value for the Demised Premises, or part thereof, so relet
during the term of the reletting. Landlord shall not be liable in any way
whatsoever for its failure to relet the Demised Premises or any part thereof, or
if the Demised Premises or any part thereof are relet, for its failure to
collect the rent under such reletting, and no such failure to relet or failure
to collect rent shall release or affect Tenant's liability for damages or
otherwise under this Lease. Furthermore, Tenant, on behalf of itself and any and
all persons claiming through or under Tenant, does hereby waive and surrender
all right and privilege which it, they or any of them might have under or by
reason of any present or future law or applicable governmental or judicial
authority, to require that Landlord mitigate damages sustained or to be
sustained by Landlord hereunder as a result of a default by Tenant and/or any
and all persons claiming through or under Tenant under this Lease. In the event
Tenant, on behalf of itself or any and all persons claiming through or under
Tenant, attempts to raise a defense or assert any affirmative obligations on
Landlord's part to mitigate such damages or relet the Demised Premises, Tenant
shall reimburse Landlord for any costs and expenses incurred by Landlord as a
result of any such defense or assertion, including but not limited to Landlord's
attorneys' fees incurred in connection therewith.
27.02. Suit or suits for the recovery of such damages or, any installments
thereof, may be brought by Landlord at any time and from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the Term would
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have expired if it had not been so terminated under the provisions of Article
25, or under any provision of law, or had Landlord not re-entered the Demised
Premises. Nothing herein contained shall be construed to limit or preclude
recovery by Landlord against Tenant of any sums or damages to which, in addition
to the damages particularly provided above, Landlord may lawfully be entitled by
reason of any default hereunder on the part of Tenant. Nothing herein contained
shall be construed to limit or prejudice the right of Landlord to prove for and
obtain as damages by reason of the termination of this Lease or re-entry of the
Demised Premises for the default of Tenant under this Lease, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time, whether
or not such amount be greater than, equal to, or less than any of the sums
referred to in Section 27.01.
27.03. In addition, if this Lease is terminated under the provisions of
Article 25, or if Landlord shall re-enter the Demised Premises under the
provisions of Article 26, Tenant covenants that: (a) the Demised Premises then
shall be in the same condition as that in which Tenant has agreed to surrender
the same to Landlord at the Expiration Date; (b) Tenant shall have performed
prior to any such termination any obligation of Tenant contained in this Lease
for the making of any alteration or for restoring or rebuilding the Demised
Premises or the Building, or any part thereof; and (c) for the breach of any
covenant of Tenant set forth above in this Section 27.03, Landlord shall be
entitled immediately, without notice or other action by Landlord, to recover,
and Tenant shall pay, as and for liquidated damages therefor, the cost of
performing such covenant (as estimated by an independent contractor selected by
Landlord).
27.04. In addition to any other remedies Landlord may have under this
Lease, and without reducing or adversely affecting any of Landlord's rights and
remedies under this Article 27, if any Rent or damages payable hereunder by
Tenant to Landlord are not paid upon demand therefor, the same shall bear
interest at the Late Payment Rate or the maximum rate permitted by law,
whichever is less, from the due date thereof until paid, and the amounts of such
interest shall be Additional Charges hereunder.
ARTICLE 28 - AFFIRMATIVE WAIVERS
28.01. Tenant, on behalf of itself and any and all persons claiming
through or under Tenant, does hereby waive and surrender all right and privilege
which it, they or any of them might have under or by reason of any present or
future law, to redeem the Demised Premises or to have a continuance of this
Lease after being dispossessed or ejected from the Demised Premises by process
of law or under the terms of this Lease or after the termination of this Lease
as provided in this Lease.
28.02. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, and Tenant's use or occupancy of the
Demised Premises including, without limitation, any claim of injury or damage,
and any emergency and other statutory remedy with respect thereto. Tenant shall
not interpose any counterclaim of any kind, except compulsory counterclaims as
permitted by applicable Court Rule, in any action or proceeding commenced by
Landlord to recover possession of the Demised Premises.
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ARTICLE 29 - NO WAIVERS
29.01. The failure of either party to insist in any one or more instances
upon the strict performance of any one or more of the obligations of this Lease,
or to exercise any election herein contained, shall not be construed as a waiver
or relinquishment for the future of the performance of such one or more
obligations of this Lease or of the right to exercise such election, but the
same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission. The receipt by Landlord of Fixed Rent or
Additional Charges with knowledge of breach by Tenant of any obligation of this
Lease shall not be deemed a waiver of such breach.
ARTICLE 30 - CURING TENANT'S DEFAULTS
30.01. If Tenant shall default in the performance of any of Tenant's
obligations under this Lease, Landlord, without thereby waiving such default,
may (but shall not be obligated to) perform the same for the account and at the
expense of Tenant, without notice in a case of emergency, and in any other case
only if such default continues after the expiration of fifteen (15) days from
the date Landlord gives Tenant notice of the default. Bills for any expenses
reasonably incurred by Landlord in connection with any such performance by it
for the account of Tenant, and bills for all costs, expenses and disbursements
of every kind and nature whatsoever, including reasonable attorneys' fees and
expenses, involved in collecting or endeavoring to collect the Rent or any part
thereof or enforcing or endeavoring to enforce any rights against Tenant or
Tenant's obligations hereunder, under or in connection with this Lease or
pursuant to law, including any such cost, expense and disbursement involved in
instituting and prosecuting summary proceedings or in recovering possession of
the Demised Premises after default by Tenant or upon the expiration of the Term
or sooner termination of this Lease, and interest on all sums advanced by
Landlord under this Article at the rate of 4% percent per month or the maximum
rate permitted by law, whichever is less, may be sent by Landlord to Tenant
monthly, or immediately, at Landlord's option, and such amounts shall be due and
payable in accordance with the terms of such bills.
ARTICLE 31 - BROKER
31.01. Landlord and Tenant each represents to the other that it dealt with
no broker except the Broker in bringing about or consummating this Lease and
that each respectively had no conversations or negotiations with any broker
except the Broker concerning the leasing of the Demised Premises. Landlord and
Tenant agree to indemnify, defend and hold each other harmless against and from
any claims for any brokerage commissions and all costs, expenses and liabilities
in connection therewith, including, without limitation, reasonable attorneys'
fees and expenses, arising out of any conversations or negotiations had by the
indemnifying party with any broker other than the Broker and for enforcing this
indemnity provision. Landlord shall pay any brokerage commissions due the Broker
pursuant to a separate agreement between Landlord and the Broker.
ARTICLE 32 - NOTICES
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32.01. Any notice, statement, demand, consent, approval or other
communication required or permitted to be given, rendered or made by either
party to the other, pursuant to this Lease or pursuant to any applicable Legal
Requirement, shall be in writing and shall be deemed to have been properly
given, rendered or made only if hand delivered or sent by United States
registered or certified mail, return receipt requested, addressed to the other
party at the address hereinabove set forth (except that after the Commencement
Date, Tenant's address, unless Tenant shall give notice to the contrary, shall
be the Building) as to Landlord, to the attention of General Counsel with a
concurrent Notice to the attention of Controller, and shall be deemed to have
been given, rendered or made on the second day after the day so mailed, unless
mailed outside the State of New Jersey, in which case it shall be deemed to have
been given, rendered or made on the third business day after the day so mailed.
Either party may, by notice as aforesaid, designate a different address or
addresses for notices, statements, demands, consents, approvals or other
communications intended for it. In addition, upon and to the extent requested by
Landlord, copies of notices shall be sent to the Superior Mortgagee.
ARTICLE 33 - ESTOPPEL CERTIFICATES
33.01. Each party shall, at any time and from time to time, as requested
by the other party, upon not less than ten (10) days' prior notice, execute and
deliver to the requesting party a statement certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), certifying the dates to which the Fixed Rent and Additional
Charges have been paid, stating whether or not, to the best knowledge of the
party giving the statement, the requesting party is in default in performance of
any of its obligations under this Lease, and, if so, specifying each such
default of which the party giving the statement shall have knowledge, and
stating whether or not, to the best knowledge of the party giving the statement,
any event has occurred which with the giving of notice or passage of time, or
both, would constitute such a default of the requesting party, and, if so,
specifying each such event; any such statement delivered pursuant hereto shall
be deemed a representation and warranty to be relied upon by the party
requesting the certificate and by others with whom such party may be dealing,
regardless of independent investigation. Tenant also shall include in any such
statement such other information concerning this Lease as Landlord may
reasonably request.
ARTICLE 34 - [INTENTIONALLY OMITTED]
ARTICLE 35 - MEMORANDUM OF LEASE
35.01. Tenant shall not record this Lease. However, at the request of
Landlord, Tenant shall promptly execute, acknowledge and deliver to Landlord a
memorandum of lease in respect of this Lease sufficient for recording. Such
memorandum shall not be deemed to change or otherwise affect any of the
obligations or provisions of this Lease. Whichever party records such memorandum
of Lease shall pay all recording costs and expenses, including any taxes that
are due upon such recording.
ARTICLE 36 - MISCELLANEOUS
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36.01. Tenant expressly acknowledges and agrees that Landlord has not made
and is not making, and Tenant, in executing and delivering this Lease, is not
relying upon, any warranties, representations, promises or statements, except to
the extent that the same are expressly set forth in this Lease or in any other
written agreement(s) which may be made between the parties concurrently with the
execution and delivery of this Lease. All understandings and agreements
heretofore had between the parties are merged in this Lease and any other
written agreement(s) made concurrently herewith, which alone fully and
completely express the agreement of the parties and which are entered into after
full investigation. Neither party has relied upon any statement or
representation not embodied in this Lease or in any other written agreement(s)
made concurrently herewith. The submission of this Lease to Tenant does not
constitute by Landlord a reservation of, or an option to Tenant for, the Demised
Premises, or an offer to lease on the terms set forth herein and this Lease
shall become effective as a lease agreement only upon execution and delivery
thereof by Landlord and Tenant.
36.02. No agreement shall be effective to change, modify, waive, release,
discharge, terminate or effect an abandonment of this Lease, in whole or in
part, unless such agreement is in writing, refers expressly to this Lease and is
signed by the party against whom enforcement of the change, modification,
waiver, release, discharge, termination or effectuation of abandonment is
sought.
36.03. If Tenant shall at any time request Landlord to sublet or let the
Demised Premises for Tenant's account, Landlord or its agent is authorized to
receive keys for such purposes without releasing Tenant from any of its
obligations under this Lease, and Tenant hereby releases Landlord of any
liability for loss or damage to any of the Tenant's Property in connection with
such subletting or letting.
36.04. Except as otherwise expressly provided in this Lease, the
obligations under this Lease shall bind and benefit the successors and assigns
of the parties hereto with the same effect as if mentioned in each instance
where a party is named or referred to; provided, however, that (a) no violation
of the provisions of Article 11 shall operate to vest any rights in any
successor or assignee of Tenant and (b) the provisions of this Section 36.04
shall not be construed as modifying the conditions of limitation contained in
Article 25.
36.05. Except for Tenant's obligations to pay Rent, the time for Landlord
or Tenant, as the case may be, to perform any of its respective obligations
hereunder shall be extended if and to the extent that the performance thereof
shall be prevented due to any strikes, lockouts, civil commotions, warlike
operations, invasions, rebellions, hostilities, military or usurped power,
governmental regulations or controls, inability to obtain labor or materials
despite due diligence, acts of God, or other causes beyond the control of the
party whose performance is required. Except as expressly provided to the
contrary, the obligations of Tenant hereunder shall not be affected, impaired or
excused, nor shall Landlord have any liability whatsoever to Tenant, (a) because
Landlord is unable to fulfill, or is delayed in fulfilling, any of its
obligations under this Lease due to any of the matters set forth in the first
sentence of this Section 36.05, or (b) because of any failure or defect in the
supply, quality or character of electricity, water or any other utility or
service furnished to the Demised Premises for any reason beyond Landlord's
reasonable control.
36.06. Any liability for payments hereunder (including, without
limitation, Additional
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Charges) shall survive the expiration of the Term or earlier termination of this
Lease.
36.07. If Tenant shall request Landlord's consent and Landlord shall fail
to refuse to give such consent, Tenant shall not be entitled to any damages for
any withholding by Landlord of its consent; Tenant's sole remedy shall be an
action for specific performance or injunction, and such remedy shall be
available only in those cases where Landlord has expressly agreed in writing not
to unreasonably withhold or delay its consent or where as a matter of law
Landlord may not unreasonably withhold its consent.
36.08. If an excavation shall be made upon land adjacent to or under the
Building, or shall be authorized to be made, Tenant shall afford to the Person
causing or authorized to cause such excavation, license to enter the Demised
Premises for the purpose of performing such work as said Person shall reasonably
deem necessary or desirable to preserve and protect the Building from injury or
damage and to support the same by proper foundations, without any claim for
damages or liability against Landlord and without reducing or otherwise
affecting Tenant's obligations under this Lease.
36.09. Tenant shall not exercise its rights under Article 15 or any other
provision of this Lease in a manner which would violate Landlord's union
contracts or create any work stoppage, picketing labor disruption or dispute or
any interference with the business of Landlord.
36.10. Tenant shall give prompt notice to Landlord of (a) any occurrence
in or about the Demised Premises for which Landlord might be liable, (b) any
fire or other casualty in the Demised Premises, (c) any damage to or defect in
the Demised Premises, including the fixtures and equipment thereof, for the
repair of which Landlord might be responsible, and (d) any damage to or defect
in any part of the Building's sanitary, electrical, heating, ventilating,
air-conditioning, elevator or other systems located in passing through the
Demised Premises or any part thereof.
36.11. This Lease shall be governed by and construed in accordance with
the laws of the State of New Jersey. Tenant hereby irrevocably agrees that any
legal action or proceeding arising out of or relating to this Lease may be
brought in the Courts of the State of New Jersey, or the Federal District Court
for the District of New Jersey, as Landlord may elect. By execution and delivery
of this Lease, Tenant hereby irrevocably accepts and submits generally and
unconditionally for itself and with respect to its properties, to the
jurisdiction of any such court in any such action or proceeding, and hereby
waives in the case of any such action or proceeding brought in the courts of the
State of New Jersey, or Federal District Court for the District of New Jersey,
any defenses based on jurisdiction, venue or forum non coveniens. If any
provision of this Lease shall, be invalid or unenforceable, the remainder of
this Lease shall not be affected and shall be enforced to the extent permitted
by law. The table of contents, captions, headings and titles in this Lease are
solely for convenience of reference and shall not affect its interpretation.
This Lease shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Lease to be drafted. If
any words or phrases in this Lease shall have been stricken out or otherwise
eliminated, whether or not any other words or phrases have been added, this
Lease shall be construed as if the words or phrases so stricken out or otherwise
eliminated were never included in this Lease and no implication or inference
shall be drawn from the fact that said words or phrases were so stricken out or
otherwise eliminated. Each covenant, agreement, obligation or other provision of
this Lease on Tenant's part to be performed, shall be deemed and construed as a
separate and independent covenant of Tenant, not
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dependent on any other provision of this Lease. All terms and words used in this
Lease, regardless of the number or gender in which they are used, shall be
deemed to include any other number and any other gender as the context may
require. Tenant specifically agrees to pay all of Landlord's costs, charges and
expenses, including attorneys' fees, incurred in connection with any document
review requested by Tenant and upon submission of bills therefor. In the event
Landlord permits Tenant to examine Landlord's books and records with respect to
any Additional Charge imposed under this Lease, such examination shall be
conducted at Tenant's sole cost and expense and shall be conditioned upon Tenant
retaining an independent accounting firm for such purposes which shall not be
compensated on any type of contingent fee basis with respect to such
examination. Wherever in this Lease or by law Landlord is authorized to charge
or recover costs and expenses for legal services or attorneys' fees, same shall
include, without limitation, the costs and expenses for in-house or staff legal
counsel or outside counsel at rates not to exceed the reasonable and customary
charges for any such services as would be imposed in an arms length third party
agreement for such services.
36.12. Within thirty (30) days after written request therefor from
Landlord, but not more than once per year, Tenant shall furnish to Landlord a
copy of its then current audited (if available) financial statement (which may
be in the form of an annual report (10K), so long as Tenant shall be a publicly
traded company) which shall be employed by Landlord for purposes of financing
the Premises and not distributed otherwise without prior authorization of
Tenant.
36.13. Upon written request therefor from Landlord, at least ninety (90)
days prior to Tenant's termination of its lease, and any extensions thereof,
Tenant agrees to seek a determination from the New Jersey Department of
Environmental Protection and Energy ("NJDEP") in the form of a Letter of
Non-applicability ("LNA"), that the New Jersey Industrial Site Recovery Act,
N.J.S.A. 13:1K-6 et seq. ("ISRA"), is inapplicable to the Tenant's cessation of
operations and termination of its lease. Tenant represents, warrants, and
covenants that any information contained in any application for an LNA submitted
pursuant to this subsection will be true and complete. Tenant represents that
the Standard Industrial Classification (SIC) number applicable to Tenant's
operations would not subject this transaction to the requirements of ISRA.
(ii) In the event that an LNA is denied by NJDEP, notice of such denial
will be given to Landlord within two (2) business days of Tenant's receipt of
NJDEP's denial of the LNA. Tenant shall satisfy its obligations under ISRA prior
to its lease termination date: (1) by securing an approval of the Tenant's
Negative Declaration; or (2) by securing an approval of the Tenant's Remedial
Action Workplan, and completing the implementation of such Plan, and obtaining
from NJDEP a "No Further Action" letter. Tenant shall bear sole responsibility
for any investigation and cleanup costs, fees, penalties, or damages associated
with ISRA compliance. In the event that Tenant is unable to complete the its
ISRA compliance obligations by the date of its lease termination, Landlord shall
continue to provide Tenant with reasonable access to the Demised Premises,
provided that any work undertaken by Tenant shall be performed in such a manner
as to minimize interference with Landlord's or any other tenant's use of the
Demised Premises. However, Landlord reserves its rights to deem Tenant a
holdover tenant in the event that Tenant's ISRA compliance unreasonably
restricts the Landlord's use of the Demised Premises.
(iii) Tenant shall provide Landlord with copies of all correspondence,
documents and reports, including sampling results submitted to or received from
any governmental agency or third party in connection with Tenant's compliance
with ISRA.
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(iv) Notwithstanding any of the foregoing to the contrary, in no event
shall Tenant be responsible for any compliance or any costs or expenses of any
required cleanup or clean-up plan where the spills or discharges which create
the need for such compliance, cleanup or plan occurred prior to the Commencement
Date unless such spill or discharge is caused by Tenant's acts or action or
those of its contractors, agents or employees.
(v) Notwithstanding any provision to the contrary contained in this Lease,
Landlord shall be responsible for the cleanup of any environmental condition or
any violation of environmental law at the Building or the Land existing prior to
the Commencement Date which is required to be cleaned up or remediated in
accordance with applicable environmental law (except to the extent caused or
suffered by Tenant, its agents, contractors or employees in the event Tenant is
permitted to occupy the Demised Premises prior to the Commencement Date).
Landlord agrees to and shall indemnify, defend and hold Tenant harmless from and
against any and all costs incurred with respect to the cleanup or remediation of
any environmental condition existing at the Building or the Land prior to the
Commencement Date (except to the extent caused or suffered by Tenant, its
agents, contractors or employees in the event Tenant is permitted to occupy the
Demised Premises prior to the Commencement Date), which is required to be
cleaned up or remediated in accordance with applicable environmental law
(including without limitation, reasonable consultants fees and reasonable
attorney fees arising by reason of any of the foregoing or a successful action
to enforce the provisions of this indemnity) arising from any non-compliance
with environmental law at or from the Building or the Land, any of which is
Landlord's responsibility under this Paragraph 36.13(v). None of Landlords
representations or covenants herein shall be construed as creating any third
party beneficiaries or obligating Landlord to any third parties. Notwithstanding
anything to the contrary stated hereinabove, the indemnifications, contained in
this Paragraph 36.13(v) shall not include any special or consequential damages
incurred by Tenant. The indemnifications contained in this Paragraph 36.13(v)
shall survive any expiration or termination of the Term, but shall terminate
three (3) years after any such expiration or termination except with respect to
any specific claims which have been given in writing by Tenant to Landlord prior
to the expiration of said three year period.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as
of the day and year first above written.
("Landlord")
XXXXX MOUNTAIN ASSOCIATES
BY: XXXXX MOUNTAIN INDUSTRIES, INC.
By: /s/Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Executive Vice President
[Corporate Seal]
("Tenant")
THE CHILDREN'S PLACES RETAIL STORES, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
[Corporate Seal] Title: President, COO
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RIDER TO LEASE DATED JUNE , 1998, BETWEEN XXXXX MOUNTAIN ASSOCIATES, AS LANDLORD
AND THE CHILDREN'S PLACE RETAIL STORES, INC., AS TENANT
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R1. If any of the provisions of this Rider shall conflict with any of the
provisions, printed or typewritten, of this Lease, such conflict shall resolve
in every instance in favor of the provisions of this Rider.
R2. Provided Tenant is in not in default under this Lease beyond any
applicable notice and/or cure periods, if any, and provided Tenant has not
assigned (other than to a permitted assignee under Section R6) this Lease or
sublet all or any portion of the Demised Premises and is itself (or its
permitted assignee as contemplated in Section R6) in occupation and conducting
business in the whole of the Demised Premises in accordance with the terms of
this Lease, Tenant expressly acknowledging and agreeing that the option rights
contained herein are personal to the original named Tenant (or its permitted
assignee as contemplated in Section R6), Tenant shall have two (2) options to
extend the Term of its lease of the Demised Premises, from the date upon which
this Lease would otherwise expire for two extended period of three (3) years
(each herein referred to as an "Extended Period", the first of which referred to
as the "First Extended Period" and the second referred to as the "Second
Extended Period" respectively), upon the following terms and conditions:
1. If Tenant elects to exercise any one or both of said options, it shall
do so by giving notice of such election to Landlord on or before the date which
is nine (9) months before the beginning of the Extended Period for which the
Term is to be extended by the exercise of such option. Tenant agrees that it
shall have forever waived its right to exercise any such option if it shall fail
for any reason whatsoever to give such notice to Landlord by the time provided
herein for the giving of such notice, whether such failure is inadvertent or
intentional, time being of the essence as to the exercise of each such option.
2. If Tenant elects to exercise any one or both of said options, the Term
shall be automatically extended for the Extended Period covered by the option so
exercised without execution of an extension or renewal lease. Within ten (10)
days after request of either party following the effective exercise of any such
option, however, Landlord and Tenant shall execute, acknowledge and deliver to
each other duplicate originals of an instrument in recordable form confirming
that such option was effectively exercised.
3. Each Extended Period shall be upon the same terms and conditions as are
in effect immediately preceding the commencement of such Extended Period;
provided, however, that Tenant shall have no right or option to extend the Term
for any period of time beyond the expiration of the Second Extended Period and,
provided further, that in the Extended Period(s) the Fixed Rent shall be as
follows:
(a) The Fixed Rent during the First Extended Period shall be at the
rate of Six and 25/100 Dollars ($6.25) per square foot of Floor Space per
annum.
(b) The Fixed Rent during the Second Extended Period shall be at
ninety-five percent (95%) of Fair Market Value ("FMV"). FMV shall be
determined by mutual agreement of the parties. If the parties are unable
to agree on the FMV within thirty (30)
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days of Tenant's exercise of its option, the parties shall choose a
licensed Real Estate Appraiser who shall determine the FMV. The cost of
said Real Estate Appraiser shall be borne equally by the parties. If the
parties are unable to agree on a licensed Real Estate Appraiser within
forty-five (45) days of Tenant's exercise of its option, each party shall
select one Appraiser to appraise the FMV. All appraisals shall be rendered
within thirty (30) days of appointment of the respective Appraiser
appointed under this paragraph. If the difference between the two
appraisals is 20% or less of the lower appraisal, then the FMV shall be
the average of the two appraisals. If the difference between the two
appraisals is greater than 20% of the lower appraisal, the two Appraisers
shall select a third licensed Real Estate Appraiser to appraise the FMV.
The FMV shall in such case be the average of the three appraisals. The
cost of the third appraisal shall be borne equally by the parties.
Anything to the contrary contained herein notwithstanding, the Fixed Rent
for each Extended Period shall not be less than the Fixed Rent for the
period immediately preceding the Extended Period for which the Fixed Rent
is being calculated.
4. Any termination, expiration, cancellation or surrender of this Lease
shall terminate any right or option for the Extended Period(s) not yet
exercised.
5. Landlord shall have the right, for thirty (30) days after receipt of
notice of Tenant's election to exercise any option to extend the Term, to reject
Tenant's election if Tenant gave such notice while Tenant was in default beyond
any applicable notice and/or cure periods, if any, in the performance of any of
its obligations under the Lease, and such rejection shall automatically render
Tenant's election to exercise such option null and void and of no effect.
6. The options provided herein to extend the Term of the Lease may not be
severed from the Lease or separately sold, assigned or otherwise transferred.
R3. Landlord agrees that it shall contribute up to the sum of Three
Hundred Seventy Thousand ($370,000.00) Dollars (Landlord's Contribution) towards
the cost of Tenant's construction of offices in a portion of the Demises
Premises as part of Tenant's Work, on the terms set forth below:
(A) Landlord shall not be required to make Landlord's Contribution unless
this Lease is in full force and effect and Tenant is not in default hereunder
and the Demised Premises are free of all liens, claims or encumbrances
attributable to Tenant.
(B) Landlord's Contribution shall only be used for alterations,
improvements, fixtures and equipment installed as part of Tenant's office
build-out which become part of or attached or affixed to the realty, including
heating, ventilating and air conditioning systems, walls, floors and ceiling,
but excluding trade fixtures, furniture and furnishings or other personal
property.
(C) Landlord's Contribution shall be paid upon the last to occur of (i)
the opening for business by Tenant in the Demised Premises, (ii) completion of
Tenant's Work, and (iii) satisfaction of and compliance with the conditions set
forth in subparagraphs (A), (B), (D) and (E) of this Paragraph R3 (the Landlord
Contribution Date). Landlord shall pay such Landlord's Contribution to Tenant
not later than fifteen (15) days following the Landlord Contribution Date. In
the event that Landlord shall fail to pay the Landlord Contribution by the end
of such fifteen
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(15) day period, Tenant shall be entitled to receive, in
addition to the Landlord's Contribution, interest thereon retroactive to the
Landlord Contribution Date at the Late Payment Rate. Nothing contained in this
Section R3(C) shall be construed to allow or permit Tenant to deduct or offset
or reduce any amounts due against any Rent due Landlord under this Lease.
(D) Prior to and as a condition precedent to Landlord's obligation to make
such payment, Tenant shall deliver to Landlord:
(i) an affidavit of the principal officer of Tenant stating that all
material and all property constituting Tenant's Work and all of Tenant's
personal property are free and clear of all encumbrances, license or charges
irrespective of whether or not said liens have been filed or otherwise place in
public record;
(ii) an affidavit sworn to by Tenant's contractor(s) to the effect
that it has been paid all sums due to it and all subcontractors, materialmen and
suppliers and all costs of labor, including payroll taxes and charges, have been
paid; said affidavit shall contain the names of all subcontractors and be
accompanied by copies of all requisitions;
(iii) lien waivers executed by Tenant's contractor(s), such lien
waivers to be accompanied by affidavits of Tenant and its contractor(s) setting
forth the names of all such subcontractors, materialmen and suppliers; the
foregoing may be incorporated as part of item (ii);
(iv) a permanent certificate of occupancy and fire underwriters
certificate for the Demised Premises and such other approvals of Tenant's Work
or which may be necessary for the conduct of Tenant's business as may be
required of any governmental authority;
(v) an affidavit from the architect having supervision over Tenant's
Work, to the effect that Tenant's Work has been completed in material compliance
with the plans and specifications approved by Landlord and in compliance with
all governmental requirements.
(E) Tenant shall not mortgage, pledge, assign or hypothecate this Lease or
Tenant's right to receive Landlord's Contribution.
R4. Landlord represents that the Demised Premises are located within Light
Industrial Zone A pursuant to the regulations of the Hackensack Meadowlands
Development Commission and that the use of the Demised Premises for the
Permitted Use is authorized therein.
R5. Provided Tenant is not in default beyond any applicable notice and/or
cure periods, if any, of any of its obligations under this Lease, and provided
Tenant is itself in occupation and conducting business in the whole of the
Demised Premises in accordance with the terms of this Lease, Landlord will
provide Tenant with a revocable license to utilize, subject to the terms and
conditions of this Lease, a parking area in a location or locations in North
Bergen to be designated by Landlord from time to time to park up to twenty five
(25) of Tenant's trailers in the aggregate. Tenant's utilization of such
licensed area(s) shall be subject to applicable Legal Requirements and shall be
at Tenant's sole risk without cost or expense to Landlord. Landlord reserves the
right, upon notice to Tenant, to change the location of such license from time
to time. Tenant shall enter into such further documentation or license
arrangements, if any, as Landlord may reasonably request in connection therewith
to facilitate such license.
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R6. Notwithstanding anything to the contrary set forth in Article 11 hereof:
(a) Tenant may assign this Lease to the parent corporation or to any
wholly-owned subsidiary corporation of Tenant without obtaining the prior
written consent of Landlord, provided that the following conditions are met:
(i) Any such assignee shall remain the parent of Tenant, or a
wholly-owned subsidiary corporation of Tenant, as the case may be;
(ii) The net worth of the assignee shall be not less than the
greater of (1) Tenant's net worth at the time of execution of this Lease, or (2)
Tenant's net worth at the time of the assignment;
(iii) Tenant shall have given Landlord thirty (30) days prior
written notice of such assignment, which notice contains all information and
documentation Landlord reasonably requires to satisfy itself as to the
conditions contained in the Section R6(a);
(iv) Tenant shall not then be in default beyond any applicable
notice and /or cure period, if any, under this Lease;
(v) Tenant and its assignee furnishes Landlord not less than thirty
(30) days prior to the effective date of said assignment a written instrument in
form and substance satisfactory to Landlord agreeing to assume and be bound by
all the conditions, obligations and agreements contained in this Lease.
Notwithstanding any such assignment, Tenant shall remain fully and primarily
liable for the performance of all conditions, obligations and agreements of
Tenant under this Lease.
(b) Tenant may without Landlord's prior written consent, assign this Lease
to an entity which is buying all or substantially all, of the assets of Tenant,
or with which Tenant is merging or consolidating, provided the following
conditions are met:
(i) The net worth of the assignee shall be not less than the greater
of (1) Tenant's net worth at the time of execution of this Lease, or (2)
Tenant's net worth at the time of the assignment;
(ii) The assignee is taking an assignment of all or substantially
all of the retail stores of Tenant, and of Tenant's parent, subsidiaries and
affiliates;
(iii) The assignee, in Landlord's reasonable judgment, has
sufficient past retail experience, there shall be no material change in Tenant's
management on account of the transaction, and the assignment, in Landlord's
reasonable judgment, will not result in a decrease in the quality of Tenant's
business operations;
(iv) Tenant shall have given Landlord thirty (30) days' prior
written notice of such assignment, which notice contains all information and
documentation Landlord reasonably requires to satisfy itself as to the
conditions contained in the Section R6(b);
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(v) Tenant shall not then be in default beyond any applicable notice
and /or cure period, if any, under this Lease;
(vi) Tenant and its assignee furnishes Landlord not less than thirty
(30) days prior to the effective date of said assignment a written instrument in
form and substance satisfactory to Landlord agreeing to assume and be bound by
all the conditions, obligations and agreements contained in this Lease.
Notwithstanding any such assignment, Tenant shall remain fully and primarily
liable for the performance of all conditions, obligations and agreements of
Tenant under this Lease.
R7. Subject to all Legal Requirements, provided Tenant is not in default
hereunder beyond any applicable notice and/or cure periods, Landlord shall, at
Tenant's sole cost and expense (as an Additional Charge hereunder) and upon
approval by Tenant of such costs and expenses, maximize the area on the Land
surrounding the Building to provide Tenant with additional parking spaces (over
and above the number described in Exhibit C) for automobiles and other vehicles
on the Land by (i) paving and restriping portions of the grassy areas to the
side of the loading area around the Building; (ii) paving over and striping that
portion of unused railroad siding located on the Land behind the Building; and
(iii) performing any other work necessary to maximize parking spaces available
for Tenant's use without permanently closing the loading docks.
R8. Tenant shall have the right, at its sole cost and expense, to relocate
the existing mezzanine HVAC units to the roof.
XXXXX MOUNTAIN ASSOCIATES
BY: XXXXX MOUNTAIN INDUSTRIES, INC.
(Landlord)
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxxx
Executive Vice President
THE CHILDREN'S PLACE RETAIL STORES, INC.,
(Tenant)
By: /s/ Xxxxxxx Xxxxxx
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Exhibit A - Description of Land
XXXX XXXXXXXXX ASSOCIATES, INC.
Deed Description of a parcel of land situated at the easterly quadrant of the
intersection of Secaucus Road and Xxxxx Way in the Town of Secaucus, Xxxxxx
County, New Jersey.
Beginning at a point on the southeasternly side of Xxxxx Way (80' wide), said
point being N 21 42' 38" E 40.00 feet from the point of intersection of the
southeasterly side of Xxxxx Way (80' wide), the northeasterly side of Secaucus
Road (60' wide) extended and running; thence
1) N 21 42' 38" E 571.00 feet along the southeasterly side of Xxxxx Way (80'
wide) to a point; thence
2) S 68 17' 22" E 620.42 feet to a point; thence
3) S 21 42' 38" W 611.00 feet along the Conrail right-of-way to a point on
the northeasterly side of Secaucus Road (60' wide); thence
4) N 68 17' 22" W 580.42 feet along the northeasterly side of Secaucus Road
(60' wide) to a point of curvature; thence
5) Along a curve to the right, having a radius of 40.00 feet, an arc length
of 62.83 feet to a point of tangency and point of beginning.
Containing 8.695 Acres.
Being known as Lot 1 in Block 53 on the Town of Secaucus Tax Maps.
Subject to all easements, rights-of-ways and agreements of record.
Deed Description refers to map entitled, "Map of Property of Lot 1 in Block 53
for Xxxxx Mountain Industries, Inc.", prepared by Xxxx Xxxxxxxxx Associates,
Inc., dated May 20, 1994.
B-2
Exhibit B - Site Plan
Architect's Map of Demised Promises
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Exhibit C - Landlord's Work
Landlord shall perform the following items as Landlord's Work in connection with
Tenant's initial occupancy of the Demised Premises:
1. Provide new built up roof on the Building with an installation contractor's
or manufacturer's warranty of ten (10) years;
2. Replace existing office rooftop HVAC units with comparable units (85 tons);
3. Demolish existing offices and remove all debris, including (i) removal of
duct work, ceiling, wires and floor tiles; and (ii) removal of battery charging
station.
4. Dismantle and remove existing non-structural mezzanine in warehouse and
remove all debris (it being understood that the built in concrete structural
mezzanine and mezzanine components shall remain); remove bolts from
removal/demolition of mezzanine and patch floor where bolts removed.
5. Re-coat, patch and repair, where necessary, all existing asphalt areas on the
Land;
6. Stripe parking lots with not less than one hundred eighty (186) parking
spaces; and
7. Provide all mechanical, including mezzanine HVAC units, and electrical
systems in good working order.
8. Install such exterior ramps, railings, pedestrian entranceway and other
modifications as are necessary to ensure exterior compliance with the Americans
with Disabilities Act.
9. Fill-in with suitable sealant warehouse floor settlement cracks which have
spalled to width of inch or more.
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Exhibit D - Rules and Regulations
1. The rights of each tenant in the entrances and corridors servicing the
Building are limited to ingress and egress from such tenant's premises for the
tenant and its employees, licensees and invitees, and no tenant shall use, or
permit the use of, the entrances or corridors. Fire exits and stairways are for
emergency use only, and they shall not be used for any other purpose by the
tenants, their employees, licensees or invitees. No tenant shall encumber or
obstruct, or permit the encumbrance or obstruction of, any of the sidewalks,
plazas, entrances, corridors, fire exits or stairways of the Building. Landlord
reserves the right to control and operate the public portions of the Building
and the public facilities, as well as facilities furnished for the common use of
the tenants, in such manner as it deems for the benefit of the tenants
generally.
2. No awnings or other projections (other than canopies over the loading
docks) shall be attached to the outside walls of the Building.
3. Subject to Article 15 of the Lease, no lettering, sign, advertisement,
notice or object shall be displayed in or on the windows or doors, or on the
outside of any tenant's premises, or at any point inside any tenant's premises
where the same might be visible outside of such premises, without the prior
written consent of Landlord. In the event of the violation of the foregoing by
any tenant, Landlord may remove the same without any liability, and may charge
the expense incurred in such removal to the tenant violating this rule.
4. [Intentionally Omitted].
5. No showcase or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors or
vestibules.
6. Linoleum, tile or other floor covering shall be laid in tenant's
premises only in a manner first approved in writing by Landlord, which approval
shall not be unreasonably withheld or delayed.
7. No bicycles, vehicles, animals, fish or birds of any kind shall be
brought into or kept in or about the premises of any tenant of the Building.
8. No noise, including, but not limited to, music or the playing of
musical instruments, recording, radio or television, which, in the judgment of
Landlord, might disturb other tenants in the Building shall be made or permitted
by any tenant. Nothing shall be done or permitted in the premises of any tenant
which would impair or interfere with the use or enjoyment by any other tenant of
any other space in the Building.
9. No tenant, nor any tenant's contractors, employees, agents, visitors or
licensees, shall at any time bring into or keep upon the premises or the
Building any inflammable, combustible,
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explosive or otherwise dangerous fluid, chemical or substance, in inviolation of
applicable law.
10. No tenant shall occupy or permit any portion of its premises to be
occupied as an office for a public stenographer or public typist, or for the
possession, storage, manufacture, or sale of liquor, narcotics, dope, tobacco in
any form, or as a xxxxxx, beauty or manicure shop, or as a school.
11. Landlord shall have the right to prohibit any advertising or
identifying sign by any tenant which, in Landlord's judgment, tends to impair
the reputation of the Building or its desirability as a building for others, and
upon written notice from Landlord, such tenant shall refrain from and
discontinue such advertising or identifying sign.
12. Landlord, its contractors, and their respective employees, shall have
the right to use, without charge therefor, all light, power and water in the
premises of any tenant while cleaning or making repairs or alterations in the
premises of such tenant.
13. No premises of any tenant shall be used for lodging or sleeping or for
any illegal purpose.
14. Canvassing, soliciting and pedding in the Building are prohibited and
each tenant shall cooperate to prevent the same.
15. No tenant shall cause or permit any unusual or objectionable odors to
emanate from its premises which would annoy other tenants or create a public or
private nuisance. No cooking shall be done in the premises of any tenant except
as is expressly permitted in such tenant's Lease.
16. Nothing shall be done or permitted in any tenant's premises, and
nothing shall be brought into or kept in any tenant's premises, which would
impair or interfere with any of the Building's services or the proper and
economic heating or other servicing of the Building or the premises, or the use
or enjoyment by any other tenant of any other premises, nor shall there be
installed by any tenant any ventilating, air-conditioning, electrical or other
equipment of any kind which, in the judgment of Landlord, might cause any such
impairment or interference.
17. No acids, vapors or other materials shall be discharged or permitted
to be discharged into the waste lines, vents or flues of the Building which may
damage them. The water and wash closets and other plumbing fixtures in or
serving any tenant's premises shall not be used for any purpose other than the
purposes for which they were designed or constructed, and no sweepings, rubbish,
rags, acids or other foreign substances shall be deposited therein. All damages
resulting from any misuse of the fixtures shall be borne by the tenants who, or
whose servants, employees, agents, visitors or licensees shall have, caused the
same. Any cuspidors or containers or receptacles used as such in the premises of
any tenant or for garbage or similar refuse shall be emptied, cared for and
cleaned by and at the expense of such tenant.
18. All entrance doors in each tenant's premises shall be left locked and
all windows shall
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be left closed by the tenant when the tenant's premises are not in use. Entrance
doors shall not be left open at any time.
Exhibit E - Letter of Credit
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
We have issued on your behalf standby letter of credit number S750559 in the
amount of USD 535,000.00 in favor of: Xxxxx Mountain Industries Inc.
A copy of the above letter of credit is attached for your records.
Sincerely,
Letters of Credit
Norwest Bank Minnesota, National Association
To:
Xxxxx Mountain Industries Inc. Secaucus, NJ
000 Xxxxx Xxxxx
Account Party:
The Children's Place Retail
0 Xxxxx Xxxxx
Xxxx Xxxxxxxx, XX 00000
Norwest Corporation has issued their irrevocable standby letter of credit
which we hereby confirm under our irrevocable standby letter of credit number
S750559 in the amount of 535,000.00 USD (Five Hundred Thirty Five Thousand
and 00/100 U.S. Dollars)
In Favor of yourselves
Expires March 01, 2004 at our counters
Available against drafts drawn at sight on Norwest Bank Minnesota, National
Association, Minneapolis, Minnesota Bearing the Clause: "drawn under standby
letter of credit number S750559 of Norwest Bank Minnesota, National Association"
accompanied by the following documents:
Beneficiary's signed statement reading: "Fifteen days written notice of
intent to drawdown was sent to the Children's Place Retail Stores Inc. by
certified mail attention: Xxxx Xxxxxx--Vice President of Finance."
Payment will be made at the counters of Norwest Bank Minnesota, National
Association.
This credit is subject to the uniform customs and practice for Documentary
Credits (1993 Revision) International Chamber of Commerce Publication No. 500.
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Unless otherwise stated, all documents are to be forwarded to us by mail, or
hand delivered to our counters.
Documents to be directed to: Norwest Bank Minnesota, National Association,
000 Xxxxx 0xx Xx., Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attn: International
Product Services Division, Letters of Credit.
Cancellation of letter of credit prior to expiration: This letter of credit (and
amendments, if any) must be returned to us for cancellation with a statement
purportedly signed by the beneficiary stating that the letter of credit is no
longer required and is being returned to the issued bank for cancellation.
We hereby engage with beneficiary that documents drawn in accordance with this
letter of credit will duly honored upon presentation.
Norwest Bank Minnesota, National Association
/s/ Xxxxxxxxxx Ronnj /s/ X. Xxxxx
-------------------------------- --------------------------------
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
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