AGREEMENT

Exhibit 10.4

AGREEMENT

WHEREAS , Port Partnership, LLP (“the Partnership”) and LMI FINISHING, INC. (“Lessee”) are parties to (i) that certain Lease Agreement dated  as of the 6 ^th day of September, 2002 ( the “Existing Lease”) and (ii) that certain Lease Agreement dated May 2, 2006 ( the “2006 Lease Agreement”), and

WHEREAS , the Partnership and Lessee desire that Lessee enter into a Lease Agreement with Port Partnership-I, LLP, (“Lessor”) for the Lease of a Building on Land hereafter described,

NOW THEREFORE , the Partnership, Lessor and Lessee for good and valuable consideration do hereby agree:

1.           Lessor and Lessee shall contemporaneously herewith, execute the attached Lease Agreement.

2.           That the 2006 Lease Agreement shall terminate upon satisfaction of all the conditions precedent identified in Article II, paragraph 1. (a), (b) and (c) and Article II, paragraph 2 of the attached Lease and all rentals, security deposits and other sums paid to the Partnership by Lessee pursuant thereto shall be returned to Lessee within ten (10) days thereafter.

3.           That upon the Commencement Date of the attached Lease Agreement, the Existing Lease shall terminate and (i) Lessee shall be entitled to a refund of Rent paid under the Existing Lease, pro rata, for the period from said Commencement Date to the last day of the month in which said Commencement Date occurs and (ii) the security deposit paid by Lessee under the Existing Lease shall be returned to Lessee in accordance with the terms thereof.

4.           If the attached Lease Agreement terminates pursuant to the terms of Article II, paragraph 1.(d) or Article II, paragraph 2 thereof, the May 2, 2006 Lease Agreement shall continue in full force and effect and be modified as provided in Article II, paragraph 1.(d) of the attached Lease Agreement by a separate amendment executed by the Partnership and Lessee.

Dated this ___ day of June, 2006

[Signatures continued on following page.]

 

 

 

 

 

 

LEASE AGREEMENT

ARTICLE I

RECITALS

 

A.           Lessor intends to lease a certain parcel of unimproved real property located in Rogers County, Oklahoma and described on Exhibit “B” attached hereto (said real property is hereinafter referred to as the “Land” and the lease agreement to be entered into between Lessor and the owner of the Land is hereinafter referred to as the "Ground Lease").

 

B.           As of the date hereof, pursuant to that certain Lease Agreement dated as of the 6th day of September, 2002 (hereinafter referred to as the “Existing Lease”), Lessee leased from Port Partnership, LLP approximately 40,000 square feet in a building located at the Port of Catoosa, Oklahoma

 

C.           Lessor and Lessee desire to enter into this Lease Agreement to (i) provide the terms and conditions for the construction by Lessor of an approximately 80,000 square foot Building and other related improvements including, without limitation, a parking area serving said Building on the Land (said Building and other related improvements are hereinafter referred to collectively as the “Building Improvements”) and (ii) provide the terms and conditions for the termination of the Existing Lease upon Substantial Completion (as hereinafter defined) of the Building Improvements.

 

D.           That for and in consideration of the mutual agreements herein contained, Lessor leases and demises unto the Lessee, and Lessee accepts and leases from the Lessor the Land and the Building Improvements (hereinafter collectively called the "Demised Premises"). Except as otherwise expressly set forth in this Lease, in no event shall Lessor be liable for any defect in the Demised Premises or any part thereof, or for any limitations on its use; provided, however, Lessor does hereby assign unto Lessee all warranties and guarantees it shall receive from its contractor and contractor's supplier(s) with respect to the Demised Premises.  Notwith­standing the foregoing, if at any time hereunder Lessee is unable to conduct its business in the Demised Premises (due to any restriction imposed by the Ground Lease or by any public or quasi public authority having jurisdiction over Lessor, Lessee or the Demised Premises, as each may be reasonably determined by Lessee excluding, however, any restriction imposed upon Lessee by any applicable law, rule, regulation or restriction generally applicable to all Tenants at the Port of Catoosa), Lessee shall have the right to terminate this Lease upon ninety (90) days written notice thereof to Lessor, where upon any advance rental (and so much of any security deposit as Lessee shall be entitled to hereunder) shall be returned to Lessee within three (3) days of such termination, and thereafter neither party shall have any further liability to the other, except as may be expressly provided for to the contrary hereunder.  This Lease is made upon the following covenants, agreements, terms, provisions, conditions and limitations, all of which the parties hereto mutually warrant and agree to perform and observe:

 

ARTICLE II

CONDITIONS PRECEDENT

ARTICLE III

PROPERTY DESCRIPTION, USE AND CONSTRUCTION OF BUILDING IMPROVEMENTS

1.           Effective as of the Commencement Date (as hereinafter defined), Lessor does hereby lease to the Lessee the Demised Premises which shall consist of (i) the Land and (ii) the Building Improvements.

 

3.           The Lessor, at Lessor’s sole cost and expense, shall cause to be constructed the Building Improvements, which shall include a one-story 80,000 square foot building to be constructed in substantial accordance with the plans and specifications therefor approved by Lessor and Lessee, a copy of which plans and specifications is attached to this Lease as Exhibit “A” (the “Approved Final Building Improvements Plans").

 

4.           Lessor shall obtain all permits necessary for the construction and installation of the Building Improvements.  Subject to any delay resulting from Force Majeure Events, Lessor shall cause the construction of the Building Improvements to be performed diligently and to completion.  The construction of the Building Improvements shall be performed in a first-class and workmanlike manner, using only new and good grades of materials and equipment, in accordance with (i) all applicable zoning and other ordinances, building codes and regulations, statutes, ordinances, codes, standards, regulations, rules, orders, decisions and requirements of all federal, state and local authorities including, without limitation, the Americans with Disabilities Act of 1990 and all regulations thereto issued by the U.S. Attorney General or other authorized agencies under the authority of the Americans with Disabilities Act of 1990, then in effect, as interpreted and applied by state and local governmental authorities having jurisdiction over the Premises, and (ii) the Approved Final Building Improvements Plans.

 

ARTICLE IV

THE GROUND LEASE

1.           A copy of the Ground Lease (which term shall also include the Primary Lease identified in the Ground Lease) is attached hereto and marked Exhibit "C."

 

3.           Lessee agrees to undertake and perform each and every act required of the Lessor to be performed by the terms of the Ground Lease, including but not limited to the timely payment of all rental and other charges and fees thereunder, and not to do or omit to do anything which will breach the terms thereof.  Lessor agrees not to do or omit to do anything which will breach the terms of the Ground Lease, and further agrees not to agree to any change in the terms of the Ground Lease or exercise or fail to exercise or waive or release any right, power or duty under the Ground Lease which will diminish the Lessee's right or increase its liability thereunder without the written consent of Lessee (including without limitation, the timely exercise of renewal and/or term extension rights). Lessor shall promptly provide Lessee with a copy (in accordance with Article XXV and also by facsimile) of all notices and correspondence relating to the Ground Lease which Lessor believes may adversely affect the rights of the Lessee in the Ground Lease granted hereby.

 

(c)           The exclusive right to assign, sell, transfer, convey, mortgage, encumber or hypothecate any part or all of its right, title and interest in the Ground Lease subject, however, to this Lease;

 

6.           Each party agrees to give immediate notice (together with a facsimile copy thereof) to the other of any action taken or threatened by the Port Authority of which either party obtains any actual knowledge, whether by written notice or otherwise, which might terminate or purport to terminate the Ground Lease.

 

9.           Lessor shall indemnify and hold Lessee harmless from and against any default under either the Ground Lease or the Primary Lease which: (A) precedes this Lease; and/or (B) arises from the demise and/or occupancy of the Demised Premises prior to the approval of the Port Authority (or the demising party under the Primary Lease) of this Lease.

ARTICLE V

CONDITION OF DEMISED PREMISES

By taking possession of the Demised Premises, Lessee shall be deemed to have inspected same and to have accepted the Demised Premises in their "then" and "as is" condition.  Notwith­standing the foregoing, Lessor does hereby assign unto Lessee all warranties and guarantees it shall receive from its contractor and contractor's suppliers with respect to the Demised Premises and the construction and installation of the Building Improvements.

ARTICLE VI

TERM OF LEASE, CANCELLATION OF EXISTING LEASE

ARTICLE VII

RENTAL

1.           Lessee hereby covenants and agrees to pay to Lessor a net rental for the Primary Term (herein called the "Base Rental") over and above the other and additional payments to be made by Lessee as hereinafter provided. The total Base Rental for the Primary Term shall be the sum of Two Million Eleven Thousand Seven Hundred Thirty-Three and 00/100 Dollars ($2,011,733.00). Base Rental shall be paid in advance in monthly installments commenc­ing the first day of the third calendar month immediately succeeding the date of Substantial Completion to be paid in advance on or before the tenth (10th) day of each and every month thereafter through the Primary Term. Should the date of Substantial Completion be a date other than the first day of a month, then Lessee shall pay Lessor rent for the period from the date of Substantial Completion through and including the last day of the month in which Substantial Completion occurs in an amount equal to the amount obtained by multiplying (i) $24,533.33 by (ii) a fraction, the numerator of which is the number of days remaining in the month in which Substantial Completion occurs and the denominator of which is the number of days in the month in which Substantial Completion occurs. References herein to "Rent" shall mean Base Rental and any additional rent required to be paid hereunder.

 

2.           Installments of Base Rental shall be paid as follows:

 

(a)           For the two (2) calendar months commencing the first month immediately succeeding the date of Substantial Completion, the sum of Zero Dollars ($00.00) per month.

 

ARTICLE VIII

PUBLIC UTILITY CHARGES

Lessee shall, at its sole cost and expense, pay, or cause to be paid, all charges for utilities furnished to the Demised Premises or to Lessee with respect to its operations thereon during the term of this Lease, and Lessee will indemnify Lessor and hold it harmless against any liability or damages for any such separately-metered charges incurred by Lessee.

ARTICLE IX

MAINTENANCE AND REPAIR OF THE DEMISED PREMISES

1.           Throughout the term of this Lease, the Lessee, at its sole cost and expense, will take good care of (i) the interior of the portion of the Building comprising a portion of the Demised Premises which shall expressly include, without limitation, windows, doors, lighting, utilities and utility conduits, plumbing and sanitary systems within said portion of the Demised Premises, HVAC systems and equipment serving solely the Demised Premises, security systems and all other improvements located in, on or about the Demised Premises, and the parking areas and the routes of ingress and egress located on the Demised Premises, and will make all necessary repairs thereto except as otherwise provided in Article XIX and condemnation alone excepted. When used in this Article, the term "repairs" shall include all necessary replacements and renewals, but shall in all cases, be exclusive of all Structural Components (as hereinafter defined) of the Demised Premises and the Building except to the extent damaged by the negligence or willful misconduct of Lessee, its agents, servants, employees or invitees and only to the extent not covered by insurance maintained by Lessee.  Lessee shall perform any lawn maintenance required with respect to any lawn area located on the Demised Premises.  As used in this Paragraph 1, the term “Structural Components” shall mean and refer to the roof, exterior siding, foundation, slab, vertical support columns and roof trusses of the Building.  Notwith­standing anything to the contrary contained in this Paragraph 1, Lessee’s obligations under this Paragraph 1 shall not include making (i) any repair or improvement necessitated by the negligence or willful misconduct of Lessor, its agents, employees, servants or contractors; or (ii) any repair or improvement caused by Lessor’s failure to perform its obligations under this Lease.  Lessor shall at its cost, perform all maintenance and repairs and make all replacements, additions and improvements required in order to keep and maintain in good condition, order and repair the Structural Components.  Except for the Structural Components, Lessor shall not be required to maintain or repair any portion of the Demised Premises.

 

2.           The necessity for and adequacy of repairs to the Demised Premises and the portions of the Building and other areas to be maintained by Lessor and Lessee pursuant to this Lease shall be measured by the then-prevailing standard for improvements of similar construc­tion and class at the Port of Catoosa, and such repairs shall conform to all applicable laws, rules, regulations and restrictions, including the Ground Lease.

 

3.           The Lessee shall keep the Demised Premises in a clean and orderly condition, free of dirt, unsightly vegetation, rubbish, snow, ice and unlawful obstructions.

 

4.           In case any dispute shall arise at any time between the Lessor and the Lessee as to the standard of care and maintenance of the Demised Premises, such dispute shall be determined by arbitration under the Oklahoma Uniform Arbitration Act, provided that if the requirement for making repairs or replacements is imposed by: (i) any governmental authority; (ii) any restrictive or affirmative covenants imposed upon the Land, or by or through the Ground Lease; or (iii) by or through the holder of any mortgage to which this Lease is subordinate, then such requirement for repairs or replacements as they relate to the portions of the Demised Premises that Lessee is responsible for maintaining and repairing under this Article IX shall be complied with by the Lessee as required by 1 - 3 above, and shall not be considered an arbitrable dispute as contem­plated by this Article. The Lessee, however, shall have the right to dispute or contest the validity, application or reasonableness of any requirement pursuant to 1 - 3 above, provided such contest or dispute does not breach or violate any of the terms of any such mortgage or the Ground Lease.

 

ARTICLE X

PAYMENT OF TAXES, ASSESSMENTS, ETC,

1.           Lessee shall pay all taxes, assessments, and other governmental charges of any kind or nature (collectively, "Taxes") which at any time during the term of this Lease may be assessed, levied or imposed by any governmental authority upon or with respect to the Demised Premises.  It is intended that the Taxes to be paid by Lessee hereunder shall include any taxes assessed against the Lessor to the extent that they are measured by the value of the Demised Premises or the value of the interest of the Lessor in the Ground Lease.   Lessor shall send Lessee a copy of any bill for Taxes and any other information accompanying such bill received by Lessor within ten (10) business days after Lessor receives such bill.  All other taxes and charges with respect to the conduct of the Lessee's business therein or any use or occupancy of the Demised Premises, or with respect to or arising from the lease of property pursuant to the Ground Lease, without regard to the person, firm, corporation or partnership against which any such taxes may be assessed shall be paid in full by the Lessee.

2.           Lessee shall timely pay all other charges, fees or assessments of the Port Authority (including Ground Rent and the Port Security charges) in respect of the Demised Premises or the use thereof by the Lessee.

3.           Lessee shall have the right to contest in good faith the amount or validity of any Taxes or assessments required of it to be paid hereunder and the validity of any legislative or administrative action or rule requiring the payment thereof. If such payment may legally be held in abeyance, Lessee may postpone payment thereof until the final determination of any such proceedings, anything herein to the contrary notwithstanding.

4.           Nothing contained in this Lease shall require a party hereto to pay any estate, inheritance, succession, or transfer tax of the other party hereto, nor to pay any taxes of any kind whatsoever which are based upon or measured by income of a party hereto.

ARTICLE XI

COMPLIANCE WITH LAW

1.           Lessee shall, during the Primary Term of this Lease, at its sole cost and expense, comply with all valid laws, ordinances, regulations, orders and requirements of any governmental authority which may be applicable to the Demised Premises, or the use, manner of use or occupancy thereof, and which are specifically attributable to the particular business conducted within the Demises Premises by Lessee whether or not the same involve only non-structural repairs, maintenance or alterations.

 

2.           Lessee shall have the right, by appropriate legal proceedings in the name of the Lessee or Lessor, or both, but at Lessee's sole cost and expense and without liability to Lessor, to contest the validity of any law, ordinance, order, regulation or requirement, which would impact Lessee's use or occupancy of the Demised Premises. Lessee may postpone compliance until final determination under such proceedings provided such postponement does not breach the Ground Lease or the terms of any mortgage to which this Lease is subordinate.

ARTICLE XII

INSURANCE

1.           From and after the Commencement Date of this Lease, Lessor shall maintain, at its expense, with insurers of recognized responsibility licensed to do business in the State of Oklahoma, a policy or policies of all risk extended coverage insurance covering the Building and all improvements appurtenant thereto providing coverage in such amount as Lessor, in its commercially reasonable judgment, deems sufficient to permit the repair and restoration of the Leased Premises to substantially the same condition as existed prior to the occurrence of any loss covered under such policy and providing protection against loss or damage by fire and such other risks of a similar or dissimilar nature, as are or shall be customarily covered with respect to buildings similar in construction, general location, use and occupancy to the Building, including, but not limiting the generality of the foregoing, flood, windstorm, hail, earthquake, explosion, vandalism, damage from vehicles, smoke damage and such other damage as may be deemed reasonably necessary by Lessor.  Lessee shall promptly reimburse Lessor for the cost of such insurance upon submission by Lessor to Lessee an invoice therefore.

 

2.           The Lessee shall, without diminishing any other obligation it may have under this Lease, cause to be maintained, at no cost or expense to the Lessor, commercial general liability and property damage insurance covering claims for personal injury or property damage with respect to Tenant’s activities and property in, on and about the Demised Premises.  Such insurance shall have limits of not less than Two Million Dollars ($2,000,000.00) general aggregate annually.  Lessor may request that the amount such insurance maintained by Lessee be increased from time to time during the term provided, however, that Lessor may not request such an increase any more frequently than once every three (3) years.

 

3.           All insurance provided by Lessee shall be effected under enforceable policies issued by insurers of recognized responsibility licensed to do business in the State of Oklahoma.  At least fifteen (15) days prior to the expiration date of any policy, a certificate evidencing the continuation of coverage shall be delivered by the Lessee to the Lessor.

 

4.           All policies of insurance contemplated by Paragraph 2 above, shall name the Lessor, the Lessee and such persons and entities as the Ground Lease or the holder of any mortgage on the Demised Premises may require as additional insureds or loss payees as their respective interests may appear. At the request of the Lessor, any insurance policy contemplated herein shall be made payable to the holders of any mortgage to which this Lease is at any time subordinate, as the interest of such holders may appear, pursuant to a standard clause for holders of mortgages.

 

5.           All policies provided by Lessee shall contain an agreement by the insurers:

 

(a)           that any loss shall be payable to the Lessor or the holders of any such mortgage, notwithstanding any act or negligence of the Lessee which might otherwise result in forfeiture of such insurance;

 

(b)           that such policies shall not be canceled except upon thirty (30) days' prior written notice to the Lessor, to all other insureds, and to the holders of any mortgage to whom loss may be payable; and

 

(c)           that the coverage afforded thereby shall not be affected by the performance of any work in or about the Demised Premises.

 

6.           If the Lessee provides any insurance required by this Lease in the form of a blanket policy, the Lessee shall furnish satisfactory proof that such blanket policy complies in all respects with the provisions of this Lease, and that the coverage thereunder is at least equal to the coverage which would be provided under a separate policy covering only the Demised Premises.

 

7.           Notwithstanding anything herein to the contrary, Lessor and Lessee each hereby releases the other, its officers, directors, partners, agents and employees, to the extent of the releasing party’s coverage under its insurance policies, from any and all liability for any loss or damage which may be inflicted upon the property of such party, notwithstanding that such loss or damage shall have arisen out of the negligence of the other party, its officers, directors, partners, agents or employees; provided, however, that this release shall be effective only with respect to occurrences occurring during such time as the appropriate policy of insurance of the party so releasing shall contain a clause to the effect that such release shall not affect the said policy or the right of the insured to recover thereunder.

 

ARTICLE XIII

INSTALLATION OF EQUIPMENT AND FIXTURES

Lessee shall have the right, at any time and from time to time during the term of this Lease, to install in and upon the Demised Premises, fixtures, machinery and equipment, and to make repairs thereto, replacements thereof, and additions thereto. Any fixtures, machinery and equipment so added shall be removed by the Lessee prior to the termination of this Lease. When such fixtures, machinery and equipment are so removed, the Lessee shall restore the Demised Premises to the same condition such premises were in prior to such installation. Lessor may, at its option, relieve Lessee from the obligation to remove any such fixtures, machinery or equipment, and any such fixtures, machinery and equipment not removed by Lessee shall become the property of Lessor.

ARTICLE XIV

ALTERATIONS AND IMPROVEMENTS BY LESSEE

1.           Lessee shall have the right, at any time and from time to time during the term of this Lease, to make at its sole cost and expense and without any right to receive reimbursement from the Lessor in respect thereof, any alterations or improvements or additions to the Demised Premises or any part thereof, subject, however, to the following conditions:

 

(a)           No alterations, additions or improvements shall be undertaken until Lessee shall have procured all permits, licenses and other authorizations required for the lawful and proper undertaking thereof.

 

(b)           Any such alteration, addition or improvement shall be made in a good and workmanlike manner and in compliance with all valid laws, governmental orders and building ordinances and regulations pertaining thereto, and shall be of a class and standard comparable to the class and standard of construction then utilized at the Port of Catoosa, but not less than the original standard and class of construction of the Demised Premises.

 

(c)           Lessee shall maintain, at its sole cost and expense, general public liability insurance and workmen's compensation insurance covering all persons employed in connection with such work and with respect to whom death or injury claims could be asserted against Lessor, Lessee or the Demised Premises.

 

(d)           All alterations, additions or improvements when completed shall be of such a nature as not to reduce or otherwise adversely affect the value of the Demised Premises, nor to diminish the general utility or change the general character of the Demised Premises, or which would violate any of the provisions of the Ground Lease.

 

(e)           No alterations, additions or improvements are to be made by Lessee without first submitting to the Lessor and the Port Authority the plans and specifications thereof, and without the written approval of the Lessor and the Port Authority of such plans and specifications. Lessor's approval of such plans and specifications shall not be unreasonably withheld, delayed or conditioned, and Lessor shall assist Lessee in obtaining the Port Authority's approval thereof.

 

(f)           All such alterations, additions and improvements shall be undertaken and completed in substantial conformity with the plans and specifications approved by the Lessor and the Port Authority.

 

(g)           All such alterations and improvements shall become and be the properly of the Lessor and shall be subject to all the terms and conditions of this Lease.

 

(h)           Two (2) copies of as built plans and specifications shall be delivered to Lessor within thirty (30) days after completion of each such alteration or improvement and such copies shall become the sole and exclusive property of Lessor.

ARTICLE XV

LIENS

Lessee agrees that it shall not create, permit or suffer an imposition of any lien, charge or encumbrance upon the Demised Premises, or upon any interest of the Lessor and Lessee in the Ground Lease or any part thereof, except liens, charges and encumbrances created by Lessor and the lien of any taxes and assessments not delinquent.  Should any such lien be asserted or filed, Lessee shall bond against or discharge the same in accordance with the requirements of Oklahoma Statutes Section 42-147.1 within thirty (30) days after written request by Lessor.  The provisions of this Article XV shall not apply to any mechanic’s, materialmen’s or other lien against the Demised Premises and/or Lessor’s interest therein for any labor, services, materials, supplies, machinery, fixtures or equipment furnished to the Demised Premises in connection with any work performed by or for Lessor, and Lessor does hereby agree to indemnify and defend Lessee against and save Lessee, the Demised Premises, and any portion thereof harmless from all losses, costs, damages, expenses, liabilities and obligations, including, without limitation, reasonable attorneys’ fees and expenses, resulting from the assertion, filing, foreclosure or other legal proceedings with respect to any such lien.

 

ARTICLE XVI

ASSIGNMENT, TRANSFER OR MORTGAGE OF LESSEE'S INTEREST

1.           Lessee shall not, without prior written consent of Lessor, which shall not be unreasonably withheld, delayed or conditioned, sublet all or a portion of the Demised Premises, or assign, transfer or mortgage this Lease or any interest therein. Lessee acknowledges that the Port Authority, pursuant to the Ground Lease, must also approve such assignment. Should Lessee sublet or assign this Lease, Lessee and its Guarantor shall nevertheless remain liable to the Lessor for the full payment of the Rent and Lessee's other obligations under this lease.

 

2.           Anything to the contrary contained herein notwithstanding, Lessee may transfer, assign, sublet, or change ownership of this Lease or Lessee's interest in and to the Demised Premises (a “Transfer”) without the prior written consent of Lessor to:

 

(a)           an affiliate, subsidiary or parent entity;

 

(b)           any entity it controls, is controlled by, or is under common control with;

 

(c)           any entity in which it has a majority interest or of which it is manager; or

 

(d)           any entity that succeeds to or obtains all or substantially all of its assets, whether by merger, consolidation, reorganization, sale or otherwise (each, a "Permitted Transferee"). Lessee shall promptly provide Lessor notice of such Transfer. Lessee shall be relieved of any obligations under the Lease arising after Transfer to a Permitted Transferee. Lessee may collaterally assign its leasehold interest as security to a reputable lender without the prior written consent of Lessor.

ARTICLE XVII

INDEMNIFICATION OF LESSOR

1.           Lessee hereby releases and discharges Lessor from, and shall fully protect, indemnify and keep, hold and save Lessor harmless from and against any and all costs, charges, expenses, penalties, damages and liability imposed for or arising from the violation of any law or regulations of the United States, the State of Oklahoma, and local authorities, or any of such entities' agencies and instrumentalities, occasioned by any act or omission of Lessee or its representatives, assigns, agents, servants, employees, licensees, invitees, and any other person or persons occupying the Demised Premises under Lessee; and Lessee shall further protect, fully indemnify and save forever harmless Lessor from and against any and all loss, liability, cost, damage and expense incident to injury (including injury resulting in death) of persons or damage to or destruction of properly incident to, arising out of the negligence or misconduct of Lessee (or Lessee's contractors, agents or invitee's) in connection with Lessee's use and occupancy or rights of use and occupancy of the Demised Premises (whether by omission or commission and irrespective of exclusive or non-exclusive rights therein) including, but not limited to, the operation of Lessee's business, the construction, erection, installation, existence, repair, maintenance, alteration and/or demolition of any improvements, facilities, and/or equipment or the conduct of any other activities, and which would not have arisen but for the exercise or pursuit by Lessee of the rights and privileges accorded by this Lease or the failure on Lessee's part in any respect to comply with the requirements of this Lease, except such loss caused by the act or negligence of the Lessor or its employees, contractors, agents or invitees, and further except such loss caused solely by the Port Authority.

 

2.           In the event that any action or proceeding shall be brought against Lessor by reason of any claim covered by this Article, Lessee, upon written notice from Lessor, will, at Lessee's sole cost and expense, resist or defend the same by counsel approved in writing by the Lessor, which approval shall not be withheld unreasonably.

ARTICLE XVIII

REMEDIES OF LESSOR

1.           The occurrence of any of the following shall constitute an event of default:

 

(a)           Lessee shall fail to pay any monies which are required to be paid by Lessee under this Lease and such failure shall continue for three (3) business days after Lessee's receipt of written notice thereof; or

 

(b)           Lessee shall default in the performance or compliance with any of the other terms or provisions of this Lease or the Ground Lease, and such default shall continue for a period of fifteen (15) days after Lessee's receipt of written notice thereof from Lessor or, in the case of any such default which cannot with due diligence be cured within fifteen (15) days, Lessee shall fail to proceed promptly after Lessee's receipt of such notice and with due diligence to cure such default and thereafter to prosecute the curing thereof with due diligence (it being intended that as to a default not susceptible of being cured with due diligence within fifteen (15) days, the time within which such default may be cured shall be extended for such period as may be necessary to permit the same to be cured with due diligence). Provided, however, no period herein granted to cure a default shall extend beyond a date five (5) days prior to the date that the Lessor under the Ground Lease or the holder of any mortgage or mortgages secured by the Demised Premises declares the default hereunder a default under such Ground Lease or mortgage and Lessor shall separately notify Lessee in writing of such five (5) day deadline at least five (5) days, and not more than thirty (30) days in advance of such five (5) day deadline; or

 

(c)           Lessee shall file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, composition, readjustment or similar relief under any present or future bankruptcy or other applicable law, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of Lessee, or of all or any substantial part of its properties; or

 

If, within thirty (30) days after the filing of an involuntary petition in bankruptcy against Lessee or the commencement of any proceeding against Lessee seeking any reorganization, composition, readjustment or similar relief under any law, such proceeding shall not have been dismissed, or if within thirty (30) days after the appointment without the consent or acquiescence of Lessee or any trustee, receiver or liquidator of Lessee, or of all or any substantial part of its properties, such appointment shall not have been vacated or stayed on appeal or otherwise, or if within thirty (30) days after the expiration of any such stay, such appointment shall not have been vacated. For the purposes of this paragraph, in lieu of obtaining the dismissal, vacation or stay of any of the foregoing, Lessee may provide a reasonable bond or other securitization in favor of Lessor.

 

2.           Upon the occurrence of an event of default, the Lessor at any time thereafter may give written notice to the Lessee specifying such event of default and stating that this Lease shall expire on the date specified in such notice, which shall be at least thirty (30) days after Lessee's receipt of such notice, and upon the date specified in such notice, this Lease and all rights of the Lessee hereunder shall terminate.

 

3.           Upon the expiration of this Lease pursuant to paragraph 2 of this Article XVIII, the Lessee shall peacefully surrender the Demised Premises to Lessor, and the Lessor, upon or at any time after any such expiration, may, without further notice, re-enter the Demised Premises and repossess it by force, summary proceedings, ejectment, or otherwise, and may dispossess the Lessee and remove the Lessee and all other persons and property from the Demised Premises and may have, hold, and enjoy the Demised Premises and the right to receive all rental income therefrom.

 

4.           At any time after any such expiration, the Lessor may relet the Demised Premises or any part thereof, in the name of Lessor or otherwise, for such term (which may be greater or less than the period which would otherwise have constituted the balance of the term of this Lease) and on such conditions (which may include concessions or free rent) as the Lessor, in its reasonable discretion, may determine and may collect and receive the rents therefor. Lessor shall in no way be responsible or liable for any failure to relet the Demised Premises or any part thereof or for any failure despite its reasonable efforts to collect any rent due upon any such reletting.

 

5.           No such expiration of this Lease shall relieve the Lessee of its liabilities and obligations under this Lease, and such liability and obligations shall survive any such expiration. In the event of any such expiration, whether or not the Demised Premises or any part thereof shall have been relet, the Lessee shall pay to the Lessor the Base Rent and the additional rent, charges and expenses required to be paid by the Lessee up to the time of such expiration, and thereafter the Lessee, until the end of what would have been the term of this Lease in the absence of such expiration, shall be liable to the Lessor for, and shall pay to Lessor, as and for liquidated and agreed current damages for the Lessee's default:

 

(a)           the equivalent of the amount of the Base Rent, charges, expenses and additional rent whi