EXHIBIT 10.28
UNITED STATES FIRE INSURANCE
HOME OFFICE
SALE/LEASEBACK
000 XXXXXXX XXXXXX
XXXXXXXXXX, XX 00000
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AMENDED AND RESTATED
LEASE AGREEMENT
BETWEEN
CROSTEX ASSOCIATES LIMITED PARTNERSHIP,
AS LESSOR,
AND
XXXX & XXXXXXX CORPORATION,
AS LESSEE.
Dated: as of March 1, 1985
Location: Xxxxxx Township, New Jersey
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TABLE OF CONTENTS
PAGE
NUMBER
------
1. LEASE OF PREMISES; TITLE AND CONDITION................. 1
2. USE.................................................... 1
3. TERMS.................................................. 1
4. RENT................................................... 1
5. NET LEASE.............................................. 2
6. TAXES AND ASSESSMENTS; COMPLIANCE WITH LAW............. 2
7. LIENS.................................................. 3
8. INDEMNIFICATION........................................ 4
9. MAINTENANCE AND REPAIR................................. 4
10. ALTERATIONS............................................. 5
11. CONDEMNATION AND CASUALTY............................... 6
12. INSURANCE............................................... 7
13. PURCHASE OPTION; RIGHT OF FIRST REFUSAL................. 8
14. UNECONOMIC USE.......................................... 9
15. PROCEDURE UPON PURCHASE................................. 9
16. ASSIGNMENT AND SUBLETTING............................... 10
17. PERMITTED CONTESTS...................................... 11
18. CONDITIONAL LIMITATIONS; DEFAULT PROVISIONS............. 12
19. BANKRUPTCY OR INSOLVENCY................................ 13
20. ADDITIONAL RIGHTS OF LESSOR............................. 15
21. NOTICES, DEMANDS AND OTHER INSTRUMENTS.................. 15
22. ESTOPPEL CERTIFICATES................................... 16
23. NO MERGER............................................... 16
24. SURRENDER............................................... 16
25. MERGER, CONSOLIDATION OR SALE OF ASSETS................. 16
26. INVESTMENT TAX CREDIT................................... 17
27. SEPARABILITY; BINDING EFFECT............................ 17
28. HEADINGS AND TABLE OF CONTENTS.......................... 17
29. SCHEDULES............................................... 17
Schedule A............................................. A-1
Schedule B............................................. B-1
Schedule C............................................. C-1
Acknowledgments........................................
LEASE.......................................................
LESSOR......................................................
LESSEE......................................................
PREMISES....................................................
LAND........................................................
IMPROVEMENTS................................................
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PAGE
NUMBER
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PERMITTED EXCEPTIONS........................................
PRIMARY TERM................................................
EXTENDED TERMS..............................................
BASIC RENT..................................................
PAYMENT DATES...............................................
LEGAL REQUIREMENTS..........................................
TRADE FIXTURES..............................................
UNIMPROVED LAND.............................................
NET PROCEEDS................................................
TERMINATION DATE............................................
MORTGAGEE...................................................
MORTGAGE....................................................
ASSURANCE...................................................
BASIC AMOUNT................................................ SCHEDULE C
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AMENDED AND RESTATED
LEASE AGREEMENT, dated as of March 1, 1985 (this
Lease), between CROSTEX ASSOCIATES LIMITED PARTNERSHIP, a Connecticut limited
partnership, (herein together with any partnership succeeding thereto by
consolidation, merger, or acquisition of its assets substantially as an
entirety, called Lessor), having an address c/o Proskauer Xxxx Xxxxx &
Xxxxxxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Managing
Clerk, and XXXX & XXXXXXX CORPORATION, a
New Jersey corporation (herein,
together with any corporation succeeding thereto by consolidation, merger or
acquisition of its assets substantially as an entirety, called Lessee), having
an address at 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxxxxx, Xxx Xxxxxx.
1. Lease of Premises; Title and Condition. In consideration of the rents
and covenants herein stipulated to be paid and performed by Lessee and upon the
terms and conditions herein specified, Lessor hereby leases to Lessee, and
Lessee hereby leases from Lessor, the premises (the Premises) consisting of (i)
the land (the Land) described in Schedule A, (ii) all buildings and other
improvements (including, but without limitation, the attachments, and other
affixed property but not including any data processing equipment, computers and
computer equipment and telephone and other similar electronic equipment
including without limitation wiring and cabling necessary for the utilization of
said equipment other than those necessary for the operation and maintenance of
the Premises), now or hereafter located on the Land (the Improvements), and
(iii) the respective easements, rights and appurtenances relating to the Land
and the Improvements and (iv) the rights under the agreements listed in Schedule
A. The Premises are leased to Lessee in their present condition without
representation or warranty by Lessor and subject to the rights of parties in
possession, to the existing state of title, to all applicable Legal Requirements
(as hereinafter defined) now or hereafter in effect and to Permitted Exceptions
listed in Schedule X. Xxxxxx has examined the Premises and title to the Premises
and has found all of the same satisfactory for all purposes.
2. Use. Lessee may use the Premises for any lawful purpose.
3. Terms. The Premises are leased for a primary term (the Primary Term),
and, at Xxxxxx's option, for up to six consecutive additional terms of five
years each (the Extended Terms), unless and until the term of this Lease shall
expire or be terminated pursuant to any provision hereof. The Primary Term and
each Extended Term shall commence and expire on the dates set forth in Schedule
B. Lessee shall exercise its option to extend the term of this Lease for each
Extended Term by giving notice thereof to Lessor not less than 330 days prior to
the expiration of the then-existing term. Such notice shall not be effective
unless accompanied by either (i) the written consent of Xxxx and Xxxxxxx, Inc.
to the exercise of such option, together with Xxxx and Xxxxxxx, Inc.'s
confirmation, in form satisfactory to Lessor, that the guaranty of the
obligations of Lessee hereunder pursuant to the Amended and Restated Guaranty,
dated as of March 1, 1985 ("Guaranty"), from Xxxx and Xxxxxxx, Inc.
("Guarantor") to Lessor, is in full force and effect which consent and
confirmation Guarantor is under no obligation to grant hereby, or (ii) a
guaranty of Lessee's obligations hereunder, in a form satisfactory to Lessor by
a guarantor whose net worth shall be the greater of the net worth of Guarantor
at the time of the exercise of such option or $400,000,000.00. Should Lessee
fail to exercise any option to extend the term hereof, they shall have no right
thereafter to exercise any succeeding option to extend the term hereof.
4. Rent. (a) Lessee shall pay to Lessor in lawful money of the United
States as fixed rent for the Premises, the amounts set forth in Schedule B
(Basic Rent) on the dates set forth therein (Payment Dates), at Lessor's address
as set forth above, or at such other address or to such person as Lessor from
time to time may designate.
(b) All amounts which Lessee is required to pay pursuant to this Lease
(other than Basic Rent, amounts payable upon purchase of the Premises, amounts
payable to maintain and repair the Premises pursuant to paragraph 9, amounts
payable for additions to and alterations of the Improvements pursuant to
paragraph 10, amounts payable for restoration of the Improvements pursuant to
paragraph 11 and amounts payable as liquidated damages pursuant to paragraph
18), together with every fine, penalty, interest and cost which may be added for
non-payment thereof, shall constitute additional charges. Every fine, penalty,
interest and cost which may be added for late payment of Basic Rent shall
constitute additional rent. If Xxxxxx shall fail to pay any such additional
charges, additional rent or any other sum due hereunder when the same shall
become due, Lessor shall have all rights, powers and remedies with respect
thereto as are provided herein or by law in the case of non-payment of any Basic
Rent which is then due and payable and shall, except as expressly provided
herein, have the
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right to pay the same on behalf of Xxxxxx. Lessee shall pay to Lessor interest
at the rate of 1% above the then rate of interest per annum on Lessor's
financing of its interest in the Premises, or the highest amount not prohibited
by law, which ever is less, on all overdue Basic Rent from the due date thereof
until paid, and on all overdue additional charges, additional rent or other sums
due hereunder paid by Lessor on behalf of Lessee from the date of payment by
Lessor until repaid by Xxxxxx. Lessee shall perform all its obligations under
this Lease at its sole cost and expense, and shall pay all Basic Rent,
additional charges and additional rent and other sums due hereunder when due and
payable, without notice or demand.
5. Net Lease. (a) This Lease is a net lease and any present or future law
to the contrary notwithstanding, shall not terminate except as provided in
paragraphs 10(b), 11(b), 13(a)(ii), 14(a) and 18(b), nor shall Lessee be
entitled to any abatement or reduction (except as provided in paragraphs 10(b)
and 11(c)), set-off, counterclaim, defense or deduction with respect to any
Basic Rent, or any additional charges, additional rent or other sum payable
hereunder, nor shall the obligations of Lessee hereunder be affected, by reason
of: any damage to or destruction of the Premises; any taking of the Premises or
any part thereof by condemnation or otherwise; any prohibition, limitation,
restriction or prevention of Lessee's use, occupancy or enjoyment of the
Premises, or any interference with such use, occupancy or enjoyment by any
person; any eviction by paramount title or otherwise; any default by Lessor
hereunder or under any other agreement; the impossibility or illegality of
performance by Xxxxxx, Lessee or both; any action of any governmental authority;
or any other cause whether similar or dissimilar to the foregoing. The parties
intend that the obligations of Lessee hereunder shall be separate and
independent covenants and agreements and shall continue unaffected unless such
obligations shall have been modified or terminated pursuant to an express
provision of this Lease.
(b) Lessee shall remain obligated under this Lease in accordance with its
terms and shall not take any action to terminate, rescind or avoid this Lease,
notwithstanding any bankruptcy, insolvency, reorganization, liquidation,
dissolution or other proceeding affecting Lessor, or any assignee of Lessor or
any action with respect to this Lease which may be taken by any trustee,
receiver or liquidator or by any court.
(c) Subject to the foregoing, Lessee waives all rights to terminate or
surrender this Lease, or to any abatement or deferment of any Basic Rent,
additional charges, additional rent or other sums payable hereunder.
6. Taxes and Assessments; Compliance with Law. (a) Lessee shall pay, prior
to delinquency: (i) all taxes, assessments, levies, fees, water and sewer rents
and charges, and all other governmental charges, general and special, ordinary
and extraordinary, foreseen and unforeseen, which are, at any time prior to or
during the Primary Term or any Extended Term hereof, imposed or levied upon or
assessed against (A) the Premises, (B) any Basic Rent, additional charges,
additional rent or other sum payable hereunder or (C) this Lease, the leasehold
estate hereby created or which arises in respect of the operation, possession or
use of the Premises; (ii) all gross receipts or similar taxes (i.e. taxes based
upon gross income which fail to take into account all customary deductions
relating to the Premises) imposed or levied upon, assessed against or measured
by any Basic Rent, additional charges, additional rent or other sum payable
hereunder; (iii) all sales, value added, use and similar taxes at any time
levied, assessed or payable on account of the acquisition, leasing, possession,
operation, ownership or use of the Premises; and (iv) all charges of utilities
serving the Premises. Lessee shall not be required to pay (a) any value added
tax imposed in lieu of or in substitution for income taxes imposed upon Lessor
(or the partners thereof), or (b) any franchise, corporate, estate, inheritance,
succession, transfer, income, profits or similar taxes of Lessor (other than any
tax referred to in clause (ii) above) unless such tax is imposed, levied or
assessed in substitution for any other tax, assessment, charge or levy which
Lessee is required to pay pursuant to this paragraph 6(a), provided, however,
that if at any time during the term of this Lease, the method of taxation shall
be such that there shall be levied, assessed or imposed on Lessor a capital levy
or other tax directly on the charges or rents received therefrom, or upon the
value of the Premises or any present or any future improvement or improvements
on the Premises, then all such taxes, assessments, levies or charges or the part
thereof so measured or based, shall be payable by Lessee, but only to the extent
that such taxes would be payable if the Premises were the only property of
Lessor, and Lessee shall pay and discharge the same as herein provided. Lessee
will furnish to Lessor, promptly after demand therefore, proof of payment of all
items referred to above which are payable by Lessee. If any such assessment may
legally be paid in installments, Lessee may pay such assessment in installments;
in such event, Lessee shall be liable only for installments which become due and
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payable during the term hereof. Xxxxxx agrees to immediately transmit to Lessee
any bill, invoice or similar instrument which Lessor may receive with respect to
the Premises.
(b) Lessee shall comply with and cause the Premises to comply with (i) all
laws, ordinances and regulations, and other governmental rules, orders and
determinations now or hereafter enacted, made or issued, whether or not
presently contemplated (collectively Legal Requirements) applicable to the
Premises or the ownership, possession, operation or use thereof and (ii) all
contracts (including insurance policies), agreements, covenants, conditions and
restrictions applicable to the Premises or the ownership, occupancy, operation,
possession or use thereof, including but not limited to all such Legal
Requirements, contracts, agreements and restrictions which require structural,
unforeseen or extraordinary changes.
(c) Lessee acknowledges that it is responsible for compliance with all
state and federal environmental laws, including the Spill Compensation and
Control Act (N.J.S.A. 58:10-23.11 et seq.) (the Spill Fund), and the
Environmental cleanup Responsibility Act (N.J.S.A. 13: K-6 et seq.)
(collectively the "Environmental Statutes"). In the event that Lessor determines
that Lessee has defaulted under this Subparagraph 6(c), and upon written request
by Xxxxxx, Lessee will make all filings and comply with all requests of the
New
Jersey Department of Environmental Protection (the "DEP"), and will require such
compliance from the tenants under the Lease, as necessary.
In the event that Xxxxxx does not expeditiously or immediately after
receiving notice from the Lessor to so proceed with any compliance required by
any State or Federal authority under the Environmental Statutes, the Lessor may
reasonably elect to undertake such compliance in order to protect its interest
in the Lease. Any monies expended by Lessor in efforts to comply with any
environmental statute (including but not limited to: the costs of hiring
consultants, undertaking sampling and testing, performing any cleanup necessary
or useful in the compliance process and reasonable attorney's fees) will be
additional rent hereunder.
Lessee will provide Lessor with copies of all subleases hereafter entered
into affecting the Lease and any amendments or additions to any lease affecting
the Lease. Upon request from Lessor, Lessee will provide or cause to be provided
to Lessor all information which Lessor may reasonably request and which Lessee
possesses as to the use of the Premises by Lessee or any tenant, and an
environmental audit of the Premises which is designed to described any materials
on the Premises which would require a filing with any governmental authorities
or which would require remedial action under any environmental statute.
In the event that Xxxxxx receives notice from the DEP under Environmental
Statutes of a discharge on the Premises, Lessee will send a copy of such notice
to Lessor and will proceed to remedy the condition described in the notice.
Lessee will proceed promptly to either remove the discharge and any effects
therefrom or contest the allegations in the notice, taking all action necessary
to ensure that the Spill Fund administrator does not spend Spill Fund, as
defined in the Environmental Statutes, monies to clean up the site. In the event
that the Spill Fund administrator does spend money cleaning up property owned or
leased by Xxxxxx in
New Jersey, and a lien on the Premises is created, Lessor
may take such actions as it deems necessary to remove such lien, or may require
it to be bonded by Lessee, whether such clean up affects the Premises or some
other property of Lessee in
New Jersey.
7. Liens. (a) Lessee shall promptly remove and discharge any charge, lien,
security interest or encumbrance upon the Premises or any Basic Rent, additional
charges, additional rent or other sum payable hereunder which arises for any
reason, including all liens which arise out of the ownership, possession,
operation, use, occupancy, construction, repair or rebuilding of the Premises or
by reason of labor or materials furnished or claimed to have been furnished to
Lessee or for the Premises, but not including (i) the liens and encumbrances set
forth in Schedule A and (ii) any mortgage, charge, lien, security interest or
encumbrance created by Lessor without the consent of Xxxxxx. Nothing contained
in this Lease shall be construed as constituting the consent or request of
Lessor, express or implied, to or for the performance by any contractor,
laborer, materialman, or vendor of any labor or services or for the furnishing
of any materials for any construction, alteration, addition, repair or
demolition of or to the Premises or any part thereof. Notice is hereby given
that Lessor will not be liable for any labor, services or materials furnished or
to be furnished to Lessee, or to anyone holding the Premises or any part thereof
through or under Lessee, and that no mechanic's or other liens for any such
labor, services or materials shall attach to or affect the interest of Lessor in
and to the Premises.
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(b) At the request of Lessee, Lessor shall not unreasonably withhold
Lessor's consent to, and upon granting such consent shall join in, any (i) grant
of easements and other rights in the nature of easements, (ii) release of
existing easements or other rights in the nature of easements which are for the
benefit of the Premises, (iii) dedication or transfer of unimproved portions of
the Premises for road, highway or other public purposes, (iv) execution of
petitions to have the Premises annexed to any municipal corporation or utility
district, (v) execution of amendments to any covenants and restrictions
affecting the Premises and (vi) execution and delivery to any person of any
instrument appropriate to confirm or effect such grant, release, dedication and
transfer (to the extent of its interests in the Premises), but only upon
delivery to Lessor of (w) a certificate of the President or a Vice President of
Lessee stating that such grant, release, dedication, transfer, petition or
amendment is not detrimental to the proper conduct of the business of Lessee on
the Premises, the consideration, if any, being paid for such grant, release,
dedication, transfer, petition or amendment and that such grant, release,
dedication, transfer, petition or amendment does not materially impair the use
of the Premises or reduce their value by more than the amount of such
consideration, (x) a duly authorized and binding undertaking of Lessee that
Lessee will remain obligated hereunder to the same extent as if such grant,
release, dedication, transfer, petition or amendment had not been made, and that
Lessee will perform all obligations of Lessor under such instrument, (y) a duly
authorized and binding undertaking of Guarantor that Guarantor will remain
obligated under the Guaranty to the same extent as if such grant, release,
dedication, transfer, petition or amendment had not been made, and (z) such
other instruments, certificates and opinions of counsel as Lessor may reasonably
request. Any such grant, release, dedication, transfer, petition or amendment
shall be at the cost and expense of Xxxxxx. Lessor shall be entitled to receive
any consideration paid in connection with any such grant, release, dedication,
transfer, petition or amendment.
8. Indemnification. Lessee shall defend all actions against Xxxxxx, any
partner, officer, director or shareholder of Xxxxxx and any partner, officer,
director or shareholder of any partner of Lessor with respect to, and shall pay,
protect, indemnify and save harmless Lessor, any partner, officer, director or
shareholder or Lessor and any partner, officer, director or shareholder of any
partner of Lessor from and against, any and all liabilities, losses, damages,
costs, expenses (including reasonable attorneys' fees and expenses), causes of
action, suits, claims, demands or judgments of any nature (a) to which Xxxxxx,
any partner, officer, director or shareholder of Lessor and any partner,
officer, director or shareholder of any partner of Lessor is subject because of
Lessor's estate in the Premises or (b) arising from (i) injury to or death of
any person, or damage to or loss of property, on the Premises or on adjoining
sidewalks, streets or ways, or connected with the use, condition or occupancy of
any thereof, (ii) violation of this Lease by Xxxxxx, (iii) any act or omission
of Lessee or its agents, contractors, licensees, sublessees or invitees, and
(iv) any contest referred to in paragraph 17. Lessor, however, shall not be
indemnified by Xxxxxx against affirmative acts by Xxxxxx unless such acts are
undertaken after written notice to Xxxxxx and Xxxxxx fails to promptly object to
such acts by written notice to Xxxxxx.
9. Maintenance and Repair. (a) Lessee acknowledges that it has received the
Premises in good repair and condition. Lessee will maintain all parts of the
Premises in good repair and condition, except for ordinary wear and tear, and
will take all action and will make all structural and non-structural, foreseen
and unforeseen and ordinary and extraordinary changes and repairs which may be
required to keep all parts of the Premises in good repair and condition ordinary
wear and tear excepted. Lessor shall not be required to maintain, repair or
rebuild all or any part of the Premises. Lessee waives the right to (x) require
Lessor to maintain, repair or rebuild all or any part of the Premises, or (y)
make repairs at the expense of Lessor pursuant to any Legal Requirement,
contract, agreement, covenant, condition or restriction set forth in
subparagraph 6(b)(ii), at any time in effect. Nothing herein shall constitute a
waiver of Xxxxxx's right to assert claims against third parties.
(b) In the event that all or any part of the Improvements shall encroach
upon any property, street or right of way adjoining or adjacent to the Premises,
or shall violate the agreements or conditions affecting the Premises or any part
thereof, or shall hinder or obstruct any easement or right-of-way to which the
Premises are subject, then, promptly after written request of Lessor (unless
such encroachment, violation, hindrance, obstruction or impairment is a
Permitted Exception contained in Schedule A) or of any person so affected,
Lessee shall, at its expense, either (i) obtain valid and effective waivers or
settlements of all claims, liabilities and damages resulting therefrom or (ii)
if Lessor consents (which consent Lessor shall not unreasonably withhold or
delay) thereto in writing, make such changes, including alteration or removal,
to the Improvements and take such other action as
4
shall be necessary to remove or eliminate such encroachments, violations,
hindrances, obstructions or impairments.
10. Alterations. (a) Lessee may, at its expense, make additions to and
alterations of the Improvements, and construct additional Improvements provided
that (i) the market value of the Premises shall not be lessened thereby, (ii)
such work shall be expeditiously completed in a good and workmanlike manner and
in compliance with all applicable Legal Requirements and the requirements of all
insurance policies required to be maintained by Lessee hereunder, and (iii) no
Improvements shall be demolished, except interior non-structural portions of the
Improvements in the ordinary course of business and use of the space in the
Premises, unless Xxxxxx's prior consent shall have been obtained, which consent
shall not be unreasonably withheld. All such additions and alterations shall be
and remain part of the realty and the property of Xxxxxx and shall be subject to
this Lease. Lessee may place upon the Premises any inventory, trade fixtures,
machinery or equipment belonging to Lessee or third parties ("Trade Fixtures")
and may remove the same at any time during the term of this Lease. Lessee shall
repair any damage to the Premises caused by such removal.
(b) Lessor and Xxxxxx contemplate that, after the commencement of the
Primary Term, Lessee may desire to construct additional improvements on the
Premises. Lessee may, but shall not be required to, request Lessor to arrange
for the financing of construction on the Premises not required under paragraphs
9 and 11 of this Lease. Such request shall set forth in reasonable detail the
estimated amount of such costs and expenses, such amount to be not less than
$500,000. Upon receipt of such request, Xxxxxx agrees to make every reasonable
effort to arrange for the financing of such improvements on terms and conditions
satisfactory to Lessor and Xxxxxx. Lessor and Xxxxxx shall negotiate in good
faith concerning the financing of construction of such improvements and the
amendment of the rental provisions of this Lease, having regard to then existing
economic, financial and money market conditions. Since the likely principal
source of funds to finance such costs and expenses will be the sale of notes by
Lessor, the parties hereto recognize that such amendment of the rental
provisions of this Lease must be of such nature as to permit the sale of such
notes or other debt obligations. Lessor shall incur no liability by reason of
its inability to arrange for such financing, and this Lease shall continue in
full force and effect notwithstanding such inability.
If Lessor shall be unable to arrange such financing, Xxxxxx shall then have
the option to purchase the interests of Lessor in the Unimproved Land (as
hereinafter defined) as herein provided. Lessee shall have the option,
exercisable on any Payment Date and upon not less than 210 days prior written
notice to Lessor, if such proposed improvements are to be either contiguous to
any of the Improvements or freestanding upon land constituting part of the
Premises, to purchase and acquire, free of this Lease and the Mortgage (as
hereinafter defined), so much of the unimproved land portion of the Premises
(the Unimproved Land) as is necessary for the construction and operation of such
proposed improvements with access to and from a public street and easements for
the maintenance of utilities and as shall be of sufficient size to comply with
applicable subdivision and zoning requirements, provided, however, and upon the
condition that the portion of the Premises remaining subject to this Lease after
such acquisition shall (i) be capable of being operated as a separate economic
unit without additional cost to Lessor, (ii) be a single parcel of land, (iii)
include the buildings located on the land described in Schedule A at the
commencement of the term of this Lease (or the replacements of such buildings),
(iv) have adequate access to and from public streets and easements for the
maintenance of all utilities, and (v) not be in violation of any applicable law,
rule, regulation, ordinance, covenant or restriction and provided further that
(x) neither the value nor the use of the Premises remaining subject to this
Lease shall be adversely affected by such acquisition and (y) this Lease shall
continue in full force and effect with respect to such remaining portion.
The purchase price for the Unimproved Land shall be the greater of (x) the
product of $3,556,995 multiplied by a fraction, the denominator of which is the
number of square feet of land contained in the Premises on the date this Lease
commences and the numerator of which is the number of square feet of Unimproved
Land and (y) the fair market value of such portion, as determined by Lessor and
Lessee, and in the event of their failure to agree, as determined by appraisers
selected in the manner provided in paragraph 13. Xxxxxx agrees that it shall
bear the costs of such appraisals.
If Lessee shall exercise the option contained in the second preceding
paragraph, then on the Payment Date designated in the notice electing such
option, there shall be conveyed and assigned to Lessee, in accordance with
5
paragraph 15, Xxxxxx's interest in the Unimproved Land against payment by Xxxxxx
of the purchase price therefor, and this Lease shall terminate with respect to
the Unimproved Land except with respect to obligations and liabilities of Lessee
under this Lease, actual or contingent, which have arisen on or prior to such
Payment Date. The options assigned and created hereby are exercisable only so
long as this Lease is in effect; and Xxxxxx and Lessee agree that Lessee shall
exercise such rights only if Lessee is not in default hereunder. The options
assigned and created hereby shall expire upon the termination of this Lease.
After the purchase of any Unimproved Land (i) each installment of Basic
Rent payable on or after the first Payment Date occurring one month or more
after the date of such purchase shall be reduced by an amount determined by
multiplying such purchase price by .9492% with respect to the first 10 years of
the Primary Term, by 1.0750% with respect to the next 5 years, by 1.1342% with
respect to the remaining 10 years of the Primary Term; and (ii) Schedule C shall
be recomputed to reflect at each period a dollar amount representing the present
value of the remaining instalments of Basic Rent (as reduced as described above)
during the Primary Term of this Lease using a discount rate of .9325% per month.
Notwithstanding the foregoing, the computation of the additional rent based
on increases in the Consumer Price Index, as set forth in Schedule B, shall be
made as if there were no changes in the Basic Rent under this paragraph or under
paragraph 11.
11. Condemnation and Casualty. (a) Lessee hereby irrevocably assigns to
Lessor any award, compensation or insurance payment to which Lessee may become
entitled by reason of Xxxxxx's interest in the Premises, excluding all Trade
Fixtures (i) if the use, occupancy or title of the Premises or any part thereof
is taken, requisitioned or sold in, by or on account of any actual or threatened
eminent domain proceeding or other action by any person having the power of
eminent domain or (ii) if the Premises or any part thereof are damaged or
destroyed by fire, flood or other casualty. Lessor may appear in any such
proceeding or action, to negotiate, prosecute and adjust any claim for any
award, compensation or insurance payment on account of any such damage,
destruction, taking, requisition or sale; and Lessor shall collect any such
award, compensation or insurance payment. All amounts paid in connection with
any such damage, destruction, taking, requisition or sale shall be applied
pursuant to this paragraph 11, and all such amounts (minus the expense of
collecting such amounts), are herein called the Net Proceeds. Lessor shall pay
all reasonable costs and expenses in connection with each such proceeding,
action, negotiation, prosecution and adjustment for which costs and expenses
Lessor shall be reimbursed out of any award, compensation or insurance payment
received. Lessee shall be entitled to participate in any such proceeding,
action, negotiation, prosecution or adjustment. Lessor and Xxxxxx shall each
take all appropriate action in connection with each such proceeding or action
and cooperate with the other in connection therewith.
(b) If an occurrence of the character referred to in clause (i) or (ii) of
paragraph 11(a) shall affect all or a substantial portion of the Land and
Improvements and shall render the Improvements unsuitable for restoration for
continued use and occupancy in Lessee's business, then Lessee may, not later
than 30 days after such occurrence, deliver to Lessor (i) notice of its
intention to terminate this Lease on the next Payment Date (the Termination
Date) which occurs not less than 160 days after the delivery of such notice,
(ii) a certificate of a Vice President of Lessee describing the event giving
rise to such termination and stating that the Chief Executive Officer and the
Board of Directors or the Executive Committee of the Board of Directors of
Lessee has determined that such event has rendered the Improvements unsuitable
for restoration for continued use and occupancy in Lessee's business, and (iii)
documentation to the effect that termination of this Lease will not be in
violation of any agreement then in effect. If the Termination Date occurs during
the Primary Term, such notice to Lessor shall be accompanied by an irrevocable
offer by Lessee to purchase on the Termination Date the interests of Lessor in
the remaining portion of the Premises and the Net Proceeds, if any, payable in
connection with such occurrence (or the right to receive the same when made, if
payment thereof has not yet been made), at a price determined in accordance with
Schedule C. If either (1) Lessor shall reject such offer by notice given to
Lessee not later than the 15th day prior to the Termination Date or (2) the
Termination Date occurs during an Extended Term, this Lease shall terminate on
the Termination Date, except with respect to obligations and liabilities of
Lessee hereunder, actual or contingent, which have arisen on or prior to the
Termination Date, upon payment by Lessee of all Basic Rent, additional charges,
additional rent and other sums then due and payable hereunder to and including
the Termination Date, and the Net Proceeds shall belong to Lessor. Unless Lessor
shall have
6
rejected such offer in accordance with this paragraph, Lessor shall be
conclusively presumed to have accepted such offer, and, on the Termination Date,
shall convey the remaining portion of the Premises, if any, to Lessee or its
designee and shall assign to Lessee or its designee all of Lessor's interests of
in the Net Proceeds, pursuant to and upon compliance with paragraph 15.
(c) If, after an occurrence of the character referred to in clauses (i) or
(ii) of paragraph 11(a), Lessee does not give notice of its intention to
terminate this Lease as provided in paragraph 11(b), then this Lease shall
continue in full effect, and Lessee shall, at its expense, rebuild, replace or
repair any damage to the Premises caused by such event in conformity with the
requirements of paragraph 10 so as to restore the Premises (in the case of
condemnation as nearly as practicable) to the condition and market value thereof
immediately prior to such occurrence. Lessee shall be entitled to receive the
Net Proceeds, but only against certificates of Lessee delivered to Lessor from
time to time as such work of rebuilding, replacement and repair progresses, each
such certificate describing the work for which Lessee is requesting payment and
the cost incurred by Lessee in connection therewith and stating that Lessee has
not theretofore received payment for such work. Any such Net Proceeds remaining
after final payment has been made for any such work shall be retained by Xxxxxx
in the case of an occurrence of the character referred to in clause (i) of
paragraph 11(a) and shall be paid to Lessee in the event of an occurrence of the
character referred to in clause (ii) of paragraph 11(a). To the extent that any
Net Proceeds in excess of $25,000 remain after restoration and are retained by
Lessor, (I) Schedule C shall be recomputed to reflect at each period a dollar
amount representing the present value of the remaining installments of Basic
Rent (reduced as described below) during the Primary Term of this Lease using a
discount rate of .9325% per month; (II) each installment of Basic Rent payable
on and after the first Payment Date occurring not less than three months after
the final payment to Lessee for such work shall be reduced by an amount equal to
the amount so retained multiplied by .9492% during years 1 through 10 inclusive
of the Primary Term, 1.0750% during years 11 through 15 inclusive of the Primary
Term, and 1.1342% during years 16 through 25 inclusive of the Primary Term; and
(III) the Basic Rent per square foot of the Land and of the Improvements after
the reductions provided for in clause (II) of this paragraph 11(c) shall not be
less than the respective Basic Rent per square foot prior to such reduction for
each rental period. Notwithstanding the foregoing, the computation of the
additional rent based on increases in the Consumer Price Index, as set forth in
Schedule B, shall be made as if there were no changes in the Basic Rent under
this paragraph or paragraph 10. For the purposes of determining the Basic Rent
per square foot of the Land and of the Improvements, the initial square footage
of the Land and Improvements shall be the number of square feet thereof
reflected on the most recent as-built survey obtained by Lessor prior to the
commencement of the Primary Term. In the event of any temporary requisition,
this Lease shall remain in full effect and Lessee shall be entitled to receive
the Net Proceeds allocable to such temporary requisition; except that such
portion of the Net Proceeds allocable to the period after the expiration or
termination of the term of this Lease shall be paid to Lessor. If the cost of
any repairs required to be made by Lessee pursuant to this paragraph 11(c) shall
exceed the amount of such Net Proceeds, the deficiency shall be paid by Xxxxxx.
12. Insurance. (a) Lessee will maintain insurance on the Premises of the
following character:
(i) "All Risk" policies of insurance with agreed amount and replacement
cost endorsements, in amounts sufficient to prevent Lessor or Lessee
from becoming a co-insurer of any loss but in any event in amounts
not less than 100% of the actual replacement value of the
Improvements, exclusive of foundations and excavations.
(ii) General public liability insurance against claims for bodily injury,
death or property damage occurring on, in or about the Premises and
adjoining streets and sidewalks, in the minimum amounts of
$5,000,000 for bodily injury or death to any one person, $10,000,000
for any one accident, and $5,000,000 for property damage or in such
greater amounts as are then customary for property similar in use to
the Premises.
(iii) Worker's compensation insurance (including employers' liability
insurance, if requested by Lessor) to the extent required by the law
of the state in which the Premises are located and to the extent
necessary to protect Lessor and the Premises against workmen's
compensation claims.
7
(iv) Explosion insurance in respect of any boilers and similar apparatus
located on the Premises in the minimum amount of $250,000 or in such
greater amounts as are then customary for property similar in use to
the Premises.
(v) Such other insurance, in such amounts and against such risks, as is
commonly obtained in the case of property similar in use to the Premises
and located in the state in which the Premises are located, including
war-risk insurance when and to the extent obtainable from the United
States Government or any agency thereof.
Such insurance shall be written by companies rated A or better by A.M. Best
Company legally qualified to issue such insurance, and shall name Lessor as an
insured party and include Lessee as its interest may appear. If the Premises or
any part thereof shall be damaged or destroyed by fire or other casualty, and if
the estimated cost of rebuilding, replacing or repairing the same shall exceed
$25,000, Lessee promptly shall notify Lessor thereof.
(b) Every such policy (other than any general public liability or worker's
compensation policy) shall bear a standard mortgagee endorsement in favor of the
first mortgagee or beneficiary (whether one or more, the Mortgagee) under each
mortgage, deed of trust or similar security instrument creating a lien on the
interest of Lessor in the Premises (whether one or more, the Mortgage); and any
loss under any such policy shall be payable to the Mortgagee to be held and
applied pursuant to paragraph 11. Every policy referred to in paragraph 12(a)
shall provide that it will not be cancelled or amended except after 30 days'
written notice to Lessor and the Mortgagee and that it shall not be invalidated
by any act of negligence of Lessor, Lessee or any person or entity having an
interest in the Premises, any foreclosure or other proceedings relating to the
Premises, nor by change in title to the Premises, nor by occupancy or use of the
Premises for purposes more hazardous than permitted by such policy, nor by any
foreclosure or other proceedings relating to the Premises, nor by change in
title to or ownership of the Premises.
(c) Lessee shall deliver to Lessor and the Mortgagee originals of the
applicable insurance policies or original or duplicate certificates of
insurance, satisfactory to Lessor and the Mortgagee, evidencing the existence of
all insurance which is required to be maintained by Lessee hereunder, such
delivery to be made (i) promptly after the execution and delivery hereof and
(ii) at least 30 days prior to the expiration of any such insurance. Lessee
shall not obtain or carry separate insurance concurrent in form or contributing
in the event of loss with that required by this paragraph 12 unless Lessor and
Mortgagee are each a named insured therein, with loss payable as provided
herein. Lessee shall immediately notify Lessor whenever any such separate
insurance is obtained and shall deliver to Lessor and the Mortgagee the policies
or certificates evidencing the same. Any insurance required hereunder may be
provided under blanket policies, provided that the Premises are specified
therein.
(d) The requirements of this paragraph 12 shall not be construed to negate
or modify Xxxxxx's obligations under paragraph 8.
13. Purchase Option; Right of First Refusal. (a) Provided that there is no
events of default under the Lease or the Guaranty, Lessee shall have the option
to purchase the interests of Lessor in the Premises, upon 190 days' prior notice
to Lessor (i) on December 1, 1996 at a price equal to the difference between (x)
$53,245,332 and (y) the then outstanding principal amount of the Mortgage,
together with any accrued and unpaid interest thereon, or (ii) on the last day
of the Primary Term of this Lease or if Xxxxxx has elected to extend the term of
this Lease, on the last day of each Extended Term of this Lease at a price equal
to the fair market value of the Premises, as unencumbered by this Lease, such
value to be as determined by Lessee and Lessor or, if they fail to agree, as
determined by appraisers selected in the following manner: Lessor and Lessee
shall each appoint an appraiser, and the fair market value shall be as
determined by the two appraisers so appointed. If the two appraisers so
appointed are unable to agree upon fair market value, fair market value shall be
determined by a third appraiser selected by the two appraisers appointed by the
parties hereto. All appraisers shall be members in good standing of the American
Institute of Real Estate Appraisers or any organization succeeding thereto.
Lessee shall bear the costs of such appraisals. The options granted hereby are
exercisable only so long as this Lease is in effect; Lessee may exercise such
right only if Xxxxxx is not in default hereunder. The options granted hereby
shall expire upon the termination or expiration of this Lease. Any conveyance of
Xxxxxx's interest in the Premises pursuant to paragraph 13(a)(i) shall be made
subject to this Lease, and this Lease shall continue in full force and effect.
8
(b) If at any time, or from time to time, during the term of this Lease,
Lessor shall receive and be willing to accept a bona fide offer from a third
party to purchase Xxxxxx's interest in the Premises, or if Lessor shall offer to
sell its interest in the Premises to any third party (in each case, other than a
bid or offer to purchase such interest at any sale incidental to the exercise of
any remedy provided for in the Mortgage and other than an offer to Lessor from a
third party or by Lessor to a third party following receipt by Lessor of
Xxxxxx's notice of its intention to terminate this Lease, Lessor shall, if
Lessee is not then in default hereunder, promptly transmit to Lessee its written
offer to sell its interest in the Premises to Lessee upon the same terms and
conditions as are set forth in the third party offer or its offer to a third
party, as the case may be, together with a copy of such offer, and shall give
Lessee 30 days to accept such offer. If Lessee shall accept such offer by notice
to Lessor within such time, the offer and acceptance shall constitute a contract
between them for the sale by Lessor and the purchase by Lessee of Lessor's
interest in the Premises. Any conveyance of Xxxxxx's interest in the Premises
pursuant to paragraph 13(b) shall be made subject to this Lease, and this Lease
shall continue in full force and effect. If Lessee shall not accept such offer
in accordance with this paragraph 13(b), then Lessor may sell its interest in
the Premises to such third party upon the terms and conditions contained in such
offer.
Notwithstanding anything to the contrary contained herein, in the event
Lessee shall accept such offer in accordance with this paragraph 13(b) and on
the date fixed for purchase Lessee shall fail to complete such purchase, the
rights created and assigned pursuant to this paragraph shall expire and Lessor
shall be free from and after such time, to sell its interest in the Premises to
any third party as if the rights created and assigned hereby had not been
created or assigned. In addition, Lessor shall not be precluded from pursuing
any remedies available to Lessor with respect to the failure by Lessee to
complete such purchase.
14. Uneconomic Use. (a) If the Premises shall have become uneconomic or
unsuitable for continued use and occupancy in Lessee's business, and if Lessee
has discontinued use thereof or decided to discontinue use thereof, then Lessee
may on or after April 1, 2001 give notice to Lessor of its intention to
terminate this Lease on any Payment Date (the Termination Date) during the
Primary Term specified in such notice which occurs not less than 220 days after
the giving of such notice. Such notice shall also include (i) a certification by
a Vice President or any officer senior thereto of Lessee and dated currently
stating that the Chief Executive Officer and the Board of Directors or the
Executive Committee of the Board of Directors of Lessee has determined that the
Premises have become uneconomic or unsuitable for continued use and occupancy in
Lessee's business and that Lessee has discontinued use thereof, or will
discontinue use thereof within 110 days, for a period of at least seven years
thereafter; (ii) documentation to the effect that termination of this Lease will
not be in violation of any agreement then in effect, if any; and (iii) if the
Termination Date occurs during the Primary Term, an irrevocable offer by Lessee
to purchase on the Termination Date the interests of Lessor in the Premises at a
price determined in accordance with Schedule C.
If either (1) Lessor shall reject such offer by notice given to Lessee not
later than the 20th day prior to the Termination Date or (2) the Termination
Date occurs during an Extended Term, this Lease shall terminate on the
Termination Date, except with respect to obligations and liabilities of Lessee
hereunder, actual or contingent, which have arisen on or prior to the
Termination Date, upon payment by Lessee of all Basic Rent, all additional rent
and all other sums then due and payable hereunder to and including the
Termination Date. Unless Lessor shall have rejected such offer in accordance
with this paragraph, Lessor shall be conclusively presumed to have accepted such
offer, and, on the Termination Date, Lessor shall assign and convey the interest
of Lessor in the Premises to Lessee or its designee pursuant to and upon
compliance with paragraph 15.
(b) If the interest of Lessor in the Premises is conveyed to Lessee or its
designee as provided in this paragraph 14, neither Lessee nor any subsidiary or
affiliate of Lessee shall use the Premises for a period of seven years
thereafter, which obligation shall survive the termination of this Lease.
15. Procedure Upon Purchase. (a) Except in the case of a purchase pursuant
to paragraph 13(b), if Lessee shall purchase any interests in the Premises or
any portion thereof pursuant to this Lease, Lessor need not convey or cause to
be conveyed any better title thereto than existed in Lessor with respect to its
interests in the Premises on the date of the commencement of the term hereof and
Lessor shall assign its right, title and interest to all contracts and
agreements (including but not limited to this Lease) by and between the parties
hereto to Lessee. Lessee shall be and remain liable for all of its obligations
under such contracts and agreements which arise on or
9
before the date of such assignment. Lessee or its designee shall accept such
title, which shall be subject to the state of title to the Premises on the date
on which this Lease is commenced, the condition of the Premises on the date of
purchase, all charges, liens, security interests and encumbrances on the
Premises and all applicable Legal Requirements, but which shall be free of the
lien of the purchase money mortgage by and between Lessor and United States Fire
Insurance Company, The North River Insurance Company, Westchester Fire Insurance
Company and International Insurance Company dated as of the date hereof free of
the lien of the Mortgage (except in the case of a purchase pursuant to paragraph
13(a)(i) on December 1, 1996 in which event such title shall be conveyed subject
to this Lease and the lien of the Mortgage), charges, liens, easements, security
interests and encumbrances resulting from acts of Lessor taken without the
consent of Lessee.
(b) Upon the date fixed for any purchase of any interests in the Premises
or any portion thereof hereunder, Lessee shall pay the purchase price therefor
specified herein together with all Basic Rent, additional rent and other sums
then due and payable hereunder to and including such date of purchase, and there
shall be delivered to Lessee a deed to or other conveyance of the interests in
the Premises or portion thereof then being sold to Lessee and any other
instruments necessary to convey the title thereto described in paragraph 15(a)
and to assign any other property then required to be assigned by Lessor pursuant
hereto. In the event that Lessee has exercised its option to purchase pursuant
to clause (ii) of paragraph 13(a) and on the date fixed for purchase there has
been no determination of the fair market value of the Premises pursuant to
clause (ii) of paragraph 13(a), the purchase price payable under clause (ii) of
paragraph 13(a) together with interest thereon at the rate of 13% from the date
of purchase to the date of payment shall be a lien against the Premises and
shall be paid promptly after such determination, and Xxxxxx shall execute and
record a memorandum of such lien. The deed or conveyance shall recite that the
Premises are deemed impressed with a trust for the payment of the purchase price
to be determined in accordance with the provisions of this Lease, and upon the
payment of such purchase price Lessor shall execute and deliver to Lessee, in
recordable form, a cancellation of any right created by such deed or conveyance
with respect to the Premises. Lessor and Xxxxxx shall pay their respective
counsel fees and shall share equally escrow fees and per-page recording fees.
Lessee shall pay all other charges incident to such conveyance and assignment
including title insurance premiums and all applicable taxes (other than any
income or franchise taxes of Lessor) which may be imposed by reason of such
conveyance and assignment and the delivery of said deed and other instruments.
Except in the case of purchases pursuant to paragraph 13(a)(i) and 13(b), upon
the completion of any purchase of the entire interest of Lessor in the Premises
(but not of any lesser interest than the entire interest of Lessor in the
Premises) but not prior thereto (whether or not any delay or failure in the
completion of such purchase or exchange shall be the fault of Lessor), this
Lease shall terminate, except with respect to obligations and liabilities of
Lessee hereunder, actual or contingent, which have arisen on or prior to such
date of purchase. In the event of a purchase of less than the entire Premises,
after such purchase the term Premises shall mean the portion of the Premises not
purchased.
16. Assignment and Subletting.
(a) Provided that there is no events of default under the Lease or the
Guaranty, Lessee may assign its interests hereunder for the Primary Term of this
Lease. Lessee may assign its interest hereunder for the Extended Terms subject
to the following conditions:
(1) If Lessee shall, at its option, request in writing to be released by
Lessor from liability under this Lease with respect to any Extended Term, such
assignment shall not be made without the prior written consent of Xxxxxx. If
Lessor consents to such assignment, Xxxxxx shall be released from liability
under this Lease with respect to such Extended Terms, provided that Xxxxxx is
not in default hereunder at such time. In such event, Lessor shall be entitled
to receive (i) all consideration for any such assignment occurring during an
Extended Term and (ii) a portion of the consideration for any such assignment
occurring during the Primary Term equal to an amount determined by discounting
the amount of such consideration by 13% per annum, assuming that such
consideration would not be received until the date of expiration of the Primary
Term.
(2) If Lessee shall, at its option, fail to request in writing to be
released from liability under this Lease with respect to such Extended Terms,
written consent of Lessor to any such assignment shall not be required.
10
(b) Provided that there is no event of default under the Lease or the
Guaranty, Lessee may sublet all or a portion of the Premises for the Primary
Term of this Lease. Lessee may sublet all or a portion of the Premises for the
Extended Terms subject to the following conditions:
(1) If Lessee shall, at its option, request in writing to be released from
liability under this Lease for the Extended Terms with respect to a sublease of
the entire Premises, such sublease shall not be made without the prior written
consent of Xxxxxx. If Xxxxxx agrees in writing to Xxxxxx's request and consents
to such sublease, Lessee shall be released from liability under this Lease for
such Extended Terms, provided that effective on the commencement date of the
first such Extended Term or the commencement date of the sublease, whichever is
later, the tenant under such sublease executes and delivers a direct lease with
Lessor on all the terms contained in such sublease and provided further that
Lessee is not in default hereunder at such time. In such event Lessor shall be
entitled to receive all consideration payable under any such sublease for such
Extended Term.
(2) If Lessee shall, at its option, fail to request in writing to be
released from liability for the Extended Terms under this Lease with respect to
such sublease, or if such sublease is for less than the entire Premises or for
less than all such Extended Terms, written consent of Lessor to such sublease
shall not be required.
(c) Each sublease under this paragraph 16 shall expressly be made subject
to the provisions hereof. No such assignment or sublease shall modify or limit
any right or power of Lessor hereunder or, except as otherwise expressly
provided in this paragraph 16, affect or reduce any obligation of Lessee
hereunder, and, except as otherwise expressly provided in this paragraph 16, all
such obligations shall continue in full effect as obligations of a principal and
not of a guarantor or surety, as though no assignment or subletting had been
made. No assignment or sublease shall affect or reduce the obligations of
Guarantor under the Guaranty. In the event of an assignment of this Lease by
Xxxxxx and subsequent reassignment to Lessee upon default of the assignee or
otherwise, Lessor will recognize and accord to Lessee all rights as Lessee
hereunder, provided that there shall be no event of default hereunder.
Neither this Lease nor the term hereby demised shall be mortgaged by
Xxxxxx, nor shall Lessee mortgage or pledge its interest in any sublease of the
Premises or the rentals payable thereunder. Any such mortgage or pledge, and any
sublease or assignment made otherwise than as expressly permitted by this
paragraph 16, shall be void. Lessee shall, within 10 days after the execution of
any sublease or assignment, deliver a conformed copy thereof to Lessor.
(d) Notwithstanding the provisions of paragraphs 16(a) through 16(c)
hereof, Lessee shall not, without the consent of the Lessor, suffer, directly or
indirectly, a Tax-Exempt Entity (as defined in section 168(j)(4) of the Internal
Revenue Code of 1954, as amended (the "Code")) to use or occupy any portion of
the Premises pursuant to an agreement which constitutes a lease within the
meaning of section 168(j)(6)(A) of the Code, unless such lease, when aggregated
with all other such leases in effect with respect to the Tax-Exempt Entity or
other Tax-Exempt Entities, relate to no more than 35 percent of the rentable
square footage (net of common areas) of the Premises, or is not a disqualified
lease within the meaning of section 168(j)(3)(B)(ii) of the Code.
17. Permitted Contests. Lessee shall not be required, nor shall Lessor
have the right, to pay, discharge or remove any tax, assessment, levy, fee, rent
(except Basic Rent, additional charges or additional rent or other sum hereunder
payable to or for the benefit of Lessor), charge, lien or encumbrance, or to
comply with any Legal Requirement applicable to the Premises or the use thereof,
as long as Lessee or its agent shall contest the existence, amount or validity
thereof by appropriate proceedings which shall prevent the collection of or
other realization upon the tax, assessment, levy, fee, rent, charge, lien or
encumbrance so contested, and which also shall prevent the sale, forfeiture or
loss of the Premises or any Basic Rent, additional charges, any additional rent
or any other sum required to be paid by Lessee hereunder, to satisfy the same or
Legal Requirements, and which shall not affect the payment of any Basic Rent,
additional charges, any additional rent or any other sum required to be paid by
Lessee hereunder; provided that such contest shall not subject Lessor to the
risk of any criminal liability or any material civil liability. Unless Guarantor
has net worth of not less than $400,000,000.00, Guarantor shall give such
reasonable security as may be demanded by Lessor or the Mortgagee to insure
ultimate payment of such tax, assessment, levy, fee, rent, charge, lien or
encumbrance and compliance with Legal Requirements and to prevent any sale or
forfeiture of the Premises, any Basic Rent, additional charges, any additional
rent or any other sum required to be paid by Lessee hereunder by reason of such
non-payment or
11
noncompliance. Lessee will conduct all such contests in good faith and with due
diligence and will promptly after final determination (including appeals) of any
such contests pay and discharge all amounts which shall be determined payable
therein and comply with any Legal Requirements determined applicable therein.
Lessor, at the cost and expense of Xxxxxx, shall cooperate fully in any such
contest.
18. Conditional Limitations; Default Provisions.
(a) Any of the following occurrences or acts shall constitute an event of
default under this Lease: (i) if Lessee shall (1) fail to pay any Basic Rent,
additional charges, additional rent or other sum required to be paid by Lessee
hereunder and such failure shall continue for eight days after receipt of notice
by Lessee of such failure or (2) fail to observe or perform any other provision
hereof and such failure shall continue for 28 days after receipt of notice by
Lessee of such failure (provided, that in the case of any such default which
cannot be cured by the payment of money and cannot with diligence be cured
within such 28 day period, if Lessee shall commence promptly to cure the same
and thereafter prosecute the curing thereof with diligence, the time within
which such default may be cured shall be extended for such period as is
necessary to complete the curing thereof with diligence); (ii) if Lessee or
Guarantor shall become a debtor in a case filed under Chapter 7 of the
Bankruptcy Code, or in a case filed under Chapter 11 of the Bankruptcy Code, or
in a case filed under Chapter 7 of the Bankruptcy Code which is transferred to
Chapter 11; or if Lessee or Guarantor shall file a petition in bankruptcy or for
reorganization or for an arrangement pursuant to any federal or state bankruptcy
law or any similar federal or state law, or shall be adjudicated a bankrupt or
become insolvent or shall make an assignment for the benefit of creditors or
shall admit in writing its inability to pay its debts generally as they become
due, or if a petition or answer proposing the adjudication of Lessee or
Guarantor as a bankrupt or its reorganization pursuant to any federal or state
bankruptcy law or any similar federal or state law shall be filed in any court
and Lessee or Guarantor, as the case may be, shall consent to or acquiesce in
the filing thereof or such petition or answer shall not be discharged within 90
days after the filing thereof or if an order for relief shall be entered with
respect to Lessee or Guarantor as a debtor in any bankruptcy proceeding; (iii)
if a receiver, trustee or liquidator of Lessee or Guarantor or of all or
substantially all of the assets of Lessee or Guarantor or of the Premises or
Lessee's estate therein shall be appointed in any proceeding brought by Lessee
or Guarantor, as the case may be, or if any such receiver, trustee or liquidator
shall be appointed in any proceeding brought against Lessee or Guarantor and
shall not be discharged within 90 days after such appointment, or if Lessee or
Guarantor, as the case may be, shall consent to or acquiesce in such
appointment; (iv) if the Premises shall have been left unoccupied and unattended
for a period of 30 days; (v) if any representation or warranty of Lessee or
Guarantor set forth in this Lease or in any certificate delivered pursuant
thereto shall prove to be incorrect in any material and adverse respect as of
the time when the same shall have been made and, in each case, (1) the facts
shall not be conformed to the representation or warranty promptly after the
earlier of (x) written notice of such incorrectness from Lessor to Lessee or (y)
the Lessee obtaining actual knowledge of such incorrectness, or (2) if there
shall have been any loss or detriment to the Premises or to Lessor, as a result
of such incorrectness, Lessor and the Premises shall not have been promptly
restored to their condition prior to such loss or detriment; or (vi) an event of
default by Lessee under the Amended and Restated
Lease Agreement dated as of the
date hereof by and between the parties hereto with respect to the premises
located at 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxxxxx, Xxx Xxxxxx.
(b) If an event of default shall have happened and be continuing, Lessor
shall have the right to give Lessee notice of Xxxxxx's termination of the term
of this Lease. Upon the giving of such notice, the term of this Lease and the
estate hereby granted shall expire and terminate on such date as fully and
completely and with the same effect as if such date were the date herein fixed
for the expiration of the term of this Lease, and all rights of Lessee hereunder
shall expire and terminate, but Lessee shall remain liable as hereinafter
provided.
(c) If an event of default shall have happened and be continuing, Lessor
shall have the immediate right, whether or not the term of this Lease shall have
been terminated pursuant to paragraph 18(b), to re-enter and repossess the
Premises by summary proceedings, ejectment, any other legal action or in any
lawful manner Lessor determines to be necessary or desirable and the right to
remove all persons and property therefrom. Lessor shall be under no liability by
reason of any such re-entry, repossession or removal. No such re-entry, removal
or repossession of the Premises shall be construed as an election by Lessor to
terminate the term of this Lease unless a notice of such termination is given to
Lessee pursuant to paragraph 18(b), or unless such termination is decreed by a
court or other governmental tribunal of competent jurisdiction.
12
(d) At any time or from time to time after the re-entry or repossession of
the Premises pursuant to paragraph 18(c), whether or not the term of this Lease
shall have been terminated pursuant to paragraph 18(b), Lessor may (but shall be
under no obligation to) relet the Premises for the account of Lessee, in the
name of Lessee or Lessor or otherwise, without notice to Lessee, for such term
or terms and on such conditions and for such uses as Lessor, in its absolute
discretion, may determine. Lessor may collect and receive any rents payable by
reason of such reletting. Lessor shall not be liable for any failure to relet
the Premises or for any failure to collect any rent due upon any such reletting.
(e) No expiration or termination of the term of this Lease pursuant to
paragraph 18(b), by operation of law or otherwise, and no re-entry, removal or
repossession of the Premises pursuant to paragraph 18(c) or otherwise, and no
reletting of the Premises pursuant to paragraph 18(d) or otherwise, shall
relieve Lessee of its liabilities and obligations hereunder, all of which shall
survive such expiration, termination, re-entry, repossession or reletting.
(f) In the event of any expiration or termination of the term of this Lease
or re-entry or repossession of the Premises or removal of persons or property
therefrom by reason of the occurrence of an event of default, Lessee will pay to
Lessor all Basic Rent, all additional charges, additional rent and other sums
required to be paid by Xxxxxx to and including the date of such expiration,
termination, re-entry, removal or repossession; and, thereafter, Lessee shall,
until the end of what would have been the term of this Lease in the absence of
such expiration, termination, re-entry, removal or repossession, and whether or
not the Premises shall have been relet, be liable to Lessor for, and shall pay
to Lessor, as liquidated and agreed current damages: (i) all Basic Rent,
additional charges, additional rent and other sums which would be payable under
this Lease by Lessee in the absence of such expiration, termination, re-entry,
removal or repossession, less (ii) the net proceeds, if any, of any reletting
effected for the account of Lessee pursuant to paragraph 18(d), after deducting
from such proceeds all expenses of Lessor in connection with such reletting
(including, but not limited to all repossession costs, brokerage commissions,
reasonable attorneys' fees and expenses, employees' expenses, alteration costs
and expenses of preparation for such reletting). Lessee will pay such current
damages on the days on which Basic Rent would be payable under this Lease in the
absence of such expiration, termination, re-entry, removal or repossession, and
Lessor shall be entitled to recover the same from Lessee on each such day.
(g) At any time after any such expiration or termination of the term of
this Lease or re-entry or repossession of the Premises by reason of the
occurrence of an event of default, whether or not Lessor shall have collected
any current damages pursuant to paragraph 18(f), Lessor shall be entitled to
recover from Lessee, and Lessee will pay to Lessor on demand, as and for
liquidated and agreed final damages for Xxxxxx's default and in lieu of all
current damages beyond the date of such demand (it being agreed that it would be
impracticable or extremely difficult to fix the actual damages), an amount equal
to the excess, if any, of (a) all Basic Rent, additional charges, additional
rent and other sums which would be payable under this Lease, in each case from
the date of such demand (or, if it be earlier, the date to which Lessee shall
have satisfied in full its obligations under paragraph 18(f) to pay current
damages) for what would be the then unexpired term of this Lease in the absence
of such expiration, termination, re-entry or repossession, discounted at the
rate of 5 per cent per annum over (b) the then fair rental value of the
Premises, discounted at the rate of 5 per cent per annum for the same period. If
any law shall limit the amount of such liquidated final damages to less than the
amount above agreed upon, Lessor shall be entitled to the maximum amount
allowable under such law.
19. Bankruptcy or Insolvency. In the event that Lessee shall become a
debtor in a case filed under Chapter 7 of the Bankruptcy Code and Xxxxxx's
trustee or Lessee shall elect to assume this Lease for the purpose of assigning
the same or otherwise, such election and assignment may be made only if all of
the provisions of Paragraphs 19(b) and 19(d) are satisfied as if the election to
assume were made in a case filed under Chapter 11 of the Bankruptcy Code. If
Lessee or Xxxxxx's trustee shall fail to elect to assume this Lease within 120
days after the filing of such petition or such additional time as provided by
the court within such 120-day period, this Lease shall be deemed to have been
rejected. Lessor shall be thereupon immediately entitled to possession of the
Premises without further obligation to Lessee or Xxxxxx's trustee and this
Lease, upon the election of Lessor, shall terminate, but Xxxxxx's right to be
compensated for damages (including, without limitation, liquidated damages
pursuant to paragraphs 18(f) and (g)) or the exercise of any other remedies in
any such proceeding shall survive, whether or not this Lease shall be
terminated.
13
(b)(i) In the event that Lessee shall become a debtor in a case filed under
Chapter 11 of the Bankruptcy Code, or in a case filed under Chapter 7 of the
Bankruptcy Code which is transferred to Chapter 11, the trustee or Lessee, as
debtor-in-possession, must elect to assume this Lease within 120 days from the
date of the filing of the petition under Chapter 11 or the transfer thereto, or
the trustee or debtor-in-possession shall be deemed to have rejected this Lease.
In the event that Xxxxxx, Xxxxxx's trustee or Lessee as debtor-in-possession has
failed to perform all of Lessee's obligations under this Lease within the time
periods (excluding grace periods) required for such performance, no election by
the trustee or debtor-in-possession to assume this Lease shall be permitted or
effective unless each of the following conditions have been satisfied:
(1) Trustee or debtor-in-possession has cured, or has provided Lessor with
Assurance (as defined below) that it will cure (i) all monetary defaults under
this Lease within 10 days from the date of such assumption and (ii) all
nonmonetary defaults under this Lease within 30 days from the date of such
assumption.
(2) Trustee or debtor-in-possession has compensated Lessor, or has provided
Lessor with Assurance that within 10 days from the date of assumption Lessor
will be compensated, for any pecuniary loss incurred by Lessor arising from the
default of Lessee, trustee, or debtor-in-possession indicated in any statement
of pecuniary loss sent by Lessor to the trustee or debtor-in-possession.
(3) Trustee or the debtor-in-possession has provided Lessor with Assurance
of the future performance of each of Lessee's, trustee's or
debtor-in-possession's obligations under this Lease and, in addition, trustee or
debtor-in-possession shall (i) deposit with Lessor, as security for the timely
payment of rent, an amount equal to 3 months' Basic Rent, and (ii) pay in
advance to Lessor on the date Basic Rent is payable, one-twelfth of Lessee's
annual obligations under this Lease for real estate taxes, insurance and all
other payments to be made by Lessee pursuant to this Lease. The obligations
imposed upon the trustee or debtor-in-possession shall continue with respect to
Lessee or any assignee of the Lease after the completion of bankruptcy
proceedings.
(4) The assumption of this Lease will not breach any provision in any other
lease, Mortgage, financing agreement or other agreement by which Lessor is bound
relating to the Premises or any larger development of which the Premises is a
part.
(b) (ii) For purposes of this paragraph 19, Lessor and Lessee acknowledge
that "Assurance" shall mean at least that: (i) Lessee's trustee or Lessee as
debtor-in-possession has and will continue to have sufficient unencumbered
assets after the payment of all secured obligations and administrative expenses
to assure Lessor that sufficient funds to fulfill the obligations of Lessee
under this Lease will be available, and either (ii) the Bankruptcy Court shall
have entered an order segregating sufficient cash payable to Lessor, or (iii)
Xxxxxx's trustee or Lessee as debtor-in-possession shall have granted a valid
and perfected first lien and security interest and/or mortgage in property of
Lessee, Xxxxxx's trustee or Lessee as debtor-in-possession, acceptable as to
value and kind to Lessor, to secure to Lessor the obligation of Lessee's trustee
or Lessee as debtor-in-possession to cure the monetary and/or non-monetary
defaults under this Lease within the time periods set forth above.
(c) In the event that this Lease is assumed in accordance with paragraph
19(b) hereof and thereafter Lessee is liquidated or files or has filed against
it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code,
then Lessor may, at its option, terminate this Lease and all rights of Lessee
hereunder, by giving Xxxxxx notice of its election to so terminate within 30
days after the occurrence of any such event.
(d) If Xxxxxx's trustee or Lessee as debtor-in-possession has assumed the
Lease pursuant to the terms and provisions of paragraphs 19(a) or 19(b) for the
purpose of assigning (or elects to assign) this Lease, this Lease may be so
assigned only if the intended assignee has provided adequate assurance of future
performance of all of the terms, covenants and conditions of this Lease to be
performed by Xxxxxx. "Adequate assurance of future performance" shall mean at
least that each of the following conditions shall have been satisfied:
(1) Assignee has furnished Lessor with either (i) a current financial
statement audited by a certified public accountant indicating a credit rating,
net worth and working capital in amounts which Lessor reasonably determines to
be sufficient to assure the future performance by such assignee of Lessee's
obligations under this Lease or (ii) guarantees in form and substance
satisfactory to Lessor from one or more persons with a credit rating and net
worth equal to or exceeding the credit rating and net worth of the greater of
(i) Lessee or (ii) Guarantor indicated on the latest audited financial statement
available as of the date hereof.
14
(2) Lessor has obtained all consents or waivers from others required under
any lease, Mortgage, financing arrangement or other agreement by which Lessor is
bound to permit Lessor to consent to such assignment.
(e) When, pursuant to the Bankruptcy Code, the trustee or
debtor-in-possession shall be obliged to pay reasonable use and occupancy
charges for the use of the Premises, such charges shall not be less than the
Basic Rent and other monetary obligations of Lessee for real estate taxes,
insurance and other charges under this Lease.
(f) Neither the whole nor any portion of Xxxxxx's interest in this Lease or
its estate in the Premises shall pass to any trustee, receiver, assignee for the
benefit of creditors, or any other person or entity, or otherwise by operation
of law under the laws of any state having jurisdiction of the person or property
of Lessee unless Lessor shall consent to such transfer in writing. No acceptance
by Lessor of rent or any other payments from any such trustee, receiver,
assignee, person or other entity shall be deemed to have waived, nor shall it
waive the need to obtain Lessor's consent or Xxxxxx's right to terminate this
Lease for any transfer of Xxxxxx's interest under this Lease without such
consent.
(g) In the event of an assignment of Xxxxxx's interests pursuant to this
paragraph 19, the right of such assignee to extend the term of this Lease for an
extended term beyond the then term of this Lease shall be extinguished.
20. Additional Rights of Lessor. (a) No right or remedy hereunder shall be
exclusive of any other right or remedy, but shall be cumulative and in addition
to any other right or remedy hereunder or now or hereafter existing. Failure to
insist upon the strict performance of any provision hereof or to exercise any
option, right, power or remedy contained herein shall not constitute a waiver or
relinquishment thereof for the future. Receipt by Lessor of any Basic Rent,
additional rent or other sum payable hereunder with knowledge of the breach of
any provision hereof shall not constitute waiver of such breach, and no waiver
by Lessor of any provision hereof shall be deemed to have been made unless made
in writing. Lessor shall be entitled to injunctive relief in case of the
violation, or attempted or threatened violation, of any of the provisions
hereof, or to a decree compelling performance of any of the provisions hereof,
or to any other remedy allowed to Lessor by law.
(b) Lessee hereby waives and surrenders for itself and all those claiming
under it, including creditors of all kinds, (i) any right and privilege which it
or any of them may have to redeem the Premises or to have a continuance of this
Lease after termination of Xxxxxx's right of occupancy by final order or
judgment of any court or by any legal process or writ, or under the terms of
this Lease, or after the termination of the term of this Lease as herein
provided, and (ii) the benefits of any law which exempts property from liability
for debt or for distress for rent.
(c) If Lessee shall be in default in the performance of any of its
obligations hereunder, Lessee shall pay to Lessor, on demand, all expenses
incurred by Lessor as a result thereof, including reasonable attorneys' fees and
expenses. If Lessor shall be made a party to any litigation commenced against
Lessee and Lessee shall fail to provide Lessor with counsel approved by Lessor
and pay the expenses thereof, Lessee shall pay all costs and reasonable
attorneys' fees and expenses in connection with such litigation.
(d) Lessor expressly waives any statutory rights it has or may have to
place statutory liens on data processing equipment, computers and computer
equipment and telephone and other similar electronic equipment including without
limitation cabling and wiring necessary for the utilization of said equipment
(other than those necessary for the operation and maintenance of the Premises).
21. Notices, Demands and Other Instruments. All notices (except any notice
pursuant to Paragraph 18(a) which shall be deemed given when received), offers,
consents and other instruments given pursuant to this Lease shall be in writing
and shall be validly given when hand delivered or sent by a courier or express
service guaranteeing overnight delivery, (a) if to Lessor, addressed to Lessor
at its address set forth above and (b) if to Lessee, Vice President Real Estate,
Xxxx & Xxxxxxx Corporation, 000 Xxxxxxx Xxx., Xxxxxx Xxxxxxxx, X.X. 07960; with
a copy to: General Counsel, Xxxx and Xxxxxxx, Inc., 000 Xxxxxxx Xxx., Xxxxxx
Xxxxxxxx, X.X. 07960. Lessor and Lessee each may from time to time specify, by
giving 8 days' notice to each other party, (i) any other address in the United
States as its address for purposes of this Lease and (ii) any other person or
entity that is to receive copies of notices, offers, consents and other
instruments hereunder.
15
22. Estoppel Certificates
(a) Lessee will, upon fifteen (15) days' notice at the request of Lessor,
execute, acknowledge and deliver to Lessor a certificate of Lessee stating that
this Lease is unmodified and in full effect (or, if there have been
modifications, that this Lease is in full effect as modified, and setting forth
such modifications) and the dates to which any Basic Rent, additional rent and
other sums payable hereunder have been paid, and either stating that to the
knowledge of the signer of such certificate no default exists hereunder or
specifying each such default of which the signer has knowledge and whether or
not Lessee is still occupying and operating the Premises. Any such certificate
may be relied upon by any prospective mortgagee or purchaser of the Premises.
(b) Lessee will deliver to Lessor the following:
(i) As soon as available, but in no event later than 120 days after
the end of the fiscal year of Guarantor or Lessee, copies of a balance
sheet of Guarantor and its consolidated subsidiaries as at the end of such
year, a statement of income, statement of retained earnings and statement
of changes in the financial position of Guarantor and its consolidated
subsidiaries for such year, setting forth in each case, in comparative
form, the corresponding figures for the preceding fiscal year in reasonable
detail and scope and certified by independent certified public accountants
of recognized national standing selected by Guarantor all being prepared in
accordance with generally accepted accounting principles, consistently
applied; and within 60 days after the end of the first three fiscal
quarters of Lessee (in the case of the Insurance Group) statutory quarterly
financial statements setting forth in each case, in comparative form, the
corresponding figures for the similar quarter of the preceding year, in
reasonable detail and scope, and certified by a financial officer of Lessee
having knowledge thereof.
(ii) As soon as available, but in no event later than 120 days after
the end of the fiscal year of Guarantor or Lessee, copies of all annual
statements, if any, submitted by Lessee and/or Guarantor to the National
Association of Insurance Commissioners.
(iii) With reasonable promptness, such additional public information
(including copies of public reports filed by Guarantor or Lessee) regarding
the business affairs and financial condition of Guarantor or Lessee, as
Lessor may reasonably request.
23. No Merger. There shall be no merger of this Lease or of the leasehold
estate hereby created with the fee estate in the Premises by reason of the fact
that the same person acquires or holds, directly or indirectly, this Lease or
the leasehold estate hereby created or any interest herein or in such leasehold
estate as well as the fee estate in the Premises or any interest in such fee
estate.
24. Surrender. Upon the expiration or termination of the Primary Term, or
if exercised, the last day of any Extended Term, Lessee shall surrender the
Premises to Lessor in the condition in which the Premises were upon the
commencement of the Primary Term hereof, except as repaired, rebuilt, restored,
altered or added to as permitted or required hereby and except for ordinary wear
and tear provided, however, that any ramps, walkways or tunnels connecting to
adjacent or adjoining premises shall upon or prior to such surrender, at the
request of Lessor, be removed from the Premises or blocked off, all in
compliance with applicable zoning, use, setback, fire and safety laws and
similar requirements. Lessee shall remove from the Premises on or prior to such
expiration or termination all property situated thereon which is not owned by
Lessor, and shall repair any damage caused by such removal. Property not so
removed shall become the property of Lessor, and Lessor may cause such property
to be removed from the Premises and disposed of, but the cost of any such
removal and disposition and of repairing any damage caused by such removal shall
be borne by Xxxxxx.
25. Merger, Consolidation or Sale of Assets. It shall be a condition
precedent to the merger of Lessee into another corporation, to the consolidation
of Lessee with one or more other corporations and to the sale or other
disposition of all or substantially all the assets of Lessee to one or more
other entities that the surviving entity or transferee of assets, as the case
may be, shall deliver to Lessor and to the Mortgagee an acknowledged instrument
in recordable form assuming all obligations, covenants and responsibilities of
Lessee hereunder and under any instrument executed by Lessee consenting to the
assignment of Xxxxxx's interest in this Lease to the Mortgagee as security for
indebtedness. Lessee covenants that it will not merge or consolidate or sell or
otherwise dispose of all or substantially all of its assets unless such an
instrument shall have been so delivered.
16
26. Investment Tax Credit. Xxxxxx agrees to elect, in accordance with
section 48(d) of the Code and the regulations promulgated thereunder, to treat
Xxxxxx as having purchased all eligible property in the Premises in order that
Lessee may obtain the benefit of the credit, if any, allowed or allowable with
respect thereto under Section 38 of the Code.
27. Separability; Binding Effect. Each provision hereof shall be separate
and independent and the breach of any such provision by Lessor shall not
discharge or relieve Lessee from its obligations to perform each and every
covenant to be performed by Lessee hereunder. If any provision hereof or the
application thereof to any person or circumstance shall to any extent be invalid
or unenforceable, the remaining provisions hereof, or the application of such
provision to persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected thereby, and each provision hereof shall
be valid and shall be enforceable to the extent permitted by law. All provisions
contained in this Lease shall be binding upon, inure to the benefit of, and be
enforceable by, the respective successors and assigns of Xxxxxx and Xxxxxx to
the same extent as if each such successor and assign were named as a party
hereto. This Lease may not be changed, modified or discharged except by a
writing signed by Xxxxxx and Lessee. Any such change, modification or discharge
made otherwise than as expressly permitted by this paragraph shall be void. This
Lease shall be governed by and interpreted in accordance with the laws of the
State in which the Premises is located.
28. Headings and Table of Contents. The table of contents and the headings
of the various Paragraphs and Schedules of this Lease have been inserted for
reference only and shall not to any extent have the effect of modifying,
amending or changing the expressed terms and provisions of this Lease.
29. Schedules. The following are Schedules A, B and C referred to in this
Lease, which Schedules are hereby incorporated by reference herein.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed as of the date first above written.
CROSTEX ASSOCIATES LIMITED PARTNERSHIP
By: Almarc Associates,
general partner
By: /s/ XXXXX XXXXXXX
---------------------------------------------
a partner
By: XXXXX XXXXXXX
---------------------------------------------
(Printed Name)
XXXX & XXXXXXX CORPORATION
By: /s/ XXXXXX X. XXXXXXXX
---------------------------------------------
Xxxxxx X. Xxxxxxxx,
Vice President & Treasurer
17
(000 Xxxxxxx Xxxxxx,
Xxxxxx Xxxxxxxx, Xxx Xxxxxx)
SCHEDULE A
PART I
LEGAL DESCRIPTION
All that plot, piece or parcel land situate, lying and being in the
Township of Xxxxxx, County of Xxxxxx and State of
New Jersey described as
follows:
TRACT ONE
Beginning at a point formed by the intersection of the westerly sideline of
Madison Avenue with the northerly sideline of Xxxxxxxx Road and running thence
the following two courses along the northerly sideline of Xxxxxxxx Road;
1. westerly on a curve to the right of radius 1375.40 feet for an arc length
of 452.12 feet to a point of tangent; thence
2. still along the northerly sideline of Xxxxxxxx Road south 74 degrees 39'
26" west 129.44 feet to the westerly line of Tax Map Lot 1 (incorrectly
referred to as westerly line of Tax Map Lot 2 in prior deed description) in
Block 401; thence
3. along the same north 28 degrees 55' 06" west 91.40 feet to the monument in
the southerly line of the said Tax Map Lot 2; thence
4. along the same north 48 degrees 05' 45" east 680.90 feet to the westerly
sideline of Madison Avenue; thence
5. along the same southerly on a curve to the right of radius 540.69 feet for
an arc length of 57.71 feet to a point of tangent; thence
6. still along the westerly sideline of Madison Avenue south 12 degrees 15'
52" east 262.37 feet to the northerly sideline of Xxxxxxxx Road aforesaid
and the point and place of Beginning.
TRACT TWO
Beginning at a point in the westerly sideline of Madison Avenue in the
northerly line of Lot 1 on map hereinafter mentioned said point being distant
northerly along the westerly sideline of Madison Avenue 319.62 feet from the
northerly sideline of Xxxxxxxx Road and running thence
1. along the westerly sideline of Madison Avenue (An Avenue 66.00 feet in
width) northerly on a curve to the left of radius 540.69 feet for an arc
length of 58.74 feet to a monument at a point of tangent; thence
2. still along the westerly sideline of Madison Avenue north 24 degrees 36'
16" west 500.92 feet to a point of curve; thence
3. continuing along the westerly sideline of Madison Avenue northerly on a
curve to the left of radius 922.37 feet for an arc length of 36.25 feet to
the southerly line of Lot 4; thence
4. along the same south 48 degrees 27' 30" west 600.73 feet to a fence post;
thence
5. along the southerly line of Lot 3, south 48 degrees 17' west 399.37 feet to
the easterly line of Xxxxxx Terrace; thence the following two courses along
the same
6. south 28 degrees 59' 10" east 236.50 feet; thence
7. south 27 degrees 45' east 353.42 feet to a point of curve; thence
A-1
8. southeasterly on a curve to the left of radius 12.33 feet for an arc length
of 21.36 feet to a point of reverse curve in the northerly side line of
Xxxxxxxx Road; thence
9. along the same easterly on a curve to the right of radius 630.49 feet for
an arc length of 238.81 feet to a monument at a point of tangent; thence
10. still along the northerly sideline of Xxxxxxxx Road north 74 degrees 39' 26"
east 21.22 feet to the westerly line of Lot 1; thence
11. along the same north 28 degrees 55' 06" west, 91.40 feet to a monument;
thence
12. along the northerly sideline of Lot 1, north 48 degrees 05' 45" east 680.90
feet to the westerly sideline of Madison Avenue aforesaid and the point and
place of Beginning.
Excepting Xxxxxxxxx so much of the property as was conveyed to the Township
of Xxxxxx, in deed dated November 11, 1970 and recorded December 29, 1971 in
Deed Book 2199 page 734, said property being more particularly described as
follows:
Beginning at a point in the northerly sideline of Xxxxxxxx Road, said point
being distant 602.78 feet westerly from the intersection of the northerly
sideline of Xxxxxxxx Road and the westerly sideline of Madison Avenue (N.B. this
point marked by a concrete monument) and running thence
1. along the existing right-of-way line of Xxxxxxxx Road on a curve to the
left, the radius of which is 630.49 feet an arc distance of 238.81 feet to
a point and thence;
2. still along the existing right-of-way along a curve to the right, the
radius of which is 12.33 feet, an arc distance of 21.36 feet to a point in
the easterly right-of-way line of Xxxxxx Terrace; and thence
3. still along the easterly right-of-way line of Xxxxxx Terrace north 27
degrees 45' west a distance of 12.35 feet to a point; and thence
4. along the arc of a curve the radius of which is 14.63 feet an arc distance
of 25.32 feet to a point (N.B. this point is 10' northerly from the
terminus of the 1st course herein described); and thence
5. along the arc of a curve, the radius of which is 420.30 feet an arc
distance of 105.77 feet to a point of compound curve; and thence
6. along the arc of a curve, the radius of which is 1,050.99 feet an arc
distance of 130.85 feet to the point and place of Beginning.
The above premises are known as 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxxxxx, Xxx
Xxxxxx and also known as Lot 1, Block 401 on the official tax records.
A-2
(000 Xxxxxxx Xxxxxx,
Xxxxxx Xxxxxxxx, Xxx Xxxxxx)
(Lease and Mortgages)
SCHEDULE A
PART II
AGREEMENTS
Together with the interest, including without limitation the rights of way
and easements relating to the above described land in the following instruments:
1. Letter dated August 23, 1984 from A-L Services, Inc. re: snow removal.
2. Letter agreement dated February 17, 1971 between Allied Building Cleaning
Corporation and U.S. Fire Insurance Company.
3. Indoor Plant Maintenance Agreement dated May 27, 1983 between Touch The
Earth, Inc. and Xxxx & Xxxxxxx Corporation.
4. Letter dated April 7, 1984 from Thermo Engineering, Inc. to Xxxx & Xxxxxxx
regarding thermo-xxxxx control system.
5. Letter from A-L Services re: Specifications for landscaping and mowing.
6. Preventive Maintenance Agreement from Institutional Systems Service Corp.
with Xxxx and Xxxxxxx Ins. Co. regarding fire alarm system and sprinkler
system.
7. Centravac annual maintenance service dated September 21, 1984 from
New
Jersey Trane Service to U.S. Fire Insurance.
8. Xxxxxxx Controls Agreement dated April 5, 1984 from Xxxxxxx Controls, Inc.
to Xxxx & Xxxxxxx.
9. Carrier Inspection maintenance contract from Carrier Corporation to Xxxx &
Xxxxxxx Insurance Co.
10. Elevator Maintenance Proposal and Contract dated December 7, 1982 between
R.M.R. Elevator Company, Inc. and Xxxx & Xxxxxxx Corp.
11. Planned Maintenance Contract for automatic door equipment dated February 7,
1984 from Xxxxxxx Magic Door to Xxxx & Xxxxxxx.
12. Letter dated February 28, 1984 from Xxxxx Tree Experts to Xxxx & Xxxxxxx
Ins. Co. regarding outdoor tree work.
A-3
(000 Xxxxxxx Xxxxxx,
Xxxxxx Xxxxxxxx, Xxx Xxxxxx)
(Lease)
SCHEDULE A
PART III
PERMITTED EXCEPTIONS
1. Taxes and assessments which may be a lien but are not yet due and payable.
2. Fifty foot setback lines for buildings along Madison Avenue and Xxxxxxxx
Road recorded in Deed Book Z-17, Page 156; Deed Book K-17, Page 548 and
Deed Book X-14, Page 441 in the Official Records of Xxxxxx County,
New
Jersey.
3. One hundred foot setback line for stables and outbuildings along Xxxxxxxx
Road recorded in Deed Book Z-17, Page 156 in the Official Records of Xxxxxx
County,
New Jersey. (affects Tract One only).
4. Permit granted to Algonquin Gas Transmission Co. recorded in Deed Book Y52,
Page 120 in the Official Records of Xxxxxx County,
New Jersey.
5. Easement granted to Texas Eastern Transmission Corporation recorded in Deed
Book 1870, Page 431 in the Official Records of Xxxxxx County, New Jersey.
A-4
SCHEDULE B
TERMS AND RENT PAYMENTS
The Primary Term commenced on December 21, 1984 and shall end at midnight
on November 30, 2009. The first Extended Term shall commence on December 1,
2009, and shall end at midnight on the day immediately preceding the fifth
anniversary of such commencement date. Each subsequent Extended Term shall
commence on the day next succeeding the expiration of the preceding term and
shall end at midnight on the day immediately preceding the fifth anniversary of
such commencement date.
1. The instalment of Basic Rent for the Premises during the portion of
the Primary Term of this Lease commencing on March 28, 1985 and ending on
March 31, 1985 is $10,101.82 per day and said instalment is payable on
March 31, 1985.
2. Each instalment of Basic Rent for the Premises during the portion
of the Primary Term of this Lease commencing on April 1, 1985 and ending on
and including November 30, 1994 is $317,853.42 and said instalments are
payable on April 30, 1985 and thereafter on the last day of each month to
and including November 30, 1994. Each instalment of Basic Rent during the
portion of the Primary Term of this Lease commencing on December 1, 1989
and ending on November 30, 1994 shall be increased by an amount, not in
excess of $40,296.47, determined by multiplying the instalment of Basic
Rent set forth in this Section 2 (before taking into account the increase
prescribed in this sentence) by a fraction, the numerator of which shall be
the excess of the Consumer Price Index (as defined in Section 7 below) for
November, 1989 over the Base Price Index (as defined below) and the
denominator of which shall be the Base Price Index.
3. Each instalment of Basic Rent for the Premises during the portion
of the Primary Term of this Lease commencing on December 1, 1994 and ending
on and including November 30, 1999 is $359,992.02 and said instalments are
payable on December 31, 1994 and thereafter on the last day of each month
to and including November 30, 1999. Each instalment of Basic Rent shall be
increased by an amount, not in excess of $64,586.70, determined by
multiplying the instalment of Basic Rent set forth in Section 2 above
(before taking into account the increase prescribed in the last sentence of
such section) by a fraction, the numerator of which shall be the excess of
the Consumer Price Index for November, 1994 over the Base Price Index (as
defined below) and the denominator of which shall be the Base Price Index.
4. Each instalment of Basic Rent for the Premises during the portion
of the Primary Term of this Lease commencing on December 1, 1999 and ending
on and including November 30, 2004 is $379,805.54 and said instalments are
payable on December 31, 1999 and thereafter on the last day of each month
to and including November 30, 2004. Each instalment of Basic Rent shall be
increased by an amount, not in excess of $106,338.90, determined by
multiplying the instalment of Basic Rent set forth in Section 3 above
(before taking into account the increase prescribed in the last sentence of
such section) by a fraction, the numerator of which shall be the excess of
the Consumer Price Index for November, 1999 over the Base Price Index and
the denominator of which shall be the Base Price Index.
5. Each instalment of Basic Rent for the Premises during the portion
of the Primary Term of this Lease commencing on December 1, 2004 and ending
on and including November 30, 2009 is $386,503.06 and said instalments are
payable on December 31, 2004 and thereafter on the last day of each month
to and including November 30, 2009. Each instalment of Basic Rent shall be
increased by an amount, not in excess of $100,744.27, determined by
multiplying the instalment of Basic Rent set forth in Section 4 above
(before taking into account the increase prescribed in the last sentence of
such section) by a fraction, the numerator of which shall be the excess of
the Consumer Price Index for November, 2004 over the Base Price Index and
the denominator of which shall be the Base Price Index.
6. Each instalment of Basic Rent for the Premises during each Extended
Term shall be the fair market rental value of the Premises, for each such
Extended Term determined as of the first day of the applicable Extended
Term. In the event Lessee exercises the option to extend the Lease for such
Extended Terms, Lessor and Lessee will endeavor, without obligation, to
agree upon the fair market value of the Leased Premises as provided above.
If Lessor and Lessee shall not agree on a new rental rate such rate shall
be
B-1
determined by an appraisal procedure as follows: Lessor and Lessee shall
each appoint an appraiser within 10 days after either party gives notice
requesting initiation of the appraisal procedure and the fair market rental
value shall be determined by the two appraisers. If the two appraisers so
appointed are unable to agree upon fair market rental value then the two
appraisers appointed by the parties hereto shall appoint a third appraiser
who shall determine the fair market rental value.
7. (a) The term Consumer Price Index shall mean the Consumer Price
Index for All Urban Consumers -- U.S. City Average -- All Items (1967=100),
published by the Bureau of Labor Statistics of the United States Department
of Labor. In the event that the Consumer Price Index of the Bureau of Labor
Statistics is discontinued, the parties agree to select as nearly
comparable statistics as shall be available and published by the Bureau of
Labor Statistics, or if there shall not be statistics so published, the
parties agree to select such statistics as may be available, based on
changes in the cost of living or purchasing power of the consumer dollar.
If the parties cannot agree on such statistics, the dispute shall be
resolved by arbitration, in accordance with the rules of the American
Arbitration Association.
(b) The Base Price Index shall mean the Consumer Price Index for:
(i) the month of December, 1984 in section 2 above,
(ii) the month of December, 1989 in section 3 above,
(iii) the month of December, 1994, in section 4 above,
(iv) the month of December, 1999 in section 5 above.
B-2
SCHEDULE C
Upon purchase of the Premises pursuant to paragraph 11(b) or 14(a), the
amount determined in accordance with Schedule C shall be the amount set forth in
Column 2 below opposite the period in which the date occurs (period 4 shall be
the period from the date hereof to and including April 29, 1985, period 5 shall
be the period from April 30, 1985 to and including May 30, 1985, period 6 shall
be the period from May 31, 1985 to and including June 29, 1985 and each
succeeding period shall be the following period of the Primary Term occurring
thereafter commencing on a Payment Date and ending on and including the day
immediately preceding the next succeeding Payment Date).
CROSTEX ASSOCIATES
SCHEDULE C
PERIOD AMOUNT
------ -----------
4....................................................... 33464967.41
5....................................................... 33459169.07
6....................................................... 33453316.66
7....................................................... 33447409.68
8....................................................... 33441447.62
9....................................................... 33435429.96
10....................................................... 33429356.19
11....................................................... 33423225.78
12....................................................... 33417038.21
13....................................................... 33410792.94
14....................................................... 33404489.43
15....................................................... 33398127.14
16....................................................... 33391705.53
17....................................................... 33385224.04
18....................................................... 33378682.11
19....................................................... 33372079.18
20....................................................... 33365414.67
21....................................................... 33358688.02
22....................................................... 33351898.64
23....................................................... 33345045.95
24....................................................... 33338129.36
25....................................................... 33331148.28
26....................................................... 33324102.10
27....................................................... 33316990.22
28....................................................... 33309812.02
29....................................................... 33302566.88
30....................................................... 33295254.18
31....................................................... 33287873.29
32....................................................... 33280423.58
33....................................................... 33272904.40
34....................................................... 33265315.11
35....................................................... 33257655.05
36....................................................... 33249923.56
37....................................................... 33242119.97
38....................................................... 33234243.62
39....................................................... 33226293.82
40....................................................... 33218269.89
C-1
CROSTEX ASSOCIATES
SCHEDULE C
PERIOD AMOUNT
------ -----------
41....................................................... 33210171.14
42....................................................... 33201996.87
43....................................................... 33193746.38
44....................................................... 33185418.95
45....................................................... 33177013.87
46....................................................... 33168530.41
47....................................................... 33159967.85
48....................................................... 33151325.44
49....................................................... 33142602.44
50....................................................... 33133798.10
51....................................................... 33124911.66
52....................................................... 33115942.36
53....................................................... 33106889.42
54....................................................... 33097752.07
55....................................................... 33088529.51
56....................................................... 33079220.95
57....................................................... 33069825.59
58....................................................... 33060342.62
59....................................................... 33050771.22
60....................................................... 33041110.57
61....................................................... 33031359.84
62....................................................... 33021518.18
63....................................................... 33011584.75
64....................................................... 33001558.70
65....................................................... 32991439.15
66....................................................... 32981225.24
67....................................................... 32970916.09
68....................................................... 32960510.81
69....................................................... 32950008.50
70....................................................... 32939408.26
71....................................................... 32928709.17
72....................................................... 32917910.31
73....................................................... 32907010.26
74....................................................... 32896009.57
75....................................................... 32884905.80
76....................................................... 32873698.49
77....................................................... 32862389.67
78....................................................... 32850969.37
79....................................................... 32839445.60
80....................................................... 32827814.38
81....................................................... 32816074.70
82....................................................... 32804225.55
83....................................................... 32792265.91
84....................................................... 32780194.74
85....................................................... 32768011.01
86....................................................... 32755713.67
87....................................................... 32743301.66
C-2
CROSTEX ASSOCIATES
SCHEDULE C
PERIOD AMOUNT
------ -----------
88....................................................... 32730773.91
89....................................................... 32718129.34
90....................................................... 32705366.86
91....................................................... 32692485.38
92....................................................... 32679483.78
93....................................................... 32666360.94
94....................................................... 32653115.73
95....................................................... 32639747.01
96....................................................... 32626253.63
97....................................................... 32612634.43
98....................................................... 32598888.23
99....................................................... 32585013.85
100....................................................... 32571010.09
101....................................................... 32556875.75
102....................................................... 32542609.61
103....................................................... 32528240.44
104....................................................... 32513677.00
105....................................................... 32499008.04
106....................................................... 32484202.30
107....................................................... 32469258.49
108....................................................... 32454175.34
109....................................................... 32438951.54
110....................................................... 32423585.78
111....................................................... 32408076.74
112....................................................... 32392423.08
113....................................................... 32376623.45
114....................................................... 32360676.49
115....................................................... 32344580.83
116....................................................... 32328335.08
117....................................................... 32311937.84
118....................................................... 32295387.70
119....................................................... 32278683.23
120....................................................... 32261822.99
121....................................................... 32202666.94
122....................................................... 32142959.27
123....................................................... 32082694.83
124....................................................... 32021868.44
125....................................................... 31960474.85
126....................................................... 31898508.78
127....................................................... 31835964.88
128....................................................... 31772837.77
129....................................................... 31709122.01
130....................................................... 31644812.11
131....................................................... 31579902.53
132....................................................... 31514387.68
133....................................................... 31448261.92
134....................................................... 31381519.55
C-3
CROSTEX ASSOCIATES
SCHEDULE C
PERIOD AMOUNT
------ -----------
135....................................................... 31314154.82
136....................................................... 31246161.92
137....................................................... 31177535.00
138....................................................... 31108268.15
139....................................................... 31038355.39
140....................................................... 30967790.71
141....................................................... 30896568.03
142....................................................... 30824681.21
143....................................................... 30752124.05
144....................................................... 30678890.31
145....................................................... 30604973.68
146....................................................... 30530367.79
147....................................................... 30455066.21
148....................................................... 30379062.46
149....................................................... 30302349.99
150....................................................... 30224922.19
151....................................................... 30146772.38
152....................................................... 30067893.84
153....................................................... 29988279.77
154....................................................... 29907923.31
155....................................................... 29826817.54
156....................................................... 29744955.48
157....................................................... 29662330.07
158....................................................... 29578934.19
159....................................................... 29494760.66
160....................................................... 29409802.22
161....................................................... 29324051.56
162....................................................... 29237501.29
163....................................................... 29150143.95
164....................................................... 29061972.02
165....................................................... 28972977.90
166....................................................... 28883153.93
167....................................................... 28792492.37
168....................................................... 28700985.40
169....................................................... 28608625.15
170....................................................... 28515403.65
171....................................................... 28421312.88
172....................................................... 28326344.73
173....................................................... 28230491.02
174....................................................... 28133743.49
175....................................................... 28036093.80
176....................................................... 27937533.55
177....................................................... 27838054.24
178....................................................... 27737647.30
179....................................................... 27636304.08
180....................................................... 27534015.86
181....................................................... 27410960.29
C-4
CROSTEX ASSOCIATES
SCHEDULE C
PERIOD AMOUNT
------ -----------
182....................................................... 27286757.25
183....................................................... 27161396.04
184....................................................... 27034865.86
185....................................................... 26907155.81
186....................................................... 26778254.88
187....................................................... 26648151.97
188....................................................... 26516835.88
189....................................................... 26384295.29
190....................................................... 26250518.78
191....................................................... 26115494.82
192....................................................... 25979211.79
193....................................................... 25841657.94
194....................................................... 25702821.43
195....................................................... 25562690.29
196....................................................... 25421252.45
197....................................................... 25278495.73
198....................................................... 25134407.83
199....................................................... 24988976.33
200....................................................... 24842188.71
201....................................................... 24694032.32
202....................................................... 24544494.40
203....................................................... 24393562.06
204....................................................... 24241222.30
205....................................................... 24087462.00
206....................................................... 23932267.91
207....................................................... 23775626.66
208....................................................... 23617524.76
209....................................................... 23457948.59
210....................................................... 23296884.40
211....................................................... 23134318.31
212....................................................... 22970236.32
213....................................................... 22804624.29
214....................................................... 22637467.96
215....................................................... 22468752.93
216....................................................... 22298464.66
217....................................................... 22126588.48
218....................................................... 21953109.58
219....................................................... 21778013.02
220....................................................... 21601283.72
221....................................................... 21422906.45
222....................................................... 21242865.84
223....................................................... 21061146.38
224....................................................... 20877732.42
225....................................................... 20692608.15
226....................................................... 20505757.63
227....................................................... 20317164.76
228....................................................... 20126813.30
C-5
CROSTEX ASSOCIATES
SCHEDULE C
PERIOD AMOUNT
------ -----------
229....................................................... 19934686.84
230....................................................... 19740768.84
231....................................................... 19545042.58
232....................................................... 19347491.21
233....................................................... 19148097.71
234....................................................... 18946844.90
235....................................................... 18743715.44
236....................................................... 18538691.83
237....................................................... 18331756.41
238....................................................... 18122891.35
239....................................................... 17912078.66
240....................................................... 17699300.18
241....................................................... 17477840.06
242....................................................... 17254314.86
243....................................................... 17028705.33
244....................................................... 16800992.03
245....................................................... 16571155.34
246....................................................... 16339175.46
247....................................................... 16105032.41
248....................................................... 15868706.01
249....................................................... 15630175.91
250....................................................... 15389421.56
251....................................................... 15146422.22
252....................................................... 14901156.95
253....................................................... 14653604.62
254....................................................... 14403743.91
255....................................................... 14151553.29
256....................................................... 13897011.04
257....................................................... 13640095.22
258....................................................... 13380783.71
259....................................................... 13119054.16
260....................................................... 12854884.03
261....................................................... 12588250.56
262....................................................... 12319130.78
263....................................................... 12047501.50
264....................................................... 11773339.32
265....................................................... 11496620.63
266....................................................... 11217321.59
267....................................................... 10935418.13
268....................................................... 10650885.97
269....................................................... 10363700.59
270....................................................... 10073837.26
271....................................................... 9781271.00
272....................................................... 9485976.61
273....................................................... 9187928.65
274....................................................... 8887101.45
275....................................................... 8583469.09
C-6
CROSTEX ASSOCIATES
SCHEDULE C
PERIOD AMOUNT
------ -----------
276....................................................... 8277005.41
277....................................................... 7967684.01
278....................................................... 7655478.24
279....................................................... 7340361.20
280....................................................... 7022305.75
281....................................................... 6701284.49
282....................................................... 6377269.76
283....................................................... 6050233.65
284....................................................... 5720147.98
285....................................................... 5386984.32
286....................................................... 5050713.96
287....................................................... 4711307.94
288....................................................... 4368737.02
289....................................................... 4022971.68
290....................................................... 3673982.14
291....................................................... 3321738.33
292....................................................... 2966209.91
293....................................................... 2607366.25
294....................................................... 2245176.43
295....................................................... 1879609.26
296....................................................... 1510633.23
297....................................................... 1138216.57
298....................................................... 762327.18
299....................................................... 382932.69
300....................................................... 0.00
MARCH 22, 1985
C-7
(New Jersey)
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED that on this 25th day of March, 1985, before me, a notary
public in and for said county and state, came XXXXX XXXXXXX, a partner of Almarc
Associates, a Connecticut general partnership, which is the general partner of
Crostex Associates Limited Partnership, a Connecticut limited partnership, and
who is personally known to me to be such partner, and who is personally known to
me to be the same person who executed, as partner, the within instrument on
behalf of said partnership, and such person duly acknowledged the execution of
the same to be the act and deed of said partnership as aforesaid.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, the day and year last above written.
/s/ XXXXXXX XXXXXXX
--------------------------------------------
Notary Public
(SEAL) My appointment expires:
Xxxxxxx XxXxxxx
Notary Public, State of New York
No. 00-0000000
Qualified in Queen's County
Commission Expires March 30, 1986
C-8
ASSIGNMENT AND ASSUMPTION OF
LEASE AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF
LEASE AGREEMENT (this "Assignment") is
made as of the 29th day of August, 1997, by and between TALEGEN PROPERTIES,
INC., a Delaware corporation ("Assignor") and XXXX & XXXXXXX HOLDINGS, INC., a
Delaware corporation ("Assignee").
BACKGROUND
A Talegen Holdings, Inc., as successor-in-interest by merger to Talegen
Corporation (formerly known as "Xxxx & Xxxxxxx Corporation") (the "Original
Lessee") and Crostex Associates Limited Partnership ("Landlord") are parties to
that certain Amended and Restated
Lease Agreement dated as of March 1, 1985 (the
"Lease") pursuant to which the Original Lessee leased from Landlord certain
property located at 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx (the "Premises"),
which Lease is evidenced by a Memorandum of Amended and Restated
Lease Agreement
dated as of March 1, 1985 and recorded in the Official Records in the Recorder's
Office of Xxxxxx County, New Jersey. The Original Lessee assigned all of its
right, title and interest in the Lease to Assignor pursuant to that certain
Lease Assignment and Assumption Agreement dated as of January 1, 1995. For
purposes of this Assignment, all capitalized terms not otherwise defined herein
shall have the meanings ascribed to such terms in the Lease.
B Assignor desires to assign to Assignee all of its right, title and
interest in and to the Lease and Assignee desires to accept such assignment and
to assume the obligations of Assignor as lessee thereunder.
NOW, THEREFORE, in consideration of the foregoing background and the within
premises and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties hereby agree as follows:
1. Background. The background set forth above is hereby incorporated in
this Assignment and forms a part hereof.
2. Assignment. Assignor hereby assigns, transfers, sells and conveys all
of its right, title and interest in and to the Lease to Assignee.
3. Assumption. Assignee hereby accepts the assignment by Assignor of all
of Assignor's right, title and interest in and to the Lease and Assignee hereby
assumes all of the obligations of Assignor under the Lease accruing from and
after the date of this Assignment.
4. Indemnification.
4.1 Assignor shall indemnify, defend and save Assignee and its
affiliates, successors and assigns harmless of, from and against any and
all claims, demands, actions, causes of action, suits, proceedings,
damages, liabilities, costs and expenses of every nature whatsoever which
relate to the obligations of Assignor under the Lease and which first
accrued prior to the date of this Assignment.
4.2 Assignee shall indemnify, defend and save Assignor and its
affiliates, successors and assigns harmless of, from and against any and
all claims, demands, actions, causes of action, suits, proceedings,
damages, liabilities, costs and expenses of every nature whatsoever which
relate to the obligations of Assignee under the Lease, and which first
accrue from and after the date of this Assignment.
5. Entire Agreement; Governing Law. This Assignment contains the
entire understanding of the parties with respect to the subject matter
hereof, supersedes all prior or other negotiations, representations,
understandings and agreements of, by or among the parties, express or
implied, oral or written, which are fully merged herein. The express terms
of this Assignment control and supersede any course of performance and/or
customary practice inconsistent with any such terms. Any agreement
hereafter made shall be ineffective to change, modify, discharge or effect
an abandonment of this Assignment unless such agreement is in writing and
signed by the party against whom enforcement of such change, modification,
discharge or abandonment is sought. This Assignment shall be governed by
and construed under the laws of the state where the Premises is located.
This Assignment shall be construed without the aid of any canon, custom or
rule of law requiring construction against the draftsman.
1
6. Successor and Assigns. This Assignment shall inure to the benefit
of, and be binding upon, the heirs, executors, administrators, successors
and assigns of the respective parties hereto.
7. Counterparts. This Assignment may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute but one document.
IN WITNESS WHEREOF, the Assignor and the Assignee have executed this
Assignment and Assumption of
Lease Agreement as of the date first above written.
ASSIGNOR:
TALEGEN PROPERTIES, INC.
By: /s/ XXXXX X. XXXXXX
------------------------------------------
Xxxxx X. Xxxxxx
Secretary
ASSIGNEE:
XXXX & XXXXXXX HOLDINGS, INC.
By: /s/ XXXXX X. XXXXX
------------------------------------------
Xxxxx X. Xxxxx
President and Chief Executive Officer
2
WHEN RECORDED RETURN TO:
CSC
0000 Xxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Acct. #P6-0000-743-9
--------------------------------------------------------------------------------
MEMORANDUM OF ASSIGNMENT AND ASSUMPTION OF LEASE
THIS MEMORANDUM OF ASSIGNMENT AND ASSUMPTION OF LEASE is dated as of the
29th day of August, 1997, by and between TALEGEN PROPERTIES, INC., a Delaware
corporation ("Assignor"), whose mailing address is 0000 Xxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, XX 00000 and XXXX & XXXXXXX HOLDINGS, INC., a Delaware
corporation ("Assignee"), whose mailing address is 0000 Xxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, XX 00000.
BACKGROUND
WHEREAS, Talegen Holdings, Inc., as successor-in-interest by merger to
Talegen Corporation (formerly known as "Xxxx & Xxxxxxx Corporation") (the
"Original Lessee"), as lessee and Crostex Associates Limited Partnership
("Landlord") are parties to that certain Amended and Restated
Lease Agreement
dated as of March 1, 1985 (the "Lease").
WHEREAS, the Lease is evidenced by that certain Memorandum of Amended and
Restated
Lease Agreement dated as of March 1, 1985 and recorded in the Official
Records in the Recorder's Office of Xxxxxx County, New Jersey.
WHEREAS, the Original Lessee assigned all of its right, title and interest
in the Lease to Assignor pursuant to that certain Lease Assignment and
Assumption Agreement dated as of January 1, 1995.
WHEREAS, by that certain Assignment and Assumption of Lease Agreement (the
"Assignment") dated of even date herewith, Assignor has assigned all of its
right, title and interest in and to the Lease to Assignee, and Assignee has
assumed the obligations of Assignor under the Lease accruing from and after the
date of the Assignment.
NOW, THEREFORE, the parties hereto desire to confirm and ratify the
following:
1. Assignor and Assignee hereby confirm that by the Assignment, Assignor
assigned to Assignee all of Assignor's right, title and interest in and to the
Lease, and Assignee has assumed the obligations of Assignor under the Lease
accruing from and after the date of the Assignment.
2. The purpose of this Memorandum is to give notice of the Assignment.
3. This Memorandum may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute but one document.
1
IN WITNESS WHEREOF, the parties have executed this Memorandum of Assignment
and Assumption of Lease as of the date first set forth above.
ASSIGNOR: ASSIGNEE:
TALEGEN PROPERTIES, INC XXXX & XXXXXXX HOLDINGS, INC.
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXX X. XXXXX
---------------------------------------- ----------------------------------------
Xxxxx X. Xxxxxx Xxxxx X. Xxxxx
Secretary President and Chief Executive Officer
2
ACKNOWLEDGMENT
STATE OF WASHINGTON: )
)
COUNTY OF KING: ) :SS
On the 29th day of August, 1997, before me, the subscriber, a Notary Public
in and for the State and County aforesaid, personally appeared Xxxxx X. Xxxxxx,
the Secretary of Talegen Properties, Inc., a Delaware corporation, who
acknowledged that he, being authorized to do so, executed the foregoing
instrument for the purposes therein contained.
WITNESS my hand and seal the day and year aforesaid.
/s/ XXXXXXX X. XXXXXX
------------------------------------------------
Notary Public
My Commission Expires: 1/1/2000
STATE OF NEW JERSEY: )
)
COUNTY OF XXXXXX: ) :SS
On the 27th day of August, 1997, before me, the subscriber, a Notary Public
in and for the State and County aforesaid, personally appeared Xxxxx X. Xxxxx,
the President and Chief Executive Officer of Xxxx & Xxxxxxx Holdings, Inc., a
Delaware corporation, who acknowledged that he, being authorized to do so,
executed the foregoing instrument for the purposes therein contained.
WITNESS my hand and seal the day and year aforesaid.
/s/ XXXX X. XXXXX
------------------------------------------------
Notary Public
My Commission Expires:
XXXX X. XXXXX
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires: March 29, 1999
3
WHEN RECORDED RETURN TO:
OBERMAYER XXXXXXX XXXXXXX & HIPPEL LLP
One Penn Center, 19th Floor
1617 X.X. Xxxxxxx Blvd.
Philadelphia, PA 19103
Attn: Xxxxxx X. Xxxxx, Esquire
--------------------------------------------------------------------------------
MEMORANDUM OF ASSIGNMENT AND ASSUMPTION OF LEASE
THIS MEMORANDUM OF ASSIGNMENT AND ASSUMPTION OF LEASE is dated as of the
29th day of August, 1997, by and between TALEGEN PROPERTIES, INC, a Delaware
corporation ("Assignor"), whose mailing address is 0000 Xxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, XX 00000 and XXXX & XXXXXXX HOLDINGS, INC., a Delaware
corporation ("Assignee"), whose mailing address is 0000 Xxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, XX 00000.
BACKGROUND
WHEREAS, Talegen Holdings, Inc., as successor-in-interest by merger to
Talegen Corporation (formerly known as "Xxxx & Xxxxxxx Corporation") (the
"Original Lessee"), as lessee and Crostex Associates Limited Partnership
("Landlord") are parties to that certain Amended and Restated Lease Agreement
dated as of March 1, 1985 (the "Lease").
WHEREAS, the Lease is evidenced by that certain Memorandum of Amended and
Restated Lease Agreement dated as of March 1, 1985 and recorded in the Official
Records in the Recorder's Office of Xxxxxx County, New Jersey.
WHEREAS, the Original Lessee assigned all of its right, title and interest
in the Lease to Assignor pursuant to that certain Lease Assignment and
Assumption Agreement dated as of January 1, 1995.
WHEREAS, by that certain Assignment and Assumption of Lease Agreement (the
"Assignment") dated of even date herewith, Assignor has assigned all of its
right, title and interest in and to the Lease to Assignee, and Assignee has
assumed the obligations of Assignor under the Lease accruing from and after the
date of the Assignment.
NOW, THEREFORE, the parties hereto desire to confirm and ratify the
following:
1. Assignor and Assignee hereby confirm that by the Assignment, Assignor
assigned to Assignee all of Assignor's right, title and interest in and to the
Lease, and Assignee has assumed the obligations of Assignor under the Lease
accruing from and after the date of the Assignment.
2. The purpose of this Memorandum is to give notice of the Assignment.
3. This Memorandum may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute but one document.
4
IN WITNESS WHEREOF, the parties have executed this Memorandum of Assignment
and Assumption of Lease as of the date first set forth above.
ASSIGNOR: ASSIGNEE:
TALEGEN PROPERTIES, INC XXXX & XXXXXXX HOLDINGS, INC.
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXX X. XXXXX
---------------------------------------- ----------------------------------------
Xxxxx X. Xxxxxx Xxxxx X. Xxxxx
Secretary President and Chief Executive Officer
5
ACKNOWLEDGMENT
STATE OF WASHINGTON )
)
COUNTY OF KING: ) :SS
On the 29th day of August, 1997, before me, the subscriber, a Notary Public
in and for the State and County aforesaid, personally appeared Xxxxx X. Xxxxxx,
the Secretary of Talegen Properties, Inc., a Delaware corporation, who
acknowledged that he, being authorized to do so, executed the foregoing
instrument for the purposes therein contained.
WITNESS my hand and seal the day and year aforesaid.
/s/ XXXXXXX X. XXXXXX
------------------------------------------------
Notary Public
My Commission Expires: 1/1/2000
STATE OF NEW JERSEY: )
)
COUNTY OF XXXXXX: ) :SS
On the 27th day of August, 1997, before me, the subscriber, a Notary Public
in and for the State and County aforesaid, personally appeared Xxxxx X. Xxxxx,
the President and Chief Executive Officer of Xxxx & Xxxxxxx Holdings, Inc., a
Delaware corporation, who acknowledged that he, being authorized to do so,
executed the foregoing instrument for the purposes therein contained.
WITNESS my hand and seal the day and year aforesaid.
/s/ XXXX X. XXXXX
------------------------------------------------
Notary Public
My Commission Expires:
XXXX X. XXXXX
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires: March 29, 1999
6
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made as of the 29th
day of August, 1997 by and between TALEGEN PROPERTIES, INC., a Delaware
corporation ("Talegen Properties"), and UNITED STATES FIRE INSURANCE COMPANY, a
New York insurance company ("U.S. Fire").
BACKGROUND
A. Talegen Holdings, Inc., as successor-in-interest by merger to Talegen
Corporation (formerly known as "Xxxx & Xxxxxxx Corporation") (the "Original
Lessee") and Crostex Associates Limited Partnership ("Landlord") are parties to
(i) that certain Amended and Restated Lease Agreement dated as of March 1, 1985
(the "299 Lease"), pursuant to which the Original Lessee leased from Landlord
certain property located at 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx, and (ii)
that certain Xxxxxxx and Restated Lease Agreement dated as of March 1, 1985 (the
"305 Lease"), pursuant to which the Original Lessee leased from Landlord certain
property located at 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx. The Original
Lessee assigned all of its right, title and interest in the 299 Lease and the
305 Lease to Talegen Properties pursuant to those certain Lease Assignment and
Assumption Agreements dated as of January 1, 1995. For purposes of this
Assignment, all capitalized terms not otherwise defined herein shall have the
meanings ascribed to such terms in the 299 Lease.
B. The 299 Lease and the 305 Lease contain cross-default provisions (each a
"Cross-Default Provision") whereby a default under either lease constitutes a
default under the other lease.
C. Talegen Properties and U.S. Fire agree that if a default under the 299
Lease or the 305 Lease occurs, the defaulting party shall indemnify the other
(and certain affiliated parties) against any liability, damages and costs
resulting from the defaulting party triggering the Cross-Default Provision.
NOW, THEREFORE, in exchange for good, valuable and sufficient consideration
received, and intending to be legally bound, the parties hereby mutually
covenant and agree as follows:
1. Indemnification.
1.1 Talegen Properties and U.S. Fire (the party providing
indemnification hereunder is hereinafter sometimes referred to as the
"Indemnitor") agree to indemnify, defend and hold harmless the other party
and such other party's affiliates, and their respective officers,
employees, agents, successors and assigns (collectively hereinafter
referred to as the "Indemnified Party") from and against any and all
claims, demands, losses, damages, liabilities, costs and expenses
(including reasonable attorneys' fees and expenses) arising out of a
default under the Indemnified Party's lease caused by the triggering by the
Indemnitor of the Cross-Default Provision contained in the Indemnitor's
lease.
1.2 If any action, suit or other proceeding shall be instituted or
threatened against the Indemnified Party with respect to any matter as to
which Indemnitor shall have any indemnification obligation under this
Agreement, the Indemnified Party shall promptly notify Indemnitor of the
institution or threat of such proceeding and tender the defense of any such
proceeding to Indemnitor for conduct thereof by Indemnitor (provided that
Indemnitor shall timely commence and diligently continue such defense) at
Indemnitor's sole cost and expense. The Indemnified Party shall assist
Indemnitor to the extent Indemnitor may reasonably request such assistance.
Indemnitor shall have the right to select counsel and take all other action
as shall be deemed necessary and appropriate by Indemnitor, provided,
however, that if any party to any such proceeding shall create or impose
any lien or encumbrance on any of the assets of the Indemnified Party in
respect of such proceeding (or if such creation or imposition is imminent)
or if any judgment shall be entered which would result in Indemnified Party
being obligated to pay the same hereunder, Indemnitor shall provide such
bond, deposit or take such other action as shall be reasonably satisfactory
to Indemnified Party to prevent the creation or imposition of any such
lien, and to stay the execution of such judgment pending any appeal or
other proceedings prior to final entry thereof, and provided, further, that
Indemnitor shall not settle or compromise any such action, suit or
proceeding without the prior written consent of the Indemnified Party
unless at the time of such settlement or compromise and to the Indemnified
Party's reasonable satisfaction, Indemnitor shall satisfy, discharge, and
release any and all liability of Indemnified Party
7
resulting therefrom or an adequate reserve is established or sufficient
funds are segregated by Indemnitor to satisfy, discharge and release any
and all such liability. Should such adverse judgment become final and
nonappealable, Indemnitor shall promptly pay the same.
2. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of and shall be enforceable by the parties hereto and their
respective successors and assigns. As used herein, the singular shall include
the plural and the masculine shall include the feminine and neuter and vice
versa, as the context so requires.
3. Severability. Every provision of this Agreement is intended to be
severable. If any provision of this Agreement or the application of any
provisions hereof to any party or circumstance is declared to be illegal,
invalid or unenforceable for any reason whatsoever by a court of competent
jurisdiction, such invalidity shall not affect the balance of the terms and
provisions hereof or the application of the provision in question to any other
party or circumstance, all of which shall continue in full force and effect.
4. No Waiver. No failure or delay on the part of the Indemnitee to
exercise any power, right or privilege under this Agreement shall impair any
such power, right or privilege or be construed to be a waiver of any default or
an acquiescence therein, nor shall any single or partial exercise of such power,
right or privilege preclude other or further exercise thereof or of any other
right, power or privilege.
5. Notices. All notices by either party to the other shall be given in
writing by certified or registered mail, return receipt requested, postage
prepaid as follows:
If to Talegen Properties:
Talegen Properties, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Chief Executive Officer
If to U.S. Fire:
United States Fire Insurance Company
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Chief Executive Officer
or such other person or place as either party hereto may designate by notice as
aforesaid. Notice shall be deemed received as of the date set forth on the
return receipt.
6. Amendment; Governing Law. This Agreement represents the entire
agreement between the parties with respect to the subject matter hereof, and may
not be amended or modified orally. This Agreement shall be governed by the laws
of the State of New Jersey without respect to principles governing conflict of
laws.
7. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute but one document.
8
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
TALEGEN PROPERTIES, INC.
By: /s/ XXXXX X. XXXXXX
--------------------------------------------
Xxxxx X. Xxxxxx
Secretary
UNITED STATES FIRE INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxxx X. Xxxxxxxx
Secretary
9
ASSIGNMENT OF NOTE
THIS ASSIGNMENT OF NOTE (this "Assignment") is given as of the 29th day of
August, 1997, by UNITED STATES FIRE INSURANCE COMPANY, a New York insurance
company, THE NORTH RIVER INSURANCE COMPANY, a New Jersey insurance company,
WESTCHESTER FIRE INSURANCE COMPANY, a New York insurance company, and
INTERNATIONAL INSURANCE COMPANY, an Illinois insurance company (collectively
hereinafter referred to as "Assignor"), to UNITED STATES FIRE INSURANCE COMPANY,
a New York insurance company and THE NORTH RIVER INSURANCE COMPANY, a New Jersey
insurance company (collectively hereinafter referred to as "Assignee").
BACKGROUND
A. Crostex Associates Limited Partnership, a Connecticut limited
partnership ("Borrower"), is indebted to Assignor, jointly and severally, in the
original principal amount of $4,468,097.00 plus accrued interest thereon
pursuant to that certain Note Due December 1, 2009 made by Borrower to Assignor
dated December 21, 1984 (the "Note").
B. The Note is secured by, among other things, that certain Purchase Money
Mortgage dated as of December 21, 1984 from Borrower to Assignor and recorded
December 21, 1984 in Mortgage Book 2052, Page 180 in the Office of the County
Clerk of Xxxxxx County, New Jersey (the "Mortgage"), and which relates to that
certain real property commonly known as 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx
Xxxxxx. Assignor, by that certain Assignment of Mortgage and Related Loan
Documents dated of even date herewith and intended to be recorded, is assigning
its rights under the Mortgage to Assignee.
C. Assignor desires to assign to Assignee, and Assignee desires to accept
and assume, all of Assignor's right, title and interest in and to the Note.
NOW, THEREFORE, in consideration of the foregoing background and the within
premises and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties hereby agree as follows:
1. Background. The background set forth above is hereby incorporated in
this Assignment and forms a part hereof.
2. Assignment. Assignor hereby assigns, transfers and conveys to Assignee
all of Assignor's right, title and interest in, to and under the Note.
3. Assumption. Assignee hereby accepts the assignment by Assignor of all
of Assignor's right, title and interest in the Note and assumes all of the
obligations of Assignor under the Note accruing from and after the date hereof.
4. Governing Law. This Assignment shall be governed by and construed under
the laws of the State of New Jersey, without respect to principles governing
conflict of laws.
5. Successors and Assigns. This Assignment shall inure to the benefit of,
and be binding upon, the heirs, executors, administrators, successors and
assigns of the parties hereto.
6. Counterparts. This Assignment may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute but one document.
1
IN WITNESS WHEREOF, the parties have duly executed this Assignment as of
the day and year first above written.
ASSIGNOR:
UNITED STATES FIRE INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxxx X. Xxxxxxxx
Secretary
THE NORTH RIVER INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxxx X. Xxxxxxxx
Secretary
WESTCHESTER FIRE INSURANCE COMPANY
By: /s/ XXXXXXX X. XXXXXX, XX.
--------------------------------------------
Xxxxxxx X. Xxxxxx, Xx.
Corporate Vice President
2
INTERNATIONAL INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxxxxx
Senior Vice President
ASSIGNEE:
UNITED STATES FIRE INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxxx X. Xxxxxxxx
Secretary
THE NORTH RIVER INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxxx X. Xxxxxxxx
Secretary
3
WHEN RECORDED RETURN TO:
OBERMAYER XXXXXXX XXXXXXX & HIPPEL LLP
One Penn Center -- 19th Floor
0000 Xxxx X. Xxxxxxx Xxxx.
Philadelphia, PA 19103
Attn: Xxxxxx X. Xxxxx, Esquire
ASSIGNMENT OF MORTGAGE AND RELATED LOAN DOCUMENTS
THIS ASSIGNMENT OF MORTGAGE AND RELATED LOAN DOCUMENTS (this "Assignment")
is given as of the 29th day of August, 1997, by UNITED STATES FIRE INSURANCE
COMPANY, a New York insurance company, THE NORTH RIVER INSURANCE COMPANY, a New
Jersey insurance company, WESTCHESTER FIRE INSURANCE COMPANY, a New York
insurance company and INTERNATIONAL INSURANCE COMPANY, an Illinois insurance
company (collectively "Assignor"), to UNITED STATES FIRE INSURANCE COMPANY, a
New York insurance company and THE NORTH RIVER INSURANCE COMPANY, a New Jersey
insurance company (collectively "Assignee").
BACKGROUND
A. Crostex Associates Limited Partnership, a Connecticut limited
partnership ("Borrower"), is indebted to Assignor, jointly and severally, in the
original principal amount of $4,468,097.00 plus accrued interest thereon
pursuant to that certain Note Due December 1, 2009 made by Borrower to Assignor
dated December 21, 1984 (the "Note").
B. The Note is secured by that certain Purchase Money Mortgage dated as of
December 21, 1984 from Borrower to Assignor and recorded December 21, 1984 in
Mortgage Book 2052, Page 180 in the Office of the County Clerk of Xxxxxx County,
New Jersey (the "Mortgage") which relates to that certain real property commonly
known as 305 Madison Avenue, Morristown, New Jersey, and by certain other
documents, agreements and interests (collectively, with all other documents and
agreements delivered by Xxxxxxxx and all other interests given by Borrower to
Assignor in connection with the Note, hereinafter referred to as the "Loan
Documents and Interests").
X. Xxxxxxxx, by that certain Assignment of Note dated of even date
herewith, is assigning its rights under the Note to Assignee.
X. Xxxxxxxx desires to assign to Assignee, and Assignee desires to accept
and assume, all of Assignor's right, title and interest in and to the Mortgage
and Loan Documents and Interests.
NOW, THEREFORE, in consideration of the foregoing background and the within
premises and of other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties hereby agree as follows:
1. Background. The background set forth above is hereby incorporated in
this Assignment and forms a part hereof.
2. Assignment. Assignor hereby assigns, transfers and conveys to Assignee
all of Assignor's right, title and interest in, to and under the Mortgage and
Loan Documents and Interests.
3. Assumption. Assignee hereby accepts the assignment by Assignor of all
of Assignor's right, title and interest in the Mortgage and Loan Documents and
Interests and assumes all of the obligations of Assignor under the Mortgage and
Loan Documents and Interests accruing from and after the date hereof.
4. Governing Law. This Assignment shall be governed by and construed under
the laws of the State of New Jersey, without respect to principles governing
conflict of laws.
4
5. Successors and Assigns. This Assignment shall inure to the benefit of,
and be binding upon, the heirs, executors, administrators, successors and
assigns of the parties hereto.
6. Counterparts. This Assignment may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute but one document.
IN WITNESS WHEREOF, the parties have duly executed this Assignment as of
the day and year first above written.
ASSIGNOR:
UNITED STATES FIRE INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------------
Xxxxxxx X. Xxxxxxxx
Secretary
THE NORTH RIVER INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------------
Xxxxxxx X. Xxxxxxxx
Secretary
WESTCHESTER FIRE INSURANCE COMPANY
By: /s/ XXXXXXX X. XXXXXX, XX.
------------------------------------------
Xxxxxxx X. Xxxxxx, Xx.
Corporate Vice President
INTERNATIONAL INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxxxxx
Senior Vice President
5
ASSIGNEE:
UNITED STATES FIRE INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------------
Xxxxxxx X. Xxxxxxxx
Secretary
THE NORTH RIVER INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------------
Xxxxxxx X. Xxxxxxxx
Secretary
6
ACKNOWLEDGMENT
STATE OF NEW JERSEY: )
)
COUNTY OF XXXXXX: ) :SS
On the 27th day of August, 1997, before me, the subscriber, a Notary Public
in and for the State and County aforesaid, personally appeared Xxxxxx X.
Xxxxxxx, the Vice President of United States Fire Insurance Company, a New York
corporation, who acknowledged that he, being authorized to do so, executed the
foregoing instrument for the purposes therein contained.
WITNESS my hand and seal the day and year aforesaid.
/s/ XXXX XXXXX
------------------------------------------------
Notary Public
My Commission Expires:
XXXX X. XXXXX
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires On: March 29, 1999
STATE OF NEW JERSEY: )
)
COUNTY OF XXXXXX: ) :SS
On the 27th day of August, 1997, before me, the subscriber, a Notary Public
in and for the State and County aforesaid, personally appeared Xxxxxxx X.
Xxxxxxxx, the Secretary of United States Fire Insurance Company, a New York
corporation, who acknowledged that she, being authorized to do so, executed the
foregoing instrument for the purposes therein contained.
WITNESS my hand and seal the day and year aforesaid.
/s/ XXXX XXXXX
------------------------------------------------
Notary Public
My Commission Expires:
XXXX X. XXXXX
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires On: March 29, 1999
7
ACKNOWLEDGMENT
STATE OF GEORGIA: )
)
COUNTY OF XXXXXX: ) :SS
On the 27th day of August, 1997, before me, the subscriber, a Notary Public
in and for the State and County aforesaid, personally appeared Xxxxxxx X.
Xxxxxx, Xx., the Corporate Vice President of Westchester Fire Insurance Company,
a New York corporation, who acknowledged that he, being authorized to do so,
executed the foregoing instrument for the purposes therein contained.
WITNESS my hand and seal the day and year aforesaid.
/s/ XXXXXXXX X. XXXXXXX
------------------------------------------------
Notary Public
My Commission Expires:
NOTARY PUBLIC OF
CHEROHEE COUNTY, GEORGIA
My Commission Expires April 1, 2000
STATE OF ILLINOIS: )
)
COUNTY OF COOK: ) :SS
On the day of August, 1997, before me, the subscriber, a Notary Public
in and for the State and County aforesaid, personally appeared Xxxxxx X.
Xxxxxxxxxx, the Senior Vice President of International Insurance Company, a
Illinois corporation, who acknowledged that he, being authorized to do so,
executed the foregoing instrument for the purposes therein contained.
WITNESS my hand and seal the day and year aforesaid.
/s/ XXXXX X. XXXXXXX
------------------------------------------------
Notary Public
My Commission Expires: 12-31-99
8
WHEN RECORDED RETURN TO:
CSC
0000 Xxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Acct. #P6-0000-743-9
ASSIGNMENT OF MORTGAGE AND RELATED LOAN DOCUMENTS
THIS ASSIGNMENT OF MORTGAGE AND RELATED LOAN DOCUMENTS (this "Assignment")
is given as of the 29th day of August, 1997, by UNITED STATES FIRE INSURANCE
COMPANY, a New York insurance company, THE NORTH RIVER INSURANCE COMPANY, a New
Jersey insurance company, WESTCHESTER FIRE INSURANCE COMPANY, a New York
insurance company and INTERNATIONAL INSURANCE COMPANY, an Illinois insurance
company (collectively "Assignor"), to UNITED STATES FIRE INSURANCE COMPANY, a
New York insurance company and THE NORTH RIVER INSURANCE COMPANY, a New Jersey
insurance company (collectively "Assignee").
BACKGROUND
A. Crostex Associates Limited Partnership, a Connecticut limited
partnership ("Borrower"), is indebted to Assignor, jointly and severally, in the
original principal amount of $4.468,097.00 plus accrued interest thereon
pursuant to that certain Note Due December 1, 2009 made by Borrower to Assignor
dated December 21, 1984 (the "Note").
B. The Note is secured by that certain Purchase Money Mortgage dated as of
December 21, 1984 from Borrower to Assignor and recorded December 21, 1984 in
Mortgage Book 2052, Page 180 in the Office of the County Clerk of Xxxxxx County,
New Jersey (the "Mortgage") which relates to that certain real property commonly
known as 305 Madison Avenue, Morristown, New Jersey, and by certain other
documents, agreements and interests (collectively, with all other documents and
agreements delivered by Xxxxxxxx and all other interests given by Borrower to
Assignor in connection with the Note, hereinafter referred to as the "Loan
Documents and Interests").
X. Xxxxxxxx, by that certain Assignment of Note dated of even date
herewith, is assigning its rights under the Note to Assignee.
X. Xxxxxxxx desires to assign to Assignee, and Assignee desires to accept
and assume, all of Assignor's right, title and interest in and to the Mortgage
and Loan Documents and Interests.
NOW, THEREFORE, in consideration of the foregoing background and the within
premises and of other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties hereby agree as follows:
1. Background. The background set forth above is hereby incorporated in
this Assignment and forms a part hereof.
2. Assignment. Assignor hereby assigns, transfers and conveys to Assignee
all of Assignor's right, title and interest in, to and under the Mortgage and
Loan Documents and Interests.
3. Assumption. Assignee hereby accepts the assignment by Assignor of all
of Assignor's right, title and interest in the Mortgage and Loan Documents and
Interests and assumes all of the obligations of Assignor under the Mortgage and
Loan Documents and Interests accruing from and after the date hereof.
4. Governing Law. This Assignment shall be governed by and construed under
the laws of the State of New Jersey, without respect to principles governing
conflict of laws.
9
5. Successors and Assigns. This Assignment shall inure to the benefit of,
and be binding upon, the heirs, executors, administrators, successors and
assigns of the parties hereto.
6. Counterparts. This Assignment may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute but one document.
IN WITNESS WHEREOF, the parties have duly executed this Assignment as of
the day and year first above written.
ASSIGNOR:
UNITED STATES FIRE INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------------
Xxxxxxx X. Xxxxxxxx
Secretary
THE NORTH RIVER INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------------
Xxxxxxx X. Xxxxxxxx
Secretary
WESTCHESTER FIRE INSURANCE COMPANY
By: /s/ XXXXXXX X. XXXXXX, XX.
------------------------------------------
Xxxxxxx X. Xxxxxx, Xx.
Corporate Vice President
INTERNATIONAL INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxxxxx
Senior Vice President
10
ASSIGNEE:
UNITED STATES FIRE INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------------
Xxxxxxx X. Xxxxxxxx
Secretary
THE NORTH RIVER INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------------
Xxxxxxx X. Xxxxxxxx
Secretary
11
ACKNOWLEDGMENT
STATE OF NEW JERSEY: )
)
COUNTY OF XXXXXX: ) :SS
On the 27th day of August, 1997, before me, the subscriber, a Notary Public
in and for the State and County aforesaid, personally appeared Xxxxxx X.
Xxxxxxx, the Vice President of United States Fire Insurance Company, a New York
corporation, who acknowledged that he, being authorized to do so, executed the
foregoing instrument for the purposes therein contained.
WITNESS my hand and seal the day and year aforesaid.
/s/ XXXX XXXXX
------------------------------------------------
Notary Public
My Commission Expires:
XXXX X. XXXXX
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires On: March 29, 1999
STATE OF NEW JERSEY: )
)
COUNTY OF XXXXXX: ) :SS
On the 27th day of August, 1997, before me, the subscriber, a Notary Public
in and for the State and County aforesaid, personally appeared Xxxxxxx X.
Xxxxxxxx, the Secretary of United States Fire Insurance Company, a New York
corporation, who acknowledged that she, being authorized to do so, executed the
foregoing instrument for the purposes therein contained.
WITNESS my hand and seal the day and year aforesaid.
/s/ XXXX XXXXX
------------------------------------------------
Notary Public
My Commission Expires:
XXXX X. XXXXX
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires On: March 29, 1999
12
ACKNOWLEDGMENT
STATE OF GEORGIA: )
)
COUNTY OF XXXXXX: ) :SS
On the 27th day of August, 1997, before me, the subscriber, a Notary Public
in and for the State and County aforesaid, personally appeared Xxxxxxx X.
Xxxxxx, Xx., the Corporate Vice President of Westchester Fire Insurance Company,
a New York corporation, who acknowledged that he, being authorized to do so,
executed the foregoing instrument for the purposes therein contained.
WITNESS my hand and seal the day and year aforesaid.
/s/ XXXXXXXX X. XXXXXXX
------------------------------------------------
Notary Public
My Commission Expires:
NOTARY PUBLIC OF
CHEROHEE COUNTY, GEORGIA
My Commission Expires April 1, 2000
STATE OF ILLINOIS: )
)
COUNTY OF COOK: ) :SS
On the day of August, 1997, before me, the subscriber, a Notary
Public in and for the State and County aforesaid, personally appeared Xxxxxx X.
Xxxxxxxxxx, the Senior Vice President of International Insurance Company, a
Illinois corporation, who acknowledged that he, being authorized to do so,
executed the foregoing instrument for the purposes therein contained.
WITNESS my hand and seal the day and year aforesaid.
/s/ XXXXX X. XXXXXXX
------------------------------------------------
Notary Public
My Commission Expires: 12-31-99
13
COMPANY LETTERHEAD
January 10, 1997
Xx. Xxxxxx Xxxxxxx
Net Lease Administration
Xxxxxxx Limited Partnership
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
RE: CAMFEX/CROSTEX ESTOPPEL CERTIFICATES
Dear Xxxxxx:
Please find the following above referenced certificates:
CAMFEX LIMITED PARTNERSHIP
Pleasanton -- United States Fire Insurance Company
Westchester Fire Insurance Company
The North River Insurance Company
International Insurance Company
San Francisco -- Industrial Indemnity Company
CROSTEX LIMITED PARTNERSHIP
000 Xxxxxxx Xxxxxx -- TALEGEN PROPERTIES, INC.
000 Xxxxxxx Xxxxxx -- XXXXXXX PROPERTIES, INC.
Dallas, TX -- United States Fire Insurance Company
Westchester Fire Insurance Company
The North River Insurance Company
International Insurance Company
Should you need any additional information, please do not hesitate to
contact me. I also apologize for the delay in returning these certificates.
Very Truly Yours,
/s/ XXXXXXX X. XXXXXXXXX
----------------------------------------------
Xxxxxxx X. Xxxxxxxxx
c. Xxxxx Xxxxxx, Talegen Holdings, Inc.
CERTIFICATE
I, Xxxxx X. Xxxxxx, an officer of TALEGEN PROPERTIES, INC., hereby state as
follows:
1. In connection with the Amended and Restated Lease Agreements between
Crostex Associates Limited Partnership, as Lessor and Xxxx & Xxxxxxx
Corporation, as Lessee, dated as of March 1, 1985, covering premises
located at 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX, and 000 Xxxxxxx
Xxxxxx, Xxxxxxxxxx, XX (the "Leases"):
(i) The Leases are unmodified and in full force and effect provided
that such Leases were assigned by Talegen Holdings, Inc.
(successor-in-interest to Xxxx & Xxxxxxx Corporation) to Talegen
Properties, Inc. effective as of January 1, 1995.
(ii) The Rent required under said Xxxxxx has been paid up to and
including October 1996.
(iii) To the best of my knowledge, no default exists under the Leases.
(iv) Xxxx and Xxxxxxx Insurance is currently occupying and operating
the property at 000 Xxxxxxx Xxxxxx, subject to certain affiliated
subleases, and an unaffiliated third party sublessee is currently
occupying and operating the property at 000 Xxxxxxx Xxxxxx.
2. I understand that Crostex Associates Limited Partnership, the owner
of the above-referenced properties, will rely on this Certificate in
issuing its Certificate of No Default to its mortgage lending
institution.
TALEGEN PROPERTIES, INC.
By: /s/ XXXXX X. XXXXXX
------------------------------------------
Xxxxx X. Xxxxxx
Secretary
Date: December 28, 1996
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (the "Sublease") made as of the first day of April,
1996, between TALEGEN PROPERTIES, INC., a Delaware corporation, having an office
at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 ("Sublessor"), and UNITED
STATES FIRE INSURANCE COMPANY, a New York insurance company having its principal
office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Sublessee").
WITNESSETH:
WHEREAS, Talegen Corporation, a New Jersey corporation, as Lessee, entered
into an Amended and Restated Lease Agreement (the "Lease") dated as of March 1,
1985, with CROSTEX ASSOCIATES LIMITED PARTNERSHIP, a Connecticut limited
partnership, as Lessor, a copy of which Lease is attached hereto, marked Exhibit
A, and incorporated herein by reference; and
WHEREAS, effective as of December 30, 1994, Talegen Corporation was merged
with and into Talegen Holdings, Inc., a Delaware corporation ("Talegen
Holdings"), which thereby succeeded by operation of law to the interest of
Talegen Corporation in and to the Lease; and
WHEREAS, effective as of January 1, 1995, Talegen Holdings entered into a
Lease Assignment and Assumption Agreement with Sublessor, pursuant to which
Talegen Holdings assigned to Sublessor and Sublessor assumed all of Talegen
Holdings' obligations under the Lease;
WHEREAS, Sublessee desires to sublease from Sublessor the premises (the
"Premises") covered by the Lease and located at 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxx Xxxxxx (the "Building"); and
WHEREAS, Sublessor is willing to sublease the Premises to Sublessee on the
terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. PARTIES. Except as the context may otherwise require, all references to
"Lessor" and "Lessee" in the Lease incorporated herein shall be deemed to refer
to Sublessor and Sublessee herein, respectively.
2. PROVISIONS CONSTITUTING SUBLEASE.
A. This Sublease is subject to all of the terms and conditions of the
Lease, except as specifically provided herein, and except as the context
may otherwise require, Sublessor and Sublessee shall assume and perform the
obligations of Lessor and Lessee, respectively, in said Lease, to the
extent said terms and conditions are applicable to the Premises subleased
pursuant to this Sublease. Neither party shall commit or permit to be
committed any act or omission which shall violate any term or condition of
the Lease.
B. All of the terms and conditions contained in the Lease and the
Schedules thereto are incorporated herein, except Sections 3, 4(a), 10(b),
13, 14, 15, 16(a), 16(b), 16(c), 21, 22, 25 and 26, Schedules A-Part II B
and C, and all references to "Guarantor", to "000 Xxxxxxx Xxxxxx, Xxxxxx
Xxxxxxxx, Xxx Xxxxxx," and to "Extended Terms". The provisions of the Lease
so incorporated herein together with all of the paragraphs hereinafter set
forth in this Sublease shall be the complete terms and conditions of this
Sublease.
3. PREMISES. Sublessor leases to Sublessee and Sublessee hires from
Sublessor the Premises situated in the Township of Xxxxxx, County of Xxxxxx,
State of New Jersey, at 000 Xxxxxxx Xxxxxx, consisting of approximately 201,887
rentable square feet of office space, all pursuant to and in accordance with
Section 1 of the Lease.
4. TERM.
4.1 Term. The term of this Sublease (the "Term") shall be for a
period commencing on April 1, 1996, (the "Commencement Date"), and ending
at 11:59 p.m. on May 15, 2006 (the "Termination Date"), unless sooner
terminated pursuant to any provision hereof.
1
4.2 Possession Date. Sublessee shall be provided possession of the
Premises as soon as reasonably practicable prior to the date hereof, but in
no event later than April 1, 1996, at which time Sublessor shall have
delivered exclusive possession of the entire Premises to Sublessee broom
clean and free from all other subtenants and occupants with the exception
of: (i) Apprise Corp., which will sublease certain space in the Premises
from Sublessee as described on Exhibit B hereto, and (ii) Envision Claims
Management Corporation, which will sublease certain space in the Premises
from Sublessee as described on Exhibit C hereto.
4.3 Delay in Delivery of Possession. Sublessor acknowledges and
agrees that time is of the essence with respect to the aforesaid April 1,
1996 date for the delivery of possession to Sublessee, and that any delay
in such delivery may cause Sublessee to suffer damages. Sublessor,
therefore, agrees to indemnify and hold Sublessee harmless and to reimburse
Sublessee for any and all actual out-of-pocket damages, costs, expenses and
losses (excluding consequential, punitive, bad faith and exemplary damages
not awarded pursuant to any final court order), with reasonable attorneys'
fees, incurred by Sublessee as a result of the failure, for any reason
whatsoever, of Sublessor to deliver possession of the Premises to Sublessee
by April 1, 1996. Sublessee agrees to take all reasonable actions to
mitigate any damages which it may suffer as a result of Xxxxxxxxx's failure
to deliver possession of the Premises by April 1, 1996.
5. RENT.
5.1 Annual Net Base Rent. From and after May 15, 1996, Sublessee
shall pay to Sublessor annual net base rent for the Premises as follows:
ANNUAL NET
LEASE YEAR BASE RENT
---------- -------------
5/15/96-5/14/97...................................... $2,523,587.50
5/15/97-5/14/98...................................... $2,523,587.50
5/15/98-5/14/99...................................... $2,523,587.50
5/15/99-5/14/00...................................... $2,523,587.50
5/15/00-5/14/01...................................... $2,523,587.50
5/15/01-5/14/02...................................... $2,523,587.50
5/15/02-5/14/03...................................... $2,523,587.50
5/15/03-5/14/04...................................... $2,523,587.50
5/15/04-5/14/05...................................... $2,523,587.50
5/15/05-5/14/06...................................... $2,523,587.50
For the purposes hereof, the term "Lease Year" is intended to be a twelve
(12) month period commencing on May 15 of the year indicated and ending on May
14 of the following year.
The above-stated annual net base rent shall be payable from and after May
15, 1996 in equal monthly installments in advance on the first day of each month
of the term hereof, commencing on June 1, 1996. Installments of such rent
received by Sublessor after the tenth (10th) day of any month shall bear
interest at the rate of nine (9%) percent per annum until paid. Annual net base
rent for any period during the term hereof which is for less than one (1) month
shall be a pro rata portion of the monthly installment; provided, however, that
for the period from the Commencement Date through May 14, 1996, the rental rate
payable by Sublessee (exclusive of taxes, insurance and operating expenses for
which Sublessee is responsible) shall be equal to all rentals receivable by
Sublessee from the Subsubtenants for such period, reduced by an amount equal to
their share of such taxes, insurance and operating expenses. Rent shall be
payable without notice or demand and without any deduction, offset, or
abatement, except as may be otherwise expressly set forth herein, in lawful
money of the United States of America to Sublessor at the address stated herein
or to such other persons or at such other places as Sublessor may designate in
writing pursuant to Paragraph 18 below.
5.2 Additional Rent. In addition to the annual net base rent set
forth in Section 5.1 above, Sublessee shall be responsible for all the real
estate taxes (as defined in Section 6 of the Lease) and operating expenses
2
incurred, due and payable on the Premises commencing on the Commencement
Date and continuing throughout the Term (collectively, said real estate
costs, and operating expenses are "additional rent").
5.3 Reduction in Rent. Notwithstanding the above, in the event
Sublessee exercises the Contraction Option set forth in Paragraph 30
hereof, its obligation to pay annual net base rent and additional rent
shall be reduced in accordance with the provisions of said Paragraph 30.
6. CAPITAL EXPENDITURES. Sublessee accepts the Building and the Premises
in their "as is" condition, provided that Sublessor shall be responsible for all
expenditures for the in-process repairs to the parking deck at the Premises, and
agrees to use its best efforts to complete said repairs in a timely and
professional manner. Sublessee agrees to maintain current preventative
maintenance programs (in place as of the Commencement Date) throughout the
entire Term, and to be responsible for all other capital expenditures with
respect to the Building and the Premises during the Term. Without limiting the
foregoing, all costs and expenses incurred in the construction of Sublessee's
office space in or at the Premises shall be solely responsibility of Sublessee
and Sublessee shall be solely responsible for the payment of all sums to
contractors, subcontractors, materialmen, suppliers, planners, engineers and
other vendors retained for the fixturing of the Premises.
7. USE. The premises may be used and occupied for any use not prohibited
under the Lease.
8. INDEMNIFICATION.
8.1 Sublessee Indemnification. Sublessee agrees to indemnify and hold
Sublessor harmless for any damages, costs, expenses and losses, including
attorney's fees and penalties, which Sublessor suffers in the event
Sublessee retains possession of the Premises, or any part thereof, after
the expiration of this Sublease or the expiration of the Lease, whichever
is earlier, by lapse of time or otherwise. Sublessee shall not be
responsible for the aforementioned charges if Sublessee retains possession
of the Premises pursuant to an agreement between Lessor and itself after
the Lease has been terminated by the Lessor thereunder prior to its
scheduled expiration date as a result of default on Sublessor's part in the
performance of its obligations under said Xxxxx. In addition, Sublessee
shall reimburse and indemnify Sublessor and hold Sublessor harmless for any
damages, costs, expenses or losses suffered by Sublessor occasioned in
whole or in part by the negligent acts or omissions of Sublessee's
employees, servants, agents, representatives, guests or invitees.
8.2 Sublessor Indemnification. Sublessor agrees to indemnify and hold
Sublessee harmless for any damages, costs, expenses and losses, including
attorney's fees and penalties, which Sublessee suffers in the event
Sublessor defaults in the performance of any of its obligations under the
Lease or the Sublease, other than any default occasioned by the failure of
Sublessee to comply with any of its covenants or agreements set forth
herein. In addition, Sublessor shall reimburse and indemnify Sublessee and
hold Sublessee harmless for any damages, costs, expenses or losses suffered
by Sublessee occasioned in whole or in part by the negligent acts or
omissions of Sublessor's employees, servants, agents, representatives,
guests or invitees.
9. PROPERTY. Upon the expiration of the Term of this Sublease or upon the
termination of Xxxxxxxxx's right of possession, Sublessee shall surrender the
Premises to Sublessor in good order, repair, and condition, ordinary wear and
tear, damage by condemnation or casualty excepted. At the expiration of the Term
or upon the termination of Xxxxxxxxx's right of possession, Xxxxxxxxx agrees to
remove all of its items of personal property from the Premises. Sublessee shall
pay the Sublessor upon demand the cost of repairing any damage to the Premises
or the Building caused by any such removal. If Sublessee shall fail or refuse to
remove any its property from the Premises, Sublessee shall be conclusively
presumed to have abandoned the same, and title thereto shall thereupon pass to
Sublessor without any cost either by set off, credit, allowance, or otherwise.
and Sublessor may at its option accept the title to such property or at
Sublessee's expense may (i) remove the same or any part in any manner that
Sublessor shall choose, repairing any damage to the Premises caused by such
removal, and (ii) store, destroy, or otherwise dispose of the same without
incurring liability to Sublessee or any other person.
10. BROKERS. Each party covenants, warrants and represents to the other
party that there is no broker, finder or similar person entitled to a
commission, fee or other compensation with respect to the consummation of this
Sublease, and that no conversations or prior negotiations were had by either
party or anyone acting on behalf of either party with any broker, finder or
similar person concerning the subleasing of the Premises to Sublessee.
3
Sublessor and Sublessee each agree to indemnify, defend and hold the other
harmless against and from all costs, expenses, damages and liabilities,
including reasonable attorney's fees and court costs, arising from any claims
for brokerage commissions, finder's fees or other compensation resulting from or
arising out of any conversations, negotiations or actions had by the other of
them or anyone acting on behalf of the other of them with any broker, finder or
similar person.
11. PARKING. At all times during the term of this Sublease. Sublessee
shall have nonexclusive use of covered and uncovered parking located on the
Premises.
12. SIGNAGE. Subject to conformance with Xxxxxx Township codes and the
terms of the Lease, Sublessee shall have the right to erect a lawn mounted sign
designating the Premises as the "Cram & Xxxxxxx Insurance" building. It is
recognized that the existing monument in the front of the Premises, if used, is
"grandfathered" as to size and location. It is acknowledged that new Xxxxxx
Township codes would require a relocation of such monument. Sublessee shall be
responsible for complying with any and all codes and ordinances in the event a
new monument is installed or if Sublessee modifies the existing monument.
Sublessor agrees to cooperate fully with Sublessee with respect to any
applications or other matters involved with obtaining required governmental
approvals, but Sublessee shall indemnify Sublessor for any and all actual
out-of-pocket costs and expenses, including reasonable attorney's fees in so
cooperating with Sublessee.
13. BUILDING MANAGEMENT. Sublessee shall be responsible for the management
of the Building and the Premises at all times during the Term.
14. SUBLETTING AND ASSIGNMENT. Except as otherwise provided in this
Paragraph 14, Sublessee shall not assign this Sublease or sublet the whole or
any part of the Premises without the prior consent of the Sublessor, which
consent may be granted or withheld in the absolute discretion of Sublessor.
Sublessee shall give Sublessor at least thirty (30) days' prior written notice
of its intention to assign the Sublease or sublet the whole or any part of the
Premises and shall furnish Sublessor with such information as Sublessor
reasonably requests. Sublessor shall advise Sublessee within fifteen (15) days
after receipt of all information it requests whether it consents to the
transaction in question. In the event Sublessor does not so advise Sublessee in
writing within said fifteen (15) day period, then Sublessor shall be deemed not
to have approved the proposed assignment or subletting. Notwithstanding any of
the above, (a) Sublessee shall remain fully responsible for all its obligations
under this Sublease in the event of any assignment of this Sublease or
subletting of all or any part of the Premises which is permitted under this
Paragraph 14, and (b) Sublessee shall have the unrestricted right, from time to
time and without the consent of Sublessor, to (i) assign this Sublease and/or
sublet the whole of the Premises to any parent, subsidiary or affiliated company
of Sublessee, (ii) assign this Sublease to any company which purchases all or
substantially all of the assets or stock of Sublessee, (iii) assign this
Sublease in conjunction with any merger, consolidation or public offering of
stock involving Sublessee, provided that the net worth of the assignee is no
less than the net worth of the assignor immediately prior to the assignment and
further provided that the assignee shall assume and be liable for the full and
faithful performance of all of the terms and conditions of this Sublease on and
after the date of the assignment. In the event of any dispute between the
parties with respect to the provisions of the Paragraph 14, such dispute shall
be settled by arbitration in accordance with Paragraph 16 hereof.
15. NOTICE. Whenever a notice is required or permitted in this Sublease,
it shall mean a written notice (i) sent by certified mail, return receipt
requested, addressed to Sublessor at its address set forth at the heading to
this Sublease or to Sublessee at the Premises, to the attention of Vice
President -- Real Estate, or to such other person or other address as may, from
time to time, be specified by either party in a written notice to the other
party, and such notice shall be deemed to be received five (5) days after
deposit in the United States mail, or (ii) delivered to the addresses stated
above by Federal Express or other recognized overnight delivery service which
obtains a receipt for any such delivery, which notice shall be effective upon
receipt at the address of the addressee.
16. ARBITRATION.
A. In any case where this Sublease expressly provides for submission
of a dispute or matter to arbitration (but not otherwise), the same shall
be settled by arbitration in Morristown, New Jersey before one arbitrator
in accordance with the procedural rules then obtaining of the American
Arbitration Association or
4
any successor thereto. The decision of the arbitrator shall be final,
conclusive and binding on the parties, but the powers of the arbitrator are
hereby expressly limited to the determination of factual issues, and the
arbitrator shall have no power to reform, supplement or modify this
Sublease. The arbitrator shall make only required findings of fact incident
to an arbitrable dispute, which findings shall be set forth in reasonable
detail in a written decision by the arbitrator.
B. Sublessor and Sublessee shall share equally in the cost and
expenses of such arbitration, and each shall separately pay its own
attorneys' fees and expenses, unless the arbitrator finds that one of the
parties did not act in good faith in connection with the dispute or the
conduct of the arbitration proceeding, in which case she may award all or
part of said costs, expenses and fees to the other party.
17. WARRANTIES AND REPRESENTATIONS.
A. Sublessee represents and warrants to and agrees with Sublessor
that:
i. Sublessee is a New York corporation, duly organized, validly
existing and in good standing under the laws of the State of New York,
and is duly authorized, has the power to own its property and assets and
carry on its business in the State of New Jersey;
ii. the execution of this Sublease constitutes the binding
obligation of Sublessee and has been authorized by Sublessee's Board of
Directors or pursuant to authority granted by Xxxxxxxxx's By-laws; and
iii. the sublease of the Premises will not conflict with or result
in a breach of Sublessee's Articles of Incorporation or By-laws or any
agreement to which Sublessee is a party or by which it may be bound, or
violate any state or federal governmental law, statute, ordinance or
regulation.
B. Sublessor represents and warrants to and agrees with Sublessee
that:
i. Sublessor is a Delaware corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware
and duly authorized, has the power to own its property and assets and
carry on its business in the State of New Jersey;
ii. the execution of this Sublease constitutes the binding
obligation of the Sublessor and has been authorized by Sublessor's Board
of Directors or pursuant to authority granted by Sublessor's By-laws;
iii. the Sublease of the Premises will not conflict with or result
in a breach of Sublessor's Certificate of Incorporation or By-laws or
any agreement to which Sublessor is a party or by which it may be bound,
or violate any state or federal governmental law, statute, ordinance or
regulation;
iv. it is the Lessee under the Lease and it has full right and
authority under the Lease to enter into this Sublease, without the prior
approval of the Lessor or any other party; and
v. the Lease is in full force and effect and Sublessor is not in
default under the Lease. So long as Sublessee is not in default under
any of the terms, covenants, conditions or obligations of this Sublease,
beyond the applicable notice and grace periods, if any, for the cure
thereof, Sublessor shall perform all of the obligations to be performed
by Sublessor under the terms of the Lease that are not required hereby
to be performed by the Sublessee, and take reasonable actions to
affirmatively enforce the obligations to be performed by Lessor under
the terms of the Lease. Sublessor shall not enter into any amendment,
modification or supplement to the Lease which adversely affects
Sublessee's right, title and interest to the Premises under this
Sublease without first obtaining the written consent of Sublessee.
Sublessor agrees to promptly provide Sublessee with copies of all
notices received by Sublessor pursuant to the Lease which concern: (A)
any default or alleged default thereunder; or (B) any other matter which
could adversely affect Sublessee's rights or increase Sublessee's
obligations, under this Sublease.
18. TRADE FIXTURES. All trade fixtures furnished or installed by Sublessee
or its equipment lessors in the Premises, regardless of the manner or mode of
attachment, shall be and remain the property of Sublessee or its said equipment
lessor, as the case may be, and may be removed by Sublessee or its equipment
lessor at any time
5
during the Term. Sublessee shall promptly repair all damage to the Premises
caused by the removal of any such trade fixtures by Sublessee or its equipment
lessor. It is understood and agreed that all of said trade fixtures furnished or
installed by Sublessee or its equipment lessors in the Premises may, from time
to time, become subject to the lien of leases, financing statements and security
agreements under the Uniform Commercial Code and should any such lien be
foreclosed, the foreclosing party may remove such fixtures from the Premises,
provided that any damage caused thereby is promptly repaired at no cost to
Sublessor. Xxxxxxxxx agrees to promptly execute and deliver to Sublessee, from
time to time, such waivers of lien and consents on the part of Sublessor as may
be required by Sublessee to effectuate the provisions of this Paragraph 18.
19. SUBLESSOR'S EXERCISE OF RIGHTS IN LEASE.
A. Sublessor covenants and agrees that as long as Sublessee is not in
default in the performance of any of its obligations under this Sublease
beyond the applicable notice and grace periods for the curing of such
default, it will not exercise its right to terminate the Lease pursuant to
Section 14 thereof.
B. In the event Sublessor exercises its option to purchase the
Premises pursuant to Sections 13 and 15 and Schedule C of the Lease, it
will not disturb the rights of Sublessee under this Sublease regardless of
whether the Lease is terminated or not, and in such event this Sublease
shall continue in full force and effect and both parties hereto shall
continue to be bound by and shall have all the rights set forth in this
Sublease.
C. Provided that Sublessee is not then in default in the performance
of its obligations under this Sublease beyond the applicable notice and
grace periods for the curing of such default and to the extent permitted by
the Lease, it shall have the right to exercise the right to purchase the
Premises pursuant to Section 13 and 15 and Schedule C of the Lease, and
Sublessor shall fully cooperate with Sublessee in connection therewith by
providing Lessor with all necessary notices and by performing all necessary
acts; provided, however, that Sublessee shall provide all funds necessary
to accomplish the purchase and shall indemnify and hold Sublessor harmless
from and against all costs, expenses and liability with respect thereto.
20. DEFINITION OF HEREUNDER, HEREIN, ETC. Unless the context clearly
indicates to the contrary, the works "herein," "hereof," "hereunder,"
"hereafter," and words of similar import refer to this Sublease and all the
Exhibits attached hereto as a whole and not to any particular section or
paragraph hereof.
21. SHORT FORM SUBLEASE. Upon the request of either party following the
execution and delivery of this Sublease, Sublessee and Sublessor shall execute a
short form sublease for recording, which shall contain such form and substances
as either party shall reasonably request, with the exception of the annual net
base rent reserved hereunder.
22. ENTIRE AGREEMENT. This Sublease constitutes the entire agreement of
the parties hereto; all prior agreements between the parties, whether written or
oral, are merged herein and shall be of no force and effect.
23. ATTORNEY'S FEES. In any action or proceeding hereunder, the prevailing
party shall be entitled to recover from the other party, the prevailing party's
reasonable costs and expenses in such action or proceeding, including reasonable
attorney's fees. If either party is sued by a third party as a result of a
violation of a covenant or warranty herein contained by the other party hereto,
then the party who has violated the covenant or warranty shall be responsible
for the reasonable costs and expenses in such action or proceeding against the
non-violating party, including reasonable attorneys' fees.
24. RIGHTS CUMULATIVE. Unless expressly provided to the contrary in this
Sublease, each and every one of the rights. remedies and benefits provided by
this Sublease shall be cumulative and shall not be exclusive of any other such
rights, remedies and benefits allowed by law. All obligations of the parties
hereto shall be construed as covenants, not conditions.
25. NON-WAIVER. The failure of Sublessor or Sublessee to enforce against
the other any provision, covenant or condition herein, by reason of either of
them committing any breach of or default under this Sublease shall not be deemed
a waiver thereof, nor void or affect the right of the aggrieved party to enforce
the same covenant or condition on the occasion of any subsequent breach of
default; nor shall the failure of either party to
6
exercise any option in this Lease upon any occasion arising therefor be deemed
or construed to be a waiver of the right to exercise that same kind of option
upon any subsequent occasion.
26. FORCE MAJEURE. Except as otherwise expressly set forth herein, in the
event either party hereto shall be delayed or hindered in, or prevented from,
the performance of any act required hereunder (other than payment of annual net
base rent or other amounts due hereunder) by reason of strikes, inability to
procure materials, failure of power, restrictive governmental laws or
regulation, riots, insurrection, war or other reasons of a like nature not the
fault of the party delayed in performing work or doing acts required under the
terms of this Sublease, then the performance of any such act shall be excused
for the period of the delay and the period of the performance of any such act
shall be extended for a period equivalent to the period of such delay. Any time
either party is experiencing delay under this provision, such party will give
notice to the other party detailing the nature of the delay and giving an
estimate as to how long the delay is expected to be.
27. QUIET ENJOYMENT. Provided Sublessee is not in default of its
obligations under this Sublease beyond the applicable notice and grace periods
for the curing of such default, Sublessee shall peaceably and quietly have,
hold, occupy and enjoy the Premises for the term of this sublease without
hindrance from Sublessor or any party claiming by, through or under Sublessor.
28. ESTOPPEL CERTIFICATE. Upon written request of Sublessor or Sublessee,
the other party, within ten (10) days of the date of such request, agrees to
execute and deliver to the requesting party, without charge, a written
statement: ratifying this sublease; certifying that this sublease is in full
force and effect, if such is the case, and has not been modified, assigned
supplemented or amended, except by such writings as shall be stated; certifying
that all conditions and agreements under this sublease to be satisfied and
performed have been satisfied and performed, except as shall be stated, reciting
the amount of advance rental if any, paid by Tenant, and the date to which
rental has been paid; and certifying to such other matters as the requesting
party may reasonably require.
29. COSTS. Whenever this Sublease requires the performance of an act by
either party, such party shall perform the act at its own cost and expense,
unless expressly provided herein to the contrary.
30. LIMITED RENTAL REDUCTION. In the event that on or after the date 60
months from the Commencement Date, one or more of Envision or Apprise vacates
its space upon the expiration of its sublease, Sublessee shall be entitled for a
period of up to 12 months from the expiration of each such sublease to reduce
its rental obligations hereunder by an amount equal to the excess, if any, of
(a) $12.50 per rentable square foot with respect to each space so vacated, over
(b) all rentals received by Sublessee with respect to such space during any such
12-month period.
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IN WITNESS WHEREOF the parties have caused those presents to be executed
this day and year first above written.
SUBLESSOR:
ATTEST: TALEGEN PROPERTIES, INC.
/s/ XXXXX X. XXXXXX By: /s/
------------------------------------------ ----------------------------------------
Assistant Secretary Title: Secretary
SUBLESSEE:
ATTEST: UNITED STATES FIRE INSURANCE COMPANY
Xxxxxx X. Xxxxxx By: /s/
----------------------------------------
Title: Vice President
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EXHIBIT B -- APPRISE
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EXHIBIT C -- ENVISION
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