EXHIBIT 10.01
111688
111088
103188
100588
100488
091688
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HARTZ-83RD STREET ASSOCIATES
Landlord,
and
G & G SHOPS OF WOODBRIDGE, INC.
Tenant
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LEASE
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Premises:
8501 Westside Avenue
North Bergen, New Jersey
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TABLE OF CONTENTS
Article Page
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1. Definitions ....................................... 1
2. Demise and Term ................................... 7
3. Rent .............................................. 8
4. Use of Demised Premises ................ .......... 9
5. Preparation of Demised Premises ................... 9
6. Tax and Operating Expense Payments ................ 11
7. Common Areas ...................................... 12
8. Deleted ........................................... 13
9. Subordination ..................................... 13
10. Quiet Enjoyment ................................... 14
11. Assignment, Subletting and Mortgaging ............. 15
12. Compliance with Laws .............................. 18
13. Insurance and Indemnity ........................... 19
14. Rules and Regulations ............................. 23
15. Alterations and Signs ............................. 23
16. Landlord's and Tenant's Property .................. 25
17. Repairs and Maintenance ........................... 26
18. Public Utility Charges ............................ 28
19. Access, Changes and Name .......................... 29
20. Mechanics' Liens and Other Liens .................. 30
21. Non-Liability ..................................... 31
22. Damage or Destruction ............................. 32
(i)
23. Eminent Domain .................................... 34
24. Surrender ......................................... 36
25. Conditions of Limitation .......................... 36
26. Re-Entry by Landlord .............................. 37
27. Damages ........................................... 38
28. Affirmative Waivers ............................... 40
29. No Waivers ........................................ 40
30. Curing Tenant's Defaults .......................... 40
31. Broker ............................................ 41
32. Notices ........................................... 41
33. Estoppel Certificates ............................. 42
34. Arbitration ....................................... 42
35. Memorandum of Lease ............................... 43
36. Compliance with ECRA .............................. 43
37. Miscellaneous ..................................... 44
EXHIBITS
Exhibit A - Description of Land
Exhibit B - Site Plan (and designation of parking)
Exhibit B1 - Floor Plan of Demised Premises
Exhibit C - Work and Installations to Be Performed and Furnished in the Demised
Premises
Exhibit C1 - Floor Plan of Section A
Exhibit C2 - Landlord's Standard Design Criteria
Exhibit C3 - Lighting Layout - Section A
Exhibit D - Rules and Regulations
(ii)
111688
111088
103188
100688
100488
091688
LEASE, dated November 28th, 1988, between HARTZ-83RD STREET ASSOCIATES, a
New Jersey partnership, having an office at 400 Plaza Drive (P. O. Box 1411),
Secaucus, New Jersey 07094 ("Landlord"), and G & G SHOPS OF WOODBRIDGE, INC.,
a New Jersey corporation, having an office at 520 Eighth Avenue, New York, New
York 10018 ("Tenant").
ARTICLE 1 - DEFINITIONS
1.01. As used in this Lease (including in all Exhibits and any Riders
attached hereto, all of which shall be deemed to be part of this Lease) the
following words and phrases shall have the meanings indicated:
A. Advance Rent: $37,319.13
B. Additional Charges: All amounts that become payable by Tenant to
Landlord hereunder other than the Fixed Rent.
C. Architect: Kenneth Carl Bonte, or as Landlord may designate.
D. Broker: None
E. Building: The building (including the addition to be constructed and
containing Section B of the Demised Premises as delineated on the attached
Exhibit B1) located on the Land in North Bergen, New Jersey and known as 8501
West Side Avenue.
F. Business Days: All days except Saturdays, Sundays, and days observed by
the federal or New Jersey government as legal holidays. Notwithstanding the
Business Days and Business Hours, Tenant shall have access to and use of the
Demised Premises and Common Areas on a twenty four (24) hour, three hundred
sixty five (365) day basis.
G. Business Hours: Generally customary daytime business hours, but not
before 8:00 A.M. or after 6:00 P.M.
H. Calendar Year: Each twelve-month period commencing on a January 1.
I. Commencement Date as to Section "A" (hereinafter defined): The earlier
of (a) the date on which both: (i) Section A shall be
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Ready for Occupancy, and (ii) actual possession of Section A shall have been
delivered to Tenant by notice to Tenant (and Tenant shall have access to the
Demised Premises), or (b) the date Tenant, or anyone claiming under or through
Tenant, first occupies Section A or any part thereof for any purpose other than
the performance of Tenant's Work.
J. Commencement Date as to Section "B" (hereinafter defined): The earlier
of (a) the date on which both: (i) Section B shall be Ready for Occupancy, and
(ii) actual possession of Section B shall have been delivered to Tenant by
notice to Tenant (and Tenant shall have access to the Demised Premises), or (b)
the date Tenant, or anyone claiming under or through Tenant, first occupies
Section B or any part thereof for any purpose other than the performance of
Tenant's Work.
K. Common Areas: All areas, spaces and improvements in the Building and on
the Land which Landlord makes available from time to time for the common use and
benefit of the tenants and occupants of the Building and which are not
exclusively available for use by a single tenant or occupant, including, without
limitation, parking areas, roads, walkways, sidewalks, landscaped and planted
areas, if any, community rooms, if any, the managing agent's office, if any, and
public rest rooms, if any.
L. Demised Premises: The portion of the Building that is outlined in
orange on the floor plan(s) attached hereto as Exhibit B1. The Demised Premises
contains or will contain approximately 164,840 square feet of Floor Space of
which 80,690 square feet are designated as Section "A" on Exhibit B1 and 84,150
square feet are designated as Section "B" on Exhibit B1. Landlord shall provide
Tenant with a certification of Landlord's architect as to the Floor Space of the
Demised Premises. The Demised Premises also include Tenant's parking spaces
which are as depicted in red on the attached site plan (Exhibit B).
M. Expiration Date: The date that is the day before the fifth (5th)
anniversary of the Commencement Date of Section B of the Demised Premises if the
Commencement Date of Section B of the Demised Premises is the first day of a
month, or the fifth (5th) anniversary of the last day of the month in which the
Commencement Date of Section B of the Demised Premises occurs if the
Commencement Date of Section B of the Demised Premises is not the first day of a
month. However, if the Term is extended by Tenant's effective exercise of
Tenant's right, if any, to extend the Term, the "Expiration Date" shall be
changed to the last day of the Latest Extended Period as to which Tenant shall
have effectively exercised its right to extend the Term. For the purposes of
this definition, the earlier termination of this Lease shall not affect the
"Expiration Date." Notwithstanding anything herein
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contained to the contrary, the initial five (5) year term of this Lease shall
not extend beyond the date which is seven (7) years from the Commencement Date
of Section A of the Demised Premises, which date shall be the "Expiration Date"
subject to Tenant's exercise of any option to extend the Lease Term.
N. Fixed Rent: An amount at the annual rate of Six and 00/100 Dollars
($6.00) per square foot from the Commencement Date of each of the respective
Sections of the Demised Premises until the Expiration Date multiplied by the
Floor Space of the Demised Premises.
O. Floor Space: As to the Demised Premises, the sum of the floor area
stated in square feet bounded by the exterior faces of the exterior walls, or by
the exterior or Common Areas face of any wall between the Premises and any
portion of the Common Areas, or by the center line of any wall between the
Premises and space leased or available to be leased to a tenant or occupant. Any
reference to the Floor Space is intended to refer to the Floor Space of the
entire area in question irrespective of the Person(s) who may be the owner(s) of
all or any part thereof. The Floor Space shall not include that area above the
mezzanine.
P. Guarantor: G & G Shops, Inc.
Q. Insurance Requirements: Rules, regulations, orders and other
requirements of the applicable board of underwriters and/or the applicable fire
insurance rating organization and/or any other similar body performing the same
or similar functions and having jurisdiction or cognizance over the Land and
Building, whether now or hereafter in force.
R. Land: The land described on Exhibit A, upon which the Building is
located.
S. Landlord's Work: The materials and work to be furnished, installed and
performed by Landlord at its expense in accordance with the provisions of
Exhibit C. Landlord represents that Landlord's Work will be performed in a good
and workmanlike manner, free of defects in labor and materials, and in
accordance with all Legal and Insurance Requirements.
T. Legal Requirements: Laws and ordinances of all federal, state, county,
and municipal governments, and rules, regulations, orders and directives of all
departments, subdivisions, bureaus, agencies or offices thereof, and of any
other governmental, public or quasi-public authorities having jurisdiction over
the Land and Building, whether now or hereafter in force, including, but not
limited to, those pertaining to environmental matters.
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U. Mortgage: A mortgage and/or a deed of trust.
V. Mortgagee: A holder of a mortgage or a beneficiary of a deed of trust.
W. Operating Expenses: The sum of the following: (1) the cost and expense
(whether or not within the contemplation of the parties) for the repair,
replacement, maintenance, policing, insurance and operation of the Demised
Premises and Land not otherwise the obligation of Landlord or Tenant pursuant to
this Lease and (2) the sum of (a) the Building's pro-rata share of the cost and
expense (whether or not within the contemplation of the parties) for the repair,
replacement, maintenance, policing and operation of the privately maintained
roads that, from time to time, service the Building and Land, and (b) the
Building's pro-rata share of the Real Estate Taxes attributable to said roads.
Landlord represents and warrants that all expenses hereunder shall be reasonably
commensurate to and in accordance with customary industry practice. The
"Operating Expenses" shall include, without limitation, the following: (i) the
cost for rent, casualty, liability, boiler and fidelity insurance, (ii) if an
independent managing agent is employed by Landlord, the fees payable to such
agent (provided the same are competitive with the fees payable to independent
managing agents of comparable facilities in Hudson County), and (iii) reasonable
legal, accounting and other professional fees pertaining to the operation,
management and maintenance of the Land and Building but not with respect to the
leasing, sale or finance of same. All items included in Operating Expenses shall
be determined in accordance with generally accepted accounting principles
consistently applied. Operating Expenses shall specifically exclude the
following: (a) leasing commissions; (b) legal and accounting fees (including
those attributable to disputes with tenants other than Tenant) to the extent not
related to the management and/or operation of the Building; (c) income and
franchise taxes; (d) debt service on any Mortgage; (e) any ground rents; (f)
advertising and promotional costs unless requested by Tenant in connection with
any retail operation; (g) costs which are specific to a particular tenant in the
Building but which are not expenses common to all tenants of the Building; (h)
insurance costs attributable to another tenant's use in the Building; (i) costs
of overtime usage (site lights, etc.) directly attributable to a particular
tenant of the Building not the Tenant; (j) costs attributable to repairs which
are directly attributable to the negligence of Landlord or as a result of
Landlord's breach of an obligation of the Lease; (k) costs for structural
repairs or replacements not otherwise Tenant's responsibility under the Lease;
(1) charges or expenses associated with re-lighting, repaving or restriping the
parking lot for a period of eighteen (18) months from the Commencement Date of
Section A of the Demised Premises. Landlord represents that there shall be no
duplication of charges hereunder.
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Landlord further represents that to the extent Landlord receives a rebate
regarding any charge hereunder, Tenant shall receive a pro-rata credit for any
amount previously paid by Tenant in connection with the charge the subject of
such rebate.
X. Permitted Uses: Warehouse distribution and ancillary offices, and
retail outlet (if permitted by law).
Y. Person: A natural person or persons, a partnership, a corporation, or
any other form of business or legal association or entity.
Z. Ready for Occupancy: The condition of the Demised Premises when for the
first time the Landlord's Work shall have been substantially completed (as
certified to Tenant by Landlord's architect), the Demised Premises broom clean
and free of debris, the utilities and HVAC connected and in good working order,
a temporary or permanent Certificate of Occupancy issued permitting use of the
Demised Premises for the Permitted Uses, and Tenant shall have access to the
Demised Premises, the loading docks and entrances. The Landlord's Work shall be
deemed substantially completed notwithstanding the fact that minor or
insubstantial details of construction, mechanical adjustment or decoration
remain to be performed, the noncompletion of which does not interfere with the
completion of Tenant's Work or with Tenant's use of the Demised Premises.
Landlord hereby agrees to complete any such minor or insubstantial details as
soon as is possible or feasible under the existing circumstances.
AA. Real Estate Taxes: The real estate taxes, assessments and special
assessments, sewer rents, water charges and all other similar charges and
impositions imposed upon the Building and Land by any federal, state, municipal
or other governments or governmental bodies or authorities, and any reasonable
expenses incurred by Landlord in contesting such taxes or assessments and/or the
assessed value of the Building and Land, which expenses shall be allocated to
the period of time to which such expenses relate. If at any time during the Term
the methods of taxation prevailing on the date hereof shall be altered so that
in lieu of or as a substitute for (but in the nature of a real estate tax), the
whole or any part of such real estate taxes, assessments and special assessments
now imposed on real estate there shall be levied, assessed or imposed (a) a tax,
assessment, levy, imposition, license fee or charge wholly or partially as a
capital levy or otherwise on the rents received therefrom, or (b) any other such
additional or substitute tax, assessment, levy, imposition or charge, then all
such taxes, assessments, levies, impositions, fees or charges or the part
thereof so measured or based shall be deemed to be included within the term
"Real Estate Taxes" for the purposes hereof. Real Estate Taxes shall not include
income, transfer, franchise or
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business corporation taxes, no fines or penalties, or taxes imposed on adjacent
parcels of land.
BB. Rent: The Fixed Rent and the Additional Charges.
CC. Rules and Regulations: The reasonable rules and regulations that may
be promulgated by Landlord from time to time, which may be reasonably changed by
Landlord from time to time. The Rules and Regulations now in effect are attached
hereto as Exhibit D. Landlord represents that the Rules and Regulations will
only be changed and modified upon reasonable notice to Tenant (unless in the
event of an emergency) and that same shall not be enforced discriminately as to
Tenant vis-a-vis the other tenants of the Building.
DD. Security Deposit: None
EE. Successor Landlord: As defined in Section 9.03.
FF. Superior Lease: Any lease to which this Lease is, at the time referred
to, subject and subordinate.
GG. Superior Lessor: The lessor of a Superior Lease or its successor in
interest, at the time referred to.
HH. Superior Mortgage: Any Mortgage to which this Lease is, at the time
referred to, subject and subordinate.
II. Superior Mortgagee: The Mortgagee of a Superior Mortgage at the time
referred to.
JJ. Tenant's Fraction: 17.7% provided, however, when the Commencement Date
with regard to that portion of the Building in which Section B of the Demised
Premises is located has occurred, then Tenant's Fraction shall be 36.7%. If the
size of the Demised Premises or the Building shall be changed from the initial
size thereof, due to any taking, any construction, addition or alteration work,
or due to verification by Landlord's architect or otherwise, the Tenant's
Fraction shall be changed to the fraction the numerator of which shall be the
Floor Space of the Demised Premises and the denominator of which shall be the
Floor Space of the Building. Upon Tenant's request Landlord shall provide Tenant
with a certification of Landlord's architect as to Tenant's Fraction.
(Notwithstanding anything herein contained to the contrary, to the extent there
is a reduction in the Floor Space of the Building as a result of casualty,
condemnation, or act of Landlord (including, but not limited to an act of
Landlord in accordance with Section 5.04 of the Lease), such that the ratio of
the Floor Space of the Demised Premises to the Floor Space of the Building
increases, Landlord represents and agrees that the denominator for determining
the Tenant's Fraction (i.e. Floor Space of the Building)
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shall be adjusted such that Tenant shall only be responsible to pay for those
elements of Real Estate Taxes and Operating Expenses directly attributable to
Tenant's use.)
KK. Tenant's Property: As defined in Section 16.02.
LL. Tenant's Work: The facilities, materials and work which may be
undertaken by or for the account of Tenant (other than the Landlord's Work) to
equip, decorate and furnish the Demised Premises for Tenant's occupancy
substantially in accordance with the provisions of Exhibit C.
MM. Term: The period commencing on the Commencement Date and ending at
11:59 p.m. of the Expiration Date, but in any event the Term shall end on the
date when this Lease is earlier terminated.
NN. Unavoidable Delays: A delay arising from or as a result of a strike,
lockout, or labor difficulty which Landlord has no knowledge of at the time of
the execution of this Lease, explosion, sabotage, accident, riot or civil
commotion, act of war, fire or other catastrophe, Legal Requirement not in
effect on the date of the execution of this Lease, or an act of the other party
and any cause beyond the reasonable control of that party, provided that the
party asserting such Unavoidable Delay has exercised its best efforts to
minimize such delay.
ARTICLE 2 - DEMISE AND TERM
2.01. Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the Demised Premises, for the Term. This Lease is subject to (a) any
and all existing encumbrances, conditions, rights, covenants, easements,
restrictions and rights of way, of record, and other matters of record
applicable zoning and building laws, regulations and codes, and such matters as
may be disclosed by an inspection or survey, and (b) easements now or hereafter
created by landlord in, under, over, across and upon a strip of land twenty feet
(20') in width running along all lot lines of the Building for sewer, water,
electric, gas and other utility lines and services now or hereafter installed;
provided, however, Landlord represents, covenants and warrants to Tenant that
the Demised Premises may be used and occupied for the purposes set forth herein;
and that the foregoing shall in no manner interfere with Tenant's use and quiet
enjoyment of the Premises. Promptly following the Commencement Date, the parties
hereto shall enter into an agreement in form and substance satisfactory to
Landlord and Tenant setting forth the Commencement Date and confirming the Fixed
Rent payable.
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2.02.Landlord hereby represents that the Demised Premises are presently
encumbered by only one mortgage by and between Hartz 83rd Street Associates, as
mortgagor, and The Northwestern Mutual Life Insurance Company, as mortgagee. The
Landlord has no knowledge of any existing or pending assessment affecting the
Land or Building except as otherwise provided in a certain policy of Title
Insurance Commitment number 819-069225, issued by Commonwealth Land Title
Insurance Company, a copy of which was provided to Tenant prior to execution of
this Lease; provided, however, that the foregoing will not affect Landlord's
ability to construct the Demised Premises.
ARTICLE 3 - RENT
3.01. Tenant shall pay the Fixed Rent in equal monthly installments in
advance on the first day of each and every calendar month during the Term
(except that Tenant shall pay, upon the execution and delivery of this Lease by
Tenant, the Advance Rent, to be applied against the first installment or
installments of Fixed Rent becoming due under this Lease). If the Commencement
Date occurs on a day other than the first day of a calendar month, the Fixed
Rent for the partial calendar month at the commencement of the Term shall be
prorated, based upon the actual number of days of the month.
3.02. The Rent shall be paid in lawful money of the United States to
Landlord at its office, or such other place, or to Landlord's agent, as Landlord
shall designate by notice to Tenant. Tenant shall pay the Rent promptly when
due without notice or demand therefor (unless otherwise provided for in this
Lease) and without any abatement, deduction or setoff for any reason whatsoever,
except as may be expressly provided in this Lease. If Tenant makes any payment
to Landlord by check, same shall be by check of Tenant and Landlord shall not be
required to accept the check of any other Person, and any check received by
Landlord shall be deemed received subject to collection.
3.03. No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct Rent shall be deemed to be other than a payment
on account, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance or pursue any other remedy in this Lease or at law
provided.
3.04. If Tenant is in arrears in payment of Rent, Tenant waives Tenant's
right, if any, to designate the items to which any payments made by Tenant are
to be credited, and Landlord may apply any payments made by Tenant to such items
as Landlord sees fit, irrespective of and
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notwithstanding any designation or request by Tenant as to the items to which
any such payments shall be credited.
3.05. Any payment due Landlord under this Lease which is not paid on or
before five (5) days after Tenant receives written notice that same was due but
is not paid, shall, from the due date, until such payment is received by
Landlord, bear interest at the prime rate of Chemical Bank of New York then in
effect plus 2% (the "Late Payment Rate")
ARTICLE - 4 USE OF DEMISED PREMISES
4.01. Tenant shall use and occupy the Demised Premises for the Permitted
Uses, and Tenant shall not use or permit or suffer the use of the Demised
Premises or any part thereof for any other purpose.
4.02. If any governmental license or permit shall be required for the
proper and lawful conduct of Tenant's business in the Demised Premises or any
part thereof, Tenant shall duly procure and thereafter maintain such license or
permit and submit the same to Landlord for inspection. Tenant shall at all times
comply with the terms and conditions of each such license or permit. Tenant
shall not at any time use or occupy, or suffer or permit anyone to use or occupy
the Demised Premises, or do or permit anything to be done in the Demised
Premises, in any manner which (a) violates the Certificate of Occupancy for the
Demised Premises or for the Building; (b) causes or is liable to cause injury to
the Building or any equipment, facilities or systems therein; (c) constitutes a
violation of the Legal Requirements or Insurance Requirements of which Tenant
has notice; (d) impairs the character, reputation or appearance of the Building;
(e) unreasonably impairs the proper and economic maintenance, operation and
repair of the Building and/or its equipment, facilities or systems; or (f)
unreasonably annoys or inconveniences other tenants or occupants of the
Building. Landlord hereby represents that, to the best of its knowledge,
Tenant's Permitted Uses are in conformance with all local and municipal rules,
regulations and ordinances.
ARTICLE 5 - PREPARATION OF DEMISED PREMISES
5.01. The Demised Premises shall be completed and prepared for Tenant's
occupancy in the manner described in, and subject to the provisions of, Exhibit
C. Tenant shall occupy each of Section A and Section B of Demised Premises
promptly after each Section, independently, is Ready for Occupancy and
possession thereof is delivered to Tenant by Landlord giving to Tenant a notice
to such effect as well as access to the Demised Premises. Except as expressly
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provided to the contrary in this Lease, the taking of possession by Tenant of
the Section A or Section B of the Demised Premises, as the case may be, shall be
prima facie evidence as against Tenant that the Demised Premises and the
Building were in good and satisfactory condition at the time such possession was
taken. Except as expressly provided to the contrary in this Lease, Tenant is
leasing Section A of the Demised Premises "as is" on the date hereof, subject to
reasonable wear and tear. With regard to both Section A and Section B of the
Demised Premises, Landlord hereby agrees to keep and maintain (as defined in
Article 17.01), for the Term of this Lease, any structural defects in the
Demised Premises and the roof provided Tenant gives Landlord written notice of
such structural defect or damage to the roof and further provided that such
structural defect or damage to the roof is not the result of Tenant's negligence
or misuse of the Demised Premises or the roof. Landlord further warrants to
Tenant Landlord's Work for a period of one (1) year from the date said
Landlord's Work is substantially completed; Landlord hereby agrees to assign to
Tenant the warranties, if any, obtained by Landlord in connection with
Landlord's Work after said one (1) year period.
5.02. If the substantial completion of the Landlord's Work shall be
delayed due to (a) any act or omission of Tenant or any of its employees, agents
or contractors (after notice from Landlord) (including, without limitation, [i]
any delays due to changes in or additions to the Landlord's Work, or [ii] any
delays by Tenant in the submission of plans, drawings, specifications or other
information or in approving any working drawings or estimates or in giving any
authorizations or approvals), or (b) any additional time needed for the
completion of the Landlord's Work by the inclusion in the Landlord's Work of any
long lead time items selected by Tenant and with respect to which Tenant refuses
to select a substitute item which is more readily available and of which delay
Tenant is advised by Landlord prior to the order of such item, then the Demised
Premises shall be deemed Ready for Occupancy on the date when they would have
been ready but for such delay(s). Subject to structural defects, the Demised
Premises shall be conclusively presumed to be in satisfactory condition on the
Commencement Date except for the items with respect to which Tenant gives
Landlord notice within thirty (30) days after the Commencement Date specifying
such items with reasonable particularity.
5.03. Landlord represents and warrants that the roof will be delivered
free of leaks.
5.04. Landlord reserves the right, at any time and from time to time, to
increase, reduce or change the number, type, size, location, elevation, nature
and use of any of the Common Areas and the Building, including, without
limitation, the right to move and/or remove same, provided same shall not block
or interfere with Tenant's means of
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ingress or egress to and from the Demised Premises except to a de minimis
extent, or adversely affect or interfere with Tenant's business operations, use
of, or access to the Demised Premises, Common Areas, or designated parking.
ARTICLE 6 - TAX AND OPERATING EXPENSE PAYMENTS
6.01. Throughout the Term, Tenant agrees to pay to Landlord as an
Additional Charge hereunder within fifteen (15) days in advance of the final
date for which such is due without interest or penalty, Tenant's Fraction of the
Real Estate Taxes. If any assessment is payable in annual installments or in a
lump sum and Tenant does not elect to reimburse Landlord for such assessment in
a lump sum, there shall be added to the amount of the Real Estate Taxes payable
for the Calendar Year in which such assessment is payable and such subsequent
Calendar Year only that amount of such assessment, together with such interest
thereon, as would have been payable to the municipality in said Calendar Year if
Landlord had elected to pay said assessment in annual installments. Upon
request, Landlord shall submit to Tenant copies of all bills covering Real
Estate Taxes together with an invoice showing the calculation of Tenant's share
of such Real Estate Taxes.
6.02. Real Estate Taxes, whether or not a lien upon the Premises shall be
apportioned between Landlord and Tenant at the beginning and end of the Term; it
being intended that Tenant shall pay only that portion of the Real Estate Taxes
as is allocable to the Premises for the Term.
6.03. Tenant shall pay to Landlord Tenant's Fraction of the Operating
Expenses within twenty (20) days after Landlord submits to Tenant an invoice
(with details of the calculation) for Tenant's Fraction of the Operating
Expenses. Upon request, Landlord shall submit to Tenant copies of all bills used
to calculate the Operating Expenses. Operating Expenses shall be paid on a
monthly basis in advance of the due date.
6.04. Each such statement or invoice given by Landlord pursuant to Section
6.01 or Section 6.03 shall be conclusive and binding upon Tenant unless within
ninety (90) days after the receipt of such statement Tenant shall notify
Landlord that it disputes the correctness of the statement, specifying the
particular respects in which the statement is claimed to be incorrect. If such
dispute is not settled by agreement, either party may submit the dispute to
arbitration as provided in Article 34. Pending the determination of such dispute
by agreement or arbitration as aforesaid, Tenant shall, within twenty (20) days
after receipt of such statement, pay the
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Additional Charges in accordance with Landlord's statement, without prejudice to
Tenant's position. If the dispute shall be determined in Tenant's favor,
Landlord shall forthwith pay to Tenant the amount of Tenant's overpayment
resulting from compliance with Landlord's statement.
6.05. Landlord hereby grants Tenant the right, upon reasonable written
notice to Landlord, and at Tenant's sole cost and expense, to inspect Landlord's
books and records as same relate to Tenant's Operating Expenses and Real Estate
Taxes. Any such inspection shall occur at Landlord's normal place of business
and during Landlord's normal business hours.
6.06. In the event Landlord receives a rebate in the Real Estate Taxes,
Tenant shall be entitled to its pro-rata portion thereof provided Tenant has so
paid to Landlord its portion of the Real Estate Taxes which are the subject of
any such rebate.
6.07. Tenant shall not be responsible for any increase in Real Estate
Taxes which is attributable to any improvement to the Building made by Landlord
or any other tenant of the Building, which improvement does not otherwise impact
on Tenant's use or occupation of the Demised Premises.
ARTICLE 7 - COMMON AREAS
7.01. Subject to the provisions of Section 5.04 and Article 17, Landlord
will operate, manage, equip, light, repair and maintain, or cause to be
operated, managed, equipped, lighted, repaired and maintained, the Common Areas
for their intended purposes. Landlord reserves the right, at any time and from
time to time, to construct within the Common Areas kiosks and to install vending
machines, telephone booths, benches and the like, provided same shall not block
or interfere with Tenant's means of ingress or egress to and from the Demised
Premises.
7.02. Tenant and its subtenants and concessionaires, and their respective
officers, employees, agents, suppliers, customers and invitees, shall have the
non-exclusive right, in common with Landlord and all others to whom Landlord has
granted or may hereafter grant such right, but subject to the Rules and
Regulations, to use the Common Areas. Landlord reserves the right, at any time
and from time to time, to close temporarily all or any portions of the Common
Areas when any such closing is necessary or desirable (a) to make repairs or
changes or to effect construction within the Building and Common Areas (but not
the Demised Premises unless elsewhere in this Lease provided), (b) to prevent
the acquisition of public rights in such areas, or (c) to protect or preserve
natural persons or property. Landlord may do such other acts in and to the
Common Areas as in its
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judgment may be desirable to improve or maintain same. Landlord shall use its
best efforts not to materially interfere with Tenant's business operation and
use of the Demised Premises in connection with the above rights granted to
Landlord.
7.03. Tenant agrees that it, any subtenant or licensee and their
respective officers, employees, contractors and agents will park their
automobiles and other vehicles only where and as permitted by this Lease.
ARTICLE 8 - (DELETED)
ARTICLE 9 - SUBORDINATION
9.01. Subject to the provisions of Section 9.05, this Lease, and all
rights of Tenant hereunder, are and shall be subject and subordinate to all
ground leases and underlying leases of the Land and/or the Building now or
hereafter existing and to all Mortgages which may now or hereafter affect the
Land and/or Building and/or any of such leases, whether or not such Mortgages or
leases shall also cover other lands and/or buildings, to each and every advance
made or hereafter to be made under such Mortgages, and to all renewals,
modifications, replacements and extensions of such leases and such Mortgages and
spreaders and consolidations of such Mortgages. The provisions of this Section
9.01 shall be self-operative and no further instrument of subordination shall be
required. In confirmation of such subordination, Tenant shall promptly execute,
acknowledge and deliver any instrument that Landlord, the lessor under any such
lease or the Mortgagee of any such Mortgage or any of their respective
successors in interest may reasonably request to evidence such subordination and
non-disturbance.
9.02. If any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this
Lease, or to claim a partial or total eviction, Tenant shall not exercise such
right (a) until it has given written notice of such act or omission to Landlord
and each Superior Mortgagee and each Superior Lessor whose name and address
shall previously have been furnished to Tenant, and (b) until a reasonable
period for remedying such act or omission shall have elapsed following the
giving of such notice and following the time when such Superior Mortgagee or
Superior Lessor shall have become entitled under such Superior Mortgage or
Superior Lease, as the case may be, to remedy the same (which reasonable period
shall in no event be less than the period to which Landlord would be entitled
under this Lease or otherwise, after similar notice, to effect such remedy),
provided such Superior Mortgagee or Superior Lessor shall with due diligence
give Tenant
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notice of intention to, and commence and continue to, remedy such act or
omission.
9.03. If any Superior Lessor or Superior Mortgagee shall succeed to the
rights of Landlord under this Lease, whether through possession or foreclosure
action or delivery of a new lease or deed, then at the request of such party so
succeeding to Landlord's rights ("Successor Landlord") and upon such Successor
Landlord's written agreement to accept Tenant's attornment, Tenant shall attorn
to and recognize such Successor Landlord as Tenant's landlord under this Lease
and shall promptly execute and deliver any instrument that such Successor
Landlord may reasonably request to evidence such attornment (provided such
Successor Landlord assumes all Landlord's obligations under this Lease). Upon
such attornment this Lease shall continue in full force and effect as a direct
lease between the Successor Landlord and Tenant upon all of the terms,
conditions and covenants as are set forth in this Lease except that the
Successor Landlord (so long as any Successor Landlord is not related to
Landlord) shall not (a) be liable for any previous act or omission of Landlord
under this Lease; (b) be subject to any offset, not expressly provided for in
this Lease, which theretofore shall have accrued to Tenant against Landlord; or
(c) be bound by any previous prepayment of more than one month's Fixed Rent or
Additional Charges (unless required pursuant to this Lease), unless such
modification or prepayment shall have been expressly approved in writing by the
Superior Lessor of the Superior Lease or the Mortgagee of the Superior Mortgage
through or by reason of which the Successor Landlord shall have succeeded to the
rights of Landlord under this Lease.
9.04. If any then present or prospective Superior Mortgagee shall require
any modification(s) of this Lease, Tenant shall promptly execute and deliver to
Landlord such instruments effecting such modification(s) as Landlord shall
reasonably request, provided that such modification(s) do not adversely affect
in any material respect any of Tenant's rights under this Lease, decrease
Landlord's obligations under this Lease or increase Tenant's obligations under
this Lease.
9.05. Landlord hereby agrees to provide Tenant with a Non-Disturbance
Agreement from all present and future Superior Mortgagees, wherein such
Mortgagees agree not to disturb the occupancy of Tenant under the Lease so long
as Tenant is not in default beyond the applicable grace period.
ARTICLE 10 - QUIET ENJOYMENT
10.01. So long as this Lease is in effect, Tenant shall peaceably and
quietly have, hold and enjoy the Demised Premises without hindrance, ejection or
molestation.
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ARTICLE 11 - ASSIGNMENT, SUBLETTING AND MORTGAGING
11.01. Except as otherwise provided herein, Tenant shall not, whether
voluntarily, involuntarily, or by operation of law or otherwise, (a) assign or
otherwise transfer this Lease, or offer or advertise to do so, (b) sublet the
Demised Premises or any part thereof, or offer or advertise to do so, or allow
the same to be used, occupied or utilized by anyone other than Tenant, or (c)
mortgage, pledge, encumber or otherwise hypothecate this Lease in any manner
whatsoever, without in each instance obtaining the prior written consent of
Landlord. Consent by Landlord shall not be required if a corporate tenant
assigns this Lease to its parent corporation or to its wholly owned subsidiary
or Affiliate, subject, however, to the further provisions of Articles 11.04 and
11.05 and prior notice to Landlord. "Affiliate" as that term is referred to
hereinabove shall be defined as a person or entity directly controlling,
controlled by or under common control with Tenant or any other Affiliate of
Tenant. Notwithstanding anything herein contained to the contrary, consent by
Landlord shall also not be required in the event (A) Tenant sells substantially
all of its stock to a third party (which third party's principal asset is not
this Lease) provided that (a) Tenant provides Landlord with written notice of
such a sale; and (b) (i) the successor to Tenant has a net worth computed in
accordance with generally accepted accounting principles at least equal to the
greater of (1) the net worth of Tenant immediately prior to such merger,
consolidation or transfer, or (2) the net worth of the original Tenant on the
date of this Lease, and (ii) proof satisfactory to Landlord of such net worth
shall have been delivered to Landlord (except as prohibited by law) at least ten
(10) days prior to the effective date of any such transaction and (c) the
provisions of Section 11.04 are complied with by Tenant; or (B) Tenant desires
to sublet less than thirty five (35%) percent of the Floor Space of the Demised
Premises provided that Landlord has notice of such sublease.
11.02. Subject to the provisions of Section 11.01, if at any time (a) the
original Tenant named herein, (b) the then Tenant, (c) any Guarantor, or (d) any
Person owning a majority of the voting stock of, or directly or indirectly
controlling the then Tenant shall be a corporation or partnership, any transfer
of voting stock or partnership interest resulting in the person(s) who shall
have owned a majority of such corporation's shares of voting stock or the
general partners' interest in such partnership, as the case may be, immediately
before such transfer, ceasing to own a majority of such shares of voting stock
or general partner's interest, as the case may be, except as the result of
transfers by inheritance, shall be deemed to be an assignment of this Lease as
to which Landlord's consent shall have been required, and in any such event
Tenant shall notify Landlord. The provisions of this Section 11.02 shall not be
applicable to any corporation all the outstanding voting stock of
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which is listed on a national securities exchange (as defined in the Securities
Exchange Act of 1934, as amended) or is traded in the over-the-counter market
with quotations reported by the National Association of Securities Dealers
through its automated system for reporting quotations and shall not apply to
transactions with a corporation or other person into or with which the then
Tenant is merged or consolidated or to which substantially all of the then
Tenant's assets or stock are transferred or to any corporation which controls or
is controlled by the then Tenant or is under common control with the then
Tenant, provided that in any of such events (i) the successor to Tenant has a
net worth computed in accordance with generally accepted accounting principles
at least equal to the greater of (1) the net worth of Tenant immediately prior
to such merger, consolidation or transfer, or (2) the net worth of the original
Tenant on the date of this Lease, and (ii) proof satisfactory to Landlord of
such net worth shall have been delivered to Landlord at least ten (10) days
prior to the effective date of any such transaction. For the purposes of this
Section, the words "voting stock" shall refer to shares of stock regularly
entitled to vote for the election of directors of the corporation. Landlord
shall have the right at any time and from time to time during the Term to
inspect the stock record books of the corporation to which the provisions of
this Section 11.02 apply, and Tenant will produce the same on request of
Landlord.
11.03. If this Lease is assigned, whether or not in violation of this
Lease, Landlord may collect rent from the assignee. If the Demised Premises or
any part thereof are sublet or used or occupied by anybody other than Tenant,
whether or not in violation of this Lease, Landlord may, after default by
Tenant, and expiration of Tenant's time to cure such default, collect rent from
the subtenant or occupant. In either event, Landlord may apply the net amount
collected to the Rent, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of Section
11.01 or Section 11.02, or the acceptance of the assignee, subtenant or occupant
as tenant, or a release of Tenant from the performance by Tenant of Tenant's
obligations under this Lease. The consent by Landlord to any assignment,
mortgaging, subletting or use or occupancy by others shall not in any way be
considered to relieve Tenant from obtaining the express written consent of
Landlord to any other or further assignment, mortgaging or subletting or use or
occupancy by others not expressly permitted by this Article 11. References in
this Lease to use or occupancy by others (that is, anyone other than Tenant)
shall not be construed as limited to subtenants and those claiming under or
through subtenants but shall be construed as including also licensees and others
claiming under or through Tenant, immediately or remotely.
11.04. In the event of permitted assignment or transfer, whether made with
Landlord's consent pursuant to Section 11.01 or without
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Landlord's consent if permitted by Sections 11.01 and 11.02, shall be made only
if, and shall not be effective until (unless same would be unlawful, i.e. a
violation of a Securities and Exchange [Commission regulation]), the assignee
shall execute, acknowledge and deliver to Landlord an agreement in form and
substance reasonably satisfactory to Landlord whereby the assignee shall assume
Tenant's obligations under this Lease and whereby the assignee shall agree that
all of the provisions in this Article 11 shall, notwithstanding such assignment
or transfer, continue to be binding upon it in respect to all future assignments
and transfers. Notwithstanding any assignment or transfer, whether or not in
violation of the provisions of this Lease, and notwithstanding the acceptance of
Rent by Landlord from an assignee, transferee, or any other party, the original
Tenant shall remain fully liable for the payment of the Rent and for Tenant's
other obligations under this Lease.
11.05. The liability of the original Tenant and any other Person who was
responsible for Tenant's obligations under this Lease shall not be discharged,
by any agreement made by Landlord extending the time of performance of, or any
waiver or failure of Landlord to enforce, any of this Lease.
11.06. The listing of any name other than that of Tenant, whether on the
doors of the Demised Premises or the Building directory, or otherwise, shall not
operate to vest any right or interest in this Lease or in the Demised Premises,
nor shall it be deemed to be the consent of Landlord to any assignment or
transfer of this Lease or to any sublease of the Demised Premises or to the use
or occupancy thereof by others.
11.07. Without limiting any of the provisions of Article 25, if pursuant
to the Federal Bankruptcy Code (or any similar law hereafter enacted having the
same general purpose), Tenant is permitted to assign this Lease notwithstanding
the restrictions contained in this Lease, adequate assurance of future
performance by an assignee expressly permitted under such Code shall be deemed
to mean the deposit of cash security in an amount equal to the sum of three (3)
months Fixed Rent plus an amount equal to the Additional Charges for the
Calendar Year preceding the year in which such assignment is intended to become
effective, which deposit shall be held by Landlord for the balance of the Term,
without interest, as security for the full performance of all of Tenant's
obligations under this Lease.
11.08. Where Landlord's consent for a subletting or assignment is required
and if Tenant shall propose to assign or in any manner transfer this Lease or
any interest therein, or sublet the Demised Premises or any part or parts
thereof, or grant any concession or license or otherwise permit occupancy of all
or any part of the Demised Premises by any person, Tenant shall give notice
thereof to
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Landlord, together with a copy of the proposed instrument or proposed document
setting forth the terms of the deal that is to accomplish same and such
financial and other information pertaining to the proposed assignee, transferee,
subtenant, concessionaire or licensee as Landlord shall reasonably require, and
Landlord shall as an alternative to Landlord's right to give consent (unless
Landlord's consent is not required), terminate this Lease by notice given to
Tenant within thirty (30) days after receipt of said proposed instrument and
financial and other information, and upon the date specified in such notice,
which date shall be not less than thirty (30) days and not more than sixty (60)
days after the giving of said notice, this Lease shall terminate. (Provided,
however, to the extent that the portion or portions of the Demised Premises
sought to be sublet by Tenant are, in the sole discretion and determination of
Landlord, usable, rentable and with sufficient access, then Landlord, in the
event it elects to terminate as provided hereunder, shall only terminate the
Lease and recapture that portion of the Floor Space which is the subject of the
proposed sublease). If Landlord does not so terminate this Lease, and (if
Landlord consents to the subject transaction) if Tenant does not consummate the
subject transaction within sixty (60) days after the last day on which Landlord
might have so terminated this Lease as a result of such transaction, Tenant
shall again be required to comply with the provisions of this Section 11.08, in
connection with any such transaction as if the notice by Tenant referred to
above in this Section 11.08 had not been given. In the event Tenant enters into
a sublease permitted under this Section 11.08, Tenant hereby agrees to pay
Landlord, as Additional Rent, an amount equal to fifty percent (50%) of the
difference between the rent Tenant receives from any permitted sublessee of the
Demised Premises (less the following expenses expended in connection with same:
real estate brokerage commission, reasonable legal fees and reasonable
renovation costs) and the amount Tenant is required to pay Landlord as Fixed
Rent under this Lease; same to be paid by Tenant to Landlord on a monthly basis
throughout the Term.
ARTICLE 12 - COMPLIANCE WITH LAWS
12.01. Except as otherwise in this Lease provided, including but not
limited to any obligation of Landlord to comply with Legal Requirements, Tenant
shall comply with all Legal Requirements which shall, in respect of the Demised
Premises or the use and occupation thereof, or in respect of the abatement of
any nuisance created by Tenant in, on or about the Demised Premises, impose any
violation, order or duty on Landlord or Tenant; and Tenant shall pay all the
costs, expenses, fines, penalties and damages which may be imposed upon Landlord
or any Superior Lessor by reason of or arising out of Tenant's failure to fully
and promptly comply with and observe the provisions of this Section 12.01.
However, Tenant need not comply
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with any such law or requirement of any public authority so long as Tenant shall
be contesting the validity thereof, or the applicability thereof to the Demised
Premises, in accordance with Section 12.02.
12.02. Tenant may contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
Premises, of any Legal Requirement, provided that (a) Landlord shall not be
subject to criminal penalty or to prosecution for a crime, and neither the
Demised Premises nor any part thereof shall be subject to being condemned or
vacated, by reason of non-compliance or otherwise by reason of such contest; and
(b) such non-compliance or contest shall not constitute or result in any
violation of any Superior Lease or Superior Mortgage, or if any such Superior
Lease and/or Superior Mortgage shall permit such non-compliance or contest on
condition of the taking of action or furnishing of security by Landlord, such
action shall be taken and Tenant shall keep Landlord advised as to the status of
such proceedings. Without limiting the application of the above, Landlord shall
be deemed subject to prosecution for a crime if Landlord, or its managing agent,
or any officer, director, partner, shareholder or employee of Landlord or its
managing agent, as an individual, is charged with a crime of any kind or degree
whatsoever, whether by service of a summons or otherwise, unless such charge is
withdrawn before Landlord or its managing agent, or such officer, director,
partner, shareholder or employee of Landlord or its managing agent (as the case
may be) is required to plead or answer thereto.
12.03. Notwithstanding anything herein contained to the contrary Tenant
shall not be responsible to make any structural changes to the Building, the
Demised Premises, or the roof necessitated by the Legal Requirements unless said
structural change is imposed as a result of Tenant's specific use, occupancy, or
business operation in the Demised Premises.
ARTICLE 13 - INSURANCE AND INDEMNITY
13.01. Landlord shall maintain or cause to be maintained All Risk
insurance in respect of the Land, Building and other improvements on the Land
normally covered by such insurance (except for the property Tenant is required
to cover with insurance under Section 13.02 and similar property of other
tenants and occupants of the Building or buildings and other improvements which
are on land neither owned by nor leased to Landlord) for the benefit of
Landlord, any Superior Lessors, any Superior Mortgagees and any other parties
Landlord may at any time and from time to time designate, as their interests may
appear, but not for the benefit of Tenant, and shall maintain rent insurance as
required by any Superior Lessor or any Superior Mortgagee. The All Risk
insurance will be in the amounts
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required by any Superior Lessor or any Superior Mortgagee but not less than the
amount sufficient to avoid the effect of the co-insurance provisions of the
applicable policy or policies. Landlord may also maintain any other forms and
types of insurance which Landlord shall deem reasonable in respect to the
Building and Land. Landlord shall have the right to provide any insurance
maintained or caused to be maintained by it under blanket policies provided said
insurance is customarily maintained for similar type properties owned or
operated by Landlord.
13.02. Tenant shall maintain the following insurance: (a) comprehensive
general public liability insurance in respect of the Demised Premises and the
conduct and operation of business therein, with Landlord as an additional named
insured, and at Landlord's request with any Superior Lessors as additional named
insured(s), with limits of not less than $3,000,000 for bodily injury or death
to any one person and $5,000,000 for bodily injury or death to any number of
persons in any one occurrence, and $500,000 for property damage, including water
damage and sprinkler leakage legal liability, (b) All Risk insurance in respect
of Tenant's stock in trade, fixtures, furniture, furnishings, removable floor
coverings, equipment, signs and all other property of Tenant in the Demised
Premises in any amounts required by any Superior Lessor or any Superior
Mortgagee but not less than 80% of the full insurable value of the property
covered and not less than the amount sufficient to avoid the effect of the
co-insurance provisions of the applicable policy or policies, and (c) any other
insurance required for compliance with the Insurance Requirements. Landlord may,
at any time and from time to time (but upon reasonable prior notice), require
that the limits for the comprehensive general public liability insurance to be
maintained by Tenant be increased to the limits that new Tenants in the Building
are required by Landlord to maintain for similar uses. Tenant shall deliver to
Landlord and any additional named insured(s) certificates for such fully
paid-for policies on or before the Commencement Date. Tenant shall procure and
pay for renewals of such insurance from time to time before the expiration
thereof, and Tenant shall deliver to Landlord and any additional insured(s)
certificates therefor at least thirty (30) days before the expiration of any
existing policy. All such policies shall be issued by companies of recognized
responsibility licensed to do business in New Jersey, and all such policies
shall contain a provision whereby the same cannot be cancelled unless Landlord
and any additional insured(s) are given at least twenty (20) days' prior written
notice of such cancellation.
13.03. Tenant shall not do, permit or suffer to be done any act, matter,
thing or failure to act in respect of the Demised Premises or use or occupy the
Demised Premises or conduct or operate Tenant's business in any manner so as to
cause any insurance company or companies issuing the fire insurance or any other
insurance then in
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effect in respect to the Land and Building or any part thereof shall become void
or suspended or whereby any premiums in respect of insurance maintained by
Landlord shall be higher than those which would normally have been in effect for
the occupancy contemplated under the Permitted Uses. In case of a breach of the
provisions of this Section 13.03, in addition to all other rights and remedies
of Landlord hereunder, Tenant shall (a) indemnify Landlord and the Superior
Lessors and hold Landlord and the Superior Lessors harmless from and against any
loss which would have been covered by insurance which shall have become void or
suspended because of such breach by Tenant and (b) pay to Landlord any and all
increases of premiums on any insurance, including, without limitation, rent
insurance, resulting from any such breach.
13.04. Tenant shall indemnify and hold harmless Landlord and all Superior
Lessors and its and their respective partners, joint venturers, directors,
officers, agents, servants and employees from and against any and all claims
arising from or in connection with (a) the conduct or management of the Demised
Premises or of any business therein, or any work or thing whatsoever done, or
any condition created (other than by Landlord) in the Demised Premises during
the Term; (b) any act, omission or negligence of Tenant or any of its subtenants
or licensees or its or their partners, joint ventures, directors, officers,
agents, employees or contractors during the Term or during the period of time,
if any, prior to the Commencement Date that Tenant may have been given access to
the Demised Premises; (c) any accident, injury or damage whatever (unless caused
solely by Landlord's negligence) occurring in the Demised Premises during the
Term; and (d) any breach or default by Tenant in the full and prompt payment and
performance of Tenant's obligations under this Lease; together with all costs,
expenses and liabilities incurred in or in connection with each such claim or
action or proceeding brought thereon, including, without limitation, all
attorneys' fees and expenses. In case any action or proceeding is brought
against Landlord and/or any Superior Lessor and/or its or their partners, joint
venturers, directors, officers, agents and/or employees by reason of any such
claim, Tenant, upon notice from Landlord or such Superior Lessor, shall resist
and defend such action or proceeding by counsel reasonably satisfactory to
Landlord.
13.05. Landlord shall indemnify and hold harmless Tenant and all Superior
Lessors and its and their respective partners, joint venturers, directors,
officers, agents, servants and employees from and against any and all claims
arising from or in connection with (a) the conduct or management of that portion
of the Building and/or Common Areas for which Landlord is obligated to maintain
in accordance with this Lease ("Landlord's Area") or any work or thing
whatsoever done, or any condition created (other than by Tenant its employees,
agents or contractors) in the Landlord's Area during the Term or
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during the period of time, if any, prior to the Commencement Date that Landlord
may have had access to the Landlord's Area; (b) any act, omission or negligence
of Landlord or any of its licensees or its or their partners, joint venturers,
directors, officers, agents, employees or contractors; (c) any accident, injury
or damage whatever (unless caused solely by Tenant's negligence) occurring in
the Landlord's Area; and (d) any breach or default by Landlord in the
performance of Landlord's obligations under this Lease; together with all costs,
expenses and liabilities incurred in or in connection with each such claim or
action or proceeding brought thereon, including, without limitation, all
attorneys' fees and expenses. In case any action or proceeding is brought
against Tenant, its partners, joint venturers, directors, officers, agents
and/or employees by reason of any such claim, Landlord, upon notice from Tenant,
shall resist and defend such action or proceeding by counsel reasonably
satisfactory to Tenant.
13.06. Neither party shall be liable or responsible for, and each party
hereby releases the other from, all liability and responsibility to the other
and any person claiming by, through or under the other, by way of subrogation or
otherwise, for any injury, loss or damage to any person or property in or around
the Demised Premises or to the other's business covered by insurance carried or
required to be carried hereunder irrespective of the cause of such injury, loss
or damage, and each party shall require its insurers to include in all of such
party's insurance policies which could give rise to a right of subrogation
against the other a clause or endorsement whereby the insurer waives any rights
of subrogation against the other or permits the insured, prior to any loss, to
agree with a third party to waive any claim it may have against said third party
without invalidating the coverage under the insurance policy.
13.07. Notwithstanding anything herein contained to the contrary, Tenant
shall be permitted to self-insure for the insurance required to be carried under
Section 13.02(b) so long as all of the following conditions are met:
(i) Tenant shall deliver to Landlord on an annual basis a written
certification stating that Tenant is self-insured to the limits
required hereunder, or the amounts, if any, of excess coverage
insured by a third party carrier;
(ii) Landlord shall be entitled to all the rights and benefits under such
self-insurance as would have been available to Landlord had Tenant
insured with a third party carrier;
(iii) Tenant shall deliver to Landlord certificates for coverage in excess
of the self-insured limits; and
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(iv) There shall not have been a material adverse change in Tenant's
financial condition since the date hereof.
In the event Tenant ceases to self-insure, Tenant shall so notify Landlord at
least sixty (60) days in advance of the termination of self-insurance and Tenant
shall obtain the policies required pursuant to this Article and deliver
insurance certificates to Landlord at least thirty (30) days in advance of the
termination of self-insurance.
ARTICLE 14 - RULES AND REGULATIONS
14.01. Tenant and its employees and agents shall faithfully observe and
comply with the Rules and Regulations and such reasonable changes therein
(whether by modification, elimination or addition) as Landlord at any time or
times hereafter may make and communicate to Tenant, which in Landlord's
reasonable judgment, shall be necessary for the reputation, safety, care or
appearance of the Land and Building, or the preservation of good order therein,
or the operation or maintenance of the Building or its equipment and fixtures,
or the Common Areas, and which do not affect the conduct of Tenant's business in
the Demised Premises; provided, however, that in case of any conflict or
inconsistency between the provisions of this Lease and any of the Rules and
Regulations, the provisions of this Lease shall control. Nothing in this Lease
contained shall be construed to impose upon Landlord any duty or obligation to
enforce the Rules and Regulations against any other tenant or any employees or
agents of any other tenant, and Landlord shall not be liable to Tenant for
violation of the Rules and Regulations by any other tenant or its employees,
agents, invitees or licensees.
ARTICLE 15 - ALTERATIONS AND SIGNS
15.01. Tenant shall not make any structural alterations or additions to
the Demised Premises or modification to the Building systems, or make any holes
or cuts in the walls, ceilings, roofs, or floors thereof, or change the exterior
color or architectural treatment of the Demised Premises, without on each
occasion first obtaining the consent of Landlord which consent shall not be
unreasonably withheld or delayed. Tenant shall submit to Landlord plans and
specifications for such work at the time Landlord's consent is sought. Tenant
shall pay to Landlord upon demand the reasonable out-of-pocket cost and expense
of Landlord in (a) reviewing said plans and specifications and (b) inspecting
the alterations to determine whether the same are being performed in accordance
with the approved plans and specifications and all Legal Requirements and
Insurance Requirements, including, without limitation, the fees of any architect
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or engineer employed by Landlord for such purpose. Before proceeding with any
permitted alteration which will cost more than Two Hundred Fifty Thousand and
00/100 Dollars ($250,000.00) (exclusive of the costs of decorating work and
items constituting Tenant's Property), as estimated by a reputable contractor
designated by Landlord, Tenant shall obtain and deliver to Landlord such
security as shall be reasonably satisfactory to Landlord. Tenant shall fully and
promptly comply with and observe the Rules and Regulations then in force in
respect of the making of alterations. Any review or approval by Landlord of any
plans and/or specifications with respect to any alterations is solely for
Landlord's benefit, and without any representation or warranty whatsoever to
Tenant in respect to the adequacy, correctness or efficiency thereof or
otherwise, provided, however, to the extent Tenant obtains the consent or
approval of Landlord in connection with any such alteration, Tenant can rely on
such approval for "consent" purposes as required hereunder. The provisions of
this Section 15.01 shall not apply to Landlord's Work or any of the initial
improvements performed by Tenant in connection with the fit-up of Demised
Premises (so long as Landlord is on notice of same). Tenant shall have the right
to install racking and/or shelving in the Demised Premises, provided however,
Tenant shall comply with the provisions of Section 15.02 in connection with such
racking and/or shelving and provided Tenant repairs all holes and other damage
to the Demised Premises attributable to said racking and/or shelving on or prior
to the expiration or other termination of this Lease.
15.02. Tenant shall obtain all necessary governmental permits and
certificates for the commencement and prosecution of permitted alterations and
for final approval thereof upon completion, and shall cause alterations to be
performed in compliance therewith and with all applicable Legal Requirements and
Insurance Requirements. Alterations shall be diligently performed in a good and
workmanlike manner, using new materials and equipment at least equal in quality
and class to the better of (a) the original installations of the Building, or
(b) the then standards for the Building established by Landlord which standards
shall be uniformly applied to all tenants in circumstances similar to the
Tenant. Alterations shall be performed by contractors first reasonably approved
by Landlord; provided, however, that any alterations in or to the mechanical,
electrical, sanitary, heating, ventilating, air conditioning or other systems of
the Building shall be performed only by the contractor(s) designated by Landlord
and whose costs shall be reasonable and competitive for any such alteration.
Alterations shall be made in such manner as not to unreasonably interfere with
or delay and as not to impose any additional out of pocket expense upon Landlord
in the construction, maintenance, repair or operation of the Building; and if
any such additional expense shall be incurred by Landlord as a result of
Tenant's making of any alterations, Tenant shall pay any such additional expense
within thirty (30) days after presentation of
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itemized bills therefor. Throughout the making of alterations, Tenant shall
carry, or cause to be carried, workmen's compensation insurance in statutory
limits and general liability insurance, with completed operation endorsement,
for any occurrence in or about the Building, under which Landlord and its
managing agent and any Superior Lessor whose name and address shall previously
have been furnished to Tenant shall be named as parties insured, in such limits
as Landlord may reasonably require, with insurers reasonably satisfactory to
Landlord. Tenant shall furnish Landlord with reasonably satisfactory evidence
that such insurance is in effect at or before the commencement of alterations
and, on request, at reasonable intervals thereafter during the making of
alterations.
15.03. Tenant shall not place any signs on the roof, exterior walls or
grounds of the Demised Premises without first obtaining Landlord's written
consent thereto. In placing any signs on or about the Demised Premises, Tenant
shall comply with the Legal Requirements and obtain all required permits and/or
licenses at its expense.
ARTICLE 16 - LANDLORD'S AND TENANT'S PROPERTY
16.01. All fixtures, equipment, improvements and appurtenances attached to
or built into the Demised Premises at the commencement of or during the Term,
whether or not by or at the expense of Tenant, shall be and remain a part of the
Demised Premises, shall be deemed to be the property of Landlord and shall not
be removed by Tenant, except as provided in Section 16.02. Further, any
carpeting or other personal property in the Demised Premises on the Commencement
Date, unless installed and paid for by Tenant, shall be and shall remain
Landlord's property and shall not be removed by Tenant.
16.02. All movable partitions, business and trade fixtures, machinery and
equipment, communications equipment and office equipment, whether or not
attached to or built into the Demised Premises, which are installed in the
Demised Premises by or for the account of Tenant without expense to Landlord and
can be removed without structural damage to the Building and all furniture,
furnishings, and other movable personal property owned by Tenant and located in
the Demised Premises (collectively, "Tenant's Property") shall be and shall
remain the property of Tenant and may be removed by Tenant at any time during
the Term; provided that if any of the Tenant's Property is removed, Tenant shall
repair or pay the cost of repairing any damage to the Demised Premises, the
Building or the Common Areas resulting from the installation and/or removal
thereof. Except as otherwise provided herein, any equipment or other property
which shall not be deemed to have been installed by or for the account of Tenant
without expense to Landlord, shall not be considered as the Tenant's Property
and shall be deemed the property of Landlord.
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16.03. At or before the Expiration Date or the date of any earlier
termination of this Lease, or within thirty (30) days after such an earlier
termination date, Tenant shall remove from the Demised Premises all of the
Tenant's Property and Tenant shall repair any damage to the Demised Premises,
the Building and the Common Areas resulting from any installation and/or removal
of the Tenant's Property. Any items of the Tenant's Property which shall remain
in the Demised Premises after the Expiration Date or after a period of twenty
(20) days following an earlier termination date, may, at the option of Landlord,
be deemed to have been abandoned, and in such case such items may be retained by
Landlord as its property or disposed of by Landlord, without accountability, in
such manner as Landlord shall determine at Tenant's Expense.
ARTICLE 17 - REPAIRS AND MAINTENANCE
17.01. Tenant shall, throughout the Term, take good care of the Demised
Premises, the fixtures and appurtenances therein, and shall not do, suffer, or
permit any waste with respect thereto. Tenant shall be responsible for all
repairs, interior and exterior, structural and nonstructural, in and to the
Demised Premises, and the Building (including the facilities, and systems
thereof) and the Common Areas the need for which arises out of (a) the
performance or existence of the Tenant's Work or alterations, (b) the
installation, use or operation of the Tenant's Property in the Demised Premises,
(c) the moving of the Tenant's Property in or out of the Building, or (d) any
act not reasonably contemplated by the Permitted Uses, omission not reasonably
contemplated by the Permitted Uses, misuse or neglect of Tenant or any of its
subtenants or its or their employees, agents, contractors or invitees. In
addition, Tenant shall keep and maintain all interior portions of the Demised
Premises including, without limitation; all building equipment, windows, doors,
loading bay doors and shelters, plumbing and electrical systems, heating,
ventilating and air conditioning ("HVAC") systems in a clean and orderly
condition. The phrase "keep and maintain" as used herein includes repairs,
replacement and/or restoration as appropriate. Tenant shall not permit or suffer
the over-loading of the floors of the Premises beyond Two Hundred Fifty (250)
pounds per square foot. Tenant shall promptly replace all scratched, damaged or
broken doors and glass in and about the Demised Premises and shall be
responsible for all repairs, maintenance and replacement of wall and floor
coverings in the Demised Premises and for the repair and maintenance of all
sanitary and electrical fixtures and equipment therein. Tenant shall promptly
make all repairs in or to the Demised Premises for which Tenant is responsible,
and any repairs required to be made by Tenant to the mechanical, electrical,
sanitary, heating, ventilating, air-conditioning or other systems of the
Building shall be performed
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only by contractor(s) designated by Landlord (and whose rates shall be
reasonable and competitive).
17.02. Landlord shall be responsible for all repairs, maintenance and
replacement in and to the Building (including all structural components of the
Building, i.e. structural walls, foundation and load bearing columns, facilities
and systems thereof), except for those repairs and maintenance for which Tenant
is responsible pursuant to any of the provisions of this Lease.
17.03. Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant, nor shall Tenant's covenants and obligations
under this Lease be reduced or abated in any manner whatsoever, by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's doing any repairs, maintenance, or changes which Landlord is required
or permitted by this Lease, or required by Law, to make in or to any portion of
the Building.
17.04. Landlord shall also be responsible for the repair, maintenance and
replacement of the roof for the Term and Tenant shall pay Landlord's cost for
the repair, replacement and maintenance of the roof as an element of Tenant's
Operating Expenses. Landlord hereby estimates that the annual cost for
Landlord's repair, replacement and maintenance of the roof above the Demised
Premises shall be approximately three cents ($.03) per square foot multiplied by
the Floor Space of the Demised Premises. Tenant understands and agrees that this
figure is merely a good faith estimate and shall not obligate Landlord in any
manner. Tenant shall pay Landlord, an amount for such repair, replacement, and
maintenance which is the actual annual cost to Landlord for such maintenance,
repair and replacement of the roof provided, however, in no event shall Tenant
be responsible for Landlord's cost for the repair, replacement or maintenance of
the roof in excess of the four cents ($.04) per square foot as increased, on an
annual basis throughout the Term, by one hundred percent (100%) of the yearly
change in the Consumer Price Index. "Consumer Price Index," as that term is used
herein shall mean The Consumer Price Index for All Urban Consumers, All Items,
New York, New York-Northeastern New Jersey, published by the Bureau of Labor
Statistics of the United States Department of Labor or substitute index properly
adjusted.
17.05. Notwithstanding the foregoing, if Landlord has not commenced repair
or maintenance work for which Landlord is responsible within thirty (30) days
after written notice (or such shorter period in emergencies or as a result of an
Unavoidable Delay) from Tenant, then Tenant shall have the right to make such
repairs and Landlord shall reimburse Tenant the reasonable cost thereof within
thirty (30) days after receipt of a bill therefor from Tenant.
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17.06. Notwithstanding the foregoing, Tenant shall not be required to do
any structural work or any other work which under the terms of this Lease is the
responsibility of Landlord.
17.07. Landlord shall make the repairs provided for herein with due
diligence and due care in a good and workmanlike manner in compliance with all
applicable Legal Requirements, Insurance Requirements and shall use all
reasonable efforts to cause minimal interference with Tenant's use of the
Demised Premises during the making of such repairs. Landlord shall promptly
restore any damage to any portion of the Demised Premises resulting from any
acts, faults, default or negligence of Landlord, its agents, servants, employees
or contractors in connection with such repair.
ARTICLE 18 - PUBLIC UTILITY CHARGES
18.01. Tenant shall purchase the electric energy required by it in the
Demised Premises at its own expense on a direct-metered basis from the public
utility servicing the Building, and Landlord shall permit the risers, conduits
and feeders in the Building, to the extent available, suitable and safely
capable, to be used for the purpose of transmitting such electric energy to the
Demised Premises. Landlord shall not be liable for any failure, inadequacy or
defect in the character or supply of electric current furnished to the Demised
Premises except for actual damage suffered by Tenant by reason of any such
failure, inadequacy or defect caused by the negligence of Landlord. If Landlord
is permitted by law to provide electric energy to the Demised Premises by
re-registering meters or otherwise and to collect any charges for electric
energy, Landlord shall have the right to do so, in which event Tenant shall pay
to Landlord upon receipt of bills therefor charges for electric energy provided
the rates for such electric energy shall not be more than the rates Tenant would
be charged for electric energy if furnished directly to Tenant by the public
utility which would otherwise have furnished electric energy. (The cost of any
conversion as provided hereinabove shall be borne by Landlord.)
18.02. Tenant's use of electric energy in the Demised Premises shall not
at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Demised Premises. In order to insure that
such capacity is not exceeded and to avert possible adverse effect upon the
Building's electric service, Tenant shall not, without Landlord's prior consent
in each instance (which shall not be unreasonably withheld), connect any
fixtures, appliances or equipment to the Building's electric distribution system
or make any alteration or addition to the electric system of the Demised
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Premises existing on the Commencement Date. Should Landlord grant such consent,
all additional risers or other equipment required therefor shall be provided by
Landlord and the cost thereof shall be paid by Tenant to Landlord on demand.
18.03. Tenant shall have the right to use all existing wires, feeders,
lines, conduits and all other utility equipment existing in the Demised Premises
without charge for the provision of utility service to the Demised Premises.
18.04. Tenant shall have the right, upon reasonable notice to Landlord
from time-to-time during the Term to inspect and test all meters measuring
utility service to the Demised Premises for accuracy.
18.05. Landlord shall install the heating, ventilating and
air-conditioning systems ("HVAC") serving the Demised Premises in accordance
with Exhibit C-2, the Landlord's Design Criteria.
18.06. Landlord hereby represents that the electric capacity of the
Demised Premises is 300 Amps - 265/460 Volts.
ARTICLE 19 - ACCESS, CHANGES AND NAME
19.01. Except for the space within the inside surfaces of all walls, hung
ceilings (if any), floors, windows and doors bounding the Demised Premises, all
of the Building, including, without limitation, exterior Building walls, core
corridor walls and doors and any core corridor entrance, any terraces or roofs
adjacent to the Demised Premises, and any space in or adjacent to the Demised
Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or
other utilities, sinks or other Building facilities and the use thereof, as well
as access thereto through the Demised Premises for the purpose of operating,
maintenance, decoration and repair, are reserved to Landlord. Landlord also
reserves the right, to install, erect, use and maintain pipes, ducts and
conduits in and through the Demised Premises, provided such are properly
enclosed, and are below the floors, in the walls, or above hung ceilings.
19.02. Landlord and its agents shall have the right to enter and/or pass
through the Demised Premises at reasonable times and on reasonable advance
notice (except in the event of an emergency when no notice is required) (a) to
examine the Demised Premises and to show them to actual and prospective Superior
Lessors, Superior Mortgagees, or prospective purchasers of the Building, and (b)
to make such repairs, alterations, additions and improvements in or to the
Demised Premises and/or in or to the Building or its facilities and equipment as
Landlord is required or desires to make. Landlord shall be allowed to take all
materials into and upon the Demised Premises that may be
-29-
required in connection therewith, without any liability to Tenant and without
any reduction of Tenant's obligations hereunder provided, however, Landlord
agrees to store said materials in an area mutually agreed upon by Landlord and
Tenant and provided same is for a reasonable period of time. During the period
of nine (9) months prior to the Expiration Date, Landlord and its agents may
exhibit the Demised Premises to prospective tenants (provided said exhibition is
upon prior notice and during regular Business Hours). Landlord agrees to use its
best efforts to minimize any interference with Tenant's business operation in
connection with the rights granted to Landlord hereunder.
19.03. If at any time any windows of the Demised Premises are temporarily
darkened or obstructed by reason of any repairs, improvements, maintenance
and/or cleaning in or about the Building, or if any part of the Building or the
Common Areas, other than the Demised Premises, is temporarily or permanently
closed or inoperable, the same shall not be deemed a constructive eviction and
shall not result in any reduction or diminution of Tenant's obligations under
this Lease.
19.04. (Deleted)
19.05. Landlord reserves the right, at any time and from time to time, to
make such changes, alterations, additions and improvements in or to the Building
but not the Demised Premises and the fixtures and equipment thereof as Landlord
shall deem necessary or desirable, subject to the other terms and conditions of
this Lease.
19.06. Landlord may adopt any name for the Building. Landlord reserves the
right to change the name and/or address of the Building at any time.
ARTICLE 20 - MECHANICS' LIENS AND OTHER LIENS
20.01. Nothing contained in this Lease shall be deemed, construed or
interpreted to imply any consent or agreement on the part of Landlord to subject
Landlord's interest or estate to any liability under any mechanic's or other
lien law. If any mechanic's or other lien or any notice of intention to file a
lien is filed against the Land, or any part thereof, or the Demised Premises, or
any part thereof, for any work, labor, service or materials claimed to have been
performed or furnished for or on behalf of Tenant or anyone holding any part of
the Demised Premises through or under Tenant, Tenant shall cause the same to be
cancelled and discharged of record by payment, bond or order of a court of
competent jurisdiction within twenty (20) days after notice by Landlord to
Tenant.
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ARTICLE 21 - NON-LIABILITY
21.01. Neither Landlord nor any partner, joint venturer, director,
officer, agent, servant or employee of Landlord shall be liable to Tenant for
any loss, injury or damage to Tenant or to any other Person, or to its or their
property, irrespective of the cause of such injury, damage or loss, unless
caused by or resulting from the negligence of Landlord, its agents, servants or
employees in the operation or maintenance of the Land or Building. Further,
neither Landlord nor any partner, joint venturer, director, officer, agent,
servant or employee of Landlord shall be liable (a) for any such damage caused
by other tenants or Persons in, upon or about the Land or Building, or caused by
operations in construction of any private, public or quasi-public work; or (b)
even if negligent, for consequential damages arising out of any loss of use of
the Demised Premises or any equipment or facilities therein by Tenant or any
Person claiming through or under Tenant.
21.02. Notwithstanding any provision to the contrary, Tenant shall look
solely to the interest, estate and equity in the property of Landlord in and to
the Land and Building (or the proceeds received by Landlord on a sale of such
estate and property including the proceeds of any financing or refinancing
thereof) in the event of any claim against Landlord arising out of or in
connection with this Lease, the relationship of Landlord and Tenant or Tenant's
use of the Demised Premises or the Common Areas, and Tenant agrees that the
liability of Landlord arising out of or in connection with this Lease, the
relationship of Landlord and Tenant or Tenant's use of the Demised Premises or
the Common Areas shall be limited to such interest, estate and equity in the
property of Landlord (or the proceeds received by Landlord on a sale of such
estate and property including the proceeds of any financing or refinancing
thereof). No other properties or assets of Landlord or any partner, joint
venturer, director, officer, agent, servant or employee of Landlord shall be
subject to levy, execution or other enforcement procedures for the satisfaction
of any judgement (or other judicial process) or for the satisfaction of any
other remedy of Tenant arising out of, or in connection with, this Lease, the
relationship of Landlord and Tenant or Tenant's use of the Demised Premises or
the Common Areas and if Tenant shall acquire a lien on or interest in any other
properties or assets by judgment or otherwise, Tenant shall promptly release
such lien on or interest in such other properties and assets by executing,
acknowledging and delivering to Landlord an instrument to that effect prepared
by Landlord's attorneys. Tenant hereby waives the right of specific performance
and any other remedy allowed in equity if specific performance or such other
remedy could result in any liability of Landlord for the payment of money to
Tenant, or to any court or governmental authority (by way of fines or otherwise)
for Landlord's
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failure or refusal to observe a judicial decree or determination, or to any
third party.
ARTICLE 22 - DAMAGE OR DESTRUCTION
22.01. If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other casualty (and if this Lease shall
not be terminated as in this Article 22 hereinafter provided), Landlord shall
repair the damage and restore and rebuild the Building and/or the Demised
Premises (except for the Tenant's Property) with reasonable dispatch after
notice to it of the damage or destruction.
22.02. Subject to the provisions of Section 22.05, if all or part of the
Demised Premises shall be damaged or destroyed or rendered completely or
partially untenantable on account of fire or other casualty, the Rent shall be
abated or reduced, as the case may be, in the proportion that the untenantable
area of the Demised Premises bears to the total area of the Demised Premises,
for the period from the date of the damage or destruction to (a) the date the
damage to the Demised Premises shall be substantially repaired, or (b) if the
Building and not the Demised Premises is so damaged or destroyed, the date on
which the Demised Premises shall be made tenantable (provided Tenant has access
to the Demised Premises and the condition of the balance of the Building [and
parking] does not affect, in Tenant's reasonable business judgment, Tenant's
ability to conduct it's business); provided, however, should Tenant reoccupy a
portion of the Demised Premises during the period the repair or restoration work
is taking place and prior to the date that the Demised Premises are
substantially repaired or made tenantable the Rent allocable to such reoccupied
portion, based upon the proportion which the area of the reoccupied portion of
the Demised Premises bears to the total area of the Demised Premises, shall be
payable by Tenant from the date of such occupancy.
22.03. (A) If (a) the Demised Premises shall be totally damaged or
destroyed by fire or other casualty, or (b) the Demised Premises shall be so
damaged or destroyed by fire or other casualty that its repair or restoration
requires the expenditure, as estimated by a reputable contractor or architect
designated by Landlord, of more than fifty percent (50%) [or twenty percent
[20%] if such casualty occurs during the last two [2] years of the Term (unless
Tenant exercises any option to extend as provided in this Lease, in which event
the fifty percent (50%) figure shall apply)] of the full insurable value of the
Demised Premises immediately prior to the casualty, then in either such case
Landlord may terminate this Lease by giving Tenant notice to such effect within
ninety (90) days after the date of the fire or other casualty.
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(B) If during the last two (2) years of the Term, the Demised
Premises shall be so damaged or destroyed by fire or other casualty that its
repair or restoration requires the expenditure, as estimated by a reputable
contractor or architect designated by Landlord, of more than twenty percent
(20%) of the full insurable value of the Demised Premises immediately prior to
the casualty, then Tenant may terminate this Lease by giving Landlord notice to
such effect within ninety (90) days after the date of the fire or other
casualty.
(C) Notwithstanding anything herein contained to the contrary, in
the event Landlord is obligated to restore the Demised Premises in accordance
with this Article 22, Landlord shall advise Tenant, by written notice to be
given within thirty (30) days of any casualty, whether Landlord shall be able to
restore the Demised Premises to a tenantable condition within twelve (12) months
from the date of such casualty. In the event Landlord advises Tenant that it is
unable to restore the Demised Premises within twelve (12) months of such
casualty, Tenant shall have the option to terminate this Lease, by written
notice to Landlord to that effect, which termination shall be effective upon
Landlord's receipt of Tenant's notice of termination. To the extent that (i)
Landlord advises Tenant that it shall restore the Demised Premises as provided
hereinabove, and (ii) the Demised Premises are not restored to a tenantable
condition within said twelve (12) month period from the date of any casualty
(subject to Unavoidable Delays), then Tenant shall have the option to terminate
this Lease by written notice to Landlord to that effect which termination shall
be effective upon Landlord's receipt of Tenant's notice as provided hereunder.
Tenant must exercise its option hereunder within ten (10) days of the date which
is the twelve (12) month anniversary of any such casualty; to the extent Tenant
fails to exercise said option within the time constraints provided herein, it
shall be deemed to have waived such option.
22.04. Tenant shall not be entitled to terminate this Lease and no
damages, compensation or claim shall be payable by Landlord for inconvenience,
loss of business or annoyance arising from any repair or restoration of any
portion of the Demised Premises or of the Building pursuant to this Article 22.
Landlord shall use its best efforts to make such repair or restoration promptly
and in such manner as to not unreasonably interfere with Tenant's use and
occupancy of the Demised Premises, but Landlord shall not be required to do such
repair or restoration work except during Business Hours on Business Days.
22.05. Notwithstanding any of the foregoing provisions of this Article 24,
if by reason of some act or omission on the part of Tenant or any of its
subtenants or its or their employees, agents or
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contractors, Landlord or any Superior Lessor or any Superior Mortgagee shall be
unable to collect all of the insurance proceeds (including, without limitation,
rent insurance proceeds) applicable to damage or destruction of the Demised
Premises or the Building by fire or other casualty, then, without prejudice to
any other remedies which may be available against Tenant, there shall be no
abatement or reduction of the Rent. Further, nothing contained in this Article
22 shall relieve Tenant from any liability that may exist as a result of any
damage or destruction by fire or other casualty.
22.06. Landlord will not carry insurance of any kind on the Tenant's
Property, and, except as provided by law or by reason of Landlord's breach of
any of its obligations hereunder, shall not be obligated to repair any damage to
or replace the Tenant's Property.
22.07. The provisions of this Article 22 shall be deemed an express
agreement governing any case of damage or destruction of the Demised Premises
and/or Building by fire or other casualty, and any law providing for such a
contingency in the absence of an express agreement, now or hereafter in force,
shall have no application in such case.
ARTICLE 23 - EMINENT DOMAIN
23.01 If the whole of the Demised Premises shall be taken by any public or
quasi-public authority under the power of condemnation, eminent domain or
expropriation, or in the event of conveyance of the whole of the Demised
Premises in lieu thereof, this Lease shall terminate as of the day possession
shall be taken by such authority. If twenty percent (20%) or less of the Floor
Space of the Demised Premises shall be so taken or conveyed, this Lease shall
terminate only in respect of the part so taken or conveyed as of the day
possession shall be taken by such authority. If more than twenty percent (20%)
of the Floor Space of the Demised Premises shall be so taken or conveyed, this
Lease shall terminate only in respect of the part so taken or conveyed as of the
day possession shall be taken by such authority, but either party shall have the
right to terminate this Lease upon notice given to the other party within 30
days after such taking possession. If so much of the parking facilities shall be
so taken or conveyed that the number of parking spaces necessary, in Tenant's
reasonable business judgment, for the continued operation of the Tenant's
business operation shall not be available, Tenant may, by notice to Landlord,
terminate this Lease which termination shall be effective as of the day
possession shall be taken. If this Lease shall continue in effect as to any
portion of the Demised Premises not so taken or conveyed, the Rent shall be
computed as of the day possession shall be taken on the basis of the remaining
Floor Space of the Demised Premises. Except as specifically provided herein, in
the event of any such taking or conveyance there shall be no reduction in Rent.
If this Lease shall continue in effect, Landlord shall, at its
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expense, but shall be obligated only to the extent of the net award or other
compensation (after deducting all expenses in connection with obtaining same)
available to Landlord for the improvements taken or conveyed (excluding any
award or other compensation for land or for the unexpired portion of the term of
any Superior Lease), make all necessary alterations so as to constitute the
remaining Building a complete architectural and tenantable unit, except for the
Tenants' property, and Tenant shall make all alterations or replacements to the
Tenant's Property and decorations in the Demised Premises. All awards and
compensation for any taking or conveyance, whether for the whole or a part of
the Land or Building, the Demised Premised or otherwise, shall be property of
Landlord, and Tenant hereby assigns to Landlord all of Tenant's right, title and
interest in and to any and all such awards and compensation, including, without
limitation, any award or compensation for the value of the unexpired portion of
the Term. Tenant shall be entitled to claim, prove and receive in the
condemnation proceeding such award or compensation as may be allowed for the
Tenant's property, or other expenses to the extent permitted by law.
23.02. If the temporary use or occupancy of all or any part of the Demised
Premises shall be taken during the Term, Tenant shall be entitled, except as
hereinafter set forth, to receive that portion of the award or payment for such
taking which represents compensation for the use and occupancy of the Demised
Premises, for the taking of the Tenant's Property and for moving expenses, and
Landlord shall be entitled to receive that portion which represents
reimbursement for the cost of restoration of the Demised Premises. This Lease
shall be and remain unaffected by such taking and Tenant shall continue
responsible for all of its obligations hereunder insofar as such obligations are
not affected by such taking and shall continue to pay the Rent in full when due.
If the period of temporary use or occupancy shall extend beyond the Expiration
Date, that part of the award or payment which represents compensation for the
use and occupancy of the Demised Premises (or a part thereof) shall be divided
between Landlord and Tenant so that Tenant shall receive (except as otherwise
provided below) so much thereof as represents compensation for the period up to
and including the Expiration Date and Landlord shall receive so much thereof as
represents compensation for the period after the Expiration Date. All monies to
be paid to Tenant as, or as part of, an award or payment for temporary use and
occupancy for a period beyond the date to which the Rent has been paid shall be
received, held and applied by the first Superior Mortgagee (or if there is no
Superior Mortgagee, by Landlord as a trust fund) for payment of the Rent
becoming due hereunder.
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ARTICLE 24 - SURRENDER
24.01. On the Expiration Date, or upon any earlier termination of this
Lease, or upon any re-entry by Landlord upon the Demised Premises, Tenant shall
quit and surrender the Demised Premises to Landlord "broom-clean" and in
reasonably good order, condition and repair, except for ordinary wear and tear
and such damage or destruction as Landlord is required to repair or restore
under this Lease, and Tenant shall remove all of Tenant's property therefrom
except as otherwise expressly provided in this Lease.
24.02. If Tenant remains in possession of the Demised Premises after the
expiration of the Term, Tenant shall be deemed to be occupying the Demised
Premises as a tenant from month to month at the sufferance of Landlord subject
to all of the provisions of this Lease, except that the monthly Fixed Rent shall
be twice the Fixed Rent in effect during the last month of the Term.
24.03. No act or thing done by Landlord or its agents shall be deemed an
acceptance of a surrender of the Demised Premises, and no agreement to accept
such surrender shall be valid unless in writing and signed by Landlord.
ARTICLE 25 - CONDITIONS OF LIMITATION
25.01. This Lease is subject to the limitation that whenever Tenant or any
Guarantor (a) shall make an assignment for the benefit of creditors, or (b)
shall commence a voluntary case or have entered against it an order for relief
under any chapter of the Federal Bankruptcy Code (Title 11 of the United States
Code) or any similar order or decree under any federal or state law, now in
existence, or hereafter enacted having the same general purpose, and such order
or decree, shall have not been stayed or vacated within ninety (90) days after
entry, or (c) shall cause, suffer, permit or consent to the appointment of a
receiver, trustee, administrator, conservator, sequestrator, liquidator or
similar official in any federal, state or foreign judicial or nonjudicial
proceeding, to hold, administer and/or liquidate all or substantially all of its
assets, and such appointment shall not have been revoked, terminated, stayed or
vacated and such official discharged of his duties within ninety (90) days of
his appointment and (in each such case), at the same time, Tenant fails to
fulfill any of its obligations under this Lease, then Landlord, at any time
after the occurrence of any such event, may give Tenant a notice of intention to
end the Term at the expiration of five (5) days from the date of service of such
notice of intention, and upon the expiration of said five (5) day period,
whether or not the Term shall theretofore have commenced, this Lease shall
terminate with the same effect as if that day were the expiration date of this
Lease, but Tenant shall remain liable for damages as provided in Article 27.
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25.02. This Lease is subject to the further limitations that: (a) if
Tenant shall default in the payment of any Rent, and such default shall continue
for ten (10) days after notice or (b) if Tenant shall, whether by action or
inaction, be in default of any of its obligations under this Lease (other than a
default in the payment of Rent) and such default shall continue and not be
remedied within twenty (20) days after Landlord shall have given to Tenant a
notice specifying the same, or, in the case of a default which cannot with due
diligence be cured within a period of twenty (20) days and the continuance of
which for the period required for cure will not subject Landlord or any Superior
Lessor for prosecution for a crime (as more particularly described in the last
sentence of Section 12.02) or termination of any Superior Lease or foreclosure
of any Superior Mortgage, if Tenant shall not, (i) within said twenty (20) day
period advise Landlord of Tenant's intention to take all steps necessary to
remedy such default, (ii) duly commence within said twenty (20) day period, and
thereafter diligently prosecute to completion all steps necessary to remedy the
default, and (iii) complete such remedy within a reasonable time after the date
of said notice by Landlord, or (c) if any event shall occur or any contingency
shall arise whereby this Lease would, by operation of law or otherwise, devolve
upon or pass to any person, firm or corporation other than Tenant, except as
expressly permitted by Article 11, then in any of said cases Landlord may give
to Tenant a notice of intention to end the Term at the expiration of five (5)
days from the date of the service of such notice of intention, and upon the
expiration of said five (5) days, whether or not the Term shall theretofore have
commenced, this Lease shall terminate with the same effect as if that day were
the expiration date of this Lease, but Tenant shall remain liable for damages as
provided in Article 27.
ARTICLE 26 - RE-ENTRY BY LANDLORD
26.01. If Tenant shall default in the payment of any Rent, and such
default shall continue for ten (10) days after notice, or if this Lease shall
terminate as provided in Article 25, Landlord or Landlord's agents and employees
may immediately or at any time thereafter re-enter the Demised Premises, or any
part thereof, either by summary dispossess proceedings or by any suitable action
or proceeding at law without being liable to indictment, prosecution or damages
therefor, and may repossess the same, and may remove any Person therefrom, to
the end that Landlord may have, hold and enjoy the Demised Premises. The word
"re-enter," as used herein, is not restricted to its technical legal meaning. If
this Lease is terminated under the provisions of Article 25, or if Landlord
shall re-enter the Demised Premises under the provisions of this Article 26, or
in the event of the termination of this Lease, or of re-entry, by or under any
summary dispossess or other proceedings or action or any
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provision of law by reason of default hereunder on the part of Tenant, Tenant
shall thereupon pay to Landlord the Rent payable up to the time of such
termination of this Lease, or of such recovery of possession of the Demised
Premises by Landlord, as the case may be, and shall also pay to Landlord damages
as provided in Article 27.
26.02. In the event of a breach or threatened breach by Landlord or Tenant
as the case may be, of any of its obligations under this Lease, Landlord or
Tenant, as the case may be, shall also have the right of injunction. The special
remedies to which Landlord or Tenant, as the case may be, may resort hereunder
are cumulative and are not intended to be exclusive of any other remedies to
which Landlord or Tenant, as the case may be, may lawfully be entitled at any
time and Landlord or Tenant, as the case may be, may invoke any remedy allowed
at law or in equity as if specific remedies were not provided for herein.
26.03. If this Lease shall terminate under the provisions of Article 25,
or if Landlord shall re-enter the Demised Premises under the provisions of this
Article 26, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Landlord shall be
entitled to, retain all monies, if any, paid by Tenant to Landlord, whether as
Advance Rent, security or otherwise, but such monies shall be credited by
Landlord against any Rent or other sum due from Tenant at the time of such
termination or re-entry or, at Landlord's option, against any damages payable by
Tenant under Article 27 or pursuant to law.
ARTICLE 27 - DAMAGES
27.01. If this Lease is terminated under the provisions of Article 25, or
if Landlord shall re-enter the Demised Premises under the provisions of Article
26, or in the event of the termination of this Lease, or of re-entry, by or
under any summary dispossess or other legal proceeding or action or any
provision of law by reason of default hereunder on the part of Tenant, Tenant
shall pay as Additional Charges to Landlord as a condition precedent to the
dismissal of any summary dispossess or other proceeding or action as liquidated
damages:
sums equal to the Fixed Rent and the Additional Charges which would
have been payable by Tenant had this Lease not so terminated, or had
Landlord not so re-entered the Demised Premises, payable upon the
due dates therefor specified herein following such termination or
such re-entry and until the Expiration Date, provided, however, that
if Landlord shall relet the Demised Premises during said period,
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Landlord shall credit Tenant with the net rents received by Landlord
from such reletting, such net rents to be determined by first
deducting from the gross rents as and when received by Landlord from
such reletting the expenses incurred or paid by Landlord in
terminating this Lease or in re-entering the Demised Premises and in
securing possession thereof, as well as the reasonable expenses of
reletting, including, without limitation, altering and preparing the
Demised Premises for new tenants, brokers' commissions, legal fees,
and all other expenses properly chargeable against the Demised
Premises and the rental therefrom, it being understood that any such
reletting may be for a period shorter or longer than the period
ending on the Expiration Date; but in no event shall Tenant be
entitled to receive any excess of such net rents over the sums
payable by Tenant to Landlord hereunder, nor shall Tenant be
entitled in any suit for the collection of damages pursuant to this
Section to a credit in respect of any rents from a reletting, except
to the extent that such net rents are actually received by Landlord.
If the Demised Premises or any part thereof should be relet in
combination with other space, then proper apportionment on a square
foot basis shall be made of the rent received from such reletting
and of the expenses of reletting.
If the Demised Premises or any part thereof be relet by Landlord before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such reletting shall, prima facie, be the fair and
reasonable rental value for the Demised Premises, or part thereof, so relet
during the term of the reletting. Landlord shall not be liable in any way
whatsoever for its failure or refusal to relet the Demised Premises or any part
thereof, or if the Demised Premises or any part thereof are relet, for its
failure to collect the rent under such reletting, and no such refusal or failure
to relet or failure to collect rent shall release or affect Tenant's liability
for damages or otherwise under this Lease.
27.02. Suit or suits for the recovery of such damages or, any installments
thereof, may be brought by Landlord at any time and from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the Term would have expired if it had not been
so terminated under the provisions of Article 25, or under any provision of law,
or had Landlord not re-entered the Demised Premises. Nothing herein contained
shall be construed to limit or preclude recovery by Landlord against Tenant of
any sums or damages to which, in addition to the damages particularly provided
above, Landlord may lawfully be entitled by reason of any default hereunder on
the part of Tenant.
27.03. (Deleted)
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27.04. In addition to any other remedies Landlord may have under this
Lease, and without reducing or adversely affecting any of Landlord's rights and
remedies under this Article 27, if any Rent or damages payable hereunder by
Tenant to Landlord are not paid within five (5) days after demand that such
amount was not paid when due, the same shall bear interest at the Late Payment
Rate or the maximum rate permitted by law, whichever is less, from the due date
thereof until paid, and the amounts of such interest shall be Additional Charges
hereunder.
ARTICLE 28 - AFFIRMATIVE WAIVERS
28.01. (Deleted)
28.02. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, and Tenant's use or occupancy of the
Demised Premises and use of the Common Area, including, without limitation, any
claim for injury or damage, and any emergency and other statutory remedy with
respect thereto.
ARTICLE 29 - NO WAIVERS
29.01. The failure of either party to insist in any one or more instances
upon the strict performance of any one or more of the obligations of this Lease,
or to exercise any election herein contained, shall not be construed as a waiver
or relinquishment for the future of the performance of such one or more
obligations of this Lease or of the right to exercise such election, but the
same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission. The receipt by Landlord of Fixed Rent or
Additional Charges with knowledge of breach by Tenant of any obligation of this
Lease shall not be deemed a waiver of such breach.
ARTICLE 30 - CURING TENANT'S DEFAULTS
30.01. If either Landlord or Tenant shall default in the performance of
any of their respective obligations under this Lease, the non-defaulting party,
without thereby waiving such default, may (but shall not be obligated to)
perform the same for the account and at the expense of the defaulting party,
without notice in a case of emergency, and in any other case only if such
default continues after the expiration of thirty (30) days from the date the
non-defaulting party gives the defaulting party notice of the default. Bills for
any expenses incurred by the non-defaulting party in connection with any such
performance by it for the account of the defaulting party, and
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bills for all costs, expenses and disbursements of every kind and nature
whatsoever, including reasonable attorneys' fees and expenses, involved in
collecting or endeavoring to collect the Rent or any part thereof or enforcing
or endeavoring to enforce any rights against the defaulting party or the
defaulting parties' obligations hereunder, under or in connection with this
Lease or pursuant to law, including any such cost, expense and disbursement
involved in instituting and prosecuting summary proceedings or in recovering
possession of the Demised Premises after default by the defaulting party or upon
the expiration of the Term or sooner termination of this Lease, and interest on
all sums advanced by the non-defaulting party under this Article at the rate of
four percent (4%) per month or the maximum rate permitted by law, whichever is
less, may be sent by the non-defaulting party to the defaulting party monthly,
or immediately, at the non-defaulting party's option, and such amounts shall be
due and payable in accordance with the terms of such bills.
ARTICLE 31 - BROKER
31.01. Tenant and Landlord represent that no broker except the Broker was
instrumental in bringing about or consummating this Lease and that neither
Landlord nor Tenant had conversations or negotiations with any broker except the
Broker concerning the leasing of the Demised Premises. Tenant and Landlord
agrees to indemnify and hold harmless the other against and from any claims for
any brokerage commissions and all costs, expenses and liabilities in connection
therewith, including, without limitation, attorneys' fees and expenses, arising
out of any conversations or negotiations had by Tenant or Landlord with any
broker other than the Broker. Landlord shall pay any brokerage commissions due
the Broker pursuant to a separate agreement between Landlord and the Broker.
ARTICLE 32 - NOTICES
32.01. Any notice, statement, demand, consent, approval or other
communication required or permitted to be given, rendered or made by either
party to the other, pursuant to this Lease or pursuant to any applicable Legal
Requirement, shall be in writing and shall be deemed to have been properly
given, rendered or made only if hand delivered or sent by United States
registered or certified mail, return receipt requested, addressed to the other
party at the address hereinabove set forth as to Landlord, to the attention of
General Counsel with a concurrent Notice to the attention of Controller, and as
to Tenant, to the attention of Scott Galin, Senior Vice President with a
concurrent copy to the attention of the President and to the Guarantor,
Attention: Scott Galin, Senior Vice President at 520 Fifth Avenue, New York, New
York and shall be deemed to have been given, rendered or
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made on the third (3rd) day after the day so mailed, unless mailed outside the
State of New Jersey, in which case it shall be deemed to have been given,
rendered or made on the fourth (4th) business day after the day so mailed.
Either party may, by notice as aforesaid, designate a different address or
addresses for notices, statements, demands, consents, approvals or other
communications intended for it. Notice shall be deemed sufficient if directed
from the office of an attorney designated by the party giving notice to transmit
such notice provided said attorney includes in its notice a statement regarding
its authority to give any such notice.
ARTICLE 33 - ESTOPPEL CERTIFICATES
33.01. Each party shall, at any time and from time to time, as requested
by the other party, upon not less than twenty (20) days' prior notice, execute
and deliver to the requesting party a statement certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), certifying the dates to which the Fixed Rent and Additional
Charges have been paid, stating whether or not, to the best knowledge of the
party giving the statement, the requesting party is in default in performance of
any of its obligations under this Lease, and, if so, specifying each such
default of which the party giving the statement shall have knowledge, and
stating whether or not, to the best knowledge of the party giving the statement,
any event has occurred which with the giving of notice or passage of time, or
both, would constitute such a default of the requesting party, and, if so,
specifying each such event; any such statement delivered pursuant hereto shall
be deemed a representation and warranty to be relied upon by the party
requesting the certificate and by others with whom such party may be dealing,
regardless of independent investigation. Tenant and Landlord shall include in
any such statement such other information concerning this Lease as the other may
reasonably request.
ARTICLE 34 - ARBITRATION
34.01. Landlord and Tenant may at any time request arbitration, of any
matter in dispute but only where arbitration is expressly provided for in this
Lease. The party requesting arbitration shall do so by giving notice to that
effect to the other party, specifying in said notice the nature of the dispute,
and said dispute shall be determined in Newark, New Jersey, by a single
arbitrator, in accordance with the rules then obtaining of the American
Arbitration Association (or any organization which is the successor thereto).
The award in such arbitration may be enforced on the application of either party
by the order or judgment of a court of competent jurisdiction.
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The fees and expenses of any arbitration shall be borne by the parties equally,
but each party shall bear the expense of its own attorneys and experts and the
additional expenses of presenting its own proof. If Tenant gives notice
requesting arbitration as provided in this Article, Tenant shall simultaneously
serve a duplicate of the notice on each Superior Mortgagee and Superior Lessor
whose name and address shall previously have been furnished to Tenant, and such
Superior Mortgagees and Superior Lessor shall have the right to participate in
such arbitration.
ARTICLE 35 - MEMORANDUM OF LEASE
35.01. Tenant shall not record this Lease. However, at the request of
Landlord or Tenant, Tenant or Landlord, as the case may be, shall promptly
execute, acknowledge and deliver to Landlord a memorandum of lease in respect of
this Lease sufficient for recording. Such memorandum shall not be deemed to
change or otherwise affect any of the obligations or provisions of this Lease.
Whichever party records such memorandum of Lease shall pay all recording costs
and expenses, including any taxes that are due upon such recording.
ARTICLE 36 - COMPLIANCE WITH ECRA
36.01. Landlord, to the best of its knowledge, warrants and represents to
Tenant that the Demised Premises are in full compliance with all applicable
present environmental laws, rules, requirements, orders, directives, ordinances
and regulations of the United States of America or any state, city or municipal
government or lawful authority having jurisdiction, affecting the Demised
Premises including but not limited to the New Jersey Environmental Cleanup
Responsibility Act, (the "Environmental Laws"). Landlord shall defend, indemnify
and save Tenant, its officers, directors, agents and employees, harmless from
and against all claims, obligations, demands, actions, proceedings and
judgements, loss, damage, liability and expense (including reasonable attorney's
fees and expenses) which the Tenant may sustain as a result of or on account of
non-compliance of the Leased Premises with the Environmental Laws as the result
of conditions existing on the Leased Premises (a) prior to the Commencement Date
and (b) which were caused by Landlord or by third parties other than Landlord or
Tenant either before or after the Commencement Date (except to the extent caused
by Tenant, its agents, invitees, employees or subcontractors).
36.02. Except as provided in Article 36.01. above, and except for any
violations of Legal Requirements existing prior to the date hereof or caused by
acts or omissions of Landlord, from and after the date of this Lease, Tenant
shall at Tenant's own cost and expense, timely comply with all applicable,
rules, requirements, orders,
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directives, ordinances and regulations arising from Tenant's use and occupancy
of the Demised Premises, including but not limited to the Environmental Laws of
the United States of America or of the state, county and city governments, or of
any other municipal, governmental or lawful authority whatsoever, having
jurisdiction affecting the Demised Premises and of all their departments,
bureaus or officials (all of the foregoing being hereinafter called
"Environmental Legal Requirements"), the Insurance Requirements as the same
shall be in force and shall relate to all or part of the Demised Premises, and
shall indemnify, defend, save and hold harmless Landlord, its directors,
officers, agents and employees from and against any and all claims, demands,
losses and liabilities (including reasonably attorneys' fees) resulting from or
with respect to any violation of the Environmental Legal Requirements or any
environmental impairment created during the Term of this Lease by Tenant, its
agents, invitees, employees or subcontractors, and Tenant shall, at its own
expense, complete the clean-up of such environmental impairment. Tenant's
obligation to comply with Article 36.02. shall be limited to restoration and/or
maintenance of the Demised Premises to their condition at the Commencement Date.
36.03. The provisions of this Article 36 shall survive the expiration or
termination of this Lease.
36.04. The parties hereto specifically agree that the indemnities of
Landlord and Tenant contained herein shall not extend to loss of business, lost
rentals, or consequential damages.
ARTICLE 37 - MISCELLANEOUS
37.01. Tenant expressly acknowledges and agrees that Landlord has not made
and is not making, and Tenant, in executing and delivering this Lease, is not
relying upon, any warranties, representations, promises or statements, except to
the extent that the same are expressly set forth in this Lease or in any other
written agreement(s) which may be made between the parties concurrently with the
execution and delivery of this Lease. All understandings and agreements
heretofore had between the parties are merged in this Lease and any other
written agreement(s) made concurrently herewith, which alone fully and
completely express the agreement of the parties and which are entered into after
full investigation. Neither party has relied upon any statement or
representation not embodied in this Lease or in any other written agreement(s)
made concurrently herewith.
37.02. No agreement shall be effective to change, modify, waive, release,
discharge, terminate or effect an abandonment of this Lease, in whole or in
part, unless such agreement is in writing, refers expressly to this Lease and is
signed by the party against whom enforcement of the change, modification,
waiver, release, discharge, termination or effectuation of abandonment is
sought.
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37.03. (Deleted)
37.04. Except as otherwise expressly provided in this Lease, the
obligations under this Lease shall bind and benefit the successors and assigns
of the parties hereto with the same effect as if mentioned in each instance
where a party is named or referred to; provided, however, that (a) no violation
of the provisions of Article 11 shall operate to vest any rights in any
successor or assignee of Tenant and (b) the provisions of this Section 37.04
shall not be construed as modifying the conditions of limitation contained in
Article 25.
37.05. Except for Tenant's obligations to pay Rent, the time for Landlord
or Tenant, as the case may be, to perform any of its respective obligations
hereunder shall be extended if and to the extent that the performance thereof
shall be prevented due to any Unavoidable Delays.
37.06. Any liability for payments hereunder (including, without
limitation, Additional Charges) shall survive the expiration of the Term or
earlier termination of this Lease.
37.07. (a) If Tenant shall request Landlord's consent and Landlord shall
fail or refuse to give such consent, Tenant shall not be entitled to any damages
for any withholding by Landlord of its consent, it being intended that Tenant's
sole remedy shall be an action for specific performance or injunction, and that
such remedy shall be available only in those cases where Landlord has expressly
agreed in writing not to unreasonably withhold its consent or where as a matter
of law Landlord may not unreasonably withhold its consent. Notwithstanding the
foregoing, the provisions of this Section 37.07 shall not apply in any instance
in which there has been a final judicial determination of a court of competent
jurisdiction that Landlord has withheld or delayed its consent arbitrarily,
maliciously or in bad faith to any consent which is not to be unreasonably
withheld or delayed under this Lease.
(b) If Tenant desires to determine any dispute between Landlord and
Tenant as to the reasonableness of Landlord's decision to refuse to consent or
approve any item as to which Landlord has specifically agreed that its consent
or approval shall not be unreasonably withheld, such dispute shall be settled
and finally determined by arbitration in the City of New York in accordance with
the following provisions of this Section. Within ten (10) Business Days next
following the giving of any notice by Tenant stating that it wishes such dispute
to be so determined, Landlord and Tenant shall each give notice to the other
setting forth the name and address of an arbitrator designated by the party
giving such notice. If the two arbitrators shall fail to agree upon the
designation of a third arbitrator within five (5) Business Days after the
designation of the
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second arbitrator then either party may apply to the Chairman of the Management
Division of the Real Estate Board of New York, Inc. for the designation of such
arbitrator and if he is unable or refuses to act within ten (10) Business Days
then either party may apply to the Supreme Court in New York County or to any
other court having jurisdiction for the designation of such arbitrator. The
three arbitrators shall conduct such hearings as they deem appropriate, making
their determination in writing and giving notice to Landlord and Tenant of their
determination as soon as practicable, and if possible, within five (5) Business
Days after the designation of the third arbitrator; the concurrence of or, in
the event no two of the arbitrators shall render a concurrent determination,
then the determination of the third arbitrator designated, shall be binding upon
Landlord and Tenant. Judgment upon any decision rendered in any arbitration held
pursuant to this subsection 37.07(b) shall be final and binding upon Landlord
and Tenant, whether or not a judgment shall be entered in any court. Each party
shall pay its own counsel fees and expenses, if any, in connection with any
arbitration under this subsection 37.07(b), including the expenses and fees of
any arbitrator selected by it in accordance with the provisions of this
Subsection 37.07(b), and the parties shall share all other expenses and fees of
any such arbitration. The arbitrators shall be bound by the provisions of this
Lease, and shall not add to, subtract from or otherwise modify such provisions.
The sole function of the arbitrators shall be to determine whether Landlord has
acted reasonably and to require Landlord to grant such consent or approval or to
take such action, and they may not award damages or grant any other monetary
award or relief in the proceeding.
37.08. Tenant shall not exercise its rights under Article 15 or any other
provision of this Lease in a manner which would violate Landlord's union
contracts (of which Tenant has notice) or create any work stoppage, picketing
labor disruption or dispute or any interference with the business of Landlord or
any tenant or occupant of the Building.
37.09. Tenant shall give prompt notice (after discovery) to Landlord of
(a) any occurrence in or about the Demised Premises for which Landlord might be
liable, (b) any fire or other casualty in the Demised Premises, (c) any damage
to or defect in the Demised Premises, including the fixtures and equipment
thereof, for the repair of which Landlord might be responsible, and (d) any
damage to or defect in any part of the Building's sanitary, electrical, heating,
ventilating, air-conditioning, elevator or other systems located in passing
through the Demised Premises or any part thereof.
37.10. This Lease shall be governed by and construed in accordance with
the laws of the State of New Jersey. If any provision of this Lease shall be
invalid or unenforceable, the remainder of this
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Lease shall not be affected and shall be enforced to the extent permitted by
law. The table of contents, captions, headings and titles in this Lease are
solely for convenience of reference and shall not affect its interpretation.
This Lease shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Lease to be drafted. If
any words or phrases in this Lease shall have been stricken out or otherwise
eliminated, whether or not any other words or phrases have been added, this
Lease shall be construed as if the words or phrases so stricken out or otherwise
eliminated were never included in this Lease and no implication or inference
shall be drawn from the fact that said words or phrases were so stricken out or
otherwise eliminated. Each covenant, agreement, obligation or other provision of
this Lease on Tenant's part to be performed, shall be deemed and construed as a
separate and independent covenant of Tenant, not dependent on any other
provision of this Lease. All terms and words used in this Lease, regardless of
the number or gender in which they are used, shall be deemed to include any
other number and any other gender as the context may require.
37.11. Upon request of Landlord, Tenant shall annually furnish to Landlord
a copy of its then most current balance sheet certified by its Chief Financial
Officer which shall be employed by Landlord for purposes of financing the
Premises and not distributed otherwise without prior authorization of Tenant.
Any material adverse change of Tenant's financial condition shall be furnished
to Landlord in writing forthwith and without request by Landlord for same.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as
of the day and year first above written.
HARTZ-83RD STREET ASSOCIATES
("Landlord")
BY: HARTZ MOUNTAIN INDUSTRIES, INC.
("a general partner")
By: /s/ Irwin A. Horowitz
-----------------------------
Irwin A. Horowitz
Vice President
[Corporate Seal]
G & G SHOPS OF WOODBRIDGE, INC.
("Tenant")
By: /s/ Scott Galin
--------------------------------
Scott Galin
Vice President
[Corporate Seal]
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RIDER TO LEASE DATED NOVEMBER 28th, 1988 BETWEEN HARTZ-83RD STREET
ASSOCIATES, AS LANDLORD AND G & G SHOPS OF WOODBRIDGE, INC., AS TENANT.
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R1. If any of the provisions of this Rider shall conflict with any of the
provisions, printed or typewritten, of this Lease, such conflict shall resolve
in every instance in favor of the provisions of this Rider.
R2. Provided this Lease is in full force and effect, Tenant shall have the
option to extend the Term of this lease of the Demised Premises, from the date
upon which this Lease would otherwise expire for three (3) extended periods of
five (5) years each ("First Extended Period", "Second Extended Period" and
"Third Extended Period"), upon the following terms and conditions:
1. If Tenant elects to exercise said options, it shall do so by giving
notice of such election to Landlord on or before the date which is nine (9)
months prior to the beginning of each of the First Extended Period, Second
Extended Period and Third Extended Period for which the Term is to be extended
by the exercise of such options. Tenant agrees that it shall have forever waived
its right to exercise any such option if it shall fail for any reason whatsoever
to give such notice to Landlord by the time provided herein for the giving of
such notice, whether such failure is inadvertent or intentional, time being of
the essence as to the exercise of such options.
2. If Tenant elects to exercise said options, the Term shall be
automatically extended for the First Extended Period, Second Extended Period and
Third Extended Period covered by the option so exercised without execution of an
extension or renewal lease. However, within ten (10) days after request of
either party following the effective exercise of any such options, Landlord and
Tenant shall execute, acknowledge and deliver to each other duplicate originals
of an instrument in recordable form confirming that such option was effectively
exercised.
3. The First Extended Period, Second Extended Period and Third Extended
Period shall be upon the same terms and conditions as are in effect immediately
preceding the commencement of such First Extended Period, Second Extended Period
and Third Extended Period; provided, however, that Tenant shall have no right or
option to extend the Term for any period of time beyond the expiration of the
Third Extended Period provided further, that in the Fixed Rent in the First
Extended Period, Second Extended Period and Third Extended Period shall be as
follows:
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(a) The Fixed Rent during the First Extended Period shall be at the
rate of Six and 90/100 Dollars ($6.90) per square foot of Floor Space per annum.
The Fixed Rent during the Second Extended Period shall be at the rate of Seven
and 94/100 Dollars ($7.94) per square foot of Floor Space per annum. The Fixed
Rent during the Third Extended Period shall be at Ninety Percent (90%) of Fair
Market Value. Fair Market Value shall be determined by mutual agreement of the
parties. If the parties are unable to agree on the Fair Market Value, the
parties shall choose a licensed real Estate Appraiser who shall determine the
Fair Market Value. The cost of said Real Estate Appraiser shall be borne equally
by the parties. If the parties are unable to agree on a licensed Real Estate
Appraiser, each party shall select one Appraiser to appraise the Fair Market
Value. If the difference between the two appraisals is 20% or less of the lower
appraisal then the Fair Market Value shall be the average of the two appraisals.
If the difference between the two appraisals is greater than 20% of the lower
appraisal, the two Appraisers shall select a third licensed Real Estate
Appraiser to appraise the Fair Market Value. The Fair Market Value shall in such
case be the average of the three appraisals. The cost of the third appraisal
shall be borne equally by the parties. Anything to the contrary contained herein
notwithstanding, the Fixed Rent for any extended period shall not be less than
the Fixed Rent for the previous year of the Term. Any appraisal to be performed
hereunder shall consider the Building and Demised Premises as "unimproved" by
Tenant's Work, if any.
4. Any termination, expiration, cancellation or surrender of this Lease
shall terminate any right or option for the Extended Period not yet exercised.
5. The option provided herein to extend the Term of the Lease may not be
severed from the Lease or separately sold, assigned or otherwise transferred.
R3. Notwithstanding anything herein contained to the contrary, Tenant
shall be entitled to a six (6) month abatement of Fixed Rent relative to Section
"A" of the Demised Premises upon Commencement of the Lease relative to said
Section "A".
R4. Landlord hereby represents the following:
(i) At the time of the execution of the Lease, it is the owner of
the Land and Building;
(ii) It has complete authority to enter into and perform the
transaction contemplated by this Lease;
(iii) The Building or Demised Premises are not constructed of any
materials containing asbestos.
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R5. Landlord hereby agrees to provide Tenant, upon Tenant's written
request, with information concerning the date or dates upon which the Lease of
other tenants of the Building shall terminate, as well as information concerning
whether said tenant(s) have exercised an option to extend their term, if any.
HARTZ-83RD STREET ASSOCIATES
("Landlord")
BY: HARTZ MOUNTAIN INDUSTRIES, INC.
("a general partner")
BY: /s/ Irwin A. Horowitz
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Irwin A. Horowitz
Vice President
G & G SHOPS OF WOODBRIDGE, INC.
("Tenant")
BY: /s/ Scott Galin
----------------------------------
Scott Galin
Senior, Vice President
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EXHIBIT "A"
DESCRIPTION OF LAND
8501 WEST SIDE AVENUE
NORTH BERGEN
Subject to a Utility and Access Easement described as follows:
Beginning at the point of beginning of the original description and running:
thence
Deed description of a parcel of land situate near the northern side of 83rd
Street in the Township of North Bergen, Hudson County, New Jersey.
Beginning at a point on curve on the westerly side of lands N/F New York
Susquehanna and Western Railroad, said point being northern on a curve to the
left having a radius of 2831.79 feet an arc length of 962.70 feet along said
westerly side of land N/F New York Susquehanna and Western Railroad from its
intersection with the northern side of 83rd Street (60' wide) and running:
thence
1. N 62 degrees 58' 30" W 727.21 feet to a point; thence
2. N 14 degrees 27' 00" W 680.73 feet to a point; thence
3. N 62 degrees 58' 30" W 185.89 feet to a point; thence
4. S 82 degrees 09' 00" W 702.43 feet to a point on the westerly side of
lands N/F New York Susquehanna and Western Railroad; thence
5. S 14 degrees 27' 00" E 706.00 feet along the westerly side of lands N/F
New York Susquehanna and Western Railroad to a point of curvature; thence
6. Along a curve to the left having a radius of 2831.79 feet and arc length
of 497.82 feet still along the westerly side of the lands N/F New York
Susquehanna and Western Railroad to the point of beginning:
Containing 13.683 Acres.
Being part of Plot 4A1.4 Block 474
Subject to a 30' wide Parcel Reserved for Future Roadway Right of Way described
as follows:
Beginning at the point of beginning of the original description and running:
thence
A-1
Description of Land
8501 West Side Avenue
North Bergen, New Jersey
Page 2
1. N 62 degrees 58' 30" W 35.22 feet to a point on curve; thence
2. Northerly along a curve to the left having a radius of 2801.79 feet an arc
length of 474.00 feet to a point of tangency; thence
3. N 14 degrees 27' 00" W 709.47 feet to a point; thence
4. N 82 degrees 09' 00" E 30.20 feet to a point; thence
5. S 14 degrees 27' 00" E 706.00 feet to a point of curvature; thence
6. Along a curve to the right having a radius of 2831.79 feet an arc length
of 497.82 to the point of beginning:
Subject to a Utility and Access Easement described as follows:
Beginning at the point of beginning of the original description and running:
thence
1. N 62 degrees 58' 30" W 727.71 feet to a point; thence
2. N 14 degrees 27' 00" W 53.39 feet to a point; thence
3. S 62 degrees 58' 30" E 506.71 feet to a point of curvature; thence
4. Along a curve to the left having a radius of 100.00 feet an arc length of
72.39 feet to a point of tangency; thence
5. N 75 degrees 33' 00" E 124.38 feet to a point of curve; thence
6. Southerly along a curve to the right having a radius of 2831.79 feet an
arc length of 176.22 feet to the point of beginning:
Subject to and together with a 30' wide and 15' wide drainage easement along the
second thru fourth courses of the original description.
Subject to all easements, rights of ways and agreements of record.
A-2
EXHIBIT "B"
Graphic of Site Plan
(and designation of parking)
B-1
EXHIBIT "B1"
Graphic of Floor Plan of Demised Premises
B1-1
EXHIBIT "C"
WORKLETTER
G & G SHOPS OF WOODBRIDGE, INC.
1. Reference is made to Section "A" of the Demised Premises; Landlord agrees,
at its cost and expense, to construct the office space within Section A as
well, as build out the warehouse area of Section A in accordance with the
attached floor plan (Exhibit C-1) and in conformance with the attached
Design Criteria (Exhibit C-2) and Tenant's Plans delivered to Landlord in
accordance with Paragraph 4(a) hereinbelow.
2. Reference is made to Section "B" of the Demised Premises; Landlord agrees,
at its cost and expense, to construct the addition depicted as Section B
in accordance with the attached site plan (Exhibit B) and in conformance
with the attached Design Criteria (Exhibit C-2) and Tenant's plans
delivered to Landlord in accordance with Paragraph 5(a) hereinbelow.
3. Tenant hereby represents that it has accepted and approved Exhibit B, C-1,
and C-2 contemporaneously with the execution of this Lease.
4. (a) Tenant shall be obligated to provide Landlord with an "approved"
architectural layout of the Office Space (detailing with specificity, the
location of all plumbing, mechanical and electrical fixtures as well as
the required electrical capacity) within thirty (30) days from the date of
the execution of the Lease.
(b) Provided Landlord is in receipt of said approved architectural
drawings within said thirty (30) day period, Landlord agrees to complete
the Office Space within one hundred fifty (150) days from the date of the
execution of this Lease.
(c) In the event Tenant fails to provide Landlord with said architectural
drawings within thirty (30) days from the execution of this Lease, then
the one hundred fifty (150) day period, (for completion of the Office
Space), shall be extended one (1) day for each one (1) day of delay in
Tenant's approval of the architectural drawings; provided, however,
Landlord shall be entitled to commence the Lease as to Section A of the
Demised Premises on the date on which Section A would have been completed
but not for Tenant's delay in the approval in the architectural drawings.
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5. (a) Tenant hereby further agrees to provide Landlord with approved
criteria concerning Tenant's lighting, electrical, plumbing, mechanical,
and other systems, as well as the specific location of Tenant's loading
docks, as each relates to Section B of the Demised Premises, within one
hundred twenty (120) days from the date of execution of this Lease. (Said
information shall hereinafter be collectively referred to as "Section B
Criteria").
(b) Provided Landlord is in receipt of said Section B Criteria within said
one hundred twenty (120) day period, Landlord agrees to use its best
efforts (but shall not be subject to any penalty or damages for failure)
to complete Section B within eleven (11) months from the date of the
execution of this Lease.
(c) In the event Tenant fails to provide Landlord with the Section B
Criteria within one hundred twenty (120) days from the execution date of
this Lease, then the eleven (11) month period (for best efforts to
complete Section B) shall be extended one (1) day for each (1) day of
delay in Tenant's approval of the Section B Criteria; provided, however,
Landlord shall be entitled to commence the Lease as to Section B of the
Demised Premises on the date on which Section B would have been completed
but not for Tenant's delay in the approval in the Section B Criteria.
(d) In the event Landlord has not completed Section B on or prior to the
date which is the sixteenth month anniversary of the execution of the
Lease (subject to the provisions of Section 5(c) hereinabove) then Tenant
shall have the right, by written notice to Landlord, to request that
Landlord advise Tenant if Section B will be completed on or prior to the
date which is the twenty fourth (24th) month anniversary ("24 Month
Anniversary") of the execution of the Lease. If Landlord responds
negatively (i.e., that Section B will not be completed), the following
applies:
(i) Tenant shall have the right to terminate the Lease by written
notice to Landlord to that effect. In such event, the Lease and
Tenant's obligations thereunder (including Tenant's obligations with
respect to Section A) shall terminate eight (8) months from the date
of such notice; or
(ii) Tenant shall have the right to continue with its Lease
obligations by written notice to the Landlord to that effect. In
such event Tenant shall receive a one (1) day abatement in Fixed
Rent relative to Section B for each day after the sixteenth (16th)
month anniversary of the execution of the Lease that
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Section B is not completed. Said abatement of Fixed Rent shall
continue to the earlier of (A) the date Section B is completed or
(B) the date which is the twenty fourth (24th) month anniversary of
the execution of the Lease (regardless of whether Section B is
completed on such date).
(iii) Tenant shall not be able to exercise its right to terminate
under Section 5(d)(i) unless it provides Landlord with written
request concerning Landlord's ability to complete Section B on or
prior to the 24 Month Anniversary and only to the extent that Tenant
receives written notice from Landlord that Landlord cannot complete
Section B of the Demised Premises on or prior to the 24 Month
Anniversary.
(e) In the event Tenant exercises its option to terminate the Lease in
accordance with Section 5(d)(i) hereinabove, Landlord shall pay to Tenant
as provided hereinbelow an amount equal to the reasonable cost incurred by
Tenant to remove, move and/or replace and install its equipment and
inventory from Section A of the Demised Premises to another site,
hereinafter referred to as the "Move Out Costs". Tenant's consultant has
delivered a letter to Landlord to the effect that Tenant's approximate
Move Out Costs shall be in an amount equal to One Million Two Hundred
Thousand and 00/100 Dollars ($1,200,000.00) as is more fully detailed in
said letter (attached) from Ken Bonning, Vice President, Garr Consulting
Group, to Scott Galin, Senior Vice President, G&G/Rave and dated October
24, 1988. Landlord agrees to pay Tenant an amount not to exceed One
Million Two Hundred Thousand and 00/100 Dollars ($1,200,000.00) in
accordance with the terms and conditions provided herein. Landlord agrees
to pay Tenant the amount of Five Hundred Thousand Dollars and 00/100
($500,000.00) on account of said Move Out Costs within ninety (90) days of
the date of Landlord's receipt of Tenant's notice of intention to
terminate the Lease in accordance with Section 5(d)(i). The remaining
balance in full satisfaction of Landlord's obligations to pay Tenant's
Move Out Costs shall be paid within fifteen (15) days of Tenant's vacation
of the Building and subject to Landlord's receipt of the necessary back-up
materials and calculations of Tenant detailing the remaining balance of
said Move Out Costs. (Any dispute as to the nature and extent of Tenant's
Move Out Costs shall be subject to arbitration as provided in this Lease).
Landlord shall be entitled to a complete accounting from Tenant regarding
said Move Out Costs as well as any other information reasonably requested
by Landlord relative to same.
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(f) Tenant shall have the right at any time between the 16th and 24th
Month Anniversary of the execution of the Lease to request information
from Landlord concerning completion of Section B. The fact that Tenant may
have previously exercised its right not to terminate in accordance with
Section 5(d)(ii) shall not preclude Tenant from exercising, at a later
date and after written request to Landlord, its right to terminate the
Lease in accordance with Section 5(d)(i). In the event Tenant does so
terminate the Lease after having previously advised Landlord that it
intends to continue its Lease obligations in accordance with Section
5(d)(ii), then any entitlement to an abatement of Fixed Rent which may
have accrued shall thereby be rendered null and void, and Tenant's remedy
shall be as provided in Section 5(e). Notwithstanding Tenant's exercise of
its right to terminate as provided hereinabove, the eight month period
referred to in Section 5(d)(i) shall not commence until Landlord receives
written notice of Tenant's exercise of its right to terminate.
6. If, in the alternative, Tenant provides Landlord with written request, as
provided in Section 5(d) and Landlord responds in the affirmative, (i.e.,
that Section B will be completed on or prior to the 24 Month Anniversary)
Tenant shall be obligated to continue with its Lease obligations as to
both Section A and Section B and the provisions of Section 5(d)(ii)
concerning an abatement of Fixed Rent shall apply.
7. In the event Section B of the Demised Premises are not completed by the
twenty-four (24) month anniversary of the execution of the Lease,
Tenant shall have one final option to proceed in accordance with
Article 5(d), 5(e) and 5(f) to terminate this Lease. Said option must
be exercised on the date which is the twenty four (24) month
anniversary of the execution of the Lease. If not so exercised, Tenant
shall have forever waived such right and the Lease and the parties
obligations thereunder shall proceed in accordance with Section
5(d)(ii).
8. All dates, deadlines, or other time constraints imposed herein shall be
extended as reasonably necessary to accommodate any Unavoidable Delays,
provided that, Landlord shall give Tenant notice of any Unavoidable Delay
within a reasonable time period after Landlord has knowledge of such
Unavoidable Delay.
9. At any time after the date of this Lease, Tenant shall have the right to
undertake work to be performed by Tenant in connection with readying the
Demised Premises for its occupancy, provided (i) Tenant complies with the
terms and conditions of this Lease, (ii) does not violate any of Landlord
union contracts and (iii) does not interfere with Landlord's completion
of Landlord's Work.
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10. Landlord shall also perform the following work in Section A of the Demised
Premises at its cost and expense:
a. Install insulation in the ceiling in the offices closest to the
warehouse;
b. Install a security mesh (cyclone fence or its equal) to separate the
warehouse from the mechanical and electrical rooms;
c. Remove two (2) existing sheetrock walls;
d. Remove two (2) cyclone fences; same to be re-installed by Landlord
at the completion of Tenant's Work;
e. Install a canopy over the main entrance to the Demised Premises and
over the entrance to the main warehouse personnel door.
f. Install one double glass entry door to the offices and one personnel
door (the personnel door in a location to be mutually agreed upon by
Landlord and Tenant);
g. Install a sidewalk along front of Demised Premises to the main
warehouse personnel door.
11. Landlord hereby consents to the installation by Tenant, at Tenant's sole
cost and expense, of additional HVAC units in order to accommodate
Tenant's computer facility. In connection with such installation, Tenant
shall: (i) provide Landlord with prior written notice of any such
installation; (ii) deliver to Landlord detailed plans and specifications
regarding such installation; and (iii) be responsible for all repairs and
damage (including structural repair or damage), resulting from such
installation.
C-5
EXHIBIT C1
Graphic of Floor Plan of Section A
C1-1
EXHIBIT C2
Graphic of Landlord's Standard Design Criteria
C2-1
EXHIBIT C3
Graphic of Lighting Layout - Section A
C3-1
EXHIBIT "D"
RULES AND REGULATIONS
1. The rights of each tenant in the entrances and corridors servicing the
Building are limited to ingress and egress from such Tenant's premises for the
tenant and its employees, licensees and invitees, and no tenant shall use, or
permit the use of, the entrances, corridors, escalators or elevators for any
other purpose. Fire exits and stairways are for emergency use only, and they
shall not be used for any other purpose by the tenants, their employees,
licensees or invitees. No tenant shall encumber or obstruct, or permit the
encumbrance or obstruction of, any of the sidewalks, entrances, corridors,
elevators, fire exits or stairways of the Building. Landlord reserves the right
to control and operate the public portions of the Building and the public
facilities as well as facilities furnished for the common use of the tenants, in
such manner as it deems best for the benefit of the tenants generally.
2. Any person whose presence in the Building at any time shall, in the
judgment of Landlord, be prejudicial to the safety, character or reputation of
the Building or of its tenants may be denied access to the Building or may be
ejected therefrom. During any invasion, riot, public excitement or other
commotion, Landlord may prevent all access to the Building by closing the doors
or otherwise for the safety of the tenants and protection of property in the
Building.
3. Except as otherwise provided in this Lease, no awnings or other
projections shall be attached to the outside walls of the Building. No curtains,
blinds, shades or screens shall be attached to or hung in, or be used in
connection with, any window or door of the premises of any tenant, without the
prior written consent of Landlord. Such curtains, blinds, shades or screens must
be of a quality, type, design and color, and attached in the manner approved by
Landlord.
4. Except as otherwise provided in this Lease, no lettering, sign,
advertisement, notice or object shall be displayed in or on the windows or
doors, or on the outside of any tenant's premises, or at any point inside any
tenant's premises where the same might be visible outside of such premises,
without the prior written consent of Landlord. In the event of the violation of
the foregoing by any tenant, Landlord may remove the same without any liability,
and may charge the expense incurred in such removal to the tenant violating this
rule. Interior signs, elevator cab designations and lettering on doors and the
Building directory shall, if and when approved by Landlord, be inscribed,
painted or affixed for each tenant by Landlord at the expense of such tenant,
and shall be of a size, color and style acceptable to landlord.
D-1
5. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by any tenant, nor shall any
bottles, parcels or other articles be placed on the window sills or on the
peripheral air conditioning enclosures, if any.
6. No showcase or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors or
vestibules.
7. Except as otherwise provided in this Lease, linoleum, tile or other
floor covering shall be laid in a tenant's premises only in a manner first
approved in writing by Landlord which approval shall not be unreasonably
withheld or delayed.
8. Except as otherwise provided in this Lease, no tenant shall mark,
paint, drill into, or in any way deface any part of its premises or the
Building. No boring, cutting or stringing of wires shall be permitted, except
with the prior written consent of Landlord which consent shall not be
unreasonably withheld or delayed, and as Landlord may reasonably direct.
9. No noise, including, but not limited to, music or the playing of
musical instruments, recordings, radio or television, which, in the judgment of
Landlord, might disturb other tenants in the Building, shall be made or
permitted by any tenant. Nothing shall be done or permitted in the premises of
any tenant which would impair or interfere with the use or enjoyment by any
other tenant of any other space in the Building.
10. No tenant, nor any tenant's contractors, employees, agents, visitors
or licensees, shall at any time bring into or keep upon the premises or the
Building any inflammable, combustible, explosive or otherwise dangerous fluid,
chemical or substance.
11. Landlord reserves the right to inspect all objects and matter to be
brought into the Building and to exclude from the Building all objects and
matter which violate any of these Rules and Regulations or this Lease. Landlord
may require any person leaving the Building with any package or other object or
matter to submit a pass, listing such package or object or matter, from the
tenant from whose premises the package or object or matter is being removed, but
the establishment and enlargement of such requirement shall not impose any
responsibility on Landlord for the protection of any tenant against the removal
of property from the premises of such tenant. Landlord shall in no way be liable
to any tenant for damages or loss arising from the admission, exclusion or
ejection of any person to or from the premises or the Building under the
provisions of this RULE or of RULE 2 hereof.
D-2
12. No tenant shall occupy or permit any portion of its premises to be
occupied as an office for the possession, storage, manufacture or sale of
liquor, narcotics, dope, tobacco in any form, or as a barber, beauty or manicure
shop, or as a school.
13. Landlord shall have the right to prohibit any advertising or
identifying sign by any tenant which, in Landlord's judgment, tends to impair
the reputation of the Building or its desirability as a building for others, and
upon written notice from Landlord, such tenant shall refrain from and
discontinue such advertising or identifying sign.
14. Landlord, its contractors, and their respective employees, shall have
the right to use, without charge therefor all light, power and water in the
premises of any tenant while cleaning or making repairs or alterations in the
premises of such tenant.
15. No premises of any tenant shall be used for lodging or sleeping or for
any immoral or illegal purpose.
16. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant shall cooperate to prevent the same.
17. Nothing shall be done or permitted in any tenant's premises, and
nothing shall be brought into or kept in any tenant's premises, which would
impair or interfere with any of the Building's services or the proper and
economic heating, cleaning or other servicing of the Building or the premises,
or the use or enjoyment by any other tenant of any other premises nor shall
there be installed by any tenant any ventilating, air-conditioning, electrical
or other equipment of any kind which, in the judgment of Landlord, might cause
any such impairment or interference.
18. No acids, vapors or other materials shall be discharged or permitted
to be discharged into the waste lines, vents or flues of the Building which may
damage them. The water and wash closets and other plumbing fixtures in or
serving any tenant's premises shall not be used for any purpose other than the
purposes for which they were designed or constructed, and no sweepings, rubbish,
rags, acids or other foreign substances shall be deposited therein. All damages
resulting from any misuse of the fixtures shall be borne by the tenants who, or
whose servants, employees, agents, visitors or licensees shall have, caused the
same. Any cuspidors or containers or receptacles used as such in the premises of
any tenant or for garbage or similar refuse, shall be emptied, cared for and
cleaned by and at the expense of such tenant.
19. Landlord reserves the right to rescind, alter or waive any rule or
regulation at any time prescribed for the Building when, in
D-3
its reasonable judgment, it deems it necessary, desirable or proper for its best
interest and for the best interests of the tenants, and no alteration or waiver
of any rule or regulation in favor of one tenant shall operate as an alteration
or waiver in favor of any other tenant. Landlord shall not be responsible to any
tenant for the non-observance or violation by any other tenant of any of the
rules and regulations at any time prescribed for the Building provided Landlord
uses reasonable efforts to insure that tenants comply with the Rules and
Regulations.
Any conflict between these Rules and Regulations and the Lease to which they
are attached shall be resolved in favor of the provisions contained in the
Lease.
D-4