EXHIBIT 10.28
LEASE
BETWEEN
WESTPARK I LLC,
a Delaware limited liability company
AS LANDLORD
AND
NINE WEST GROUP INC.,
a Delaware corporation
AS TENANT
DATED FEBRUARY 28, 1997
TABLE OF CONTENTS
1. Demise of Premises....................................................... 2
2. Title and Condition...................................................... 3
3. Use of Premises.......................................................... 4
4. Primary Term............................................................. 4
5. Primary Term Minimum Rent................................................ 5
6. Renewal.................................................................. 5
7. Additional Rent.......................................................... 6
8. Net Lease; Obligations Unconditional..................................... 7
9. Lease Non-Terminable..................................................... 7
10. Taxes and Utility Charges................................................ 8
11. Tax and Insurance Escrow................................................. 9
12. Compliance with Legal Requirements....................................... 10
13. Environmental Matters.................................................... 11
14. Indemnification.......................................................... 13
15. Liens.................................................................... 14
16. Maintenance and Repair................................................... 15
17. Encroachments, Violations................................................ 16
18. Inspections.............................................................. 17
19. Alterations.............................................................. 17
20. Insurance................................................................ 19
21. Casualty................................................................. 23
22. Condemnation............................................................. 25
23. Material Taking; Material Title Defect................................... 27
24. Assignment and Subletting................................................ 29
25. Financial Statements..................................................... 30
26. Permitted Contests....................................................... 32
27. Default Provisions....................................................... 33
28. Additional Rights of Landlord............................................ 37
29. Notices, Demands and Other Instruments................................... 41
30. Transfer by Landlord..................................................... 42
31. Mortgaging by Landlord................................................... 43
32. Estoppel Certificate..................................................... 46
33. No Merger................................................................ 47
34. Surrender................................................................ 47
35. Severability............................................................. 48
36. Savings Clause........................................................... 48
37. Binding Effect; Benefit.................................................. 48
38. Memorandum of Lease...................................................... 48
39. Table of Contents; Headings.............................................. 48
40. Governing Law............................................................ 49
41. Lease.................................................................... 49
42. Assignment of Intangibles................................................ 49
43. Exhibits................................................................. 50
44. Exculpatory Clause....................................................... 50
45. Counterparts............................................................. 50
46. Holding Over............................................................. 50
47. Effect of Certain Approvals, Etc......................................... 51
48. Brokers.................................................................. 51
49. Waiver of Jury Trial..................................................... 51
50. Landlord's Assignment of Certain Rights.................................. 51
LEASE
This LEASE is made as of February 28, 1997 between WESTPARK I LLC, a
Delaware limited liability company (herein called "Landlord"), having an address
at c/o Westpark Associates, 445 Broad Hollow Road, Melville, New York 11747, and
NINE WEST GROUP INC., a Delaware corporation (herein, called "Tenant"), having
an address at 9 West Broad Street, Stamford, Connecticut 06902.
R E C I T A L S
A. Pursuant to that certain deed dated as of the date hereof (the "Agency
Deed"), Landlord conveyed its estate, title and interest in the Premises (as
defined below) to the County of Westchester Industrial Development Agency (the
"Agency"), which conveyance is subject to a reverter provision in favor of
Landlord and its successors and assigns.
B. The Agency and Landlord entered into that certain overlease agreement
dated as of the date hereof (as amended, amended and restated, supplemented or
otherwise modified from time to time, the "Overlease") pursuant to which the
Agency leased to Landlord its interest in the Premises.
C. Contemporaneously with the execution and delivery of the Overlease, the
Agency and Tenant, with the consent of Landlord, entered into that certain
payment-in-lieu of tax agreement (as amended, amended and restated, supplemented
or otherwise modified from time to time, the "PILOT Agreement"), pursuant to
which Tenant agreed to make certain payments in lieu of real estate taxes, and,
to secure such payments, Landlord and the Agency delivered a mortgage dated as
of the date hereof (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "PILOT Mortgage") to the County of Westchester,
the City of White Plains and the White Plains School District. The PILOT
Mortgage, the Agency Deed, the PILOT Agreement, the Overlease and all documents,
agreements and other instruments executed and delivered in connection therewith
or related thereto (other than this Lease and any other document, agreement or
other instrument by and between Landlord and Tenant executed and delivered in
connection herewith) are herein sometimes collectively called, the "Project
Documents".
D. Landlord desires to sublease to Tenant, and Tenant desires to sublease
from Landlord, the entire Premises upon the terms set forth herein.
A G R E E M E N T
The parties hereto agree as follows:
1. Demise of Premises.
(a) Premises, Demise, Etc. In consideration of the covenants and
agreements set forth herein, Landlord hereby leases to Tenant, and Tenant hereby
accepts and leases from Landlord, for the term and at the rent herein described,
the premises (herein called the "Premises") consisting of Landlord's estate in
(a) the land located in White Plains, Westchester County, New York described in
Exhibit I hereto, consisting of approximately 25.77 acres (herein called the
"Land"); (b) all buildings, structures and other improvements (including,
without limitation, all existing parking areas, driveways and entranceways)
constructed and any hereafter constructed thereon (herein called the
"Improvements"); and (c) all easements, rights and appurtenances relating
thereto, all upon the terms and conditions herein specified. The Improvements
include two (2) buildings (herein called, individually a "Building", and
collectively the "Buildings") consisting of (i) a four-story office building
containing approximately 234,281 square feet of floor area and commonly known as
1113 Westchester Avenue (herein called "Building I"), and (ii) a four-story
office building containing approximately 132,179 square feet of floor area and
commonly known as 1111 Westchester Avenue (herein called "Building II"). The
Buildings and related parking areas, driveways and entranceway(s) are depicted
generally on Exhibit 1-A hereto.
(b) Cooperation Re: Agency Assistance. Tenant hereby unconditionally and
absolutely assumes and agrees to pay and perform, for the benefit of Landlord,
all covenants and obligations of Landlord under the Overlease and the other
Project Documents, other than any Retained Obligations (as defined below), to
the end and intent that (i) Landlord shall have no responsibility to Tenant, the
Agency or any other person for compliance with the provisions of the Overlease
and the other Project Documents, other than the Retained Obligations, and (ii)
Tenant shall have no obligation to indemnify the Agency or any other person or
pay any Damages (as defined below) resulting from (x) any breach by Landlord of
any Retained Obligation or (y) the gross negligence or willful misconduct of
Landlord or its officers, directors, partners, members, owners, agents or
employees. Landlord shall not purport to exercise any of its rights under the
Overlease or the other Project Documents, other than the Retained Rights (as
hereinafter defined)) without the prior written consent of Tenant. Landlord
hereby authorizes Tenant and appoints Tenant as its attorney-in-fact with an
interest to comply with, and exercise its rights under, the Overlease and the
other Project Documents (other than the Retained Rights (except the Retained
Rights set forth in Sections 3.9 (a) and (j), 3.10 and 3.11 of the Overlease
which may be exercised by Tenant in accordance with the proviso set forth in
this sentence) and the Retained Obligations); provided, however, that (i) such
power of attorney may, with respect to the Retained Rights set forth in Sections
3.9(a) and (j), 3.10 and 3.11 of the Overlease, be exercised by Tenant if
Landlord does not enforce its rights thereunder diligently and in good faith;
(ii) with respect to all rights exercisable by Tenant in accordance with the
provisions of this sentence, Tenant may not, without the prior written consent
of Landlord (which may not unreasonably be withheld), exercise any such rights
of Landlord if such exercise by Tenant would subject Landlord to any liability
or expense (provided that no such consent of Landlord shall be required with
respect to liabilities and expenses that are not material and which are assumed
by Tenant under this Lease) or would impair Landlord's rights to a reversion of
title to the Premises or the quality or extent of Landlord's title to the
Premises (other than to a de minimis degree) upon the occurrence of such
reversion, and (iii) Tenant shall, subject to the provisions of Section 14
hereof, hold Landlord harmless from all Damages resulting from the exercise by
Tenant of such rights. Landlord shall not take (to the extent within the
control of Landlord) any action which would cause a reversion or termination of
the Overlease or any loss of benefits under the Project Documents. Landlord
hereby agrees (at the sole cost and expense of Tenant, including without
limitation payment by Tenant of all reasonable legal fees incurred by Landlord)
to cooperate with Tenant in all reasonable respects and execute and deliver such
further instruments and take such further action as Tenant may reasonably
request from time to time in order to implement, effectuate, confirm or assure
unto Tenant the rights and benefits intended to be granted under the Project
Documents. As used herein "Retained Obligations" shall mean (i) the
representations and warranties of Landlord (in its capacity as tenant under the
Overlease) set forth in Section 2.2 of the Overlease (other than subsection (D)
thereof), (ii) the indemnification obligations of Landlord (in its capacity as
tenant under the Overlease) set forth in Section 3.4 of the Overlease to the
extent Landlord has taken or caused to be taken any action causing the harm
giving rise to such obligation, and (iii) the obligations of Landlord set forth
in Sections 3.7(a), 3.8, 3.13 and 4.2(b) of the Overlease. As used herein,
"Retained Rights" shall mean Landlord's rights under (i) Section 3.6, 3.8, 3.9
(a), (c), (d), (e), (f) and(j), 3.10, 3.11, 3.12 (but only, in the case of
Section 3.12, to the extent necessary for Landlord to exercise and enforce its
Retained Rights), 3.13, 4.1, 4.2, 4.7(b), 4.8(b) and 4.9 of the Overlease, and
(ii) Sections 7, 9, 14 and 22 of the PILOT Mortgage.
2. Title and Condition.
Tenant acknowledges that the Premises are subject to (a) the rights of any
parties in possession and the existing state of the title as of the Commencement
Date (as defined below), (b) any state of facts which an accurate survey or
physical inspection thereof might show, (c) all zoning regulations,
restrictions, easements, agreements of record, rules and ordinances, building
restrictions and other laws and regulations (including, without limitation,
Environmental Laws, as defined below) now in effect or hereafter adopted by any
governmental authority having jurisdiction, and (d) the condition of any
buildings, structures and other improvements located thereon, as of the
Commencement Date, all without representation or warranty of any kind by
Landlord or by any agent of Landlord. Tenant represents that, prior to entering
into this Lease, it examined all such studies, reports, inspections, surveys,
title reports, land records, zoning ordinances, building codes, laws, public
records and other documents and information, and conducted all such independent
inspections and investigations, as Tenant deemed necessary with respect to all
the foregoing and other restrictions applicable to and the condition of the
Premises and has found the same to be satisfactory to it. Tenant acknowledges
that no study, report, survey, books, records or other information provided by
Landlord or provided by any third-party, whether or not paid for by Landlord,
shall constitute any representations or warranty by Landlord. Tenant
unconditionally accepts the Premises "As Is" as of the Commencement Date;
provided, however, the foregoing shall not limit Tenant's rights under Section
23 in the event of any Material Title Defect (as defined below). THE PROVISIONS
OF THIS SECTION 2 HAVE BEEN NEGOTIATED AND ARE INTENDED TO BE A COMPLETE
EXCLUSION AND NEGATION BY THE LANDLORD OF, AND THE LANDLORD DOES HEREBY
DISCLAIM, ANY AND ALL WARRANTIES BY THE LANDLORD, EXPRESS OR IMPLIED, WITH
RESPECT TO THE PREMISES OR ANY PORTION THEREOF, WHETHER ARISING PURSUANT TO THE
UNIFORM COMMERCIAL CODE OR ANY OTHER LAW NOW OR HEREAFTER IN EFFECT OR OTHERWISE
AND TENANT HEREBY ACKNOWLEDGES AND ACCEPTS SUCH EXCLUSION, NEGATION AND
DISCLAIMER.
3. Use of Premises.
Tenant may use the Premises for offices or for any other purpose, as and to
the extent permitted by Legal Requirements (as defined below). Tenant shall not
conduct its business operation in the Premises unless and until (and only during
such time as) all necessary certificates of occupancy, permits, licenses and
consents from any and all appropriate governmental authorities have been
obtained by Tenant and are in full force and effect.
4. Primary Term.
(a) Scheduled Primary Term. Subject to the terms and conditions hereof,
Tenant hereby leases the Premises for a primary term of twenty-five (25) years
(herein called the "Primary Term") commencing on February 28, 1997 (herein
called the Commencement Date), and ending on February 28, 2022. "Term" means
the then current term of this Lease, including the Primary Term, together with
any Renewal Term (as defined below) which has come into effect whether pursuant
to exercise of any renewal right expressly granted in this Lease or pursuant to
any future agreement between Landlord and Tenant). If for any reason the
Overlease shall terminate prior to the end of the Term of this Lease, this Lease
shall remain in full force and effect as a primary lease between Landlord and
Tenant.
(b) Early Termination Right. If no Event of Default exists either at the
time of exercise of such termination option or on the date any termination
pursuant thereto would take effect, Tenant shall have the right, subject to all
provisions of this Section 4(b), to elect to terminate this Lease by written
notice to Landlord (herein called the "Early Termination Notice") at any time on
or before (but not after) the date which is the fourteenth (14th) anniversary of
the Commencement Date (herein called the "Latest Termination Notice Date"). Any
such election, once made by Tenant, shall be irrevocable. If Tenant shall not
have given the Early Termination Notice on or before the Latest Termination
Notice Date, Tenant's right to terminate this Lease pursuant to this Section
4(b) shall automatically expire and be of no further force or effect. Any
termination of this Lease pursuant to this Section 4(b) shall be effective as of
the date which is the fifteenth (15th) anniversary of the Commencement Date
(herein called the "Early Termination Date"). As payment for and in
consideration of any such early termination, Tenant shall pay to Landlord the
amount determined in accordance with Exhibit 4 attached hereto (herein called
the "Early Termination Fee"). This Lease shall remain in full force and effect
to and including the Early Termination Date and until consummation of the
transactions hereafter described. On the Early Termination Date, Tenant shall,
by wire transfer of immediately available funds, pay to Landlord, or as Landlord
shall have directed, the Early Termination Fee together with all Minimum Rent,
Additional Rent and other sums due and payable hereunder to and including the
Early Termination Date, whereupon this Lease shall terminate, except with
respect to obligations and liabilities of Tenant hereunder, actual or
contingent, (including, without limitation, any arising pursuant to Section 13)
which have arisen on or prior to the Early Termination Date.
5. Primary Term Minimum Rent.
Tenant covenants to pay to Landlord during the Primary Term of this Lease
fixed minimum annual rent in the amounts set forth on Exhibit 5 hereto (herein
called the "Minimum Rent") in equal monthly installments in advance on the first
day of each calendar month (herein called the "Minimum Rent Payment Dates") by
wire transfer of immediately available funds to the Landlord at such place or
account and/or to such other person or such other place or account as Landlord
from time to time may designate to Tenant in writing. If the Commencement Date
shall occur on a day other than the first day of a calendar month or if the Term
terminates on a day other than the last day of a calendar month, then the
Minimum Rent payable for such partial month shall be appropriately prorated on
the basis of a thirty (30) day month. "Business Day" means any day other than a
Saturday, Sunday, or holiday on which national banks in the state where the
Premises are located are required by law to be closed for business. If any
Minimum Rent Payment Date (whether during the Primary Term or any Renewal Term)
falls on a day which is not a Business Day, then the installment of Minimum Rent
due and payable on such Minimum Rent Payment Date shall be due and payable on
the next succeeding Business Day.
6. Renewal.
If no monetary Event of Default has occurred and is continuing either at
the time of exercise of the renewal option or at the time the Renewal Term would
commence, then, subject to all provisions of this Section 6, Tenant shall have
the right to renew the Term of this Lease for four (4) successive periods of
five (5) years each (each herein called a "Renewal Term"). The option for each
Renewal Term, if exercised, must be exercised by the giving of written notice
thereof to Landlord not later than three hundred sixty-five (365) days prior to
the end of the then current Term. The timely providing of such written notice
is a material condition precedent to renewal and failure by Tenant to timely
provide such written notice shall result in automatic expiration of all renewal
rights. Tenant covenants to pay to Landlord during each Renewal Term fixed
minimum annual rent in the amounts determined in accordance with Exhibit 6
hereto (herein also called the "Minimum Rent") in equal monthly installments on
the first day of each calendar month during such Renewal Term (herein also
called the "Minimum Rent Payment Dates") by wire transfer as provided in Section
5. If any Renewal Term of this Lease shall commence on a day other than the
first day of a calendar month or if such Renewal Term terminates on a day other
than the last day of a calendar month, then the Minimum Rent payable for such
partial month shall be appropriately prorated on the basis of a thirty (30) day
month.
7. Additional Rent.
Tenant assumes and agrees to pay and discharge, in addition to Minimum
Rent, all costs, expenses and other amounts, liabilities and obligations
relating to the Premises, including, without limitation, each and all thereof
which Tenant expressly assumes or agrees to pay or discharge pursuant to Section
10 and all other provisions of this Lease, together with every fine, penalty,
interest and cost which may be added for nonpayment or late payment thereof, all
of which shall constitute additional rent hereunder (herein called "Additional
Rent"). Anything in the preceding sentence to the contrary notwithstanding,
Tenant shall not be obligated to pay, and Additional Rent shall not include, (i)
any principal, interest or other amount payable by Landlord to any Mortgagee, as
such, (ii) any fine, penalty, interest or cost referred to in the preceding
sentence to the extent arising out of Landlord's failure to apply to payment of
Taxes and insurance premiums amounts received by Landlord from Tenant for such
purposes pursuant to Section 11, (iii) any costs or expenses payable for
services provided to or for the Premises attributable to the periods of time
prior to the Commencement Date and after the expiration or termination of the
Term, or (iv) any amounts owing in respect of any Retained Obligation or in
respect of breach by Landlord of any Retained Obligations. In the event of any
failure by Tenant to pay or discharge any Additional Rent owing to Landlord,
Landlord shall have all rights, powers and remedies provided herein or by law in
the case of nonpayment of Minimum Rent. Tenant also covenants to pay to
Landlord on demand, as Additional Rent, a late charge in an amount equal to
five percent (5%) of the amount then due on all installments of Minimum Rent not
paid within five (5) Business Days after the date when due. The actual amount
of Landlord's administrative expenses arising by reason of a late payment will
be difficult to ascertain and the parties agree that the late charge as
calculated above is a reasonable estimate thereof and is not a penalty. Tenant
further covenants to pay to Landlord on demand, as Additional Rent, interest at
the per annum rate of interest equal to one percent (1%) plus the "prime rate"
as reported by the Wall Street Journal, or at the maximum rate permitted by
applicable law, whichever is less, on all Minimum Rent and Additional Rent due
to Landlord from the date due until such amount is paid in full and received in
good funds by Landlord or its designee. If the Wall Street Journal discontinues
publication or publication of "prime rate," then Landlord shall substitute a
comparable prime rate published in a comparable publication.
8. Net Lease; Obligations Unconditional.
(a) Net Lease. It is the express intent and agreement of the parties
hereto that the Minimum Rent payable under this Lease shall be an absolutely net
return to the Landlord and that the Tenant shall pay all costs and expenses, and
perform all obligations, of every kind relating to the Premises and the business
carried on therein, unless otherwise (and then only to the extent) expressly
declared in this Lease. Any cost, expense or obligation relating in any way to
the Premises which is not expressly declared in this Lease to be that of the
Landlord shall be the obligation of the Tenant to be performed by the Tenant at
the Tenant's expense.
(b) Obligations Unconditional. Minimum Rent and Additional Rent owing to
Landlord shall be paid by Tenant without notice or demand (except as expressly
provided herein as to any item of Additional Rent), set off, counterclaim,
abatement, suspension, deduction, deferment, diminution, reduction or defense.
The obligations of Tenant hereunder shall be separate and independent covenants
and agreements, the Minimum Rent and the Additional Rent owing to Landlord shall
continue to be payable in all events and the obligations of Tenant hereunder
shall continue unaffected, (unless, and then only to the extent, the requirement
to pay or perform the same shall have been terminated pursuant to termination of
this Lease as expressly provided in Section 4(b) and in Section 23).
Notwithstanding anything to the contrary contained above, Tenant shall have a
separate and independent right to sue Landlord with respect to any claim Tenant
may have against Landlord under this Lease; provided, however, any judgment in
favor of Tenant shall not abate or otherwise affect Tenant's obligation to pay
Minimum Rent or Additional Rent or terminate or otherwise affect any of Tenant's
obligations hereunder, or give rise to any lien, charge or other encumbrance on
any Minimum Rent or Additional Rent.
9. Lease Non-Terminable.
This Lease shall not terminate, nor shall Tenant have any right to
terminate this Lease (except as otherwise expressly provided in Section 4(b) and
in Section 23), nor shall Tenant be entitled to any abatement of Minimum Rent or
Additional Rent owing to Landlord, nor shall the obligations of Tenant under
this Lease be affected, by reason of any of the following: (i) any damage to or
destruction of all or any part of the Premises from whatever cause; (ii) the
taking of the Premises or any portion thereof by condemnation, requisition or
otherwise; (iii) the prohibition, limitation or restriction of Tenant's use of
all or any part of the Premises, or any interference with such use; (iv) any
eviction by paramount title or otherwise; (v) Tenant's acquisition or ownership
of all or any part of the Premises otherwise than as expressly provided herein;
(vi) any default on the part of Landlord under this Lease, or under any other
agreement to which Landlord and Tenant may be parties; (vii) the failure of
Landlord to deliver possession of the Premises on the commencement of the term
hereof, or (viii) any other cause whether similar or dissimilar to the
foregoing, any present or future law to the contrary notwithstanding. Tenant
will not take any action seeking to terminate, rescind or avoid this Lease,
notwithstanding the bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution, or winding up or other proceeding
affecting Landlord or its successors in interest or any action with respect to
this Lease which may be taken by any trustee or receiver of Landlord or its
successors in interest or by any court in any such proceeding. Tenant waives
all rights which may now or hereafter be conferred by law to quit, terminate or
surrender this Lease or the Premises or any part thereof (except for Tenant's
rights of termination as expressly provided in Section 4(b) and in Section 23)
or to any abatement, suspension, deferment or reduction of the Minimum Rent or
Additional Rent.
10. Taxes and Utility Charges
"Taxes" means all real estate and ad valorem taxes which become due or
which accrue during or with respect to the Term and all other assessments
(including assessments for benefits from public works or improvements, whether
or not begun or completed prior to the commencement of the Term of this Lease
and whether or not to be completed within said Term), levies, fees, water and
sewer rents and charges, and all other governmental charges of every kind,
general and special, ordinary and extraordinary, whether or not the same shall
have been within the express contemplation of the parties hereto, together with
any interest and penalties thereon which are, at any time, imposed or levied
upon or assessed against the Premises or any part thereof, any Minimum Rent or
any Additional Rent, or this Lease, or in respect of the operation, possession,
occupancy or use of the Premises, together with (i) transfer taxes, recording
fees, or similar charges payable in connection with a conveyance to Tenant
pursuant to this Lease, the execution of this Lease or the recording of any
memorandum or notice of this Lease, (ii) sales, use, gross receipts or similar
taxes imposed or levied upon, assessed against or measured by the Minimum Rent
or Additional Rent or levied upon or assessed against or with respect to the
Premises or the acquisition, leasing or use thereof, (iii) any tax, assessment,
charge or levy imposed or levied upon or assessed against Landlord in
substitution for or in place of any item specifically described herein as
constituting "Taxes," and (iv) all payments from time to time due under the
PILOT Agreement. Except for any item specifically referred to in the preceding
sentence, "Taxes" shall not include any franchise, corporate, inheritance,
income, profits or revenue tax payable by Landlord. "Utility Charges" means all
charges for water, gas, light, heat, telephone, electricity, power and other
utilities and communications services rendered to or used on or about the
Premises during the Term. All contracts and accounts for the services described
in the preceding sentence shall, unless otherwise required by Landlord, be
established in the name of Tenant or its designee, and any and all charges for
the installation of meters, connections, or other equipment for the providing or
monitoring of any such services shall be at Tenant's expense. Tenant shall
arrange for all bills for Taxes to be sent directly to Tenant, unless otherwise
required by Landlord. Landlord hereby agrees to cooperate with Tenant and
execute and deliver such instruments and take such actions as may be necessary
to ensure that Taxes are so billed to Tenant. Subject to the provisions of
clause (ii) of the second sentence of Section 7, Section 11 and Section 26,
Tenant shall pay all Taxes and Utility Charges to the proper governmental
authorities and providers of utilities, as applicable, prior to the time any of
the same would become delinquent, and shall furnish to Landlord, within thirty
(30) days after written request therefor, evidence of the payment of all
Impositions (as defined below). Taxes shall be prorated at the end of the Term
and Tenant shall pay its estimated share of accrued Taxes with the last
installment of Minimum Rent due hereunder (such share to be prorated upon
issuance of the actual bill therefor). In the event that any Tax may be legally
paid in installments, Tenant shall have the option to pay such in installments.
Taxes and Utility Charges are sometimes herein collectively called
"Impositions."
11. Tax and Insurance Escrow.
If required by Landlord following the occurrence and during the continuance
of an Event of Default, Tenant shall pay all Taxes and insurance premiums for
the Required Insurance (as defined below) accruing during the Term to Landlord
in monthly installments on or before the first day of each calendar month, in
advance, in an amount reasonably estimated by Landlord to be sufficient to
create an available fund to pay such Taxes and premiums as they become due. In
the event Landlord shall exercise its right to cause Tenant to make the payments
contemplated in the immediately preceding sentence, Landlord shall pay, or cause
to be paid, such Taxes and insurance premiums to the proper governmental
authorities and insurance carriers, as applicable, prior to the time any of the
same would become delinquent, and shall furnish to Tenant within thirty (30)
days after written request therefor, evidence of the payment of such Taxes and
premiums; provided that, in no event shall Landlord be required to make, or
cause to be made, any payment in excess of the sums actually received from
Tenant for such purpose pursuant to this Section 11, together with interest
earned and received thereon. Upon receipt of bills for Taxes and/or insurance
premiums due during a calendar year, Tenant shall submit to Landlord a written
statement of the actual amount of the Taxes and insurance premiums then due. If
the total amount theretofore deposited by Tenant hereunder in respect thereto
shall be less than the actual amount due from Tenant for such year, as shown in
such statement, Tenant shall pay to Landlord the shortfall at the time of
submission of such statement. If it appears, in the reasonable judgment of the
Landlord, that the monthly deposits made by Tenant have created a reserve in
excess of the amount necessary to pay Taxes and insurance premiums as they
become due, the excess shall be credited against the next deposit or deposits of
Taxes and insurance premiums due from Tenant to Landlord hereunder. All amounts
due hereunder shall be payable to Landlord at the place where the Minimum Rent
is payable and shall be held for the benefit of Tenant in an interest-bearing
account (x) at a federally insured bank or trust company designated by Landlord,
or (y) with First Mortgagee or the servicer of a First Mortgagee or at a
federally insured bank or trust company designated by First Mortgagee or such
servicer (any entity described in clauses (x) or (y) of this sentence which
holds such amounts, the "Depository"); provided, however, that the Depository
shall at all times be rated A3 or higher by Standard & Poor's Rating Service.
Said amounts payable by Tenant hereunder may be held in commingled accounts or
segregated accounts, provided that such accounts are interest-bearing with
interest earned on amounts escrowed hereunder being credited to such escrow. A
copy of a bill for Taxes or insurance premiums shall at all times be sufficient
evidence of the amount of Taxes levied, assessed or imposed against the Premises
to which such bill relates or the amount of insurance premiums for some or all
of the Required Insurance. Landlord's and Tenant's obligations under this
Section 11 shall survive the expiration or early termination of this Lease. Any
balance of funds remaining on deposit with the Depository at the expiration of
the Term and satisfaction of all obligations of Tenant under this Lease shall be
returned to Tenant by Landlord, together with all interest earned thereon. In
the event of the loss for any reason of any funds held by the Depository, (i)
Tenant shall be entitled to (and Landlord hereby assigns Tenant the right to)
exercise against the Depository all rights and remedies, if any, that Landlord
may have against the Depository with respect thereto and (ii) Landlord hereby
agrees to cooperate, at Tenant's expense, with Tenant in all reasonable respects
in connection with the enforcement by Tenant of such rights and remedies against
the Depository.
12. Compliance with Legal Requirements.
"Legal Requirements" means collectively (i) all laws, rules, regulations,
ordinances, notices, decrees and orders in effect from time to time, of all
federal, state, local, county and other governmental authorities having
authority over the Premises, any portion thereof, the use thereof, Tenant or
Landlord, including without limitation, the Americans With Disabilities Act of
1990, 42 U.S.C. Section 12101 et seq., (ii) all covenants, restrictions and
agreements to which the Premises are subject as of the date hereof, or hereafter
shall become subject with the consent or acquiescence of Tenant, and (iii) all
matters required in order to obtain and maintain in effect the Required
Insurance. Tenant shall, at its expense, subject to the provisions of Section
26, comply in all material respects with and shall cause the Premises to comply
in all material respects with all Legal Requirements, including those which
require the making of any structural, unforeseen or extraordinary changes,
whether or not any of the same involve a change of policy on the part of any
governmental body or insurance provider enacting the same; provided, however, if
(i) Tenant is otherwise in compliance with all obligations on its part under
this Section 12 and under Sections 16, 17, and 19, and (ii) the requirement to
make a structural, unforseen or extraordinary change did not result from any
alteration made or change of use by Tenant which caused the Premises not to be
in material compliance with any Legal Requirement, and (iii) if, the requirement
to make such structural, unforeseen or extraordinary change arises when a period
of three (3) years or less remains in the Term and it would be commercially
unreasonable for Tenant to make such structural, unforseen or extraordinary
change in order so to cause such compliance, Tenant may elect not to make such
change, provided that (A) Tenant shall have provided Landlord with evidence
reasonably satisfactory to it that the failure to make such change will not (1)
expose any Indemnified Party to risk of any civil or criminal liability or
result in any lien or charge against the Premises, or (2) pose any danger to any
persons or property, and (B) no such election by Tenant shall result in any
abatement or reduction of Minimum Rent or Additional Rent or diminish or
otherwise affect any of Tenant's obligations under this Lease (including,
without limitation, its obligations under Section 14 which shall in no way be
diminished by Tenant's election not to make the structural, unforseen or
extraordinary change).
13. Environmental Matters.
(a) Certain Defined Terms. "Hazardous Material" means any hazardous or
toxic material, substance or waste which is defined by those or similar terms or
is regulated as such under any Environmental Laws, including, without
limitation, asbestos, asbestos containing materials, polychlorinated biphenyl,
radon gas, petroleum, petroleum by products, medical or biological waste, urea
formaldehyde foam, pollutants, contaminants, volatile organic compounds,
explosive or radioactive materials. "Environmental Laws" means all present and
future statutes, laws, ordinances, notices, orders, decrees, rules and
regulations of any local, county, state or federal agency, department, court or
other authority having jurisdiction over the Premises or any portion thereof or
its use, relating to the existence, use, handling, disposal, manufacture,
generation, transportation, storage, migration, discharge, clean-up, removal
and/or remediation of any Hazardous Materials and/or other regulation of
environmental and health matters relating to the Premises, including but not
limited to: (A) the Federal Water Pollution Control Act (33 U.S.C. Section 1317
et seq.) as amended; (B) the Federal Resource Conservation and Recovery Act (42
U.S.C. Section 6901 et seq.) as amended; (C) the Comprehensive Environmental
Response Compensation and Liability Act (42 U.S.C. Section 9601 et seq.) as
amended; (D) the Toxic Substance Control Act (15 U.S.C. Section 2601 et seq.),
as amended; (E) the Clean Air Act (42 U.S.C. Section 7401 et seq.), as amended;
and (F) all statutes relating to any of the foregoing or similar matters enacted
by the state, county and any other political subdivision in which the Premises
are located. "Prohibited Event" means any of the existence, use, generation,
manufacture, production, storage, release, discharge or disposal on, under,
within, from or about the Premises, or transportation to or from the Premises,
of any Hazardous Material, except only to the extent such occurs in the ordinary
course of Tenant's use of the Premises as permitted by Section 3 and in
compliance with all Environmental Laws.
(b) Environmental Compliance. Tenant shall: (i) subject to the
provisions of Section 26 of this Lease, at all times comply, and cause the
Premises to comply, with all Environmental Laws (as well as with any
recommendations contained in any environmental report), and not cause, suffer or
permit the occurrence or continued existence of any Prohibited Event; (ii)
permit Landlord and any First Mortgagee and any representatives designated by
Landlord or any First Mortgagee to visit and inspect the Premises or any part
thereof, and to sample and monitor soil and groundwater and to inspect for
Hazardous Materials all without unreasonably interfering with Tenant's use of
the Premises and at such reasonable times and intervals as from time to time may
be requested provided that (x) Landlord or any First Mortgagee reasonably
believes that Tenant or the Premises is not in compliance with Environmental
Laws as required by the foregoing clause (i), (y) the reasonable costs and
expenses incurred by Landlord and First Mortgagee for such visits, inspections,
sampling and monitoring shall be borne by Tenant only if such inspections,
sampling and monitoring reveal that Tenant or the Premises is, in fact, not in
such compliance in which case such reasonable costs and expenses shall be
payable by Tenant on demand by Landlord and constitute Additional Rent), and (z)
neither Landlord nor any First Mortgagee shall have any duty to make any such
inspection nor shall incur any liability or obligation for not making any such
inspection or, once having undertaken any such inspection, for not making the
same carefully or properly, or for not completing the same; nor shall the fact
that such inspection may not have been made by Landlord or any First Mortgagee
relieve Tenant of any obligations under this Lease; and (iii) notify Landlord
and any First Mortgagee within ten (10) days after Tenant first has knowledge of
(A) any actual or threatened occurrence or existence of any Prohibited Event, or
(B) any actual or threatened inquiry, demand, notice, judicial or administrative
proceeding, or claim, or any similar action, by any regulatory authority or
other governmental body or any other person, relating to Hazardous Materials on,
under within or about the Premises, or emanating from the Premises, or emanating
from any property adjacent to or abutting the Premises and either affecting or
having any potential to affect the Premises, such notice by Tenant to Landlord
and any First Mortgagee to set forth in reasonable detail the circumstances
giving rise to such notice and, describe any action proposed to be taken by
Tenant in connection with such event, and be accompanied by copies of all
correspondence, reports, legal pleadings and other documents in Tenant's
possession relating to such event.
(c) Response, Indemnification, Etc.. If any Prohibited Event shall occur
or exist, or if at any time Tenant or the Premises or any part thereof shall not
be in compliance with all Environmental Laws, or if any court, regulatory body
or other governmental authority shall require Landlord or Tenant to take any
action with respect to any Environmental Laws, then Tenant shall promptly,
subject to the provisions of Section 26 of this Lease, (i) take all such action,
whether by way of removal and disposal of Hazardous Materials, remediation or
mitigation with respect to the Premises or any other property, or otherwise,
necessary to satisfy all requirements of Environmental Laws and (ii) pay any and
all fines, levies, judgements, damages, costs, interest and penalties relating
thereto and discharge any and all liens, charges and other impositions affecting
the Premises or any part thereof or any interest therein. Tenant will protect,
indemnify, save harmless and defend the Indemnified Parties (as defined below)
from and against any and all liabilities, obligations, claims, losses, damages,
penalties, causes of action, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) (herein collectively called
"Environmental Claims") imposed upon, suffered or incurred by or asserted
against any Indemnified Party by reason of the presence, release, threatened
release or removal of any Hazardous Materials at, upon, under, within or about
the Premises or any noncompliance with an Environmental Laws, whether arising
prior to the date of this Lease or at any time thereafter, whether arising
before, during or after enforcement of Landlord's rights and remedies, or the
rights and remedies of any First Mortgagee, upon default and whether or not
Tenant is responsible therefor, including, without limitation, any imposition by
any governmental authority of any lien or so-called "super priority lien" upon
the Premises, investigation costs, clean-up costs, response costs, liability for
personal injury or property damage or damage to the environment and any fines,
penalties and punitive damages with respect thereto. The obligations of Tenant
under this Section 13 (c) shall survive any expiration or termination of this
Lease, the payment of any Mortgage, any discharge, satisfaction, release or
assignment of any Mortgage, any transfer of the Premises or any part thereof,
any exercise of remedies by Landlord or any Mortgagee, including, without
limitation, the appointment of a receiver, any foreclosure of any Mortgage or
any transfer of the Premises (or any part thereof) by deed in lieu of
foreclosure, and any other event or circumstance whatsoever. Notwithstanding
the foregoing, Tenant shall not be liable under this Section 13(c) with respect
to any Environmental Claims (i) which relate to the presence, release or
threatened release or removal of any Hazardous Materials at, upon, under, within
or about the Premises or any non-compliance with any Environmental Laws which
Tenant proves (x) first occurred after the Term of this Lease ended and at a
time when neither Tenant nor anyone claiming by, through or under Tenant was in
occupancy or possession of or otherwise using or in control of any portion of
the Premises, and (y) did not result, directly or indirectly, from any condition
or circumstances existing prior to the latest time referred to in the foregoing
clause (x) or (ii) to the extent such Environmental Claim suffered by an
Indemnified Party is caused by the gross negligence or willful misconduct of
such Indemnified Party.
14. Indemnification.
(a) Duty to Indemnify. "Indemnified Party" and "Indemnified Parties"
means, individually and collectively, Landlord, all First Mortgagees, and their
respective officers, directors, partners, owners, agents and employees. In
addition to and not in limitation of Tenant's obligations under Section
13(c),Tenant agrees to pay, and to protect, defend (with counsel reasonably
acceptable to Landlord), indemnify and hold harmless the Indemnified Parties
from and against any and all liabilities, losses, damages, costs, expenses
(including, without limitation, all reasonable attorneys fees and expenses, but
not including principal, interest or other amounts payable by Landlord to any
First Mortgagee, as such), causes of action, suits, claims, demands or judgments
of any nature (herein collectively called "Damages") whatsoever arising from (i)
any use, condition or event occurring on the Premises during the Term, (ii) any
injury to, or the death of, any person or damage to property on the Premises or
upon adjoining sidewalks, streets or right of ways, in any manner growing out of
or connected with the use, non-use, condition or occupation of the Premises,
adjoining sidewalks, streets or right of ways, (iii) any violation by Tenant of
any provision of this Lease, or any contract or agreement to which Tenant is a
party or which pertains to the Premises or any part thereof or the ownership,
occupancy or use thereof, including, without limitation, the Overlease and the
other Project Documents, (iv) any violation by Tenant of any Legal Requirement,
and (v) any material inaccuracy or misstatement in any representation or
warranty of Tenant set forth in this Lease or in any document, notice,
certificate, demand or request delivered to any Indemnified Party by Tenant
pursuant to or in connection with this Lease, except to the extent such Damages
suffered by an Indemnified Party are caused by the gross negligence or willful
misconduct of such Indemnified Party. If an Indemnified Party shall be made a
party to any such litigation commenced against Tenant, and if Tenant, at its
expense, shall fail to provide such Indemnified Party with counsel (upon
Landlord's request) reasonably approved by Landlord, Tenant shall pay all
reasonable costs and attorneys' fees and expenses incurred or paid by Landlord
or such other Indemnified Party in connection with such litigation, it being
agreed that Tenant may provide one counsel for all such Indemnified Parties
unless Tenant and such Indemnified Parties have been advised by such counsel
that representation of such Indemnified Parties by the same counsel would be
inappropriate under applicable standards of professional conduct due to actual
or potential differing interests between the Indemnified Parties, in which case
Tenant shall provide such additional counsel to such Indemnified Parties,
reasonably approved by Landlord, as may be necessary to avoid actual or
potential conflicts of interest. To the maximum extent permitted by law, Tenant
hereby waives any and all right of recovery which Tenant or anyone claiming by,
through or under Tenant may have against any Indemnified Party for any loss,
damage or liability arising from or in connection with Tenant's leasing of the
Premises notwithstanding that such loss, damage or liability may result from the
negligence or fault of such Indemnified Party; it being understood, however, (i)
that neither Tenant nor anyone claiming by, through or under Tenant is hereby
waiving any right of recovery against any Indemnified Party for any loss, damage
or liability to the extent such loss, damage or liability arises from or is a
result of the gross negligence or willful misconduct of such Indemnified Party
and (ii) that Tenant shall have the right to assert a claim against any
Indemnified Party for declaratory judgment, specific performance, or actual
damages incurred by Tenant, as a result of failure by such Indemnified Party, in
violation of Section 21 or 22 hereof, as applicable, to make available to Tenant
any Net Proceeds or Net Award required to be made available to Tenant for repair
or restoration of the Premises. The Tenant's obligations and liabilities under
this Section 14 shall survive expiration or earlier termination of this Lease.
15. Liens.
(a) Except to the extent expressly permitted by Section 15(b), Tenant will
not, directly or indirectly, create or permit to be created or to remain, and
will promptly discharge, at its expense, any mortgage, lien, encumbrance or
charge on, pledge of, or conditional sale or other title retention agreement
with respect to, the Premises or any part thereof or Tenant's interest therein
or the Minimum Rent, Additional Rent owing to Landlord or other sums payable by
Tenant under this Lease, other than (i) any Mortgage (as defined herein) or
other encumbrance created by Landlord, (ii) the lien created by this Lease,
(iii) liens or other encumbrances created or granted under or evidenced by the
Project Documents, and (iv) the liens and other encumbrances set forth in
Exhibit 23-A annexed hereto. Nothing contained in this Lease shall be construed
as constituting the consent or request, expressed or implied, by Landlord to or
for the performance of any labor or services or of the furnishing of any
materials for any construction, alteration, addition, repair or demolition of or
to the Premises or any part thereof by any contractor, subcontractor, laborer,
materialman or vendor. Notice is hereby given that Landlord will not be liable
for any labor, services or materials furnished or to be furnished to Tenant, or
to anyone holding the Premises or any part thereof, and that no mechanic's,
construction or other liens for any such labor, services or materials shall
attach to or affect the interest of Landlord in and to the Premises.
(b) "Contest Lien" means any lien, encumbrance or charge referred to in
Section 15(a) which (i) has not been affirmatively created or granted by Tenant
on a consensual basis and has arisen as a result of a claim that Tenant has
failed to pay or perform an obligation owing to the person benefitted thereby,
and (ii) as a matter of law does not have priority over the lien of any recorded
Mortgage then existing against the Premises (or if it does or could have such
priority over the lien of any such Mortgage, would constitute a default or event
of default under any such Mortgage). Notwithstanding Section 15(a), the
existence of any Contest Lien shall not constitute an Event of Default so long
as (x) within thirty (30) days after the filing of such Contest Lien Tenant has
commenced to contest the same in accordance with Section 26, and (y) in all
events, Tenant, at its expense, shall cause each Contest Lien to be released and
discharged of record (by bonding or otherwise) as of the earlier of the
following times: (1) upon any termination or expiration of the Term, (2) within
fifteen (15) days after demand by Landlord if any Event of Default shall have
occurred, or (3) within thirty (30) days after demand by Landlord in the event
of Landlord's then pending refinancing of any First Mortgage or sale of the
Premises.
16. Maintenance and Repair.
Tenant agrees that, at its expense, it shall keep and maintain the
Premises, including, without limitation, the roof, foundation, walls and
structural components; all electrical, plumbing, HVAC and other mechanical
systems; all parking areas and garages, driveways, curbs and similar
improvements; and including any altered, rebuilt, additional or substituted
buildings, structures and other improvements thereto, in good repair and
appearance, (and to the standards of a Class A office building in the White
Plains area used as a major corporate headquarters facility or as a multi-tenant
office building) except for ordinary wear and tear arising by reason of any
permitted use (but consistent with maintenance standards of such a Class A
office building; or, to the extent the Premises are permitted under this Lease
to be used, and are used, for another lawful purpose, then, consistent with the
standards prevailing in the White Plains area for a building of the same
quality, size and type as the Premises used for such other purpose). Subject to
the provisions of Section 12, Tenant shall also make promptly all structural and
nonstructural, foreseen and unforeseen, ordinary and extraordinary changes and
repairs of every kind and correct any patent or latent defects in the Premises
which may be required to be made to keep and maintain the Premises in good
condition, repair and appearance (except for ordinary wear and tear arising by
reason of any permitted use) and it will keep the Premises orderly and free and
clear of rubbish. All replacements of materials, parts, equipment and
components shall be at least equal in quality to those being replaced. Tenant
covenants to in all material respects promptly perform or observe all terms,
covenants or conditions of any reciprocal easement or maintenance agreement to
which it may hereafter at any time be a party, or to which the Premises are
subject as of the Commencement Date or to which the Premises thereafter become
subject with the prior written approval of Tenant. Tenant shall, at its
expense, use its best efforts (and Landlord agrees to cooperate reasonably with
Tenant, at Tenant's expense, in connection with such efforts) to enforce
compliance with any reciprocal easement or maintenance agreement benefiting the
Premises by any other person subject to such agreement. Landlord shall not be
required to maintain, repair or rebuild, or to make any alterations,
replacements or renewals of any nature to the Premises, or any part thereof,
whether ordinary or extraordinary, structural or nonstructural, foreseen or not
foreseen, or to maintain the Premises or any part thereof in any way or to
correct any patent or latent defect therein. Tenant hereby expressly waives any
right to make repairs at the expense of Landlord which may be provided for in
any law in effect at the time of the commencement of the Term or which may
thereafter be enacted. Tenant at its expense may engage such contractors or
agents as it elects to provide maintenance, janitorial and similar services to
the Premises, provided that such contractors and agents are recognized within
the industry to have substantial experience with buildings of similar quality,
size and type as the Premises and are financially sound. Upon any expiration or
earlier termination of this Lease, Tenant shall, upon written demand of
Landlord, cause all contracts and agreements with such persons to be cancelled
at no expense or obligation to Landlord.
17. Encroachments, Violations.
If any Improvements situated on the Premises at any time during the Term
shall encroach upon any property, street or right-of-way adjoining or adjacent
to the Premises, shall violate any Legal Requirement or shall impair the rights
of others under or hinder or obstruct any easement or right-of-way to which the
Premises are subject, then, promptly after the written request of any applicable
governmental authority, Landlord or any person affected by any such
encroachment, violation, impairment, hindrance or obstruction (which other party
may be Landlord with respect to any such encroachment, violation or impairment
which first arises after the date of this Lease), Tenant shall, at its expense,
subject to the provisions of Section 12 and Section 26 either (i) obtain legally
effective variances of such legal requirements or waivers or settlements of all
claims, liabilities and damages resulting from each such encroachment,
violation, impairment, hindrance or obstruction whether the same shall affect
Landlord, Tenant or both, or (ii) make such changes in the improvements on the
Premises and take such other action as shall be necessary to remove such
encroachments, hindrances or obstructions and to end such violations or
impairments, including, if necessary, the alteration or removal of any
improvement on the Premises. Any such alteration or removal shall be made in
conformity with the requirements of Section 19 to the same extent as if such
alteration or removal were an alteration under the provisions of Section 19.
18. Inspections.
Landlord, any First Mortgagee and their respective agents and designees may
enter upon and examine the Premises at reasonable times and on reasonable notice
and show the Premises to prospective First Mortgagees, tenants and/or
purchasers. Tenant may designate an employee to accompany Landlord, any First
Mortgagee and their respective agents and designees on such examinations.
Tenant will provide, upon Landlord's request, records in Tenant's possession
with respect to all expenses paid to utility companies and third party vendors
relating to the operation of the Premises, as such, as opposed to Tenant's
business.
19. Alterations.
(a) Limitations, Conditions. "Alterations" means any alterations,
additions, renovations or improvements in, on or to the Premises or any part
thereof, and "Material Alterations" means any Alterations which would (i) alter
the footprint of any buildings or other enclosed structures constituting a
portion of the Improvements, (ii) adversely affect the foundation, roof, any
load-bearing walls or other material structural elements of any buildings or
other enclosed structures constituting a portion of the Improvements, (iii)
alter in any material way the configuration or location of elevators, core area
bathrooms, electrical or plumbing closets, lobbies, entrances, garages, loading
docks, driveways, retention and decorative ponds, parking lots, plazas,
retaining walls or outside site lighting fixtures, (iv) reduce or eliminate any
buildings or other enclosed structures constituting a portion of the
Improvements or (v) materially adversely affect any major mechanical systems.
Without limiting any of Tenant's rights elsewhere set forth herein, Tenant shall
have the right to reconstruct and redecorate (in their existing locations) all
or any of the bathrooms and/or lobbies in the Premises. Except as otherwise
hereafter provided with respect to Material Alterations, Landlord's consent
shall not be required for the making of such Alterations as Tenant may deem
appropriate during the Term (including without limitation Tenant's signage on or
about the Buildings on the Land). Tenant shall not make or suffer to be made
any Material Alterations without in each case the prior written consent of
Landlord which consent shall not be unreasonably withheld or delayed by
Landlord. Before commencing work on any Material Alterations, Tenant shall
submit to Landlord copies of final plans and specifications for the work, any
engineer's or consultant's reports prepared in connection therewith, a proposed
schedule for performance of the work, a list identifying the architect, general
contractor or construction manager and major subcontractors engaged to perform
the work, and such other information as Landlord may reasonably require (all the
foregoing, collectively, the "Alteration Plans"). Landlord shall have thirty
(30) days following submission of the Alteration Plans to notify Tenant (the
"Landlord Disapproval Notice") if Landlord does not approve the Alteration Plans
(and indicating its reasons for disapproval). If Landlord fails to timely
provide the Landlord Disapproval Notice, it shall be deemed to have approved the
Alteration Plans. If Landlord approves (or as provided in the preceding
sentence is deemed to have approved) the Alteration Plans, Tenant may proceed
with the proposed Material Alterations in accordance with the Alteration Plans.
Anything in this Section 19 to the contrary notwithstanding, the making of any
Alterations by Tenant (whether or not such Alterations constitute Material
Alterations) shall be subject to satisfaction of all of the following
conditions: (i) no Event of Default shall have occurred and shall be continuing
under this Lease; (ii) Tenant shall pay or cause to be paid the entire cost of
such Alterations; (iii) Tenant shall subject to the provisions of Section 26
take all necessary steps to prevent the imposition of liens against the Premises
as a result of such Alterations; (iv) Tenant shall in accordance with and
subject to the limitations set forth in Section 14, indemnify and hold Landlord
and any First Mortgagee harmless from all Damages resulting from such
Alterations, and provide to Landlord evidence of all insurance required under
Section 20(a)(iv) during any period of construction; (v) Tenant shall, prior to
commencement of any work, obtain and pay for all necessary permits, licenses and
certificates and provide Landlord copies of the same, and shall comply in all
material respects with all applicable governmental requirements and insurance
rating bureau recommendations; (vi) all Alterations shall be constructed in a
good and workmanlike manner in compliance in all material respects with all
Legal Requirements; and (vii) Tenant shall cause the construction of
Alterations, once commenced, to be diligently pursued to completion. Landlord
shall, without charge to Tenant, cooperate reasonably in the obtaining of such
permits, approvals or licenses from governmental authorities as may be required
by Tenant for the making of any Alterations, provided Landlord shall incur no
liability with respect thereto and provided Tenant shall pay any and all costs
and expenses (including, without limitation, reasonable attorney's fees)
incurred by Landlord in connection therewith. In the case of any Material
Alterations proposed by Tenant, Tenant shall pay all reasonable fees and
expenses (including without limitation reasonable fees of engineers and other
professionals engaged by Landlord) incurred by Landlord to review plans and
specifications submitted by Tenant for Landlord's approval.
(b) Alterations for Legal Requirements. Subject to the provisions of
Section 12 and Section 26, in the event Tenant is required to make Alterations
to the Premises in order to comply with any Legal Requirements, Tenant may make
or cause to be made such Alterations without the prior written consent of
Landlord, provided Tenant shall satisfy the conditions specified above with
respect to such Alterations and Tenant shall make or cause to be made such
Alterations in the manner which will have the least negative impact on the
market value of the Premises.
(c) Ownership, Survival. Subject to any provisions of the Project
Documents to the contrary, all Alterations, except for movable furniture,
furnishings, decorations and trade fixtures paid for by Tenant at the time of
installation, shall at once become a part of the realty and belong to Landlord.
Movable furniture, furnishings, decorations and trade fixtures paid for by
Tenant at the time of installation may (subject to the rights and remedies of
Landlord if an Event of Default has occurred and is continuing) be removed from
the Premises at any time prior to the expiration or earlier termination of this
Lease, provided that Tenant shall repair any damage to the Premises resulting
from such removal. The obligations of Tenant under this Section 19 shall
survive expiration or earlier termination of this Lease.
(d) Tenant Allowance. On the Commencement Date, Landlord has paid to
Tenant the sum of Two Million Dollars ($2,000,000.00) to be used by Tenant for
making Alterations to the Premises required by Tenant in connection with its use
thereof, receipt of which sum Tenant hereby acknowledges. To the extent any
such Alterations would constitute Material Alterations, the making thereof shall
be subject to all provisions of this Section 19 relating to Material
Alterations.
20. Insurance.
(a) Coverages Required. Tenant shall maintain, or cause to he maintained,
at its sole expense, the following insurance on the Premises (herein called the
"Required Insurance"):
(i) Property. Property insurance insuring the Buildings and all
other Improvements for perils covered by the causes of loss- special extended
coverage form (all risk) or comparable broad form coverage reasonably
satisfactory to Landlord and any First Mortgagee and in addition, vandalism and
malicious mischief, ordinance or law coverage (including demolition cost,
increased cost of construction, and loss to undamaged improvements), and boiler
and machinery and computer/EDP-related damages (if applicable). Such insurance
shall be written on a 100% replacement cost basis with an agreed value equal to
the full insurable replacement value of the foregoing and shall be in such form
or with such endorsements as necessary to prevent the operation of any
co-insurance penalty. The policy shall name Landlord and any First Mortgagee as
additional insureds and loss payees as their respective interests may appear.
The deductible for coverage under this Section 20(a)(i) shall not exceed One
Hundred Thousand Dollars ($100,000).
(ii) Liability. Commercial general liability insurance naming the
Landlord and any First Mortgagee as additional insureds against any and all
claims as are customarily covered under a standard policy form (which must
provide for claims to be made on an occurrence basis) routinely accepted, for
bodily injury, death and property damage occurring in, or about the Premises and
adjoining streets and sidewalks arising out of Tenant's use and occupancy of the
Premises. Such insurance shall have a primary policy limit of not less than One
Million Dollars ($1,000,000) per occurrence with a Two Million Dollar
($2,000,000) aggregate limit per location (subject to an aggregate policy limit
of Twenty-Five Million Dollars ($25,000,000)) and excess umbrella liability
insurance covering all business locations of Tenant in the amount of at least
One Hundred Million Dollars ($100,000,000); provided, however, that in the event
it shall become commercially unreasonable to maintain such excess umbrella
liability insurance, Tenant shall maintain at least Fifteen Million Dollars
($15,000,000) excess liability insurance covering the Premises alone. Tenant
shall be required to increase its insurance limits from time to time consistent
with coverage that would be maintained by a prudent operator of property similar
in use, size and construction to the Premises and located in the White Plains
area. Such liability insurance shall be primary and not contributing to any
insurance available to Landlord and Landlord's insurance, if any, shall be in
excess thereto. In no event shall the limits of such insurance be considered as
limiting the liability of Tenant under this Lease. The deductible for coverage
under this Section 20(a)(ii) shall not exceed One Hundred Thousand Dollars
($100,000).
(iii) Workers Compensation, Etc. Workers compensation insurance in
accordance with statutory law and employers liability insurance with a limit of
not less than One Hundred Thousand Dollars ($100,000) per employee and Five
Hundred Thousand Dollars ($500,000) per occurrence.
(iv) Builder's Risk, Etc. During any period of construction on the
Premises, builder's risk insurance insuring perils covered by the causes of
loss-special extended coverage form (all risk), non-reporting form, shall be
purchased for the value of the alteration and/or additions made to the Premises
when the work is not insured under the Tenant's property insurance policy,
together with general liability and worker's compensation insurance covering all
persons engaged in such construction in amounts reasonably required by Landlord.
The deductible for coverage under this Section 20(a)(iv) shall not exceed Fifty
Thousand Dollars ($50,000).
(v) Flood. Flood insurance in the highest available amount if the
Premises are located in a special flood hazard zone as designated by the Federal
Emergency Management Agency.
(vi) Earthquake. If the Premises are located in an earthquake zone,
earthquake insurance in amounts sufficient to prevent Landlord and Tenant from
becoming a coinsurer of any loss but in any event in amounts equal to 100% of
the actual replacement value of the Improvements including foundations, and
excavations. The deductible for coverage under this Section 20(a)(vi) shall not
exceed Fifty Thousand Dollars ($50,000).
(vii) Other. Such other insurance as Landlord may, from time to
time, reasonably require, or which may, from time to time, be required by any
First Mortgagee so long as such other insurance is customarily required to be
carried on properties similar in use, size and construction to the Premises and
located in the White Plains area by institutional lenders.
(b) Company/Policy Requirements. The policies required to be maintained
by Tenant shall be with companies having an insurance company claims paying
rating equal to or greater than A by Standard & Poor's Rating Service or A2 by
Moody's Investment Service or be considered equivalent to an NAIC I or other
rating acceptable to the Securities Valuation Office of the National Association
of Insurance Commissioners. If any insurance company providing any insurance
policy hereunder shall cease to have a rating at least equal to that required by
the preceding sentence, Tenant shall, within sixty (60) days following such
insurance company's loss of such minimum rating, replace the policy issued by
such company with a policy meeting the requirements of this Section 20 issued by
an insurance company having a rating at least equal to that required by the
preceding sentence. Certificates of insurance, in a standard industry form
which entitles Landlord and any First Mortgagee to rely thereon shall be
delivered to Landlord prior to the commencement date of this Lease and
thereafter at least thirty (30) days prior to the expiration date of each
required policy. Copies of actual insurance policies (or, in case of blanket
policies, portions of such policies applicable to the Premises but in all
events, sufficient to reasonably satisfy Landlord that all Required Insurance
has been obtained and is in full force and effect) if required by Landlord shall
be delivered to Landlord as soon as practicable but in no event later than
thirty (30) days following the expiration date of each required policy. Tenant
shall have the right to provide insurance coverage which it is obligated to
carry pursuant to the terms hereof in a blanket policy, provided such blanket
policy expressly affords coverage to the Premises and to Landlord and any First
Mortgagee as required by this Lease, and contains an endorsement to the effect
that coverage will not be affected by failure to pay any portion of the premium
not allocable to the Premises or by any other matter not relating to the
Premises which would otherwise permit the insurer to cancel coverage. Each
policy of insurance shall provide notification to Landlord and any First
Mortgagee appearing in the loss payee clause at least thirty (30) days prior to
any cancellation (whether due to non-payment of premium or otherwise) or
modification to reduce the insurance coverage. All insurance policies shall
contain a standard, non-contributory, first mortgagee clause in favor of any
First Mortgagee. Tenant shall cause the insurers to include in Tenant's
insurance policies appropriate clauses pursuant to which the insurance companies
(i) waive all right of subrogation against all Indemnified Parties with respect
to losses payable under such policies, and (ii) agree that such policies shall
not be invalidated should the insured waive in writing prior to a loss any or
all right of recovery against any party for losses covered by such policies.
Each policy shall provide, or be endorsed to provide, that (1) the coverage and
protection afforded Landlord and any First Mortgagee shall not be invalidated or
otherwise affected by breach of any declaration, warranty or condition made by
or imposed on Tenant in connection with the policy or by any act or omission of
Tenant, Landlord, any First Mortgagee or other person having any interest in the
Premises, nor by any change in the use of or title to the Premises nor by any
foreclosure of any First Mortgage, (2) the insurance provided shall be primary
without right of contribution from other insurance carried by any person, and
(3) the making of Landlord and any First Mortgagee an additional insured shall
not impose on any such additional insured any obligation to pay premiums or any
other obligation imposed on the insured, all of which shall be the sole
responsibility of Tenant.
(c) Landlord's Right to Procure. In the event Tenant shall fail to
purchase the Required Insurance or keep the same in full force and effect,
Landlord may, but shall not be obligated to, purchase the necessary insurance
and pay the premium. The Tenant shall repay to Landlord, as Additional Rent,
the amount so paid promptly upon demand. In addition, Landlord may recover from
Tenant and Tenant agrees to pay, as Additional Rent, any and all expenses
(including reasonable attorneys, fees) and actual damages which Landlord may
sustain by reason of the failure of Tenant to obtain and maintain such
insurance.
(d) Certain Landlord Rights. Landlord shall not be limited in the proof
of any damages which Landlord may claim against Tenant arising out of or by
reason of Tenant's failure to provide and keep in force any of the Required
Insurance to the amount of the insurance premium or premiums not paid or
incurred by Tenant and which would have been payable under such insurance; but
Landlord shall also be entitled to recover as damages for such breach, the
uninsured amount of any loss, to the extent of any deficiency in the Required
Insurance and damages, costs and expenses of suit suffered or incurred by reason
of or damage to, or destruction of the Premises, occurring during any period
when the Tenant may have failed or neglected to obtain the Required Insurance.
Tenant shall in accordance with and subject to the limitations set forth in
Section 14, indemnify and hold harmless Landlord and any First Mortgagee for all
Damages incurred by Landlord or any First Mortgagee arising out of any
deductibles for Required Insurance.
(e) Self Insurance. Notwithstanding Section 20(b), subject to all terms
and conditions of this Section 20(e), Tenant shall have the right to self-insure
for any of the insurance required under Section 20(a) above. "Self-insure"
means that Tenant is itself acting as though it were the insurance company
providing the insurance required under the foregoing provisions hereof, and that
if an event or claim occurs for which a defense and/or coverage would have been
available from the insurance company, Tenant shall: (a) undertake the defense
of any such claim, including a defense of each Indemnified Party which is a
defendant, at Tenant's sole cost and expense, and (b) use its own funds to pay
any claim or replace any property or otherwise provide the funding which would
have been available from insurance proceeds but for such election by Tenant to
self-insure, which amounts shall be treated as insurance proceeds for all
purposes under this Lease. If Tenant elects to self-insure, Tenant shall
provide Landlord and First Mortgagee with certificates of self-insurance
specifying the extent of self-insurance coverage hereunder and containing a
waiver of subrogation provision in accordance with Section 20(b). Any
self-insurance coverage provided by Tenant shall be for the benefit of Tenant,
Landlord and First Mortgagee, in accordance with Sections 20(a) and (b), and
shall name any First Mortgagee under a standard, non-contributory, first
mortgagee provision. Loss or damage payable under any self-insurance shall not
be invalidated by (A) any act, omission, default or negligence of any
Indemnified Party, (B) any foreclosure, deed in lieu of foreclosure, or other
proceedings relating to the sale or other transfer of the Premises, (C) any
change in the title or ownership of the Premises or, (D) the occupation of the
Premises for purposes more hazardous than are permitted by this Lease. All
amounts which Tenant pays or is required to pay and all loss or damages
resulting from risks for which Tenant has elected to self-insure shall be
subject to the waiver of subrogation provisions of Section 20(b) hereof and
shall not limit Tenant's indemnification obligations set forth in Section 14
hereof. Tenant's right to self-insure and to continue to self-insure is
conditioned upon (A) all arrangements among Tenant, its affiliates, and/or any
third-party, relating to administration of Tenant's self-insurance program being
reasonably satisfactory to Landlord and any First Mortgagee and, further, upon
(B) the Reporting Person (as defined below) (1) having stockholders' equity of
at least Two Hundred Fifty Million Dollars ($250,000,000) as at the end of each
of its fiscal years (as reflected in the financial information required pursuant
to Section 25), (2) maintaining at all times a Rating (as defined below) not
lower than A, and (3) maintaining appropriate loss reserves which are
actuarially derived in accordance with accepted standards of the insurance
industry and accrued (i.e. charged against earnings) or otherwise funded. In
the event at any time any one or more of the requirements of the immediately
preceding sentence is not satisfied, Tenant shall immediately lose the right to
self insure and shall, within sixty (60) days after loss of such right, provide
the insurance pursuant to insurance company policies as specified in Section
20(b). "Rating" means the rating ascribed by Standard & Poor's Rating Service
to the outstanding senior unsecured debt of the Reporting Person, provided that,
if no such rated debt is outstanding, then "Rating" shall mean the senior
implied debt rating ascribed by Standard & Poor's Rating Service to the
Reporting Person.
21. Casualty.
(a) "Casualty," Claims Adjustment. "Casualty" means the occurrence of any
fire or other casualty which results in damage to or destruction of all or any
part of the Premises. The term "property insurance proceeds" means all
insurance proceeds payable as a result of any Casualty other than those payable
pursuant to insurance maintained by Tenant covering Tenant's personal property
and trade fixtures and under any business interruption insurance policy
maintained by Tenant. "Net Proceeds" means the amount of all property insurance
proceeds, if any, payable as a result of a Casualty, less all expenses of
adjusting any insurance claim and collecting any such proceeds not otherwise
paid by Tenant, plus all interest earned on such proceeds held pending
completion of the work necessary to rebuild, replace and repair the Premises as
a result of such Casualty. All property insurance proceeds payable by reason of
any Casualty shall be held by First Mortgagee or Landlord in an interest-bearing
account pending their application as provided in this Section 21. If this Lease
permits Tenant to self-insure the loss occasioned by such Casualty and Tenant
has elected to so self-insure, Tenant shall pay to First Mortgagee or Landlord
from Tenant's own funds an amount equal to the property insurance proceeds which
would have been paid under the insurance policy described in Section 20(a)(i)
had Tenant not elected to self-insure, which amount shall be deemed to
constitute property insurance proceeds for all purposes hereof. Subject to the
rights of Tenant set forth in this Section 21, Tenant hereby irrevocably assigns
to Landlord all property insurance proceeds to which Tenant may be or become
entitled with respect to any Casualty. If any Casualty occurs which involves
(in the reasonable judgment of Tenant) a loss in excess of Three Hundred Seventy
Thousand Dollars ($370,000), Tenant shall promptly notify Landlord. Insurance
claims by reason of any Casualty shall be adjusted by Tenant if an Event of
Default does not then exist and by Landlord if an Event of Default then exists.
Tenant shall consult with Landlord and any First Mortgagee throughout the
process of adjusting any such claim which involves (in the reasonable judgment
of Tenant) a loss in excess of Three Hundred Seventy Thousand Dollars
($370,000). Landlord shall not be required to prosecute any claim against, or
to contest any settlement proposed by, an insurer. Tenant may, at its expense,
prosecute any such claim or contest any such settlement in the name of Landlord,
Tenant or both, and Landlord will join therein at Tenant's written request upon
the receipt by Landlord of an indemnity from Tenant against all liabilities and
all reasonable costs and expenses in connection therewith.
(b) Duty to Restore. If any Casualty occurs, this Lease shall continue in
full force and effect without abatement or reduction of Minimum Rent or
Additional Rent notwithstanding such Casualty and (whether or not any property
insurance proceeds are or will ever be available therefor) Tenant shall, with
reasonable promptness and diligence, rebuild, replace and repair any damage or
destruction to the Premises, at its expense, in conformity with the requirements
of Section 19 and Sections 21(c) and (d) in such manner as to restore the same
to the same or better condition and equivalent or better value, as nearly as
possible, as existed immediately prior to such Casualty. The provisions hereof
constitute "an express agreement to the contrary" within the meaning of Section
227 of the New York Real Property Law.
(c) Application if No Default. As used in this Section 21 and in Section
22, "Applicable Base Amount" means the following respective amounts, depending
on the Rating as of the date any Net Proceeds or Net Award (as defined below),
as applicable, are received by Landlord or First Mortgagee: (i) Three Hundred
Seventy Thousand Dollars ($370,000) if the Rating is BB- or below; (ii) One
Million Dollars ($1,000,000) if the Rating is above BB- up to and including BB+;
(iii) Two Million Dollars ($2,000,000) if the Rating is above BB+ up to and
including BBB+; and (iv) Three Million Five Hundred Thousand Dollars
($3,500,000) if the Rating is above BBB+. Subject to the provisions of Section
21(d), any Net Proceeds received by Landlord or First Mortgagee shall be made
available to Tenant to make such repair, but only upon submission to Landlord
and any First Mortgagee of the following if the estimated cost of repair exceeds
the Applicable Base Amount: (A) prior to commencement of work, plans and
specifications covering all repair and restoration work in form and substance
reasonably acceptable to Landlord and First Mortgagee but which shall be deemed
acceptable if accompanied by (x) a certificate of a licensed architect stating
that the proposed work as set forth in such plans and specifications complies in
all material respects with all Legal Requirements, and (y) reasonable evidence
that, upon completion of such work, the Premises will have an equivalent or
better value, as nearly as possible, than immediately prior to the Casualty, and
(B) prior to each periodic disbursement: (1) Tenant's and contractor's sworn
statements in customary form and appropriate waivers of mechanic's or
construction liens, and (2) architect's certificates in customary form covering
the work for which payment is requested. So long as (i) no Event of Default
shall have occurred and be continuing and (ii) the Casualty in question gives
rise to Net Proceeds in an amount less than or equal to the Applicable Base
Amount, Tenant shall be entitled to receive such Net Proceeds from any Casualty
and shall apply same to restore the Premises in accordance with the provisions
of this Lease. Subject to the provisions of Section 21(d), any Net Proceeds
remaining after Tenant has repaired the Premises shall be delivered to Tenant.
If the cost of any repairs required to be made by Tenant pursuant to Section
21(a) shall exceed the amount of any Net Proceeds available to Tenant, the
deficiency shall be paid by Tenant.
(d) Application if Default. During any period of time when there
continues to exist any Event of Default, and without limiting Tenant's
obligations under this Section 21, Landlord or First Mortgagee shall make any
Net Proceeds available to Tenant for the rebuilding or restoration of the
Premises in accordance with the provisions of Section 21(c); provided that, if
at any time or from time to time prior to completion of such rebuilding or
restoration, the estimated cost of rebuilding or restoration, as reasonably
determined by Landlord, exceeds the amount of Net Proceeds then remaining, it
shall be a condition to any disbursement of Net Proceeds to Tenant that Tenant
shall deliver to Landlord or First Mortgagee funds in cash equal to the amount
of such excess, which funds shall thereupon be deemed to constitute part of the
Net Proceeds for purposes of this Section 21. So long as any Event of Default
is continuing, and without waiving any Event of Default or any right or remedy
of Landlord or any obligation of Tenant under this Lease, Landlord may cause any
Net Proceeds to be applied to any Minimum Rent or Additional Rent owing to
Landlord which remains unpaid beyond any applicable grace period.
22. Condemnation.
(a) "Taking," Participation. "Taking" means any taking of the Premises or
any part thereof, by condemnation or other eminent domain proceedings pursuant
to any law, general or special, or by reason of the temporary taking of the use
or occupancy of the Premises or any part thereof, by any governmental authority,
civil or military, and includes any conveyance made in settlement of or under
threat of any of the aforesaid proceedings. "Net Award" means all amounts
payable as a result of any Taking, less all expenses for such proceeding not
otherwise paid by Tenant in the collection of such amounts; provided "Net Award"
shall not include any amount paid with respect to a Separate Claim (as defined
below). Subject to the rights of Tenant set forth in this Section 22, Tenant
hereby irrevocably assigns to Landlord any award or payment to which Tenant may
be or become entitled with respect to any Taking; provided, however, that the
foregoing shall not prohibit Tenant from (i) prosecuting a separate claim
(herein called a "Separate Claim") against the taking authority for Tenant's
relocation expenses (if this Lease has been terminated pursuant to Section 23 as
a result of the Taking) or for the interruption of or damages to Tenant's
business or as compensation for Tenant's personal property, trade fixtures,
alterations or other improvements paid for by Tenant provided, further, that
such claims do not reduce the amount which otherwise would be payable to
Landlord as a result of the Taking and (ii) subject to the provisions of Section
22(d) of this Lease, Tenant shall be entitled to collect any and all awards
payable by reason of any temporary Taking. If Tenant receives notice of any
Taking or proposed Taking, Tenant shall promptly notify Landlord thereof.
Landlord and any First Mortgagee at their expense shall be entitled to
participate in any such proceeding.
(b) Duty to Restore. If any Taking occurs, this Lease shall continue in
full force and effect without abatement or reduction of Minimum Rent or
Additional Rent notwithstanding such Taking, and (whether or not any award from
such Taking is or ever will be available therefor) Tenant shall, promptly and
with diligence after any such Taking (or after any temporary taking ceases), at
its expense, repair any damage caused thereby in conformity with the
requirements of Section 19 and Sections 22(c) and d so that, thereafter, the
Premises shall be, as nearly as possible, in a condition as good as the
condition thereof immediately prior to such Taking.
(c) Application if No Default. Subject to the provisions of Section
22(d), any Net Award received by Landlord or First Mortgagee shall be made
available to Tenant to make such repair but, only upon submission to Landlord
and any First Mortgagee of the following if the estimated cost of repairs
exceeds the Applicable Base Amount: (A) prior to commencement of work, plans
and specifications covering all repair work in form and substance reasonably
acceptable to Landlord and First Mortgagee but which shall be deemed acceptable
if accompanied by (x) a certificate of a licensed architect stating that the
proposed work as set forth in such plans and specifications complies in all
material respects with all Legal Requirements, and (y) reasonable evidence that,
upon completion of such work, the Premises will have an equivalent or better
value, as nearly as possible, than immediately prior to the Taking, and (B)
prior to each periodic disbursement: (1) Tenant's and contractor's sworn
statements in customary form and appropriate waivers of mechanic's or
construction liens, and (2) architect's certificates in customary form covering
the work for which payment is requested. So long as (i) no Event of Default
shall have occurred and be continuing and (ii) the amount of Net Awards shall be
less than or equal to the Applicable Base Amount, Tenant shall be entitled to
receive such Net Awards and shall apply same to restore the Premises in
accordance with the provision hereof. Subject to Section 22(d), any Net Award
remaining after such repairs have been made, shall be the property of Tenant.
Subject to the provisions of Section 22(d), in the event of a temporary taking,
Tenant shall be entitled to receive the entire Net Award payable by reason of
such temporary taking or portion of such temporary taking occurring during the
Term hereof, less any costs incurred by the Landlord in connection therewith.
If the cost of any repairs required to be made by Tenant pursuant to Section
22(b) shall exceed the amount of the Net Award available to Tenant, the
deficiency shall be paid by Tenant.
(d) Application if Default. During any period of time when there
continues to exist an Event of Default, and without limiting Tenant's
obligations under this Section 22, Landlord or First Mortgagee shall make any
Net Award available to Tenant for the rebuilding or restoration of the remaining
portion of the Premises in accordance with the provisions of Section 22(c);
provided that, if at any time or from time to time prior to completion of such
rebuilding or restoration, the estimated cost of rebuilding or restoration, as
reasonably determined by Landlord, exceeds the amount of the Net Award then
remaining, it shall be a condition to any disbursement of any Net Award to
Tenant that Tenant shall deliver to Landlord or First Mortgagee funds in cash
equal to the amount of such excess, which funds shall thereupon be deemed to
constitute part of the Net Award for purposes of this Section 22. So long as
any Event of Default is continuing, and without waiving any Event of Default or
any right or remedy of Landlord or any obligation of Tenant under this Lease,
Landlord may cause any Net Awards to be applied to any Minimum Rent or
Additional Rent owing to Landlord which remains unpaid beyond any applicable
grace period.
(e) Termination/Purchase. Notwithstanding anything in this Section 22 to
the contrary, if as provided in Section 23 a Material Taking (as defined
therein) shall occur and Tenant shall have timely delivered the Termination
Notice Documents (as defined therein), the provisions of Section 23(c) shall
apply.
23. Material Taking; Material Title Defect.
(a) Tenant's Right to Give Notice. "Material Taking" means any Taking
(other than a temporary taking) which, taking into account the nature, size, and
configuration of the Premises remaining subsequent to such Taking, renders it
commercially unreasonable for Tenant to utilize the remaining Premises for
continued use and occupancy in Tenant's business. "Material Title Defect" means
any defect in Landlord's title to the Premises (other than (i) any exception to
title or other matter shown in Exhibit 23-A attached hereto (the "Listed Title
Matters"), and (ii) any other matter approved by Tenant, or arising due to any
act or omission by Tenant), which either results in Tenant's being dispossessed
of occupancy of the Premises under this Lease, or which otherwise so interferes
with Tenant's use of the Premises at the time as to render it commercially
unreasonable for Tenant to utilize the Premises for continued use and occupancy
in Tenant's business. If a Material Taking or Material Title Defect occurs,
then Tenant may at its option deliver to Landlord, not later than ninety (90)
days after the date of such Material Taking, or if applicable the date on which
the Material Title Defect first results in the interference described in the
preceding sentence, all (but not less than all) of the following documents
(herein collectively called the "Termination Notice Documents"): (A) notice (a
"Termination Notice") of its intention to terminate this Lease on the next
Minimum Rent Payment Date which occurs not less than sixty (60) days after the
delivery of such notice the ("Termination Date"); (B) a certificate of an
authorized officer of Tenant describing the event giving rise to such
Termination Notice and stating in reasonable detail the basis on which Tenant
has determined that such Material Taking or Material Title Defect, as the case
may be, has rendered it commercially unreasonable for Tenant to utilize the
Premises for continued use and occupancy in Tenant's business; (C) an instrument
of assignment from Tenant, in form and substance acceptable to Landlord and
acknowledged by the condemning authority, evidencing the assignment to Landlord
of all condemnation awards; and (D) if the Termination Date is a date within the
Primary Term, an irrevocable offer ("Tenant Purchase Offer") by Tenant to
Landlord to purchase the Premises (including, in the case of a Material Taking,
Landlord's interest in the Net Award) on the Termination Date.
(b) Failure to Give Notice. If Tenant shall fail to timely deliver any or
all of the Termination Notice Documents, it shall be deemed conclusively to have
waived any right to seek to terminate this Lease as a result of such Material
Taking or Material Title Defect, as the case may be, and this Lease, (including,
without limitation, Tenant's obligations under Section 22) shall remain in full
force and effect without abatement of Minimum Rent or Additional Rent.
Notwithstanding the preceding sentence, in the case of any Material Taking which
constitutes a Taking of the entire Premises, Tenant shall be deemed conclusively
to have timely delivered all of the Termination Notice Documents (including,
without limitation, the Tenant Purchase Offer) whether or not Tenant shall have
timely delivered any or all of such documents. If Tenant timely delivers (or,
pursuant to the preceding sentence, shall be deemed to have timely delivered)
the Termination Notice Documents, the provisions of Section 23(c) shall apply.
(c) Rights/Obligations Following Notice.
(i) Termination. If either (A) Landlord shall reject the Tenant
Purchase Offer by written notice given to Tenant not later than fifteen (15)
days prior to the Termination Date, which notice to be effective must be joined
in by any First Mortgagee, or (B) the Termination Date occurs during any Renewal
Term, this Lease shall terminate on the Termination Date, except with respect to
obligations and liabilities of Tenant or Landlord hereunder, actual or
contingent, which have arisen on or prior to the Termination Date, upon payment
by Tenant of all Minimum Rent and Additional Rent owing to Landlord and other
sums then due and payable hereunder to and including the Termination Date and
all condemnation awards shall belong to Landlord. Tenant shall, on or before
the Termination Date, execute and deliver to Landlord an instrument evidencing
the outright assignment of such condemnation awards in form and substance
reasonably acceptable to Landlord.
(ii) Purchase. If the Termination Date occurs during the Primary
Term, and if Landlord shall not have rejected the Tenant Purchase Offer in
accordance with this Section 23(c), Landlord shall be conclusively deemed to
have accepted the Tenant Purchase Offer. In the event Landlord accepts the
Tenant Purchase offer, then, on the Termination Date, (1) Tenant shall pay to
Landlord a price equal to the amount applicable for the Termination Date
pursuant to Exhibit 23-1 attached hereto, (2) Landlord shall convey to Tenant or
its designee Landlord's estate in the Premises then remaining (if any) and (3)
in the case of a Material Taking, Landlord shall assign to Tenant or its
designee all of Landlord's interest in the Net Award in form and substance
reasonably acceptable to Tenant. Such sale shall otherwise be consummated in
accordance with Section 23(d) below (herein called the "Closing Terms").
(d) Closing Terms. If Tenant shall purchase Landlord's interest in the
Premises pursuant to this Section 23 (or pursuant to any other provision of this
Lease providing for purchase of Landlord's interest by Tenant), Landlord shall
convey or cause to be conveyed title thereto, the state of which shall be as
good as the state of title which existed in Landlord on the date on which the
Term of this Lease commenced (subject to any divestment of Landlord's title if
the purchase occurs following any Taking, or subject to the Material Title
Defect if the purchase follows the occurrence thereof), and Tenant or its
designee shall accept such title, subject, however, to (i) the condition of the
Premises on the date of purchase, (ii) all charges, liens, security interests
and encumbrances on the Premises and (iii) all applicable Legal Requirements,
but free of the lien of any Mortgage and any charges, liens, security interests
and encumbrances arising after the date on which the Term commenced resulting
from acts of Landlord taken without the consent of Tenant. Upon the date fixed
for purchase, Tenant shall, by wire transfer of immediately available funds, pay
to Landlord, or as Landlord shall have directed, the purchase price applicable
for such purchase together with all Minimum Rent, Additional Rent owing to
Landlord and other sums then due and payable hereunder to and including such
date of purchase, and there shall be delivered to Tenant a deed to or other
conveyance of Landlord's interests in the Premises being sold to Tenant and any
other instruments necessary to convey the title thereto, and to assign any other
property then required to be assigned by Landlord pursuant to this Lease.
Tenant shall pay all charges incident to such conveyance and assignment,
including, without limitation, reasonable counsel fees, escrow fees, recording
fees, title insurance premiums and all applicable Taxes (other than any income
or franchise taxes of Landlord) which may be imposed by reason of or in
connection with such conveyance and assignment and the delivery of said deed or
conveyance and other instruments. Upon the completion of any purchase but not
prior thereto (whether or not any delay or failure in the completion of such
purchase shall be the fault of Landlord), this Lease shall terminate, except
with respect to obligations and liabilities of Tenant hereunder, actual or
contingent, which have arisen on or prior to such completion of purchase.
24. Assignment and Subletting.
(a) Rights, Restrictions. Provided no Event of Default has occurred and
is continuing, Tenant may, subject to the conditions and limitations set forth
in this Section 24, assign this Lease or sublet all of any portion of the
Premises without Landlord's consent. Without limiting the generality of the
foregoing, Landlord's consent shall not be required for any assignment or
sublease to any corporation controlling, controlled by, or under common control
with the Tenant under this Lease ("control" meaning the right to vote fifty
percent (50%) or more of the outstanding voting securities of the entity with
respect to which control is claimed), any which corporation being herein called
an "Affiliate". Each such assignment or sublease shall be, and shall expressly
be made, subject to all the provisions of this Lease and shall require that the
assignee or sublessee use the Premises only for those purposes utilized by
Tenant at the time of the assignment or sublease, or, with Landlord's consent,
which shall not be unreasonably withheld or delayed, for any other use permitted
by applicable Legal Requirements which would not result in any material adverse
impact on the value of the Premises. In addition to all other conditions to
assignment provided in this Section 24, it shall be a condition precedent to
each assignment that the assignee shall deliver to Landlord an instrument, duly
authorized and executed and in recordable form, (i) assuming all covenants and
obligations of Tenant under this Lease, and (ii) joining in any acknowledgment,
consent or agreement theretofore given or entered into by Tenant with respect to
any First Mortgage existing as of the date of such assignment, including,
without limitation, any acknowledgment, consent or agreement relating to
Landlord's assignment of this Lease to the First Mortgagee. Without limiting
the foregoing, in case of any proposed assignment pursuant to a merger in which
Tenant is not the surviving corporation or as part of a consolidation or sale of
assets, Tenant shall cause the assignee to comply with the conditions set forth
in the preceding sentence. No assignment or sublease shall affect or reduce any
of the obligations of the original Tenant hereunder and the original Tenant
(together, jointly and severally, with its successors and assigns) shall remain
primarily and unconditionally liable for all such obligations, and all such
obligations shall continue in full force and effect as obligations of a
principal and not as obligations of a guarantor or surety, to the same extent as
though no assignment or sublease had been made; provided that, in the case of
any assignment or sublease made as permitted by this Section 24, performance by
the assignee or sublessee of any of the obligations of Tenant under this Lease
shall be deemed to be performance by Tenant. No assignment or sublease shall
impose any obligations on Landlord or otherwise affect any of the rights of
Landlord under this Lease. This Lease shall not be mortgaged or pledged by
Tenant, nor shall Tenant mortgage or pledge the interest of Tenant in and to any
sublease of the Premises or the rentals payable thereunder. Any mortgage,
pledge, sublease or assignment made in violation of this Section 24 shall be
void. Tenant shall, not later than fifteen (15) days prior to the execution and
delivery of any proposed assignment or sublease, deliver a copy thereof to
Landlord and any First Mortgagee.
(b) Profits. In the event of any assignment of this Lease or any
subletting of all or any portion of the Premises by Tenant in accordance with
the provisions of this Section 24, Landlord shall not be entitled to receive any
profits in connection therewith.
25. Financial Statements.
The term "Reporting Person" means NINE WEST GROUP INC., including, without
limitation, each successor by merger or otherwise to all or substantially all of
the assets and liabilities of such named Reporting Person. Tenant will deliver
to Landlord copies of all the following documents filed by the Reporting Person
with the Securities and Exchange Commission ("SEC"): all 8-K, 10-K and 10-Q
reports, annual reports, effective registration statements, and proxy statements
sent by the Reporting Person to its stockholders, in each case within fifteen
(15) days following delivery to the SEC or its stockholders, as the case may be;
provided, however, that if the Reporting Person does not file such statements
and reports with the SEC, Tenant will deliver to Landlord the following:
(a) Quarterly Statements. Within sixty (60) days after the end of each
quarterly fiscal period (except the last) in each fiscal year of the Reporting
Person, duplicate copies of: (i) a consolidated balance sheet of the Reporting
Person and its consolidated subsidiaries as at the end of such quarter, (ii) a
consolidated statement of profits and losses of the Reporting Person and its
consolidated subsidiaries for the current quarter and the portion of the fiscal
year ending with such quarter, and (iii) a consolidated statement of cash flows
of the Reporting Person and its consolidated subsidiaries for the portion of the
fiscal year ending with the current quarter; setting forth in each case in
comparative form the figures for the corresponding periods a year earlier, all
in reasonable detail and certified as having been prepared in accordance with
generally accepted accounting principles consistently applied and certified as
complete and correct by a senior financial officer of the Reporting Person;
(b) Annual Statements. Within ninety-five (95) days after the end of each
fiscal year of Tenant, duplicate copies of: (i) a consolidated balance sheet of
the Reporting Person and its consolidated subsidiaries as at the end of such
year, (ii) consolidated statements of profits and losses and cash flows of the
Reporting Person and its consolidated subsidiaries for such year, and (iii) a
consolidated statement of cash flows of the Reporting Person and its
consolidated subsidiaries for such year; setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail and accompanied by the report thereon, containing an opinion unqualified
as to limitations imposed by the Reporting Person on the scope of the audit, of
a firm of independent certified public accountants of recognized national
standing selected by the Reporting Person which opinion shall state that the
consolidated financial statements of the Reporting Person and its consolidated
subsidiaries fairly present the financial condition of the companies (including
the results of their operations and changes in financial position) being
reported upon, have been prepared in accordance with generally accepted
accounting principles consistently applied and that the examination of such
accounts in connection with such financial statements has been made in
accordance with generally accepted auditing standards, and accordingly included
such tests of the accounting records and such other auditing procedures as were
considered necessary in the circumstances; and
(c) Additional Information. Each set of annual financial statements shall
be accompanied by a certificate of a senior financial officer of the Reporting
Person stating whether or not an Event of Default has occurred since the later
of the date of this Lease or the date of the last such statement submitted to
Landlord pursuant to this sentence. In addition, Tenant shall submit to
Landlord copies of all financial information submitted by the Reporting Person
to its institutional lenders, bondholders and other institutional investors as
and when such information is delivered to such other parties; provided, however,
Tenant shall not be required to provide any information in the nature of
business or financial projections, business plans or other information which
could be useful to competitors of Tenant or its Affiliates. Upon the prior
written request of Landlord, Tenant shall cause a senior financial officer of
the Reporting Person to meet with representatives of Landlord to discuss the
business and financial affairs of the Reporting Person (other than any
information in the nature of that not required to be disclosed pursuant to the
proviso in the sentence immediately preceding) and the financial statements and
other information submitted to Landlord or any First Mortgagee pursuant to this
Lease.
Landlord hereby agrees that it shall not disclose and shall keep
confidential (and shall cause First Mortgagee to execute and deliver an
agreement pursuant to which First Mortgagee shall agree that it shall not
disclose and shall keep confidential) any and all statements, documents and
information acquired in accordance with the provisions of this Section 25 (other
than any such statements, documents and information that are filed with the SEC,
otherwise publicly available or generally known other than by breach of the
provisions of this sentence), except (i) with the prior written consent of the
Reporting Person, or (ii) to the extent necessary to comply with law or the
valid order of a court of competent jurisdiction, in which event Landlord or
First Mortgagee, as the case may be, shall notify the Reporting Person as
promptly as practicable (and, if possible, prior to making such disclosure) and
shall seek confidential treatment of such statements, documents and information,
or (iii) disclosures to any Affiliate of, or to any professional advisor to,
Landlord or First Mortgagee in connection with the transactions contemplated by
this Lease, or (iv) disclosure to any Successors and Assigns and any Rating
Agency in connection with any Secondary Market Transactions (all as defined
below) in connection with the loan secured by any First Mortgage (herein called
the "Loan"), provided that, in the case of any disclosure pursuant to the
preceding clauses (iii) and (iv), to the extent reasonably practicable under the
particular circumstances, Landlord shall endeavor to have the person to whom
disclosure is made agree to treat as confidential any statements, documents or
information disclosed. "Successors and Assigns" means those entities which (i
at any time acquire a direct or indirect interest in the Loan and (ii) are
institutional investors (including banks, savings institutions, trust companies,
insurance companies, investment companies as defined in the Investment Company
Act of 1940, pension or profit-sharing trusts, and other financial institutions
or institutional buyers); "Rating Agency" means any of Standard & Poor's Rating
Service (a division of the McGraw-Hill Companies), Moody's Investors Service,
Fitch Investors Service, Duff & Phelps Credit Rating Co., and the National
Association of Insurance Commissioners; and "Secondary Market Transaction" means
any of the following transactions with a Successor or Assign: (a) sale of the
Loan as a whole loan, (b) participating the Loan to one or more investors, (c)
deposit of the documents evidencing the Loan with a trust, which trust may sell
certificates to investors evidencing an ownership interest in the trust assets,
or (d) otherwise sell the Loan or any direct or indirect interest therein to
investors.
26. Permitted Contests.
So long as Tenant shall contest, in good faith and at its expense, the
existence, the amount or the validity thereof, the amount of the damages caused
thereby, or the extent of its liability therefor, by appropriate proceedings,
Tenant shall not be required to (i) pay any Imposition or any claim by any
contractor or vendor; (ii) comply with any statute, law, rule, order, regulation
or ordinance; or (iii) obtain any waivers or settlements or make any changes to
take any action with respect to any encroachment, hindrance, obstruction,
violation or impairment involving the Premises, provided that (A) during the
pendency of the contest there is prevented (1) the imposition (or if imposed,
the continued existence) on the Premises, or any part thereof, or on the Minimum
Rent or any Additional Rent owing to Landlord, or any portion thereof, of any
levy, lien, encumbrance or charge; except to the extent the imposition or
continued existence thereof is permitted pursuant to Section 15(b); (2) the
sale, forfeiture or loss of the Premises, or any part thereof, or the Minimum
Rent or any Additional Rent owing to Landlord, or any portion thereof; (3) any
interference with the use or occupancy of the Premises or any part thereof; and
(4) any interference with the payment of the Minimum Rent or any Additional
Rent, or any portion thereof, (B) Tenant provides to Landlord such security
against any such lien, encumbrance or charge as Landlord shall reasonably
request and (C) such contest shall not subject any Indemnified Party to the risk
of any civil or criminal liability. Tenant further agrees that it shall
promptly, with due diligence and in good faith, in a commercially reasonable
manner, prosecute each such contest to a final conclusion. Tenant shall in
accordance with and subject to the limitations set forth in Section 14,
indemnify and hold harmless the Indemnified Parties against, any and all Damages
in connection with any such contest and shall, promptly after the final
settlement, compromise or determination of such contest, fully pay and discharge
the amounts which shall be levied, assessed, charged or imposed or be determined
to be payable therein or in connection therewith, together will all penalties,
fines, interests, costs and expenses thereof or in connection therewith, and
perform all acts, the performance of which shall be ordered or decreed as a
result thereof; provided, however, that nothing herein contained shall be
construed to require Tenant to pay or discharge any lien, encumbrance or other
charge created by any act or failure to act of Landlord or the payment of which
by Tenant is not otherwise required hereunder.
27. Default Provisions.
(a) Events of Default. Any of the following occurrences or acts shall
constitute an event of default (herein called an "Event of Default") under this
Lease:
(i) Failure to Pay/Perform. If Tenant (and regardless of the
pendency of any bankruptcy, reorganization, receivership, insolvency or other
proceedings, at law, in equity, or before any administrative tribunal, which
have or might have the effect of preventing Tenant from complying with the terms
of this Lease), shall (A) fail to make any payment when due of Minimum Rent or
of any Imposition or any insurance premium for any Required Insurance and such
failure continues for five (5) days, or (B) fail to make any payment when due of
any item of Additional Rent owing to Landlord not specified in the foregoing
clause (A) and such failure continues for thirty (30) days following the date
Tenant received any bill or invoice for such item, or (C) fail to observe or
perform any other provision of Section 20 of this Lease for seven (7) days after
notice of such failure has been given, or (D) fail to comply with any provision
of Section 15, or (E) fail to observe or perform any other provision of this
Lease for thirty (30) days after notice to Tenant of such failure has been
given, provided, that in the case of any default referred to in this clause (E)
which is reasonably susceptible of cure but cannot with diligence be cured
within such 30-day period, then upon receipt by Landlord of a certificate from
an executive officer of Tenant stating the reason such default cannot be cured
within thirty (30) days, describing the efforts being undertaken by Tenant to
cure such default and reasonably estimating the cure period and provided that
Tenant is proceeding with due diligence to cure such default, the time within
which such failure may be cured shall be extended for such period, as may be
necessary to complete the curing of the same with diligence (provided that, if
such default has not been cured by the date one (1) year after notice to Tenant
of its default, any extension of the cure period beyond such date (i) shall be
conditioned on Tenant's demonstrating to Landlord that such failure to cure has
had no adverse impact on the condition or value of the Premises, and (ii) shall
be only for such period of time as such failure to cure continues to have no
adverse impact on the condition or value of the Premises; or
(ii) Breach of Representation/Warranty. If any representation or
warranty of Tenant set forth in any notice, certificate, demand, request or
other instrument delivered pursuant to, or in connection with, this Lease shall
prove to be either false or misleading in any material respect as of the time
when the same shall have been made and the existence of such false or misleading
statement shall give rise to a default under any Mortgage (as defined below) or
permit any Mortgagee (as defined below) to cause the indebtedness owing to it to
become due and payable prior to its stated maturity; or
(iii) Voluntary Bankruptcy, Etc. If Tenant shall file a petition
commencing a voluntary case under the United States Bankruptcy Code (hereinafter
called the "Bankruptcy Code") or any other federal or state law (as now or
hereafter in effect) relating to bankruptcy, insolvency, reorganization,
winding-up or adjustment of debts (hereinafter collectively called "Bankruptcy
Law") or if Tenant shall (A) apply for or consent to the appointment of, or the
taking of possession by, any receiver, custodian, trustee, United States Trustee
or liquidator (or other similar official) of the Premises or any part thereof or
of any substantial portion of Tenant's property, or (B) generally not pay its
debts as they become due, or admit in writing its inability to pay its debts
generally as they become due or(C) make a general assignment for the benefit of
its creditors, or (D) fail to controvert in timely and appropriate manner, or in
writing acquiesce to, any petition commencing an involuntary case against Tenant
or otherwise filed against Tenant pursuant to any Bankruptcy Law, or (E) take
any action in furtherance of any of the foregoing; or
(iv) Involuntary Bankruptcy, Etc. If an order for relief against
Tenant shall be entered in any involuntary case under the Bankruptcy Code or any
similar order against Tenant shall be entered pursuant to any other Bankruptcy
Law, or if a petition commencing an involuntary case against Tenant or proposing
the reorganization of Tenant under any Bankruptcy Law shall be filed and not be
discharged or denied within sixty (60) days after such filing, or if a
proceeding or case shall be commenced in any court of competent jurisdiction
seeking (A) the liquidation, reorganization, dissolution, winding-up or
adjustment of debts of Tenant, or (B) the appointment of a receiver, custodian,
trustee, United States Trustee or liquidator (or any similar official) of the
Premises or any part thereof or of Tenant or of any substantial portion of
Tenant's property, or (C) any similar relief as to Tenant pursuant to any
Bankruptcy Law, and any such proceeding or case shall continue undismissed, or
an order, judgment or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect for sixty (60) days; or
(b) Landlord's Rights/Remedies. If an Event of Default shall have
happened and be continuing, Landlord shall have, in its sole discretion, the
right to exercise any one or more of the following rights and remedies:
(i) Terminate Lease. To give Tenant written notice of Landlord's
intention to terminate the Term of this Lease on a date specified in such notice
(which shall not be less than ten (10) days from the date of giving of such
notice). Thereupon, the Term of this Lease and the estate hereby granted shall
terminate on such date as completely and with the same effect as if such date
were the date fixed herein for the expiration of the term of this Lease, and all
rights of Tenant hereunder shall terminate, but Tenant nonetheless shall remain
liable as provided herein.
(ii) Re-Enter, Etc. To (A) re-enter and repossess the Premises or
any part thereof by force, summary proceedings, ejections or otherwise and (B)
remove all persons and property therefrom, whether or not the Lease has been
terminated pursuant to clause(i) above, Tenant hereby expressly waiving any and
all notices to quit, cure or vacate provided by current or any future law.
Landlord shall have no liability by reason of any such re-entry, repossession or
removal. No such re-entry or taking of possession of the Premises by Landlord
shall be construed as an election on Landlord's part to terminate the Term of
this Lease unless a written notice of such intention be given to Tenant pursuant
to clause(i) above.
(iii) Relet, Etc. To the extent required by law, to use reasonable
efforts to relet the Premises or any part thereof for the account of Tenant, in
the name of Tenant or Landlord or otherwise, without notice to Tenant, for such
term or terms (which may be greater or less than the period which would
otherwise have constituted the balance of the term of this Lease) and on such
conditions (which may include concessions or free rent) and for such uses
Landlord, in its absolute discretion, may determine. Landlord may collect and
receive any rents payable by reason of such reletting. Landlord shall not be
responsible or liable for any failure to relet the Premises or any part thereof
or for any failure to collect any rent due upon any such reletting.
(iv) Current Damages. In the event of re-entry or repossession of
the Premises or removal of persons or property therefrom by reason of the
occurrence of an Event of Default, Tenant shall pay to Landlord all Minimum Rent
and Additional Rent, in each case to and including the date of such re-entry,
repossession or removal; and, thereafter, until the Term has expired or has been
terminated, Tenant shall, whether or not the Premises shall have been relet, be
liable to Landlord for, and shall pay to Landlord, as liquidated and agreed
current damages (A) all Minimum Rent and all Additional Rent as and when such
amounts would be payable under this Lease by Tenant in the absence of any such
re-entry, repossession or removal, together with all reasonable expenses of
Landlord in connection with such reletting (including, without limitation, all
repossession costs, brokerage commissions related to balance of term, reasonable
attorneys' fees and expenses (including, without limitation, fees and expenses
of appellate proceedings if Landlord prevails), employee's expenses, alteration
costs and expenses of preparation for such reletting), less (B) the net
proceeds, if any, of any reletting effected for the account of Tenant pursuant
to Section 27(b)(iii) above. Notwithstanding the foregoing, in the event any
such reletting is for a term longer than the balance of the Term, Tenant shall
be responsible for only a proportionate part of the expenses based on the
balance of the Term as compared to the fixed minimum term of the reletting.
Tenant shall pay such liquidated and agreed current damages on the dates on
which Minimum Rent would be payable under this Lease in the absence of such
re-entry, repossession or removal, and Landlord shall be entitled to recover the
same from Tenant on each such date.
(v) Rental Value Damages. In the event of the termination of the
Term by reason of the occurrence of an Event of Default, whether or not Landlord
shall have collected any damages pursuant to clause (iv) above with respect to
the period prior to such termination, Landlord shall be entitled to recover from
Tenant, and Tenant shall pay Landlord on demand, as and for liquidated and
agreed final damages for Tenant's default and in lieu of all liquidated and
agreed current damages in respect of Minimum Rent and Additional Rent due beyond
the date of such termination (it being agreed that it would be impracticable or
extremely difficult to fix the actual damages), an amount equal to the excess,
if any, of (A) the aggregate of all Minimum Rent and Additional Rent, in each
case from the date of such termination for what is or would have been, in the
absence of such termination, the then unexpired Term, discounted on a monthly
basis at the then quoted semi-annual yields (which shall be converted to monthly
yields) on U.S. Treasury securities maturing nearest the end of the Term (as if
no termination had occurred) (the "Discount Rate") over (B) the then fair rental
value of the Premises for the same period, discounted on a monthly basis at the
Discount Rate. If any applicable law shall limit the amount of liquidated final
damages to less than the foregoing amount, Landlord shall be entitled to the
maximum amount allowable under such law. In no event will Landlord be obligated
to pay any amount to Tenant or otherwise account to Tenant if the amount
specified in clause (B) of this Section 27 (b)(v) is greater than the amount
specified in clause (A) of this Section 27(b)(v). Tenant agrees that the credit
provided to Tenant under clause (B) of this Section 27(b)(v) shall fulfill any
obligation imposed by law on Landlord to mitigate its damages.
(vi) Default Purchase. To accept Tenant's irrevocable purchase offer
(the "Default Purchase Offer") to purchase the Premises (which offer Tenant
shall be conclusively deemed to have made) at the price equal to the sum of (x)
the amount applicable for the Minimum Rent Payment closest to the date of the
Event of Default pursuant to Exhibit 23-1 attached hereto plus (y) the amount
determined pursuant to the formula set forth in Exhibit 27 attached hereto
(herein called the "Make-Whole Amount"). The Default Purchase Offer shall be
deemed to contain a closing date which is sixty (60) days following the date of
the Event of Default and the purchase shall be governed by the Closing Terms.
(c) Tenant not Released. No termination of this Lease pursuant to Section
27(b)(i), by operation of law or otherwise, and no repossession of the Premises
or any part thereof pursuant to Section 27(b)(ii) or otherwise, and no
reletting of the Premises or any part thereof pursuant to Section 27(b)(iii),
shall relieve Tenant of either (i) its liabilities and obligations hereunder,
all of which shall survive such expiration, termination, repossession or
reletting or (ii) any liabilities under this Lease which by express provision of
this Lease survive such expiration, termination, repossession or reletting.
28. Additional Rights of Landlord.
(a) No Limitation, Waiver, Etc. The rights and remedies set forth in
Section 27(b) may be exercised in any order and in any combination whatsoever.
No right or remedy herein conferred upon or reserved to Landlord is intended to
be exclusive of any other right or remedy, and each and every right and remedy
shall be cumulative and in addition to any other right or remedy given hereunder
or now or hereafter existing at law or in equity or by statute (provided,
however, Landlord's rights and remedies under Section 27(a)(v) and Section
27(a)(vi) shall be deemed mutually exclusive and its exercise and satisfaction
of rights and remedies under either said Section shall preclude its exercise of
rights and remedies under the other Section). Without limiting the foregoing,
in the event Tenant shall fail to perform any covenant, agreement or obligation
on its part, and such failure shall constitute an Event of Default (or, if it
does not yet constitute an Event of Default, shall in Landlord's reasonable
judgment pose threat of harm to the Premises or of the incurring of liability by
Landlord prior to the time it would constitute an Event of Default) Landlord
shall have the right, but not the obligation, to take any such action (without
any liability to Tenant whatsoever, and without waiving any default by Tenant or
affecting Tenant's indemnification obligations) as Landlord may deem necessary
or appropriate to remedy any circumstance or threatened circumstance occasioned
by Tenant's failure, and all reasonable costs and expenses (including, without
limitation, reasonable costs of litigation and reasonable attorneys' fees)
incurred by Landlord in connection therewith shall constitute Additional Rent
and shall be payable on demand by Landlord. The failure of Landlord to insist
at any time upon the strict performance of any covenant or agreement or to
exercise any option, right, power or remedy contained in this Lease shall not be
construed as a waiver or a relinquishment thereof for the future. A receipt by
Landlord of any Minimum Rent, any Additional Rent or any other sum payable
hereunder with knowledge of the breach of any covenant or agreement contained in
this Lease shall not be deemed a waiver of such breach, and no waiver by
Landlord of any provision of this Lease shall be deemed to have been made unless
expressed in writing and signed by Landlord. In addition to other remedies
provided in this Lease, Landlord shall be entitled, to the extent permitted by
applicable law, to injunctive relief in case of the violation, or attempted or
threatened violation, of any of the covenants, agreements, conditions or
provisions of this Lease, or to a decree compelling performance of any of the
covenants, agreements, conditions or provisions of this Lease, or to any other
remedy allowed to Landlord at law or in equity.
(b) Certain Waivers by Tenant. Tenant hereby waives and surrenders for
itself and all those claiming under it, including creditors of all kinds, (i)
any right or privilege which it or any of them may have under any present or
future constitution, statute or rule of law to redeem the Premises or to have a
continuance of this Lease for the term hereof after termination of Tenant's
right of occupancy by order or judgment of any court or by any legal process or
writ, or under the terms of this Lease or after the termination of the term of
this Lease as herein provided, and (ii) the benefits of any present or future
constitution, statute or rule of law which exempts property from liability for
debt or for distress for rent.
(c) Bankruptcy or Insolvency. (i) In the event that Tenant shall become a
debtor in a case filed under Chapter 7 of the Bankruptcy Code and Tenant's
trustee or Tenant shall elect to assume this Lease for the purpose of assigning
the same or otherwise, such election and assignment may be made only if the
provisions of Sections 28(c)(ii) and 28(c)(iv) are satisfied as if the election
to assume were made in a case filed under Chapter 11 of the Bankruptcy Code. If
Tenant or Tenant's trustee shall fail to elect to assume this Lease within sixty
(60) days after the filing of such petition or such additional time as provided
by the court within such sixty (60) day period, this Lease shall be deemed to
have been rejected. Immediately thereupon Landlord shall be entitled to
possession of the Premises without further obligation to Tenant or Tenant's
trustee and this Lease upon the election of Landlord shall terminate, but
Landlord's right to be compensated for damages (including, without limitation,
liquidated damages pursuant to any provision hereof) or the exercise of any
other remedies in any such proceeding shall survive, whether or not this Lease
shall be terminated.
(ii) (A) In the event that Tenant shall become a debtor in a case
filed under Chapter 11 of the Bankruptcy Code, or in a case filed under Chapter
7 of the Bankruptcy Code which is transferred to Chapter 11, Tenant's trustee or
Tenant, as debtor-in-possession, must elect to assume this Lease within one
hundred twenty (120) days from the date of the filing of the petition under
Chapter 11 or the transfer thereto or Tenant's trustee or the debtor-in-
possession shall be deemed to have rejected this Lease. In the event that
Tenant, Tenant's trustee or the debtor-in-possession has failed to perform all
of Tenant's obligations under this Lease within the time periods (excluding
grace periods) required for such performance, no election by Tenant's trustee or
the debtor-in-possession to assume this Lease, whether under Chapter 7 of
Chapter 11, shall be permitted or effective unless each of the following
conditions has been satisfied:
(1) Tenant's trustee or the debtor-in-possession has cured all
defaults under this Lease, or has provided Landlord with Assurance (as defined
below) that it will cure all defaults susceptible of being cured by the payment
of money within ten (10) days from the date of such assumption and that it will
cure all other defaults under this Lease which are susceptible of being cured by
the performance of any act promptly after the date of such assumption.
(2) Tenant's trustee or the debtor-in-possession has compensated
Landlord, or has provided Landlord with Assurance that within ten (10) days from
the date of such assumption it will compensate Landlord, for any actual
pecuniary loss incurred by Landlord arising from the default of Tenant, Tenant's
trustee, or the debtor-in-possession as indicated in any statement of actual
pecuniary loss sent by Landlord to Tenant's trustee or the debtor-in-possession.
(3) Tenant's trustee or the debtor-in-possession has provided
Landlord with Assurance of the future performance of each of the obligations of
Tenant, Tenant's trustee or the debtor-in-possession under this Lease, and, if
Tenant's trustee or the debtor-in-possession has provided such Assurance,
Tenant's trustee or the debtor-in-possession shall also (i) deposit with
Landlord, as security for the timely payment of rent hereunder, an amount equal
to three (3) installments of Minimum Rent (at the rate then payable) which shall
be applied to installments of Minimum Rent in the inverse order in which such
installments shall become due provided all the terms and provisions of this
Lease shall have been complied with, and (ii) pay in advance to Landlord on the
date each installment of Minimum Rent is payable a pro rata share of Tenant's
annual obligations for additional rent and other sums pursuant to this Lease,
such that Landlord shall hold funds sufficient to satisfy all such obligations
as they become due. The obligations imposed upon Tenant's trustee or the
debtor-in-possession by this paragraph shall continue with respect to Tenant or
any assignee of this Lease after the completion of bankruptcy proceedings.
(4) The assumption of this Lease will not breach or cause a
default under any provision of any other lease, mortgage, financing arrangement
or other agreement by which Landlord is bound.
(B) For purposes of this Section 28(c), Landlord and Tenant
acknowledge that "Assurance" shall mean no less than: Tenant's trustee or the
debtor-in-possession has and will continue to have sufficient unencumbered
assets after the payment of all secured obligations and administrative expenses
to assure Landlord that sufficient funds will be available to fulfill the
obligations of Tenant under this Lease and (x) there shall have been deposited
with Landlord, or the Bankruptcy Court shall have entered an order segregating,
sufficient cash payable to Landlord, and/or (y) Tenant's trustee or the debtor-
in-possession shall have granted a valid and perfected first lien and security
interest and/or mortgage in property of Tenant, Tenant's trustee or the debtor-
in-possession, acceptable as to value and kind to Landlord, to secure to
Landlord the obligation of Tenant, Tenant's trustee or the debtor-in-possession
to cure the defaults under this Lease, monetary and/or non-monetary, within the
time periods set forth above.
(iii) In the event that this Lease is assumed in accordance with
Section 28(c)(ii) and thereafter Tenant is liquidated or files or has filed
against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy
Code, Landlord may, at its option, terminate this Lease and all rights of Tenant
hereunder by giving Tenant notice of its election to so terminate within thirty
(30) days after the occurrence of any such event.
(iv) If Tenant's trustee or the debtor-in-possession has assumed this
Lease pursuant to the terms and provisions of Sections 28(c)(i) or 28(c)(ii) for
the purpose of assigning (or elects to assign) this Lease, this Lease may be so
assigned only if the proposed assignee (Assignee) has provided adequate
assurance of future performance of all of the terms, covenants and conditions of
this Lease to be performed by Tenant. Landlord shall be entitled to receive all
cash proceeds of such assignment. As used herein, "adequate assurance of future
performance" shall mean no less than that each of the following conditions has
been satisfied:
(1) the Assignee has furnished Landlord with either (i) (x) a
copy of a credit rating of Assignee which Landlord reasonably determines to be
sufficient to assure the future performance by Assignee of Tenant's obligations
under this Lease and (y) a current financial statement of Assignee audited by a
certified public accountant indicating a net worth and working capital in
amounts which Landlord reasonably determines to be sufficient to assure the
future performance by Assignee of Tenant's obligations under this Lease or (ii)
a guarantee or guarantees, in form and substance satisfactory to Landlord, from
one or more persons with a credit rating and net worth equal to or exceeding the
credit rating and net worth of Tenant as of the date hereof.
(2) Landlord has obtained all consents or waivers from others
required under any lease, mortgage, financing arrangement or other agreement by
which Landlord is bound to permit Landlord to consent to such assignment.
(3) The proposed assignment will not release or impair any
guaranty of the obligations of Tenant (including the Assignee) under this Lease.
(v) When, pursuant to the Bankruptcy Code, Tenant's trustee or the
debtor-in-possession shall be obligated to pay reasonable use and occupancy
charges for the use of the Premises, such charges shall not be less than the
Minimum Rent, additional rent and other sums payable by Tenant under this Lease.
(vi) Neither the whole nor any portion of Tenant's interest in this
Lease or its estate in the Premises shall pass to any trustee, receiver,
assignee for the benefit of creditors, or any other person or entity, by
operation of law or otherwise under the laws of any state having jurisdiction of
the person or property of Tenant unless Landlord shall have consented to such
transfer. No acceptance by Landlord or rent or any other payments from any such
trustee, receiver, assignee, person or other entity shall be deemed to
constitute such consent by Landlord nor shall it be deemed a waiver of
Landlord's right to terminate this Lease for any transfer of Tenant's interest
under this Lease without such consent.
(vii) In the event of an assignment of Tenant's interests pursuant to
this Section 28(c), the right of Assignee to extend the term of this Lease for
an extended term beyond the then term of this Lease shall be extinguished.
29. Notices, Demands and Other Instruments.
All notices, demands, requests, consents, approvals and other instruments
required or permitted to be given pursuant to the terms of this Lease (any of
which herein called a "notice")shall be in writing and shall be deemed to have
been properly given if sent by (i) certified mail, return receipt requested,
postage prepaid, (ii) or sent by telegram, overnight express courier, or (iii)
delivery by hand, addressed as follows (in case of clauses (i) through (iii) or
(iv) telephonic facsimile transmission (fax) (followed by a confirmation hard
copy) to the following fax numbers:
If to Tenant:
Nine West Group Inc.
9 West Broad Street
Stamford, Connecticut 06902
Attn: Mr. Alexander V. Del Cielo
Executive Vice President - Operations
Telephone: 203 -328-4366
Telecopier: 203 -978-6020
With a copy to:
Nine West Group Inc.
9 West Broad Street
Stamford, Connecticut 06902
Attn: Joel K. Bedol, Esquire
Senior Vice President/General Counsel
Telephone: 203 -328-4386
Telecopier: 203 -978-6020
and
Nine West Group Inc.
9 West Broad Street
Stamford, Connecticut 06902
Attn: Robert C. Galvin
Executive Vice President and Chief Financial Officer
Telephone: 203 -328-4373
Telecopier: 203 -978-6020
If to Landlord:
c/o Westpark Associates
445 Broad Hollow Road
Melville, New York 11747
Attn: Charles R. Feinbloom, Esquire
Lawrence A. Levine, Esquire
Telephone: 516-293-7800
Telecopier:516-293-7886
Any notice so sent shall be deemed conclusively to have been received by the
addressee at the following time: (A) certified mail - on the third (3rd) day
after deposit in the mail unless earlier actual receipt is shown; (B) overnight
express courier - on the next Business Day following deposit with the courier;
(C) hand delivery - on any Business Day actually delivered to addressee; and (D)
fax - on the date of transmission (if such date is a Business Day), unless
transmission is completed later than 5:00 p.m., recipient's local time, in which
case receipt shall be effective the next Business Day. Landlord and Tenant
shall each have the right from time to time to specify as its address for
purposes of this Lease any other address in the United States of America upon
five (5) days written notice thereof, similarly given, to the other party.
Notwithstanding anything herein to the contrary, for any notice by Tenant to
Landlord to be effective, copies of such notices to Landlord must be given
simultaneously to any First Mortgagee of which Tenant has received notice
pursuant to Section 31 hereof at the address and/or fax number specified by such
First Mortgagee.
30. Transfer by Landlord.
Upon any transfer by Landlord of its estate in the Premises, Landlord
making such transfer shall be released from the responsibility for the
performance of any liabilities and obligations which shall arise under the
terms, covenants and conditions of this Lease subsequent to the date of any such
transfer. In the event that Landlord transfers its interest in this Lease,
Tenant agrees to attorn to such assignee or transferee with respect to Tenant's
obligations under this Lease.
31. Mortgaging by Landlord.
(a) Right to Mortgage, Etc. Tenant acknowledges that Landlord may grant
one or more mortgages, deeds of trust or like security interests in the Premises
and this Lease and in connection therewith (whether in the mortgage instrument
and/or in any separate instrument of assignment) assign its interest in this
Lease and all rents and other amounts payable hereunder (any of which, grants
and assignments, as modified, amended, extended, or restated from time to time,
a "Mortgage") to one or more mortgagees, deed of trust trustees or other
grantees and assignees (individually, together with each holder of any note,
bond or other obligation secured thereby, and all such persons' successors and
assigns, a "Mortgagee"). Landlord shall cause each Mortgage (other than the
PILOT Mortgage) to contain a provision providing in substance that (i) any
exercise by Mortgagee of any consent or approval under its Mortgage, including
any approval deemed to have been given as a result of inaction by Landlord or
such Mortgagee, which relates to any provision of this Lease where Landlord has
a right of consent or approval, shall be subject to the same standards as are
provided in this Lease for exercise thereof by Landlord; and (ii) the Mortgagee,
and any assignee of the Mortgagee by such assignee's acceptance of the benefit
of such Mortgage, shall be subject to and be deemed to have agreed to such
standards for the benefit of the Tenant. Without limiting the foregoing or any
right or remedy Tenant may have against Landlord, Landlord hereby grants to
Tenant an irrevocable power of attorney to enforce against any Mortgagee all
rights and remedies of Landlord in respect of any provision of the type
described in clause (i) above. Unless a Mortgagee elects in writing that this
Lease shall be superior to its Mortgage, this Lease (and each right, option and
power granted Tenant under this Lease, including without limitation any option
or right of refusal (if any is granted by this Lease) with respect to purchase
of the Premises or any portion thereof) shall be subordinate to each Mortgage,
provided that Tenant receives from the Mortgagee an agreement to the effect
that, (x) if such Mortgagee becomes the owner of the Premises by foreclosure,
deed in lieu of foreclosure or otherwise, this Lease shall remain in effect and
Tenant's possession of the Premises will not be disturbed so long as no Event of
Default shall have occurred and be continuing and Tenant pays all Minimum Rent,
Additional Rent and any other sums payable hereunder as and when due and
otherwise timely complies with and performs all Tenant's obligations under this
Lease, (y) so long as this Lease is in force and effect, such Mortgagee shall
cause all property insurance proceeds and condemnation awards received by it as
a result of any Casualty or Taking to be paid, applied and made available for
restoration in accordance with the provisions of Section 21 and 22 of this
Lease; and (z) any exercise by Mortgagee of any consent or approval of the type
described in clause (i) of the immediately preceding sentence shall be subject
to the standards provided in said clause (i), provided further, Tenant
acknowledges that any such agreement shall contain such provisions for the
protection and benefit of such Mortgagee as are typically contained in a
"subordination, non-disturbance and attornment agreement" utilized by
institutional commercial mortgage lenders, including, without limitation, a
provision that Tenant agrees to attorn to such Mortgagee or other transferee
upon a transfer of title by reason of foreclosure of such Mortgage or deed in
lieu of foreclosure thereof, and provisions to the effect of the matters set
forth in Section 31(b), (c) and (d), and such other provisions as such Mortgagee
may reasonably require. At the direction of Landlord, Tenant shall execute any
such agreement provided by a Mortgagee, provided, however, that such agreement
shall be in form and substance reasonably acceptable to Tenant. In connection
with any proposed transfer, pledge or mortgage of Landlord's fee interest in the
Premises or any portion of the interests in Landlord, Tenant shall, within
fifteen (15) days after Landlord's written request therefor, provide Landlord
and the proposed transferee and/or Mortgagee with confirmation in writing that
Tenant shall recognize such transferee and Mortgagee as such in the event of the
consummation of the transaction described in such notice.
(b) First Mortgage. "First Mortgage" means any Mortgage which constitutes
a first mortgage lien on the Premises (but shall not include the Pilot Mortgage
constituting part of the Project Documents), and "First Mortgagee" means each
Mortgagee which is the beneficiary of a First Mortgage. Tenant acknowledges in
respect of each First Mortgage, that the First Mortgagee thereunder is a direct
assignee of the Landlord's interest under this Lease pursuant to an absolute
assignment of this Lease and all rents and other amounts payable hereunder, and
agrees, for the benefit of the First Mortgagee thereunder, (i) that all payments
of Minimum Rent and Additional Rent owing to Landlord, all property insurance
proceeds and all condemnation awards (subject to the provisions of Sections 21
and 22 concerning application thereof), all amounts payable in consideration for
or in respect of any termination of this Lease prior to the end of the then
current Term, and all amounts payable in respect of any conveyance of the
Premises to Tenant pursuant to any provision of this Lease, shall be made as set
forth in a written direction given by Landlord to Tenant and approved in writing
by the First Mortgagee, (ii) that Tenant shall not be credited with any such
payment not made as set forth in said direction, (iii) that, except as otherwise
stated in said direction or in the First Mortgage or any assignment of this
Lease in connection with the First Mortgage, no consent, approval or
determination permitted to be given or made by Landlord, and no right, power or
remedy permitted to be exercised by Landlord, under this Lease may be given,
made or exercised (as the case may be) without the prior written consent of the
First Mortgagee (provided that any exercise by First Mortgagee of any such
consent, approval, determination, right, power or remedy of Landlord shall be
subject to the same standards as are provided in this Lease for exercise thereof
by Landlord), and (iv) that no subsequent direction by Landlord shall be honored
by Tenant until Tenant receives written notice from the First Mortgagee that
either (A) said First Mortgage has been released of record or (B) the First
Mortgagee has consented to such subsequent direction. At the request of
Landlord, in respect of each First Mortgage, and for the benefit of the First
Mortgagee thereunder, Tenant shall execute such written instrument as the First
Mortgagee may reasonably require acknowledging the foregoing.
(c) Mortgagee/Assignee Not Liable, Etc. "Assignee" means any Mortgagee
which acquires title to the Premises, whether by foreclosure of a Mortgage or
pursuant to a deed in lieu thereof or otherwise, any successor to such
Mortgagee, including without limitation, any person which acquires title to the
Premises from such Mortgagee, and any purchaser of the Premises at a foreclosure
sale in respect of a Mortgage (or transferee pursuant to a deed in lieu of such
a foreclosure). No Assignee shall be obligated to perform, or otherwise be
liable in any way for, (i) any representation or warranty of any kind made by
any Landlord, or (ii) any other obligation of any Landlord (except for such
obligations that arise from such Assignee's failure to perform any duty,
covenant or condition required by this Lease to be performed by Landlord after
the time such Assignee acquires title to the Premises). Tenant and Landlord, by
their respective executions hereof each acknowledge and agree that
notwithstanding any such foreclosure, deed in lieu of foreclosure, or other
transfer, each and all of such duties, covenants or conditions required to have
been performed by Landlord prior to such transfer shall survive any such
transfer and shall be and remain the sole liability of Landlord. No Assignee
shall be obligated to account for or be subject to any offset in respect of any
payment of rent made in advance of the due date thereof unless and then only to
the extent such rental payment is actually received by such person. Without
limiting the foregoing, Tenant acknowledges and agrees that the rights of all
Assignees, in and to Minimum Rent, Additional Rent owing to Landlord and all
other amounts payable under this Lease shall not be subject to any abatement
whatsoever, or be subject to any defense, set off, counterclaim, recoupment,
deferment, diminution or reduction of any kind by reason of any event or
circumstance whatsoever, whether occurring on, after or prior to the date upon
which any such Assignee acquired title to the Premises. Tenant shall pay on
demand all reasonable fees and expenses of any Mortgagee and its attorneys which
are payable by Landlord pursuant to the terms of the Mortgage and which arise by
reason of any request by Tenant for any amendment or modification of, or waiver
or consent relating to, the terms of this Lease or otherwise affecting the
Premises.
(d) Additional Mortgagee Provisions.
(i) Required Consent. Landlord and Tenant agree that no First
Mortgagee shall be bound or affected by any of the following (whether purported
to be effected by written or oral agreement, consent, course of dealing, or
otherwise) which occurs without the express, prior written consent of such First
Mortgagee: (A) any surrender of the Premises or any portion thereof, or any
cancellation or termination of this Lease or the Term hereof, or any other
alteration of the Term of this Lease, or any agreement to do any of the
foregoing (except any termination expressly provided for in Section 4(b) or in
Section 23) or; (B) any modification or amendment to this Lease which could have
the effect of (1) altering the amount of any Minimum Rent, Additional Rent or
other sum payable by Tenant hereunder, or the time, circumstances or manner of
payment thereof, (2) imposing any material obligation on Landlord, (3)
eliminating or diminishing, or altering the time for performance of, any
material obligation of Tenant, or (4) diminishing in any way the economic value
of this Lease as security for the obligations secured by the First Mortgage
benefitting such First Mortgagee.
(ii) Right to Cure. Notwithstanding anything to the contrary
contained in this Lease (and without admitting Tenant has any such rights as
hereafter described),Tenant hereby agrees that in the event of any default by
Landlord under any obligation on its part under this Lease (a "Landlord
Default"), which Tenant claims would give Tenant the right, either immediately
or after the lapse of a period of time, to terminate this Lease, or to claim a
partial or total eviction, or to reduce any rent or other amount payable
hereunder, Tenant will not seek to exercise any such right until it has given
notice of such Landlord Default to First Mortgagee and provided to First
Mortgagee such period of time after such notice as may be reasonably necessary
to cure such Landlord Default, as long as First Mortgagee has commenced and is
diligently pursuing remedies to cure such Landlord Default. Tenant shall also
give a copy of any such notice hereunder to any successor to First Mortgagee's
interest under the First Mortgage, provided that First Mortgagee or such
successor notifies Tenant of the name and address of the party Tenant is to
notify. If in attempting to cure any such Landlord Default, First Mortgagee
requires access to the Premises, Tenant shall provide such access at all
reasonable times and upon reasonable prior notice. Nothing in this Section
31(d)(ii) shall be construed as (A) creating any right on the part of Tenant to
terminate this Lease, claim any eviction, or reduce any rent or other amount
payable under this Lease; (B) obligating any First Mortgagee to cure any
Landlord Default; or (C) releasing or diminishing any obligation of Tenant under
this Lease.
(iii) Benefit. All provisions of this Lease providing for any right
of approval or consent by any Mortgagee, limiting any liability of any
Mortgagee, providing for indemnification of any Mortgagee, granting any right to
cure or other right or remedy to any Mortgagee, or otherwise conferring any
benefit or protection on any Mortgagee, are made by Landlord and Tenant for the
express and intended benefit of each Mortgagee, its successors and assigns, as
an inducement to each such Mortgagee to provide the financing secured by its
Mortgage, and with the intent that each Mortgagee may rely thereon. No
amendment or modification of this Lease which could have the effect of altering
any such provision shall be effective without the express prior written consent
of each Mortgagee which could be affected thereby.
32. Estoppel Certificate.
Tenant shall at any time and from time to time, within thirty (30) days
after written request by Landlord or any First Mortgagee, execute, acknowledge
and deliver to such requesting party an executed Tenant estoppel certificate
substantially to the following effect: (a) that this Lease is unmodified and in
force and effect (or if there have been modifications, that this Lease is in
force and effect as modified, and identifying the modification, or if Tenant
claims this Lease is not in full force and effect in any respect, so
specifying); (b) the date the Term commenced and the date the Term will end
(disregarding any unexercised renewal rights), the Minimum Rent due and payable
for each year of the then current Term, and the date to which Minimum Rent has
been paid; (c) whether or not there is any existing default by the Tenant in the
payment of any Minimum Rent or Additional Rent, and whether or not there is any
other existing default by Tenant, or to the knowledge of Tenant any existing
default by Landlord, and, if there is any such default, specifying the nature
and extent thereof; (d) whether or not Tenant claims any set offs, defenses or
counterclaims against enforcement of the obligations to be performed by Tenant
under this Lease, and if so the basis for such claims, (e) whether to the
knowledge of Tenant there are any actions or proceedings pending against the
Premises before any governmental authority to condemn the Premises or any
portion thereof or any interest therein and whether, to the knowledge of Tenant,
any such actions or proceedings have been threatened, and if so specifying the
nature and extent thereof (f) whether there exists any unrepaired damage to the
Premises from fire or other casualty and if so specifying the nature and extent
thereof, (g) whether Tenant is a party to any sublease or other arrangement
permitting any person to use or occupy any or the Premises, and if so specifying
the nature and extent thereof (h) whether to the knowledge of Tenant any breach,
violation or default by Tenant or concerning the Premises exists with respect to
any Legal Requirements and whether Tenant has received notice from any person
claiming any such breach, violation or default, and if so, specifying the nature
thereof, (i) that all representations and warranties made by Tenant in the Lease
and all financial information provided by the Reporting Person are true and
complete in all material respects, or if not specifying those matters which are
not true and complete, and (j) such other items that may be reasonably
requested. Any such certificate may be relied upon by any First Mortgagee,
prospective purchaser or prospective First Mortgagee of the Premises. In
addition, Tenant will obtain and submit, at Tenant's expense, such certificates,
opinions of counsel and other documents, including without limitation, estoppel
certificates of and opinions of counsel with respect to any guarantor of
Tenant's obligations under this Lease, as may be reasonably requested by
Landlord or First Mortgagee for the benefit of any such prospective purchaser or
First Mortgagee.
33. No Merger.
There shall be no merger of this Lease or the leasehold estate hereby
created with the fee estate in the Premises or any part thereof by reason of the
same person acquiring or holding, directly or indirectly, this Lease or any
interest in this Lease as well as the fee estate in the Premises or any portion
thereof.
34. Surrender.
Upon the termination of this Lease, Tenant shall peaceably surrender the
Premises to Landlord in the same condition in which they were received from
Landlord at the commencement of this Lease, except as altered, repaired or
restored as permitted or required by this Lease, and except for ordinary wear
and tear arising by reason of any permitted use. Provided that Tenant is not in
default hereunder, Tenant shall remove from the Premises prior to or within a
reasonable time (not to exceed fifteen (15) days) after such termination all
property not owned by Landlord, and, at Tenant's expense, shall at such times of
removal, repair any damage caused by such removal. Property not so removed
shall become the property of Landlord. Landlord may thereafter cause such
property to be removed and disposed of and the cost of repairing any damage
caused by such removal shall be borne by Tenant. Notwithstanding anything to
the contrary contained herein, upon termination of this Lease, all fixtures
(other than Tenant's trade fixtures), including, but not limited to, the
heating, ventilation, air conditioning, plumbing, electrical and security
systems, and restaurant or eating facilities shall remain on the Premises and
shall become the property of Landlord.
35. Severability.
Each and every covenant and agreement contained in this Lease is separate
and independent, and the breach of any thereof by Landlord shall not discharge
or relieve Tenant from any obligation hereunder. If any term or provision of
this Lease or the application thereof to any person or circumstances shall at
any time be invalid and unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances or at any time
other than those to which it is invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and shall be
enforced to the extent permitted by law.
36. Savings Clause.
No provision contained in this Lease which purports to obligate the Tenant
to pay any amount of interest or any fees, costs or expenses which are in excess
of the maximum permitted by applicable law, shall be effective to the extent
that it calls for payment of any interest or other sums in excess of such
maximum.
37. Binding Effect; Benefit.
All of the covenants, conditions and obligations contained in this Lease
shall be binding upon and inure to the benefit of the respective successors and
assigns of Landlord and Tenant.
38. Memorandum of Lease.
Simultaneously with the execution and delivery hereof, Landlord and Tenant
shall enter into and record, at Tenant's expense, a memorandum of this Lease in
the form of Exhibit 38 attached hereto.
39. Table of Contents; Headings.
The table of contents and headings used in this Lease are for convenient
reference only and shall not to any extent have the effect of modifying,
amending or changing the provisions of this Lease.
40. Governing Law.
This Lease shall be governed by and interpreted under the laws of the state
in which the Premises are located.
41. Lease.
"Lease" means this Lease, as amended and modified from time to time,
together with any memorandum or short form of Lease entered into for the purpose
of recording. This Lease constitutes the fully integrated agreement of Landlord
and Tenant with respect to the subject matter hereof and supersedes all prior
negotiations and understandings. No amendment, modification, cancellation,
termination of this Lease or surrender of the Premises or any part thereof shall
be effective unless (i) it is contained in a written instrument signed by
Landlord and Tenant, and (ii) has been consented to in writing by any First
Mortgagee in its sole discretion to the extent such consent shall be required
pursuant to the provisions of clause (i) of Section 31(d).
42. Assignment of Intangibles.
No later than ninety (90) days following the expiration or earlier
termination of this Lease, Landlord may request in a written notice to Tenant
that Tenant assign to Landlord, effective as of such expiration or earlier
termination of the Term, all rights of Tenant in and to such intangible personal
property used by Tenant in connection with the Premises as is designated by
Landlord in such notice, (provided, however, that the intangible personal
property so designated by Landlord is integral to the occupancy or customarily
used by occupants in connection with the occupancy of the land or the operation
of the buildings, structures and improvements thereon as such, as opposed to the
occupants' business operations conducted therein or therefrom) including,
without limitation, any contract rights, guaranties, licenses, permits,
registrations and warranties (including without limitation licenses, permits and
registrations pertaining to any clean-up or remediation of Hazardous Materials
on or about the Premises to the extent such licenses, permits and registrations
may be assigned to Landlord) but excluding any trade names, service marks or
corporate names used by Tenant in the operation of its business. Except any
obligation of Tenant to Landlord under this Lease which by the terms of this
Lease survives the termination or expiration of this Lease, including without
limitation Tenant's indemnity obligations under this Lease, Landlord shall
assume any future obligations of Tenant in respect of any such assigned
intangible personal property in form reasonably acceptable to Landlord and
Tenant. Tenant shall execute such assignments and/or bills of sale of the
intangible personal property as Landlord may reasonably request, provided the
same do not impose any additional liability on Tenant and are otherwise
reasonably acceptable to Tenant. The obligations of Tenant under this Section
42 shall survive the expiration or earlier termination of this Lease.
43. Exhibits.
The following Exhibits attached hereto are hereby incorporated by reference
in this Lease and made a part hereof:
Exhibit 1 Legal Description of Land
Exhibit 1-A Plat Depicting Premises
Exhibit 4 Early Termination Fee
Exhibit 5 Primary Term Minimum Rent
Exhibit 6 Procedure to Determine Renewal Term Minimum Rent
Exhibit 23-A Listed Title Matters
Exhibit 23-1 Schedule of Applicable Amounts
Exhibit 27 Make-Whole Amount Formula
Exhibit 38 Form of Memorandum of Lease
44. Exculpatory Clause.
Notwithstanding any provision of this Lease to the contrary, the liability
of Landlord (including, without limitation, each assignee, purchaser and/or
transferee of Landlord's interest in this Lease) under and with respect to this
Lease shall be limited to the interest of Landlord in the Premises, any judgment
in favor of Tenant or any party claiming by, through or under Tenant against
Landlord shall be collectible only out of Landlord's interest in the Premises,
and in no event shall any judgment for damages be entered against Landlord which
is in excess of the value of such interest.
45. Counterparts.
This Lease may be executed in two or more counterparts and shall be deemed
to have become effective when and only when one or more of such counterparts
shall have been signed by or on behalf of each of the parties hereto (although
it shall not be necessary that any single counterpart be signed by or on behalf
of each of the parties hereto, and all such counterparts shall be deemed to
constitute but one and the same instrument), and shall have been delivered by
each of the parties to each other.
46. Holding Over.
If Tenant, or any person claiming by, through or under Tenant, shall remain
in occupancy of the Premises, or any portion thereof, following expiration of
the Term, including, but not limited to, any personal property or fixtures left
by Tenant upon expiration of the Term, then at Landlord's option (but without
limiting any rights or remedies available to Landlord) this Lease shall
constitute a month-to-month tenancy on all of the same terms, covenants and
conditions contained in this Lease, except that the Minimum Rent payable during
such month-to-month tenancy shall be at a rate equal to two (2) times the
Minimum Rent which was last in effect immediately prior to expiration of the
Term.
47. Effect of Certain Approvals, Etc.
No examination, inspection or approval by Landlord or any First Mortgagee
of any plans and specifications, other documentation, or of any construction
work, relating to any alterations, additions, repairs or restoration to the
Premises made or caused to be made by Tenant (whether pursuant to any of
Sections 19, 21, or 22 or otherwise) shall be deemed to constitute any approval
by Landlord or First Mortgagee as to the legal sufficiency, safety, structural
integrity or other adequacy of any such work, and neither Landlord nor any First
Mortgagee shall have any liability to Tenant or any other person in any way with
respect to any such work or any matter related thereto, all of which shall be
the sole responsibility of Tenant.
48. Brokers.
Tenant and Landlord each represents and warrants to the other that it has
not entered into any agreement with, nor otherwise had any dealings with, any
broker or agent except for Rostenberg-Doern Company, Inc. and R.S. Silver &
Company (herein collectively called the "Broker(s)") in connection with the
negotiation or execution of this Lease which could form the basis of any claim
by any such broker or agent for a brokerage fee or commission, finder's fee, or
any other compensation of any kind or nature in connection herewith, and Tenant
and Landlord each shall indemnify, defend and hold the other harmless from and
against any costs (including, but not limited to, court costs and attorneys'
fees), expenses, or liability for commissions or other compensation claimed by
any broker or agent other than the Broker(s) listed above in this Section 48
with respect to this Lease which arises out of any agreement or dealings, or
alleged agreement or dealings, between Tenant or Landlord (as the case may be)
and any such agent or broker. Landlord agrees to pay any commission to said
Broker(s) listed above in this Section 48 in accordance with a separate letter
agreement.
49. Waiver of Jury Trial.
Landlord and Tenant irrevocably and unconditionally waive trial by jury in
any legal action or proceeding relating to this lease.
50. Landlord's Assignment of Certain Rights. (a) Landlord hereby
covenants that it shall not elect to treat the Overlease Agreement as terminated
under 11 U.S.C. Section 365(h) or any similar or successor law or right without
the written consent of Tenant and hereby assigns to Tenant the sole and
exclusive right to make or refrain from making any such election, in conformity
with and as limited by Section 3.9(i) of the Overlease, and Landlord agrees
that any such election, if made by Landlord, shall be void and of no force and
effect. In furtherance of the foregoing, Landlord hereby assigns to Tenant the
sole and exclusive right to exercise its rights under subsection 3.9(i) of the
Overlease provided, however, that Tenant may not, without the prior written
consent of Landlord (which may not unreasonably be withheld), exercise any such
rights of Landlord if such exercise by Tenant would subject Landlord to any
liability or expense (provided that no such consent of Landlord shall be
required with respect to liabilities and expenses that are not material and
which are assumed by Tenant under this Lease) or impair Landlord's rights to a
reversion of title to the Premises or the quality or extent of Landlord's title
to the Premises (other than to a de minimis degree) upon the occurrence of such
reversion.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year first above set forth.
ATTEST/WITNESS: LANDLORD:
WESTPARK I LLC, a Delaware
limited liability company,
By: a Member, Westpark Associates,
a New York general partnership,
/s/ Dean Erger By: /s/ Lawrence A. Levine
- ------------------- ---------------------- (SEAL)
Name: Dean Erger Name: Lawrence A. Levine
--------------
Title: Title: General Partner
--------------
By: Levine Family Melville Trust
Rachel Laser Special Trust
Adam Laser Special trust
Jessica Laser Special trust
Seth Hanlon Special Trust
Gregory Hanlon Special Trust
Rebecca Giat Special Trust
Julian Giat Special Trust
Cagen Youngest Grandchildren Trust
Cagen Youngest Grandchildren Trust II,
each a General Partner
/s/ Dean Erger By: /s/ Charles R. Feinbloom
- --------------------- --------------------(SEAL)
Name: Dean Erger Name: Charles R. Feinbloom
----------------
Title: Title: Trustee
---------------
TENANT:
NINE WEST GROUP INC., a Delaware corporation
/s/ Philip A. Gosch By: /s/ Alexander V. Del Cielo
- -------------------- ------------------------
Name: Philip A. Gosch Name: Alexander V. Del Cielo
---------------
Title: Title: Executive Vice President - Operations
--------------
EXHIBIT 5
PRIMARY TERM MINIMUM RENT
Exhibit 5
Date Month Minimum Rent
- ---- ----- ------------
3/1/1997 1 0.00
4/1/1997 2 0.00
5/1/1997 3 0.00
6/1/1997 4 0.00
7/1/1997 5 0.00
8/1/1997 6 0.00
9/1/1997 7 0.00
10/1/1997 8 0.00
11/1/1997 9 0.00
12/1/1997 10 0.00
1/1/1998 11 0.00
2/1/1998 12 0.00
3/1/1998 13 440,973.53
4/1/1998 14 440,973.53
5/1/1998 15 440,973.53
6/1/1998 16 440,973.53
7/1/1998 17 440,973.53
8/1/1998 18 440,973.53
9/1/1998 19 440,973.53
10/1/1998 20 440,973.53
11/1/1998 21 440,973.53
12/1/1998 22 440,973.53
1/1/1999 23 440,973.53
2/1/1999 24 440,973.53
3/1/1999 25 440,973.53
4/1/1999 26 440,973.53
5/1/1999 27 440,973.53
6/1/1999 28 440,973.53
7/1/1999 29 440,973.53
8/1/1999 30 440,973.53
9/1/1999 31 440,973.53
10/1/1999 32 440,973.53
11/1/1999 33 440,973.53
12/1/1999 34 440,973.53
1/1/2000 35 440,973.53
2/1/2000 36 440,973.53
3/1/2000 37 440,973.53
4/1/2000 38 440,973.53
5/1/2000 39 440,973.53
6/1/2000 40 440,973.53
7/1/2000 41 440,973.53
EXHIBIT 5
Date Month Minimum Rent
- ---- ----- ------------
8/1/2000 42 440,973.53
9/1/2000 43 440,973.53
10/1/2000 44 440,973.53
11/1/2000 45 440,973.53
12/1/2000 46 440,973.53
1/1/2001 47 440,973.53
2/1/2001 48 440,973.53
3/1/2001 49 440,973.53
4/1/2001 50 440,973.53
5/1/2001 51 440,973.53
6/1/2001 52 440,973.53
7/1/2001 53 440,973.53
8/1/2001 54 440,973.53
9/1/2001 55 440,973.53
10/1/2001 56 440,973.53
11/1/2001 57 440,973.53
12/1/2001 58 440,973.53
1/1/2002 59 440,973.53
2/1/2002 60 440,973.53
3/1/2002 61 440,973.53
4/1/2002 62 440,973.53
5/1/2002 63 440,973.53
6/1/2002 64 440,973.53
7/1/2002 65 440,973.53
8/1/2002 66 440,973.53
9/1/2002 67 440,973.53
10/1/2002 68 440,973.53
11/1/2002 69 440,973.53
12/1/2002 70 440,973.53
1/1/2003 71 440,973.53
2/1/2003 72 440,973.53
3/1/2003 73 440,973.53
4/1/2003 74 440,973.53
5/1/2003 75 440,973.53
6/1/2003 76 440,973.53
7/1/2003 77 440,973.53
8/1/2003 78 440,973.53
9/1/2003 79 440,973.53
10/1/2003 80 440,973.53
11/1/2003 81 440,973.53
12/2/2003 82 440,973.53
1/1/2004 83 440,973.53
2/1/2004 84 440,973.53
3/1/2004 85 440,973.53
4/1/2004 86 440,973.53
5/1/2004 87 440,973.53
6/1/2004 88 440,973.53
EXHIBIT 5
Date Month Minimum Rent
- ---- ----- ------------
7/1/2004 89 440,973.53
8/1/2004 90 440,973.53
9/1/2004 91 440,973.53
10/1/2004 92 440,973.53
11/1/2004 93 440,973.53
12/1/2004 94 440,973.53
1/1/2005 95 440,973.53
2/1/2005 96 440,973.53
3/1/2005 97 440,973.53
4/1/2005 98 440,973.53
5/1/2005 99 440,973.53
6/1/2005 100 440,973.53
7/1/2005 101 440,973.53
8/1/2005 102 440,973.53
9/1/2005 103 440,973.53
10/1/2005 104 440,973.53
11/1/2005 105 440,973.53
12/1/2005 106 440,973.53
1/1/2006 107 440,973.53
2/1/2006 108 440,973.53
3/1/2006 109 440,973.53
4/1/2006 110 440,973.53
5/1/2006 111 440,973.53
6/1/2006 112 440,973.53
7/1/2006 113 440,973.53
8/1/2006 114 440,973.53
9/1/2006 115 440,973.53
10/1/2006 116 440,973.53
11/1/2006 117 440,973.53
12/1/2006 118 440,973.53
1/1/2007 119 440,973.53
2/1/2007 120 440,973.53
3/1/2007 121 440,973.53
4/1/2007 122 440,973.53
5/1/2007 123 440,973.53
6/1/2007 124 440,973.53
7/1/2007 125 440,973.53
8/1/2007 126 440,973.53
9/1/2007 127 440,973.53
10/1/2007 128 440,973.53
11/1/2007 129 440,973.53
12/1/2007 130 440,973.53
1/1/2008 131 440,973.53
2/1/2008 132 440,973.53
3/1/2008 133 440,973.53
4/1/2008 134 440,973.53
5/1/2008 135 440,973.53
EXHIBIT 5
Date Month Minimum Rent
- ---- ----- ------------
6/1/2008 136 440,973.53
7/1/2008 137 440,973.53
8/1/2008 138 440,973.53
9/1/2008 139 440,973.53
10/1/2008 140 440,973.53
11/1/2008 141 440,973.53
12/1/2008 142 440,973.53
1/1/2009 143 440,973.53
2/1/2009 144 440,973.53
3/1/2009 145 440,973.53
4/1/2009 146 440,973.53
5/1/2009 147 440,973.53
6/1/2009 148 440,973.53
7/1/2009 149 440,973.53
8/1/2009 150 440,973.53
9/1/2009 151 440,973.53
10/1/2009 152 440,973.53
11/1/2009 153 440,973.53
12/1/2009 154 440,973.53
1/1/2010 155 440,973.53
2/1/2010 156 440,973.53
3/1/2010 157 440,973.53
4/1/2010 158 440,973.53
5/1/2010 159 440,973.53
6/1/2010 160 440,973.53
7/1/2010 161 440,973.53
8/1/2010 162 440,973.53
9/1/2010 163 440,973.53
10/1/2010 164 440,973.53
11/1/2010 165 440,973.53
12/1/2010 166 440,973.53
1/1/2011 167 440,973.53
2/1/2011 168 440,973.53
3/1/2011 169 440,973.53
4/1/2011 170 440,973.53
5/1/2011 171 440,973.53
6/1/2011 172 440,973.53
7/1/2011 173 440,973.53
8/1/2011 174 440,973.53
9/1/2011 175 440,973.53
10/1/2011 176 440,973.53
11/1/2011 177 440,973.53
12/1/2011 178 440,973.53
1/1/2012 179 440,973.53
2/1/2012 180 440,973.53
3/1/2012 181 440,973.53
EXHIBIT 5
Date Month Minimum Rent
- ---- ----- ------------
4/1/2012 182 440,973.53
5/1/2012 183 440,973.53
6/1/2012 184 440,973.53
7/1/2012 185 440,973.53
8/1/2012 186 440,973.53
9/1/2012 187 440,973.53
10/1/2012 188 440,973.53
11/1/2012 189 440,973.53
12/1/2012 190 440,973.53
1/1/2013 191 440,973.53
2/1/2013 192 440,973.53
3/1/2013 193 440,973.53
4/1/2013 194 440,973.53
5/1/2013 195 440,973.53
6/1/2013 196 440,973.53
7/1/2013 197 440,973.53
8/1/2013 198 440,973.53
9/1/2013 199 440,973.53
10/1/2013 200 440,973.53
11/1/2013 201 440,973.53
12/1/2013 202 440,973.53
1/1/2014 203 440,973.53
2/1/2014 204 440,973.53
3/1/2014 205 440,973.53
4/1/2014 206 440,973.53
5/1/2014 207 440,973.53
6/1/2014 208 440,973.53
7/1/2014 209 440,973.53
8/1/2014 210 440,973.53
9/1/2014 211 440,973.53
10/1/2014 212 440,973.53
11/1/2014 213 440,973.53
12/1/2014 214 440,973.53
1/1/2015 215 440,973.53
2/1/2015 216 440,973.53
3/1/2015 217 440,973.53
4/1/2015 218 440,973.53
5/1/2015 219 440,973.53
6/1/2015 220 440,973.53
7/1/2015 221 440,973.53
8/1/2015 222 440,973.53
9/1/2015 223 440,973.53
10/1/2015 224 440,973.53
11/1/2015 225 440,973.53
12/1/2015 226 440,973.53
EXHIBIT 5
Date Month Minimum Rent
- ---- ----- ------------
1/1/2016 227 440,973.53
2/1/2016 228 440,973.53
3/1/2016 229 440,973.53
4/1/2016 230 440,973.53
5/1/2016 231 440,973.53
6/1/2016 232 440,973.53
7/1/2016 233 440,973.53
8/1/2016 234 440,973.53
9/1/2016 235 440,973.53
10/1/2016 236 440,973.53
11/1/2016 237 440,973.53
12/1/2016 238 440,973.53
1/1/2017 239 440,973.53
2/1/2017 240 440,973.53
3/1/2017 241 389,363.75
4/1/2017 242 389,363.75
5/1/2017 243 389,363.75
6/1/2017 244 389,363.75
7/1/2017 245 389,363.75
8/1/2017 246 389,363.75
9/1/2017 247 389,363.75
10/1/2017 248 389,363.75
11/1/2017 249 389,363.75
12/1/2017 250 389,363.75
1/1/2018 251 389,363.75
2/1/2018 252 389,363.75
3/1/1028 253 389,363.75
4/1/2018 254 389,363.75
5/1/2018 255 389,363.75
6/1/2018 256 389,363.75
7/1/2018 257 389,363.75
8/1/2018 258 389,363.75
9/1/2018 259 389,363.75
10/1/2018 260 389,363.75
11/1/2018 261 389,363.75
12/1/2018 262 389,363.75
1/1/2019 263 389,363.75
2/1/2019 264 389,363.75
3/1/2019 265 389,363.75
4/1/2019 266 389,363.75
5/1/2019 267 389,363.75
6/1/2019 268 389,363.75
7/1/2019 269 389,363.75
8/1/2019 270 389,363.75
9/1/2019 271 389,363.75
10/1/2019 272 389,363.75
EXHIBIT 5
Date Month Minimum Rent
- ---- ----- ------------
11/1/2019 273 389,363.75
12/1/2019 274 389,363.75
1/1/2020 275 389,363.75
2/1/2020 276 389,363.75
3/1/2020 277 389,363.75
4/1/2020 278 389,363.75
5/1/2020 279 389,363.75
6/1/2020 280 389,363.75
7/1/2020 281 389,363.75
8/1/2020 282 389,363.75
9/1/2020 283 389,363.75
10/1/2020 284 389,363.75
11/1/2020 285 389,363.75
12/1/2020 286 389,363.75
1/1/2021 287 389,363.75
2/1/2021 288 389,363.75
3/1/2021 289 389,363.75
4/1/2021 290 389,363.75
5/1/2021 291 389,363.75
6/1/2021 292 389,363.75
7/1/2021 293 389,363.75
8/1/2021 294 389,363.75
9/1/2021 295 389,363.75
10/1/2021 296 389,363.75
11/1/2021 297 389,363.75
12/1/2021 298 389,363.75
1/1/2022 299 389,363.75
2/1/2022 300 389,363.75