EXHIBIT 10.23
LEASE AGREEMENT
THIS LEASE AGREEMENT is made this 20th day of June, 1997 by and between the
▇▇▇▇▇ County Industrial Development Agency, hereinafter referred to as the
"Landlord", and IRON AGE CORPORATION, referred to as the "Tenant."
1. PREMISES & TITLE
1.1 For and in consideration of the payment of the rental and
performance of the covenants and agreements hereinafter set forth, Landlord
leases to Tenant, and Tenant accepts from Landlord, the premises located a 1
Keuka Business Park, in the Town of Jerusalem, State of New York, and consisting
of the ENTIRE THIRD FLOOR OF THE KEUKA BUILDING, CONSISTING OF 5000 SQUARE FEET
OF RENOVATED AND EQUIPPED OFFICE SPACE, more fully shown on Exhibit A, attached
hereto and incorporated herein by this reference ("the Leased Premises").
1.2 Landlord warrants that it has title to the Leased Premises, and
that it has the right to lease the same for the term of this Lease. Landlord
covenants that Tenant, upon the payment of the rent herein stipulated and the
performance of all the covenants and agreements hereunder, shall have the
peaceful and quiet possession, use and enjoyment of the Leased Premises, without
hindrance on the part of the Landlord or any party claiming by, through or under
it, for the term of this Lease, and Landlord further warrants that it shall
defend the Tenant in such peaceful and quiet use, and enjoyment and possession
of the Leased Premises against any such claims.
1.3 This Lease is and shall be subordinate at all times to any
mortgage or mortgages which may now be or at any time hereafter shall be placed
upon or made a lien upon the said leased premises or any part thereof and to any
extension, spreading, or modification thereof, The Tenant will, without expense
to the Landlord, promptly execute and deliver on demand such further and
additional instrument or instruments in proper form for recording subordinating
this lease to any such mortgage or mortgages as shall be requested by the
Landlord or by any mortgage or proposed mortgage. The Tenant hereby appoints the
Landlord the attorney-in-fact of the Tenant revocable to execute and deliver any
such instrument or instruments for and on behalf of and in the name of the
Tenant.
1.4 The TENANT represents that TENANT has inspected and examined the
premises and accepts them in their present condition. Prior to the commencement
of this Lease, Landlord and Tenant shall prepare and sign an inspection report
which shall establish the condition of the Leased Premises at the commencement
of the Lease.
2. TERM
2.1 THE TERM OF THIS LEASE AGREEMENT SHALL BE FOR A PERIOD COMMENCING
ON JULY 1, 1997, AND TERMINATING AT MIDNIGHT ON FEBRUARY 28, 2003. It consists
of a startup period through February 28, 1998, followed by a five year Lease
Period though February 28, 2003.
2.2 THE TENANT SHALL ALSO HAVE THE OPTION TO EXTEND THIS LEASE
AGREEMENT FOR AN ADDITIONAL FIVE YEARS (TO FEBRUARY 29, 2008).
THE TENANT SHALL PROVIDE THE LANDLORD WITH SIX MONTHS NOTICE OF
THEIR INTENTION TO EXERCISE THIS OPTION. THE TOTAL RENTAL EXPENSE
FOR THIS PERIOD WILL BE DETAILED IN SECTION 3.1 (BELOW).
2.3 The Tenant shall be able to utilize the Leased Premises, without
charge, if the renovation work is completed prior to July 1, 1997, subject to
approval of said work by the Landlord
3. RENTAL EXPENSE
3.1 TENANT COVENANT AND AGREES TO PAY RENT ON MONTHLY BASIS TO LANDLORD
FOR THE USE AND OCCUPANCY OF THE LEASED PREMISES ACCORDING TO THIS
SCHEDULE COMMENCING ON JULY 1, 1997:
RENTAL PERIOD BASE RENTAL UTILITY ALLOWANCE TOTAL EXPENSE
------------- ----------- ----------------- -------------
7/1/97-8/31/97 $ 814/MONTH $250/MONTH $1064/MONTH
9/1/97-2/28/98 $2064/MONTH $250/MONTH $2314/MONTH
3/1/98-2/28/99 $5412/MONTH $350/MONTH $5762/MONTH
3/1/99-2/29/00 $5512/MONTH $375/MONTH $5887/MONTH
3/1/00-2/28/01 $5412/MONTH $400/MONTH $6012/MONTH
3/1/01-2/28/02 $3398/MONTH $450/MONTH $3848/MONTH
3/1/02-2/28/03 $3498/MONTH $500/MONTH $3998/MONTH
3.2 THE TERMS OF THE FIVE YEAR EXTENSION OPTION ARE AS FOLLOWS:
3/1/03-2/29/04 $2500/MONTH $500/MONTH $3000/MONTH
3/1/94-2/28/05 $2500/MONTH $500/MONTH $3000/MONTH
3/1/95-2/28/06 $2500/MONTH $500/MONTH $3000/MONTH
3/1/06-2/28/07 $2600/MONTH $550/MONTH $3150/MONTH
3/1/07-2/29/08 $2700/MONTH $600/MONTH $3300/MONTH
3.4 The monthly rental installment shall be paid in advance and on the
first day of each month during the term hereof at the YCIDA office at One ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇.
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4. UTILITIES
4.1 Landlord shall provide utilities (electrical power,
heating/cooling, water and sewer, but not telecommunications service) for the
Leased Premises. Telecommunications service expenses are the responsibility of
the Tenant. Tenant shall pay a monthly utility allowance per the above schedule
to the Landlord, payable in the same manner as in 3.2 (above) for services
provided during the term of the Lease Agreement.
4.2 In the event of any problem with the electrical service, the
Tenant shall first notify the Landlord and will not contact the Penn Yan
Municipal Utilities Board without Landlord's prior approval.
5. USE OF LEASED PREMISES
5.1 Tenant covenants and agrees that the Leased Premises shall be
used solely and exclusively for the purpose of general office space. The
Landlord shall provide four reserved parking spaces at the Keuka Business Park,
if requested by the Tenant.
5.2 Tenant shall not obstruct any of the roadways extending through
the Keuka Business Park.
5.3 Tenant shall observe and comply with all laws, statutes,
ordinances, rules, regulations, orders and/or directives or governmental
authorities pertaining to the manner in which Tenant uses the leased premises.
Tenant shall also observe and comply with all reasonable rules and regulations
which Landlord may make from time to time for the management, safety, care, and
cleanliness of the building and grounds, the parking of vehicles and the
preservation of good order therein as well as for the convenience of other
occupants and tenants of the building. The violations of any such rules and
regulations shall be deemed a material breach of this Lease by Tenant.
5.4 Tenant is strictly prohibited from bringing any chemicals or
toxic materials onto the premises except those materials which will be used
directly in the conduct of Tenant's business as described above (5.1).
6. SIGNS
Tenant shall not have the right to place signs, lights, poles, or mail
boxes in or about the Leased Premises without the prior written consent of the
Landlord. If that consent is granted, Tenant agrees to remove all such signs,
lights and poles prior to expiration of this Lease, repairing any damage to
leased premises caused by such removal, and during the term of this Lease to
maintain the same in good condition and repair.
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7. ALTERATIONS, REPLACEMENTS AND IMPROVEMENTS
7.1 Tenant may not make any alterations, additions or improvements to
the Leased Premises without the prior written consent of Landlord. If such
consent is granted and unless expressly agreed otherwise in writing, Tenant
agrees to remove all such alterations, replacements and improvements prior to
expiration of this Lease, repairing any damage to the leased premises caused by
such removal, and during the term of this Lease to maintain the same in good
condition and repair.
7.2 Any such alterations, additions or improvement, unless expressly
agreed otherwise, may be removed by Tenant at any time, provided that Tenant
shall repair any damage to the Leased Premises caused by such removal.
8. REPAIRS & MAINTENANCE AND CLEANING SERVICES
8.1 LANDLORD'S REPAIR & MAINTENANCE OBLIGATIONS. Landlord at its own
expense shall maintain the following items:
a. The structural parts of the building and other improvements that
are part of the Leased Premises, which structural parts include the foundations,
bearing and exterior walls, subflooring and roof.
b. The heating, ventilating, air conditioning, and related systems
of the Leased Premises.
c. The unexposed electrical, plumbing and sewage systems, including,
without limitation, those portions of the systems lying outside the Leased
Premises.
d. The Landlord shall have all snow and ice removed from the
sidewalks leading to the premises as soon as practicable, and see that snow from
the parking area is properly and reasonably removed and that all refuse and
garbage is removed from the collection area.
e. The Landlord shall maintain the common areas of the Keuka
Business Park in a safe, clean, and orderly condition, including the parking
areas, hallways, stairs, and public restrooms.
8.2 TENANT'S REPAIRS & MAINTENANCE AND CLEANING SERVICE OBLIGATIONS.
Tenant at its expense shall perform the following functions:
a. Except as provided in paragraph 8.1 above, Tenant shall maintain
the Leased Premises and provide necessary cleaning services. The Tenant is also
responsible for restroom supplies, and the arrangements for vending machines for
the space, if any. At the expiration of the term of this Lease Agreement, or
prior termination, Tenant shall surrender the Leased
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Premises to the Landlord in the same condition as received, normal wear and
tear, damage from the elements, fire, or other casualty damage that the Landlord
is now required to repair hereunder, or damage from the negligence or willful
misconduct of Landlord, its agents or employees, excepted.
9. LIABILITY INSURANCE & INDEMNITY
9.1 TENANT SHALL MAINTAIN AT ALL TIMES DURING THE TERM OF THIS LEASE
AGREEMENT, AT ITS OWN EXPENSE, MAINTAIN A COMMERCIAL GENERAL LIABILITY INSURANCE
POLICY WITH A LIMIT OF ONE MILLION DOLLAR ($1,000,000) FOR ANY ONE (1)
OCCURRENCE, INSURING THE LANDLORD AND THE TENANT AGAINST ALL LIABILITY FOR
DAMAGES TO PERSON OR PROPERTY IN OR ABOUT THE LEASED PREMISES. THE TENANT SHALL
PROVIDE TO THE LANDLORD A COPY OF SAID POLICY, WITH THE LANDLORD LISTED AS AN
ADDITIONAL INSURED.
9.2 BOTH THE TENANT AND LANDLORD SHALL INDEMNIFY AND HOLD THE OTHER
PARTY HARMLESS AGAINST ANY AND ALL CLAIMS AND DEMANDS ARISING FROM THE
NEGLIGENCE OF THEIR OWN OFFICERS, AGENTS AND/OR EMPLOYEES, AS WELL AS THOSE
ARISING FROM THEIR FAILURE TO COMPLY WITH ANY COVENANT OF THIS LEASE ON ITS PART
TO BE PERFORMED, AND SHALL AT ITS OWN EXPENSE DEFEND THE OTHER PARTY AGAINST ANY
AND ALL SUITS OR ACTIONS ARISING OUT OF SUCH NEGLIGENCE, OR FAILURE TO COMPLY,
ACTUAL OR ALLEGED, AND ALL APPEALS THEREFROM AND SHALL SATISFY AND DISCHARGE ANY
JUDGMENT WHICH MAY BE AWARDED AGAINST THE OTHER PARTY IN ANY SUCH SUIT OR
ACTION.
9.3 Landlord shall maintain insurance against damage or loss to the
leased premises. Insurance coverage on tenant's business contents or business
operation shall be the responsibility of the tenant.
9.4 Tenant covenants and agrees to pay Landlord an amount equal to
the escalation in insurance premiums on the Landlord's premises arising out of
the occupancy of the Tenant.
10. DESTRUCTION AND/OR CONDEMNATION OF THE PREMISES
10.1 In case of the total or such partial loss of the Leased Premises
through fire, other casualty and/or condemnation, as shall make it impracticable
for Tenant's use as set forth in Paragraph 4.1, this Lease may be terminated at
the option of either party on written notice to the other, and in that case,
Tenant shall not be liable for any rent after the date of Tenant's removal from
the Leased Premises.
10.2 If the Lease is not terminated pursuant to Paragraph 10.1, then
the rent shall be equitably adjusted to reflect the portion of the Leased
Premises that are no longer available for Tenant's use.
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11. ASSIGNMENT OR SUBLEASE
Tenant shall not have the right to assign this Lease Agreement or
sublet the Leased Premises or any part thereof, without the prior written
consent of Landlord. Such written consent shall not be unreasonably withheld.
12. ACCESS TO LEASED PREMISES
Landlord shall have the right to enter the Leased Premises at all
reasonable hours, with appropriate notice to the Tenant, for the purpose of
making any repairs, alterations, additions or improvements to the Leased
Premises. All such repairs, alterations, additions and improvements shall be
done in a manner so as not to unreasonably interfere with Tenant's use of the
Leased Premises. During the repair period, Tenant's liability for rent and
other sums payable by Tenant hereunder shall be reduced by that amount which
bears the same ratio to said rent and such other sums as the area of the Leased
Premises rendered unsuitable by such repair work for the normal operation of
Tenant's business bears to the entire area of the Leased Premises.
If the Tenant install an alarm system for the space, the Landlord is
to have a copy of the alarm key and/or codes for emergency purposes.
13. DEFAULT BY TENANT
13.1 The following shall be deemed a default by Tenant under the
terms of the Lease ("Event of Default"):
a. The failure by Tenant to pay any rent, utility allowance, or other
sum of money due hereunder within ten (10) days after written notice from
Landlord that such payment has not been made;
b. The failure by Tenant to perform any other of the terms, conditions
or covenants of this Lease to be observed or performed by Tenant for more than
thirty (30) days after written notice from Landlord of such default, unless such
default is of a nature that it cannot practicably be cured within a thirty (30)
day period and Tenant is proceeding with due diligence to cure such default;
c. The making by Tenant of an assignment for the benefit of creditors;
d. The filing of a petition by or against Tenant for adjudication as a
bankrupt under the Bankruptcy Act, as now or hereafter amended or supplemented,
or for reorganization within the meaning of Chapter XI of the Bankruptcy Act, or
the commencement of any action or proceeding for the dissolution or liquidation
of Tenant, whether instituted by or against Tenant, or for the appointment of a
receiver or trustee of the property of Tenant, provided that
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no such filing or proceeding instituted by a third party shall be regarded as a
default hereunder if Tenant shall promptly move to have the same dismissed,
rescinded or rendered inoperative and Tenant prosecutes such action with due
diligence and continues to perform and discharge all of the covenants and
obligations on its part to be performed or discharged under this Lease during
the pendency of such proceedings.
13.2 Upon the occurrence of an Event of Default, Landlord shall have the
immediate right of re-entry and possession of the Leased Premises, which right
shall remain continuous until such time as Tenant shall have cured such Event of
Default. Notwithstanding such re-entry and possession of the Leased Premises by
Landlord, Tenant shall remain liable for the rent and other sums payable
hereunder whether or not the Leased Premises are relet by Landlord an for all
expenses which Landlord may incur in re-entering the Leased Premises and
repairing and maintaining the same less such proceeds, if any, which may result
from the reletting of the Leased Premises.
13.3 Additionally, upon the occurrence of any Event of Default, Landlord
shall have the right to terminate this Lease by written notice of such intention
to Tenant. In the event Landlord elects to terminate this Lease, Tenant's
liability for rent and other sums payable hereunder and to perform any other
term, condition, covenant or agreement on its part to be performed under this
Lease shall cease and terminate as to any period subsequent to the date on which
Landlord delivers to Tenant written notice of such termination. Tenant shall
remain liable, however, for all rent and the performance of all terms conditions
and agreements relating to matters prior to the date of such termination.
14. REMEDIES CUMULATIVE
No mention in this Lease of any specific right or remedy shall preclude
either party from exercising any other right or from having any other remedy or
from maintaining any action to which it may be otherwise entitled at law or in
equity.
15. WAIVER
The failure of either party to insist in any one or more instances upon a
strict performance of any covenant of this Lease or the waiver by either party
of any term, covenant or condition herein contained shall not be deemed to be a
waiver or relinquishment of such term, covenant or condition or any subsequent
breach of the same or any other term, covenant or condition herein contained. No
covenant, term or condition of this Lease shall be deemed to have been waived by
either party unless waived by written instrument.
16. HOLDING OVER
Any holding over by Tenant, with Landlord's written consent, after
expiration of this Lease shall operate and be construed as a tenancy from month
to month on the same terms,
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covenants, conditions, provisions and agreements contained in this Lease, except
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the monthly rent shall increase by 100%.
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17. NOTICES
All notices as required by any of the terms and conditions of this Lease
Agreement shall be deemed given by facsimile or when the notice is prepared,
adequately addressed and deposited in the United States mail, postage prepaid.
Notices to Landlord and Tenant are adequately addressed as follows:
LANDLORD: ▇▇▇▇▇ COUNTY INDUSTRIAL DEVELOPMENT AGENCY
ATTENTION: EXECUTIVE DIRECTOR
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
TENANT: IRON AGE CORPORATION
ATTENTION: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
CHIEF FINANCIAL ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
COPY TO: ▇▇▇▇▇▇ ▇▇▇▇▇▇
CORPORATE VICE PRESIDENT
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
18. MECHANICS' LIEN
Tenant shall pay all costs for construction done by it or caused to be
done by it in the leased premises as permitted by this Lease Agreement. Tenant
shall keep the building, other improvements, and land of which the leased
premises are a part free and clear of all mechanics' liens resulting from
construction done by or for Tenant. Tenant shall have the right to contest the
correctness or the validity of any such lien, if immediately on demand by
Landlord, Tenant procures and records a lien release bond issued by a
corporation authorized to issue surety bonds in an amount equal to one and one-
half times the amount of the claim of the lien.
19. ATTORNEYS' FEES
If either party becomes a party to any litigation concerning this Lease
Agreement, the leased premises, or the building or other improvements in which
the leased premises are
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located, by reason of any act or omission of the other party or its authorized
representatives, and not by any act or omission of the party that becomes a
party to that litigation or any act or omission of its authorized
representatives, the party that causes the other party to become involved in the
litigation shall be liable to that party for reasonable attorneys' fees and
court costs incurred by it in the litigation.
If either party commences an action against the other party arising
out of or in connection with this Lease Agreement, the prevailing party shall be
entitled to have and recover from the losing party reasonable attorneys' fees
and costs of suit.
20. SUCCESSORS AND ASSIGNS
This Lease and all its provisions shall be binding upon the heirs,
administrators, executors, successors and assigns of the parties hereof.
IN WITNESS WHEREOF, the respective parties have executed this
instrument as of the day and year first hereinabove written.
LANDLORD:
▇▇▇▇▇ County Industrial Development Agency
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇, Chair 20 June 97
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Name/Title/Date
TENANT:
Iron Age Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President
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Name/Title/Date
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LEASE ADDENDUM
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THIS LEASE ADDENDUM is made this 9th day of JANUARY 1998 by and between the
▇▇▇▇▇ County Industrial Development Agency, hereinafter referred to as
"Landlord", and IRON AGE CORPORATION, hereinafter referred to as "Tenant." This
addendum amends the prior lease agreement, dated June 20, 1997, between Iron Age
Corporation and the ▇▇▇▇▇ County Industrial Development Agency.
The Lease Addendum incorporates office space of approximately 725 square
feet, in the form of two offices on the second floor of the Keuka Building
measuring 375 square feet and 350 square feet respectively, more fully shown on
Exhibit A.
LEASE ADDENDUM TERM
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The term of this Lease Addendum Agreement shall be for a period of sixty
one (61) months, commencing on February 1, 1998 and terminating at midnight on
February 28, 2003.
NEW RENTAL EXPENSE SCHEDULE
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The following schedule represents the rental payments during the months of
the lease addendum.
Rental Period Base Rental Utility Allowance Total Expense
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2/1/98-2/28/98 $2294/month $395/month $2689/month
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3/1/98-2/28/99 $5642/month $495/month $6137/month
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3/1/99-2/29/00 $5742/month $520/month $6262/month
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3/1/00-2/28/01 $5842/month $545/month $6387/month
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3/1/01-2/28/02 $3653/month $595/month $4248/month
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3/1/02-2/28/03 $3778/month $645/month $4423/month
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The remainder of the terms and conditions of the original Lease Agreement remain
in effect.
LANDLORD:
▇▇▇▇▇ County Industrial Development Agency
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name/Title/Date
TENANT:
Iron Age Corporation
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President/COO ▇▇▇▇▇ ▇▇▇▇▇▇ Division
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Name/Title/Date 1/9/98
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